Browsing by Subject "Environmental Law"

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    A critical assessment of Nigeria's Climate Change Law
    (2023) Oniga, Vincent; Paterson, Alexander
    Climate change refers to the significant variation or variability in climate that has persisted and measured over a period of time. It has been identified as one of the greatest threats facing the planet today. These variations are caused majorly by anthropogenic factors such as the emission of greenhouse gases at a harmful level into the atmosphere. Although climate change effects are felt globally, it is projected that Africa will be severely hit by the impacts of climate change even though the continent contributes very little to the activities fuelling the change. This is largely due to the continent's weak capacity to adapt to these changes. In Nigeria, the effects of climate change are apparent in water scarcity in areas prone to drought, floods in the coastal areas and desertification in the northern part of the Country. The emergence of international instruments such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement, under which countries have committed to limiting global warming to well below 2°C compared to pre-industrial level represent the main international framework in addressing climate change challenges. Following this international initiative, countries have begun enacting domestic climate change legislation to give effect to their obligations under the international regime. The need to enact climate change legislation has gained global momentum particularly in the last three decades because climate change is a global problem and managing it requires a global and multi-level initiative. In a bid to realise its commitments under these global agreements, Nigeria recently passed the Climate Change Act, 2021. The law is national framework legislation that aims to address climate change challenges across various sectors. It also seeks to facilitate the realisation of the Country's net-zero carbon emission target, provide for adequate climate finance measures and mainstream climate change actions into national development priorities. This new law is an essential tool to translate Nigeria's emission pledges as contained in its Nationally Determined Contribution made under the Paris Agreement into action. Against this backdrop, this minor dissertation provides a critical review of Nigeria's contemporary climate change law against certain elements identified by scholars as essential components of a climate change framework law. It also examines how the framework law interact with other climate change policies and how they all fit together under a regulatory regime. Where anomalies or deficiencies are identified, it proffers solutions that are compatible with the political and socio-economic realities of the Country.
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    Administrative penalties as a tool for resolving South Africa’s environmental compliance and enforcement woes
    (2014) Hugo, Robyn Elizabeth; Paterson Alexander
    South Africa’s environmental resources are in serious decline, despite the constitutional environmental right, and multiple environmental protection laws. A predominant reason for this is that the criminal sanction is the default method of environmental enforcement. Even if prosecutors succeed in proving guilt beyond reasonable doubt, the fines imposed are too low to deter environmental violations. This dissertation proposes the introduction of an administrative penalty system into SA environmental law, as this system has had positive compliance impacts in numerous jurisdictions. Administrative penalties in the Netherlands and United Kingdom (the roots of SA’s civil and common law systems, respectively) are evaluated to identify best practices for administrative penalties. In SA’s environmental regime, there is an ‘administrative fine’ contained in section 24G of the National Environmental Management Act 107 of 1998. This is not a true administrative penalty, nor does it comply with the recommended best practices. Section 24G should either be deleted or substantially improved to meet its obligation of protecting the environment. Given the significant potential of administrative penalties to improve environmental compliance and enforcement, practical suggestions are made regarding their introduction into SA environmental law as a means to halt the current widespread non-compliance with environmental legislation.
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    Biodiversity offsets: towards an effective legal framework in South Africa
    (2015) Midgley, Danjelle; Young, Michaela
    South Africa is one of the most biologically diverse countries in the world. This biodiversity is under threat from economic, social and climate change pressures. One mechanism that could be added to South Africa's conservation tools, is that of the biodiversity offset where certain activities are designed to compensate for unavoidable harm to biodiversity resulting from development. The concept and theory of offsetting is controversial however, and not all commentators are in favour of encouraging a formal biodiversity offsetting regime in South Africa. This dissertation will explore the concept of biodiversity offsets in the regulatory permitting context and the controversies implicit in their theory and implementation. A framework for their inclusion in South Africa's environmental permitting context will be suggested.
