OpenUCT :: Browsing by Author "Feris, Loretta"

Browsing by Author "Feris, Loretta"

Now showing 1 - 14 of 14

Open Access
An analysis of litigation strategies for the attainment of water justice in South Africa
(2018) Mapitsa, Cosmo Pahlahle; Feris, Loretta
Jurisprudence on water justice is fractured, and this dissertation explores a range of causal factors for the way it has developed. Firstly, water justice is defined as a concept, and it is argued that the concept remains weakly theorised, with discussion on the reasons some components are better reflected in law than others. Then, the process of litigation as a means of obtaining water justice is explained within the context of other strategies for seeking justice. Finally, the development of jurisprudence is analysed using the components of water justice outlined in the study. The research found that some components of water justice are more prominent in jurisprudence than others. Interviews with litigators explained a range of causal reasons for this, including a need for communities to have access to water in a timely manner, and a need by courts to have cases that are clear; based on sound and available evidence. Building jurisprudence requires incremental change, and litigators face a variety of priorities informing their strategies. Furthermore, while litigation plays an important role in attaining water justice, it is most effective in combination with other approaches. This study asserts that there is significant scope for a diversity of interested parties to collaborate and build integrated approaches to attaining water justice.
Open Access
Entering murky legal waters transboundary impacts of acid mine drainage within the Limpopo river as potential breaches of South Africa's duty not to cause significant harm
(2013) Kinna, Rémy Paul; Feris, Loretta
Includes bibliographical references.
Open Access
Equity and the crisis of development policy in developing countries: a critical analysis of the environment and climate change regulatory framework in Malawi
(2021) Banda, Gracian Zibelu; Feris, Loretta
This thesis examines the interface between development policy and the regulation of environment and climate change in developing countries, focusing on Malawi, its relevant policy and legislation. The central argument is that development, as adopted in Malawi and elsewhere in the developing world, carries power and knowledge asymmetries that structure risks and marginalises those on the periphery of policy discourse. As one commentator has observed, to be developed is to be enslaved by these discourses, including by the regulatory architecture that anchor these development narratives. This has negative implications for the application of equity norms despite its recognition in the Malawi Constitution as the basis for policy making. The thesis observes that a majority of people are marginalized and immiserated by the geographies and histories of vulnerability associated with dominant development paradigms. The applicable regulatory frameworks are not able to address this inequity primarily because they serve these paradigms. The climate change phenomenon has further exposed and exacerbated the limitations of the regulatory framework to deliver equitable development. But it has also provided an opportunity to address marginalisation mainly because the climate problem threatens all sectors regardless of interests, geography or history and, consequently, requires equity to be at the centre of the policy response. The thesis argues that in the Malawian context, a primary consideration in the design of a responsive environment and climate change regulatory framework is to understand and apply the development ethos as an empowering commitment based on the humanity and dignity of all Malawians as the Malawi Constitution mandates. Such an understanding of development essentially prioritizes the welfare and interests of the individual, the community and the state. The thesis highlights the utility of the right to development and its ethical, social justice and moral imperatives to reimagine human rights as ethical demands, rather than the current reliance on the juridical model. The thesis calls upon environmental human rights discourse to embrace equity norms and focus on those who are marginalized and vulnerable rather than the dominant juridical model of human rights jurisprudence that focuses on individual entitlements. The thesis further argues that the climate change problem has the potential to facilitate diverse participation in environmental regulation by emphasising the development losses associated with climate change. Focussing on climate justice can infuse equity norms to facilitate responsive environment and climate change regulation. It can also give voice to environmental institutions and galvanize regulatory capacity across sectors that have been marginalised in development regulation. The thesis argues that policy and legislation must address epistemic injustices inherent in the dominant development and environmental governance paradigms by engagement and contestation with lived realities of affected communities. This requires new ways of making policy and legislation which go beyond constituency representation and harnessing living customary norms that recognize and respond to geographies and histories of marginalisation and vulnerabilities.
