Next time: • Paterson & Kotze (eds) Chapter 7 Administrative Justice • Minister of Environmental Affairs & Tourism & others v Phambili Fisheries (Pty) Ltd & another 2003 (6) SA 407 (SCA). • Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others 2004 (4) SA 490 (CC). • Focus on legitimate expectations it extends the ancient Roman law private neighbour-law principle into the realm of public law: While a plaintiff’s neighbour-law right in Roman law flowed from his individual right as the owner of the adjoining property. In so doing. then in effect. .THE CONSTITUTION The Constitution enshrines environmental rights in section 24. This view was corroborated in Minister of Health & Welfare v Woodcarb (Pty) Ltd and Another 1996 (3) SA 155 (N). the environmental right is available to all persons. providing that “everyone” has them. which found an infringement of the right as enshrined in section 29 of the interim Constitution. established in section 27 of the Constitution. This goes beyond the right of access to healthcare.THE CONSTITUTION Everyone has the right in terms of the Constitution to an environment that is not harmful to their health. . In Verstappen v Port Elizabeth Town Board and Others 1994 (3) SA 569 (D). she might have invoked section 24 but did not. obviously she could not have invoked section 27. and did not. A particular environment may be damaging to one’s health and yet not on infringe on one’s right of access to healthcare. where the plaintiff sought an interdict on the ground that she was suffering health problems due to the local authority’s dumping waste on the adjoining property without the requisite permit. ” the second aspect of subsection 24(a). “elevates the right beyond health but to a not readily determinable realm.THE CONSTITUTION The right to an environment that is not harmful to one’s “wellbeing. a considerable measure of subjective import” (414I). It may be argued that constitutes “well-being” is relative to the nature and personality of the person seeking to assert this right. in my view. The ambit of “well-being” is potentially limitless. It was invoked in Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products and Others 2004 (2) SA 393 (E). in my view. .] are derserving of conservation for their intrinsic value” (77).” writes Glazewski. “One should not be obliged to work in an environment of stench and.].. aspects of the environment [.. He takes the word “well-being” to imply “that the environment has not only an instrumental value [. obviously it is relevant to pollution. and that it will be decided on the facts of the particular case.. Leach J concurs: “The assessment of what is significant involves. where Leach J opined. to be in an environment contaminated by H2S [as it was in casu] is adverse to one’s ‘well-being’” (415D).. but that in addition. These policies and programs must be reasonable both in their conception and their implementation. The State is obliged to act to achieve the intended result.24(b) The meaning of “reasonable legislative and other measures” generally was considered in the context of the constitutional right to housing in Government of RSA & Others v Grootboom & Others 2001 (1) SA 46 (CC): “Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State's obligations” (Para 42). . The Environmental Right – s. and the legislative measures will invariably have to be supported by appropriate.THE CONSTITUTION 1. Glazewski argues that “the government has clearly complied” with the constitutional injunction to take legislative measures “in enacting a plethora of environmental legislation and accompanying regulations since 1994” (79). well-directed policies and programs implemented by the Executive. The formulation of a program is only the first stage in meeting the State’s obligations. The program must also be reasonably implemented. 24(b) The meaning of “reasonable *. It is the Court’s duty to subject the reasonableness of these measures to evaluation while constantly keeping in mind that courts are generally ‘ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community’” (142J143A).. ensure that the measures they adopt are reasonable. The Environmental Right – s. However. .. where the court pointed out that “section 24(b) expressly obliges the State to take reasonable legislative and other measures to protect the environment” (142E-F) It held thus: “Measures adopted by the State must be capable of facilitating the realisation of the right. the precise contours and content of the measures to be adopted are primarily a matter for the Legislature and the Executive.THE CONSTITUTION 1.+ other measures” was considered in the context of the environmental right in BP Southern Africa (Pty) Ltd v MEC for Agriculture. however. They must. Conservation & Land Affairs 2004 (5) SA 124 (W). ] contaminated by H2S is adverse to one’s ‘well-being’” (415D). as we have seen..24 As to “measures that prevent pollution and ecological degradation. and referred to the right to an environment that is not harmful to one’s well-being: “An environment of stench [.....” the question arises: What degree of pollution should be tolerated in the context of a developing country like South Africa? This issue was highlighted in Hichange Investments.+ a considerable measure of subjective import.THE CONSTITUTION 1. The Environmental Right – s.+ involves *. that “the assessment *. where Leach J considered what constitutes “significant pollution. He answered. .. THE CONSTITUTION 1.” these are covered by “the various statutory obligations on the state contained in the vast array of environmental statutes and regulations enacted before and after 1994” (Glazewski 80).] promote conservation.. .The Environmental Right – s..24 As for “measures that [. 