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    A critical review of South Africa' future carbon tax regime
    (2017) Hughes, Rebekah; Paterson, Alexander
    The world is currently facing a global climate crisis largely associated with growing greenhouse gas emissions, of which carbon dioxide (CO₂) emissions are a significant component. As the fourteenth largest emitter of CO₂ globally and the highest per capita CO₂ emitter in Africa, South Africa has a responsibility to implement legal and fiscal instruments to reduce its emissions. One instrument receiving growing global attention to reduce CO₂ emissions is carbon tax; a tax imposed directly on the emission of carbon or the use of products which generate carbon emissions. South Africa is following the global trend and has for the past decade sought to formulate a carbon tax regime which is effective in its operation, equitable in its impact across different sectors, and which does not result in the collapse of the country's economy. Whilst yet to be finalised, several policy documents have provided a clear indication of its anticipated form, and 2015 saw the publication of the Draft Carbon Tax Bill with the Bill being re-­released in 2017, which by all accounts is due to be finalised for implementation in mid-­2017. The time would accordingly appear ripe to critically review the country's anticipated carbon tax regime, and this forms the focus of this dissertation. This critical review was undertaken against several tax design elements identified by international commentators, namely: environmental effectiveness; tax revenue; support for the tax; legislative aspects; technical and administrative viability; competitiveness effects; distributional aspects and adjoining policy areas. The critical analysis of South Africa's imminent carbon tax regime against generally accepted tax elements has determined that it will be effective in its operation, equitable in its impact across different sectors and it will promote a more sustainable and resilient domestic economy.
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    Emerging trends in recent Human Rights-based climate change and litigation targeting government accountability
    (2021) Badenhorst, Mieke; Paterson, Alexander
    Increasing global attention on climate change has resulted in the growth of climate change litigation worldwide. 2019 and 2020 saw a global rise in human rights-based climate change litigation and certain new trends seem apparent in this litigation, specifically relating to holding governments accountable for their actions. Due to climate change cases being canvassed comprehensively in other publications up until 2019, this dissertation focuses on those cases filed in 2019 and 2020 and cases in which major developments occurred in the last two years. Prior to 2019, the trends that emerged from climate change litigation were, inter alia, governments being held accountable for not adhering to stated national commitments, the linking of the impacts of extracting resources to climate change, establishing that certain emissions are causing particular adverse climate effects, the liability of governments that failed to adapt to the climate crisis and the use of the public trust doctrine. In the context of human rights-based climate change litigation targeting government accountability (relevant litigation) there appears to have been a shift in the trends that have emerged since 2019. These trends are claimants relying on regional instruments in the relevant litigation, the use of judicial review, the increasing use of children's rights in the relevant litigation and the linking of climate change and the displacement of indigenous people. The content of this dissertation critically evaluates these contemporary trends and highlights ongoing challenges and opportunities for development in the field of human rights-based climate change litigation targeting government accountability
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    The EU FLEGT scheme: a critical analysis of its potential for promoting effective and equitable forest governance in Africa
    (2015) Dlamini, Cliff Sibusiso; Paterson, Alexander
    This dissertation critically considers and assesses the potential of the EU FLEGT Scheme to provide an effective and equitable legal regime for curbing illegal logging and promoting sustainable forest management (SFM) and good forest governance (GFG) in African Partner Countries. It considers a broad range of issues starting with the state of Africa's forests and the international regulatory framework for SFM. A critical review of recent studies led to a theoretical framework comprising a set of specific legal issues/themes (substantive issues) central to SFM and GFG. These were accompanied by three broad cross - cutting themes. The substantive issues are: (i) security/clarity on land tenure , ownership and use rights; (ii) stable institutional structures; (iii) clear environmental and forestry standards; (iv) effective and equitable approval processes; (v) participatory, transparent and accountable decision - making; (vi) cooperation and coordination procedures; (vii) monitoring, evaluation and reporting; (viii) effective compliance and enforcement; (ix) financial incentives; (x) equitable sharing of benefits; (xi) conflict resolution procedures; and (xii) mixture of regulatory approaches (direct regulation and voluntary mechanisms). The