Open Access
Hydroecological connectivity as a normative framework for aquatic ecosystem regulation: lessons from the USA
(2023) Harding, William Russell; Feris, Loretta
Very little has been achieved during the first five decades of development and application of what is now known as environmental law, in terms of slowing the global rate of biodiversity loss and ecosystem degradation. A major factor in this lack of effectiveness has been, perhaps, too narrow a focus on individual elements that exist within ecosystems, rather than on the health of the ecosystems themselves. Additionally, very little attention has been paid to maintenance of the integrity of the many types of connections that exist between the different components of ecosystems, notably aquatic ecosystems. These components are connected not only by water, but also by a variety of ecological connections and pathways ¾ here termed 'hydroecological connectivity' (HEC). These connections are not only important in terms of providing abiotic and biota corridors between components, but they also act as conduits which can translocate pollutants from one location, over vast distances, throughout a fluvial ecosystem, consequently impacting virtually all areas of human life and nature. This thesis outlines the science underpinning the first connectivity-based water law regulation, the American Clean Water Rule (CWR) and analyzes a set of legal challenges to this Rule. Barring one instance, no substantive merit was found for any of the disputed claims. Furthermore, this thesis identifies the transferability of the Rule to South Africa. It was possible to empirically substantiate the merit of the single instance that lacked appropriate qualification in the CWR. The importance of HEC is elucidated in this work using the example of headwater streams which, in aggregate, comprise 79 per cent of the aggregate length of the mapped rivers in South Africa. Also provisionally evaluated is a brightline distance, lateral to fluvial watercourses, within which water resource components that are likely to be connected to the mainstem will be found. This provides a guideline for HEC-directed administrative decision making. A connectivity-based approach to water resource governance will require limitations on some land uses on portions of land that is likely to be perceived as terrestrial but which, in fact, forms part of an aquatic ecosystem. This requirement raises obvious implications for property ownership and expropriation. Here the principles of the public trust, already legislatively expressed in South African water law, provide an institutional legal framework that renders 'public' any lands which form part and parcel of the integrity an aquatic ecosystem. The public trust doctrine anchored the reform of the post-apartheid water law of South Africa. It was introduced in a transformative and emancipatory approach to the democratisation of the nation's water resources and the restoration of water equity. This work provides the first historico-legal and comprehensive perspective of the genealogy and intentions for, the public trust in South Africa, and distils out the principles which the trust embodies. An example protocol is developed which shows how the trust principles underpin the formulation of guidance for determinations of beneficial water uses. Recommendations are made regarding the operationalization of the currently moribund South African public trust in water and highlights the role of the public trust as an effective and reformatory tool of water law. In summary this work is a translational and transdisciplinary example of aquatic science into environmental law. The complex and challenging concept of HEC is communicated in plain language and then its perceived weak point ¾ the need to isolate areas of land which form part of the aquatic resource and incorporate these within the trust res ¾ is construed using the principles of the public trust doctrine. Simultaneously the potential of the public trust to offset obstacles to environmental protection, such as the need for reformed guidance for administrative decision making, has been highlighted. On this model the public trust enfolds an ecosystem-directed HEC approach into a transformative and normative governance package which is integrative, adaptive, multi-disciplinary and proactive.
Open Access
Is South Africa on the road to achieving sustainable agriculture? : An environmental law perspective
(2013) Weldon, Damian John; Feris, Loretta
The appearance and development of the concept of sustainable agriculture in international legal discourse has taken place in a period of human history characterised by elevated understanding of the complex relationship between humanity and its surrounding environment.
Open Access
Maccsand (Pty) Ltd v City of Cape Town and others - a missed opportunity for co-operative governance
(2012) Jeffries, Glenda Geraldine; Feris, Loretta
In the period leading up to the first democratic elections in South Africa and the adoption of the Constitution as the supreme law of the country, there was heated debate and protracted negotiations regarding the form of government that would suit the new democratic South Africa and best protect the interests of all parties concerned. The governance model of the apartheid era had been one of a unitary state, taking its cues from the governance model of the former colonial rulers of the area, the United Kingdom. 'A unitary state is one in which the legislative power is concentrated exclusively in one location. In such a state there is no entrenched division of legislative power between the central government and the regional units of the country'. The unitary state option employed by the previous government of South Africa allowed for power to be devolved to the provincial units, but this power could be revoked at the discretion of national government. In a move to break with the past, a form of federal constitutional governance was chosen for the post-apartheid South Africa. The particular configuration of governance crafted for implementation was 'unique and completely unlike anything that [had] been experienced by the country during the last three centuries'. To understand how the chosen system of governance works, one must have an understanding of the parts that combine to create it, starting with the concept of federalism. Devenish explains that in a federation there is an entrenched legislative division of power between the central government and the regional units, be they called provinces, states or regions. Federalism is in essence a mode of sharing and organising political power. In its broadest sense, it encapsulates a linkage of people and institutions in a lasting but limited union by mutual consent. It guarantees their respective autonomies, but simultaneously advances their mutual interests. 'So-called integrated federal states generally provide for the exercise of both exclusive and concurrent powers by different levels of government and develop procedures designed to enhance co-operation between levels and organs of state.'