24 As for “measures that [.” this must be seen in the context of the inclusion of socio-economic rights in the Bill of Rights as a whole. water and social security. in particular the right to housing.] secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development... in effect. In Minister of Public Works v Kyalami Ridge Environmental Association & Others 2001 (7) BCLR 652 (CC). the socioeconomic character of section 24(b) may have to be balanced in particular circumstances against other socio-economic rights.THE CONSTITUTION 1. the right of access to health care. the court found that. including the environmental concerns of the respondents. food. . where the government sought to establish a transit camp for people rendered homeless as a result of severe flooding. the government’s duty to fulfil its obligations in terms of the right to housing trumped other legal claims. The Environmental Right – s. moreover. 24 The notion that sustainable development is an inherent factor to be considered in environmental decision-making was specifically endorsed in BP Southern Africa (Pty) Ltd v MEC for Agriculture. both internationally and in South Africa. Conservation & Land Affairs 2004 (5) SA 124 (W): “The concept of ‘sustainable development’ is the fundamental building block around which environmental legal norms have been fashioned. Development. taking coherent cognisance of the principle of intergenerational equity and sustainable use of resources in order to arrive at an integrated management of the environment. will in future be balanced by its environmental impact.THE CONSTITUTION 1. “Pure economic principles will no longer determine in an unbridled fashion whether a development is acceptable. The Environmental Right – s.” . and is reflected in section 24(b)(iii) of the constitution. which may be regarded as economically and financially sound. sustainable development and socio-economic concerns. may approach a competent court: •anyone acting as a member of. in order to have legal standing to challenge administrative lawfulness. The following persons. inter alia. South African law. or in the interest of. a group or class of persons (s 38(c)). in common with many other legal systems. traditionally a serious obstacle to individual litigants or NGOs concerned with the implementation and enforcement of environmental laws.38 The word “everyone” in the right also raises the issue of locus standi. . required that. or those wishing to assert environmental rights or defend environmental actions.THE CONSTITUTION 2. Section 38 of the Constitution has dramatically changed this. an individual must show that he has some degree of personal interest in the administrative action under challenge. and •an association acting in the interest of its members (s 38(d)). Locus standi – s. •anyone acting in the public interest (s 38(d)). litigation may now also be brought in the public interest. Most importantly. 25 The link between environmental concerns and property rights. owners may not use their property as they please. Property rights are not absolute.” (Glazewski 82). specifically land ownership. The common-law doctrine sic utere tuo ut alienum non laedas—use your property in a way which does not harm another—is the basis of the law of neighbours. The Property Clause – s.THE CONSTITUTION 3. . is “fundamental. a landowners’ association challenged the administrator’s decision to settle squatters near a residential area.25 A central question or concern is the extent to which private property rights may be limited in the public environmental interest. on the grounds that this decision constituted an unwarranted interference with its property rights. In Diepsloot Residents’ & Landowners Association & Another v Administrator. The landowners contended that these property rights included an environmental component: The settlement would pollute the water and air. on numerous grounds. Their application was dismissed.THE CONSTITUTION 3. This tension has always been present in South African law. Transvaal 1994 (3) SA 336 (A). it is now more acute in view of the relatively recent recognition of environmental rights. and when compensation is triggered if they are so limited. however. The Property Clause – s. . ” . It will require a balancing of rights where competing interests and norms are concerned. The Property Clause – s.THE CONSTITUTION 3. profession and property entrenched in sections 22 and 25 of the Constitution. occupation. Conservation & Land Affairs 2004 (5) SA 124 (W). In any dealings with the physical expressions of property. the court found that “the constitutional right to environment is on a par with the rights to freedom of trade. land and freedom to trade.25 In BP Southern Africa v MEC for Agriculture. the environmental rights requirements should be part and parcel of the factors to be considered without any a priori grading of the rights. THE CONSTITUTION S. (b) impose a duty on the state to give effect to the rights in subsections (1) and (2). and (c) promote an efficient administration. .33 – Just administrative action (1) Everyone has the right to administrative action that is lawful. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. where appropriate. and must (a) provide for the review of administrative action by a court or. an independent and impartial tribunal. reasonable and procedurally fair. (3) National legislation must be enacted to give effect to these rights.