cross - cutting themes entail: (i) clear coherent and consistent law and policy; (ii) adherence/respect of the rule of law; and (iii) knowledge, capacity and resources. A rigorous assessment of the EU FLEGT Scheme against this theoretical framework shows that the FLEGT Voluntary Partnership Agreements (VPAs) and the EU Timber Regulation (EUTR) form a robust legal regime. The structure of FLEGT VPAs is based on the 16 Principles for FLEGT Partnership Agreements of 20 05 and the 18 key elements of FLEGT VPAs. Thus FLEGT VPAs have provided a landmark mechanism for multi - stakeholder participation in the forestry sector, and have propelled inclusivity in decision - making. Thus FLEGT VPAs are founded on international law and international trade laws. On the other hand, the EUTR is composed of a stringent Due Diligence System (DDS) and provision that emphasize legality as a cornerstone for FLEGT. In this context, legality requires the establishment of standards of legality, i. e. timber legality assurance systems and FLEGT licensing. This involves requirements for verification, guidelines for independent monitoring, and market - based legality assurance. Although the FLEGT VPAs and EUTR cover all the 15 legal themes listed above, inconsistences in national laws and sovereignty on forest resources have either hampered or slowed down effective and efficient implementation of FLEGT VPAs. Nonetheless, remarkable progress has been observed in forest governance across Partner Countries. More research is needed to ascertain the effectiveness of the EUTR and the degree of reduction in illegal logging in Partner Countries. Lastly, there are reports that that African timber producing countries have started to increase their exports to other international markets e.g. Australia, USA, China and Japan. Therefore, it is crucial that the EU collaborate with these international markets and enter into bilateral and multilateral negotiations so as to collectively deal with illegal logging and illegal timber and make a positive impact at a global scale.
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    A horn of contention: an analysis of the viability of a legalised trade in rhino horn
    (2014) Heitmann, Eishe; Lau, Micha
    Trade in rhino horn is currently banned in terms of CITES, however the last few years have seen the establishment of an illegal trade which supplies the growing demand for rhino horn through poaching. As a result, a rhino poaching crisis has developed in South Africa, this dissertation will seek to analyse the theories for and against the legalisation of trade as a method to address said crisis. In addition to considering whether the legalisation of trade is the most viable option, this paper will explore how one would go about lifting the trade ban. The latter will involve looking at the proposal for trade to be submitted, as well as what such a trade might look like if such a proposal is successful.
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    Integrated environmental management : where is South Africa headed given recent developments relating to NEMA and the Infrastructure Development Act?
    (2015) Day, Kirsten Dea; Paterson, Alexander
    Integrated Environmental Management (IEM) was formulated during the 1980s by the Council for the Environment in response to a dual need in South Africa to effectively manage the country's natural resource base whilst stimulating economic growth and development. The IEM principles were translated into the National Environmental Management Act (NEMA) in 1998, and IEM also became the title of Chapter 5, the purpose of which is to promote the application of appropriate environmental management tools to ensure the integrated environmental management of activities. Over the years a single tool, namely, environmental impact assessment (EIA) has come dominate the environmental management regime in South Africa, and many of the innovative attributes of IEM have been diluted with a more conventional and conservative approach to impact assessment. EIA has consequently been blamed for causing delays and undermining the national government's infrastructural development ambitions for the country. In 2014 the Department of Economic Development introduced the Infrastructure Development Act (IDA) which is aimed at prioritising public infrastructure projects seen to be of significant economic or social importance. This dissertation focuses on those factors that compel a comparison between NEMA and the IDA, not least of which is the provision for lists of projects and activities subject to legislated requirements. Whereas NEMA aims to ensure that such activities are planned, assessed and monitored in accordance with principles of sustainable development, the IDA seeks to expedite development in the face of lack of employment opportunities, an energy crises and falling GDP growth rates. The outcome of a comparison between NEMA and the IDA suggests that overly complex and arduous environmental procedures and legislative requirements have precipitated an extreme response. However, the steam-roller type approach advocated by the IDA is likely to create more problems than solutions as it ignores government's concurrent commitments to co-operative governance and sustainability. The original principles and procedures of IEM provide a potential alternative to ensuring a balance between environmental protection and economic growth.