Open Access
Poaching in context: a critical review of the role that corruption and criminal syndicates play in wildlife crime in South Africa, specifically in so far as it relates to the poaching of rhinoceros
(2017) Strydom, Tanya; Feris, Loretta
Wildlife crime is a longstanding problem. People have always considered living and non-living species as resources and tradable products used for pure economic gain, which then has a negative effect on biodiversity. In addition, wildlife crime involves poachers; armed non-state actors from source nations; international crime groups; institutional corruption across global network chains and a range of players involved in demand countries, which range from organized criminal syndicates, non-state actors and legitimate authorities. States and the International community are responding to wildlife crime in the form of law enforcement and regulatory initiatives. The question therefore arises, why does wildlife crime persist and what is the driving force behind these crimes and the people involved. For example, despite the broad legislative framework, the enforcement or rather lack thereof seems to be the reason that South African rhinos are still facing destruction. This paper aims to evaluate what the relationship is between wildlife crime with rhino poaching as a focus point, corruption and organised crime. It discusses the current enforcement framework, and investigates why the enforcement framework is not supporting the legislative framework. Lastly practical and structural solutions will be discussed and evaluated.
Open Access
The regulation of sand mining in South Africa
(2012) Green, Stewart Christopher; Feris, Loretta
Sand, an important input to the construction industry, is extensively mined from the environment leading to depletion of the resource as well as damage to riparian habitat and the alteration of river beds and banks. Sand mining in South Africa is controlled by a complex regulatory system that can be distilled into three main themes: mineral regulation; environmental regulation; and land use planning regulation. In this thesis, it is hypothesised that sand mining is subject to all three regulatory themes equally. In practice, however, the regulatory system is skewed in favour of mineral regulation with the effect that the latter two themes are effectively ignored by sand miners.
Open Access
Sustainable Development of Small-Scale Fisheries and the Need for Strong Measures to Protect Small-Scale Fisheries in International Trade Law
(2021) Auld, Kathleen Gwynneth; Feris, Loretta
The small-scale fisheries sector makes a valuable contribution to livelihoods and food security, particularly in under-resourced countries. Yet small-scale fishers and fishing communities are often vulnerable and marginalised, and the small-scale sector is largely ignored by governments providing subsidies to their fishing industries. Provisions seeking to ban harmful fisheries subsidies are now the subject of several large international trade agreements and negotiations. While this is a laudable and necessary goal, the binding nature and robust enforcement mechanisms of trade agreements make it imperative that small-scale fisheries are protected and provided for in these agreements in the interests of sustainable development and poverty reduction. The thesis considers how this can be achieved. In order to determine what would best serve the interests of small-scale fisheries in trade agreements, the thesis creates a framework of development needs, which underpins the analysis in the remainder of the thesis. This analysis revolves around three large trade agreements and negotiations containing provisions on fisheries subsidies – namely the World Trade Organization (WTO) negotiations, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the United States-Mexico-Canada Agreement (USMCA). Drawing on the development framework, the thesis identifies a number of shortcomings in these agreements when it comes to protections for small-scale fisheries, including a lack of provision for important development needs and a failure to achieve an appropriate balance between development and sustainability considerations. The thesis also considers potential problems that could arise in the conclusion and enforcement of trade agreements dealing with fisheries subsidies, particularly as these relate to small-scale fisheries and sustainable development. Based on this analysis, the thesis makes a number of recommendations to be incorporated in trade agreements going forward that would adequately protect and promote the interests of small-scale fisheries, while not losing sight of sustainability concerns and the practical realities of negotiating complex international trade agreements. These include, inter alia, exemptions for important social assistance subsidies, better representation and transparency, and measures to improve equity between the small-scale sector and other fishing sectors.
