Reflecting on South Africa's recent jurisprudence relating to estuaries through the lens of nature - Is it providing key guidance or evidence of missed opportunities?
Master Thesis
2017
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University of Cape Town
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In the past estuaries' mouths were artificially breached in order to protect human proprietary interests. However, the Western Cape High Court, and subsequently the national Supreme Court of Appeal, recently dismissed an application to compel the authorities to protect private property against back-flooding from the Klein River estuary. The High Court of KwaZulu-Natal subsequently dismissed a similar application of the Sugar Planters Limited and two of its shareholders to prevent their low-lying farms adjacent to the St. Lucia estuary from being flooded. These two cases are of current significance as their outcomes at first glance seem to, in accordance with the contemporary global shift to environmental regulation, have favoured nature's interest over that of human beings. Ecocentrism as opposed to the traditional anthropocentric approach that favours human interests supports ecological interests and the rights of nature. Ecocentrists regard humans as part of the whole ecological community on planet earth, and claim that humans must respect nature in its own right. This shift is also reflected in South African laws, among others in the National Water Act 31 of 1998 and the National Environmental Management: Integrated Coastal Management Act 24 of 2008. The latter Act specifically provides regulation for the proper management of estuaries. The extension of interests to be taken into account in legislation and governance ecocentrism holds the potential for conflicts to arise between human and ecological interests. One particular example of such a conflict is the one between human proprietary and ecological interests in estuarine ecosystems. It is the first time since the introduction of NEMICMA that the courts have had to decide on competing human proprietary and ecological interests assumedly by grappling with the more ecocentric provisions provided in the relevant laws. Against this background this dissertation critically reviewed the two recent South African court cases related to estuaries through the lens of rights of nature. To answer the research question of whether the courts applied the more ecocentric approach to environmental regulation as integrated into the laws relevant to estuaries and thus provided guidance how to apply them, this dissertation first unpacked the theoretical background to the shifts in approaches to environmental regulation and then provided evidence of this shift in the South African environmental legal framework relevant to estuaries. After having done so, it critically analysed the two above-mentioned cases and concluded that the courts missed excellent opportunities to focus the discussion on competing human (proprietary) and ecological interest in the context of estuaries.
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Custic, I. 2017. Reflecting on South Africa's recent jurisprudence relating to estuaries through the lens of nature - Is it providing key guidance or evidence of missed opportunities?. University of Cape Town.