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    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.
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    Liberalising trade in climate-friendly goods under the framework of the General Agreement on Tariffs and Trade
    (2015) Ferreira, Clarissa; Young, Michaela
    Climate change implications have infiltrated all sectors of society and the world can no longer adopt a 'business as usual' attitude. The unprecedented nature of these implications renders it difficult to address in a swift manner the challenges that arise. Anthropogenic GHG emissions are largely responsible for climate change and fossil fuel-based energy uses are considered to be the biggest contributor to these emissions. The need to reduce the rate of these emissions is an uncontested issue. It has been suggested that one of the options would be to scale up sustainable energy sources through a shift to cleaner and low-carbon transport fuels and technologies. This shift to cleaner energy resources could be achieved in numerous different manners; however, this dissertation will consider how a Sustainable Energy Trade Agreement could contribute to this shift as one option amongst among a myriad of other steps that need to be taken to mitigate climate change. This dissertation considers how the liberalisation of trade in CFGs can assist in this shift to cleaner energy resources. As is illustrated the process of liberalising trade in CFGs has been hindered by several issues. A proposal has emerged for a Sustainable Energy Trade Agreement that could render assistance to the issues that arise with the liberalisation of CFGs as well as expedite the liberalisation process. The ultimate question that this dissertation seeks to address is whether a SETA-type agreement entered into by certain WTO Members would be compatible under the GATT.
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    The nature, scope and purpose of spatial planning in South Africa : towards a more coherent legal framework under SPLUMA
    (2015) Joscelyne, Kimberly; Paterson, Alexander
    Planning law has a significant role to play in facilitating and governing development within a country. In South Africa, a shift has occurred from the utilisation of planning laws to regulating development, to facilitating it. A key area of this legal discipline is spatial planning, which determines the ideal utilisation and allocation of an area for certain land uses. The history of spatial planning in South Africa, and more specifically in the Western Cape, is an interesting one as the planning system that exists is fragmented and fraught with confusion. This has resulted in issues, confusion and conflicts which has resulted in numerous court cases. Previous attempts to reform the planning regime have proven to be somewhat unsuccessful as inherent challenges persist whilst new challenges have arisen. Prior to the introduction of the Constitution, spatial planning was utilised to promote Apartheid ideologies. In 1994 South Africa entered into a democratic era, entrenching equal rights and subjecting all laws to the Constitution. This had hefty impetus for spatial planning and its instruments which, to a large extent, were racially biased and therefore became unconstitutional. The legal regime governing spatial planning was tasked with addressing the ills of apartheid and simultaneously striving towards the goal of sustainable development. Issues and challenges have arisen, which have resulted in a fragmented and incoherent planning dispensation. These challenges and issues include the persistence of old order planning legislation and sector policies with activities operating parallel to the planning discipline. Consequently, there is overlap and confusion with regard to the purpose and legal status of spatial planning instruments. To address this at the national sphere, in 2013 contemporary planning reform was embarked upon, with the enactment of Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). In light of recent planning reform triggered by the commencement of SPLUMA, the aim of this dissertation is to determine if SPLUMA provides a more coherent legal regime governing spatial planning in South Africa. This is pursued by understanding the role spatial planning has had in South Africa, by determining the nature, scope and purpose that spatial planning under the legal regime prior to SPLUMA. During Apartheid a dichotomy of planning systems existed, where different areas were governed by different laws which were underpinned by racial segregation. This resulted in significant issues of fragmentation and confusion. The transition to democracy brought about significant changes to the legal landscape, including planning as the nature, scope and purpose of spatial planning was tasked with addressing the ills of apartheid and promoting sustainability. Although legislative reform was triggered by democracy, clarity of the legal framework governing spatial planning did not occur. One of the contributing factors of this was the persistence of old order legislation and the spatial planning instruments it provided for. The commencement of SPLUMA has triggered wholesale reform which aims to provide a more coherent legal regime governing spatial planning. Positive strides towards this are evident, including the uniform approach which is applicable throughout South Africa that SPLUMA adopts.