Open Access
Sustainable use and the laws regulating trade in threatened species in South Africa: lessons from the USA
(2018) Frantz, Theressa Rosetta; Feris, Loretta
This study focuses on sustainable use of threatened or endangered species in the international trade context. Escalating levels of illegal trade in threatened species are of major concern globally and undermines regulatory frameworks that seek to ensure the sustainable use of species for present and future generations. This study investigates the extent to which South African legislation provides for sustainable use and trade in species and how legislation could be strengthened. The study is theoretically underpinned by the concept of sustainable use and its passage through time in 'soft' law and consequent adoption by international law and Conventions, including those to which South Africa is a party. The latter includes the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biological Diversity (CBD). While commitments to CITES and the CBD are reflected in South Africa's domestic legislation, sustainable use remains an ambitious ideal. A comparative analysis of legislation, relevant case law and literature of the United States of America with that of South Africa, revealed that while the National Environmental Management Biodiversity Act is more contemporary and its Norms and Standards allow for responsive mechanisms to emergency situations, strengthening in key areas would further enhance sustainable use. Recommendations for strengthening the management dimension of South African law include adhering to statutory time-frames, considering a collaborative approach in the public participation process, and improving the Biodiversity Management Plans for species by increasing the emphasis on species recovery in the wild. This requires long term commitment and specific financial resources, while also developing clear criteria for measuring improvement in the threat status of species over time. The challenge for South Africa remains effective enforcement and legislative compliance in ensuring that sustainable use of species is not undermined. South Africa's penalty provisions are stringent, but consistency in application by the judiciary is recommended. Building on the strength of the penalty provisions, it is further recommended that South Africa adopts provisions along the lines of the US Lacey Act for extraterritorial enforcement of foreign law for sustainable use and trade in threatened or endangered species.
Open Access
The role of good environmental governance in the sustainable devlopment of South Africa
(2010) Feris, Loretta
This article seeks to analyse good governance decision-making in the environmental context through an understanding and interpretation of the relationship between good environmental governance (evidenced inter alia by decision-making by public authorities) and sustainable development in South Africa. It critically assesses recent case law in an attempt to understand the way in which our courts are evaluating authorities' environmental decisions. In reaching its objectives, this article considers also how environmental decisions are made in the first place and asks the question: what are the value choices underlying government's decisions and what role does sustainable development play in informing decisions for good environmental governance.
Open Access
The threat to South African water security posed by wastewater-driven eutrophication: a proposal for a new regulatory approach
(2017) Harding, William Russell; Feris, Loretta
The quality of South Africa's raw potable water resources is severely impacted by eutrophication (nutrient enrichment). As much as two-thirds of the reservoir impounded resource may be affected. Wastewater effluents and/or the integration of wastewater return flows as part of the water balances of many reservoirs constitute the primary source of this nutrient pollution. South Africa's historical awareness and understanding of the eutrophication threat to surface waters is comparable with that of other, similarly-afflicted, countries. In particular, the need to manage phosphorus was recognised as early as 1962 when South Africa promulgated one of the first (global) regulations for phosphorus in wastewater effluents. More recently, eutrophication has been ranked as a high priority by the the National Water Resource Strategy. Despite this background, phosphorus removal from wastewater effluents in South Africa remains virtually unregulated. Additionally, there is no resource-directed protocol for the accounting of all sources of phosphorus (or other pollutants) at a catchment level, rendering problematic, if not impossible, the fair and equitable allocation of levies on wastewater discharges. This dissertation examines how wastewater-originating eutrophication is regulated in the USA and Europe, with phosphorus as a central focus. A comparative assessment of the equivalent situation in South Africa is provided and the shortcomings of the latter highlighted. As a solution, I suggest an equitable and transparent scheme of pollutant accounting by individual source, ideally suited to the allocation of waste discharge levies. Applied against a specific resource requirement, for example an identified need to reduce phosphorus in a particular reservoir, this approach also provides a legally sound scheme for pollutant load regulation and permitting.
Open Access
Towards the sustainable management of electronic waste in Nigeria: South Africa as a model
(2015) Okukpon, Irekpitan; Feris, Loretta
The trade in and management of electronic waste in Nigeria is significant because of the volumes of e-waste generated from second-hand electrical and electronic equipment (EEE) imports. Current and future e-waste discourse advocate the need for, not only an effective legislative approach, but also a sustainable approach towards e-waste management, best encapsulated through a concept known as the 'Extended Producer Responsibility (EPR)' approach. The EPR approach, which is based on the Polluter Pays Principle (PPP) places legal, financial, informative and physical(including environmental) responsibility on producers of EEE, from 'cradle-to-cradle.'The thesis groups this classification into a general term - the 'EPR Matrix,' which is utilised throughout the thesis to analyse the realistic implementation and enforcement of these responsibilities on a producer in a developing country context. Although the shipment of e-wastes between developed and developing countries is regulated under the Basel Convention 1989 and the Bamako Convention 1991, both treaties, however, do not prohibit it. The efforts of Conference of Parties (CoP) to both Conventions reveal a cognizant change in perception which is aligned with the ideals of the EPR approach to e-waste management. The realistic implementation of this approach in a developing country context is investigated, because the importer, rather than the producer is the key actor in the EEE chain. The identification of this circumstance requires that the EPR approach be extended to include the importer and other actors in the EEE chain, sharing applicable responsibilities proposed by the EPR Matrix. The thesis explores the legitimacy of this premise, by evaluating the relative success of mandatory and voluntary EPR schemes on e-waste in South Africa. Although empirical investigation reflected in the thesis reveals that voluntary industry approaches on e-waste are effective and complementary to the regulatory model, this thesis also identifies a three-tier voluntary model for effective e-waste management in South Africa, and the scope of its application. Current e-waste legislation in Nigeria reflects the adoption of the EPR approach, but in essence, the provisions are ineffective, with the absence of requisite institutions to implement its provisions. This thesis suggest that Nigerian e-waste legislation be reconsidered, with a formalization of informal e-waste markets to reflect a more resolute approach towards illegal e-waste imports and management. The certainty of a successful, and effective EPR approach in Nigeria requires a synergy of both voluntary and mandatory approaches to e-waste in that jurisdiction, and an extension of the EPR concept to include other stakeholders in industry - producers, importers, retailers, consumers and government. This thesis thus recommends the adoption of both voluntary and mandatory approaches to e-waste management in Nigeria, including an institutionalized approach, which requires the establishment of collection centres for e-waste recycling, the establishment of an EEE registry/database and proper regulation of the informal sector.
Open Access
Water management: distilling criteria for effective management at catchment level
(2015) Edwardes, Katherine; Feris, Loretta
Of all the natural resources available on earth, it could be argued that water is the most important and essential to human health and well - being. Water is a scarce and finite resource and must therefore be used in such a manner as to preserve and protect it. Statistically, South Africa is a water scarce country and water demand is on the increase due to an increase in population, economic development and living standards. The scarcity creates a need to protect the little water South Africa has and so various policies, laws, guidelines and entities exist to control the use and management of water. South Africa has recently put plans into action to establish nine catchment management agencies, as provided for in the National Water Act (Act 36 of 1998), to deal with the management of water at a catchment level. The establishment and operation of these nine institutions are behind schedule and the outcome of the process thus far is below the desired level. Management of natural resources is done by a wide range of institutions with a variety of management styles according to certain management principles and plans. These management styles can be adjusted to suit the management of most types of natural resources, and because of the interdisciplinary nature of water management, elements from all the management styles can be drawn from to suit water management. Three management and governance styles or concepts were identified for this study. The characteristics and principles of these concepts have been divided into different aspects or broad themes of water management. The National Water Act 36 of 1998, specifically the sections related to catchment management agencies, is reviewed to identify the provisions that might be preventing them from adopting the principles of successful management as suggested by the three governance and management styles.

Browsing by Author "Feris, Loretta"

Results Per Page

Sort Options