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    Reconciling biodiversity conservation and agricultural development in the context of international and domestic law in Rwanda
    (2015) Turamwishimiye, Marie Rose; Glazewski, Jan
    This thesis explores the tensions between biodiversity conservation and agricultural development in a legal context in Rwanda, a small and poor African developing country. It does so against the backdrop of relevant international conventions, the relatively recent constitutional dispensation in the country as well as the land reform process which has been underway in the country over the last few decades. Partly based on the findings of an empirical study, the core of the work outlines, examines and critically assesses relevant domestic Rwandan policies, laws and institutions focusing on areas of particular concern namely the laws applicable to the conservation of soil, water and genetic resources in agriculture, including conservation of crop and livestock diversity. The conclusions and recommendations are embedded in the need for policies, laws and institutions to accommodate the increase in agricultural production to eradicate hunger, alleviate poverty as well as recognition of the interlinkages between agricultural development and biodiversity conservation. The study concludes that Rwandan laws are inadequate in that they have been disparately and inefficiently developed, that agricultural development and biodiversity policies be revised to aim at sustainable agricultural development and that a coordinated institutional framework with full involvement of all concerned stakeholders and appreciation of local knowledge and sustainable agricultural practices is required. Specific legal, policy and institutional shortfalls are highlighted including lack of implementing regulations; omission of necessary legislative provisions on key areas in the biodiversity and agricultural sectors and others. The work concludes by making specific recommendations and proposals to reconcile the need to promote agricultural development while facilitating biodiversity conservation and ultimately sustainable development.
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    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?
    (2017) Custic, Ivana; Paterson, Alexander
    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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    The role of market-based instruments that use existing markets to promote energy efficiency in South African industry
    (2012) Cargill, Judith Greer; Paterson, Alexander
    This dissertation evaluates the current array of [market-based instruments] MBIs that use existing markets to promote industrial energy efficiency in South Africa. The MBIs identified in this regard are the additional investment and energy efficiency allowances available under s12I and s12L of the Income Tax Act 58 of 1962, the electricity levy implemented under the Customs and Excise Act 91 of 1964, Eskom's Demand Side Management (DSM) programme and NERSA's proposed Cogeneration Feed-in Tariff (COFIT) programme. The latter three MBIS are incorporated into the recent attempt to make electricity prices more 'cost reflective' along with Renewable Energy Feed-in Tariff (REFIT) costs and the cost of capital to fund the new build programme.
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    Seeking access to environmental information in South Africa : a critical review of the relevant legal framework and jurisprudence
    (2016) McCarthy, Justine; Paterson, Alexander
    The deteriorating state of South Africa's natural environment has been linked to the exponential growth in anthropogenic pressures associated with urban life. In the wake of dire water shortages and the onslaught of climate change, reports have shown increased environmental degradation and evidence of decreasing water, soil and air quality. The state of the environment has therefore raised concerns as to the legal relationship governing communication, engagement and accountability between citizens, government authorities, and the private sector. Following the promulgation of the Constitution of the Republic of South Africa and the inclusion of the environmental right, environmental law significantly developed as a means to regulate activities affecting people and the environment. The National Environmental Management Act and the Promotion of Access to Information Act therefore, play a critical role in overseeing decision-making and accountability between stakeholders regarding activities that affect the environment. Citizens are usually the ones affected most by environmental degradation and therefore require proper public involvement in decision-making and environmental governance efforts. Public participation is vital to incorporating local knowledge and practices into formal government and private sector decision-making processes with an emphasis on the sharing and access of environmental information as well as the ability to hold wrongdoers accountable. Using academic legal literature, jurisprudence, governmental and organisational reports, the dissertation examines the theoretical notions of environmental governance, public participation and access to information. Following this, links are made between the theoretical notions and to accepted forms of environmental information, the means and outcomes of granting access followed by the important role of rights and laws in providing the procedures with which to allow citizens access to information held by public and private bodies. The dissertation therefore emphasises the value of legislation that offers wide access to information, in a user friendly and explanatory manner, to assist all members of society in accessing information. Access to information is a pivotal tool for holding government and private entities accountable for pollution and environmental degradation and allows citizens to enforce their right to a healthy environment. In doing so, the important oversight role of the courts in adjudicating on and balancing interests where environmental protection is concerned, is highlighted. In light of this, the dissertation assesses the key legal elements that make up any effective access to information regime and compares these key legal elements to those that make up the South African access to environmental information regime with a focus on the Promotion of Access to Information Act. These key elements include the scope and nature of information, limitations, access procedures, protection of whistle-blowers and appeal and review mechanisms. The efficacy and practical implementation of these key elements are critically reviewed alongside a consideration of how they have been interpreted by the courts. The dissertation thus provides a blended discussion and review of the state of access to environmental information in South Africa using relevant laws and cases to highlight various challenges, successes and guidance that has emerged and how it may aid future requesters.
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    Stewarding the earth : rethinking property and the emergence of biocultural rights.
    (2011) Bavikatte, Sanjay
    The thesis analyses the emergence of biocultural rights as a sub‐set of third generation, group rights in environmental law. It submits that these rights, which advocate a people's duty of stewardship over Nature, have arisen as a response to the world's ecological crisis. Indeed, the growing discourse about biocultural rights has begun a radical reconfiguration of the dominant notions property and the juridical subject. The thesis uses a multipronged approach, relying upon economic, anthropological, political and legal theories, to deconstruct the current concepts of private property from the perspective of indigenous peoples and traditional communities. It further presents evidence that this discursive shift is gaining formal legal recognition by referring to negotiations of multilateral environmental agreements, judicial decisions of regional and domestic courts and community initiatives. The thesis concludes with a description of the new biocultural jurisprudence including its application through innovative, community‐developed instruments such as biocultural community protocols.
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    A survey of the legal framework governing the water impacts of proposed shale gas extraction in the Karoo
    (2015) Jeannes, Deon Bruce; Glazewski, Jan
    It is estimated that South Africa has the eighth largest resources of shale gas reserves in the world. It is reported that shale gas extraction can have important benefits which include economic growth, poverty alleviation, carbon emission reduction and most significantly alleviate the current energy shortage. However the proposed extraction of shale gas using hydraulic fracturing requires large amounts of water and many hazardous chemicals which also risks water resource pollution. This can add to water stress and conflict because the Karoo is a semi-arid, water-deficient and drought prone region. Since the extraction thereof is a relatively new technology in South Africa there is a need to determine if the current regulatory and institutional framework in South Africa will be adequate to meet the demands posed by this potentially game-changing enterprise. This minor dissertation outlines the regulatory framework regarding both the water quality and quantity in the shale gas extraction process. It recommends that while there are some regulatory building blocks in place, many gaps exist. It will recommend that an inter-departmental co-operative steering committee is established to address the many overlapping responsibilities and at times contradicting requirements.
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    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.
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    The utility of the principle of intergenerational equity in strategic climate change litigation in South Africa: lessons from Colombia and Germany
    (2023) Reinecke, Emma; Mkhonza, Amanda
    Climate change is a threat not only to present generations, but to all present and future inhabitants of the planet as well as the planet itself. Recent climate change litigation has shown a growing trend in utilising the principle of intergenerational equity – the idea that there should be equality between generations, and that present generations owe future generations duties that involve safeguarding and protecting the environment. This minor dissertation analyses the role and utility of the principle of intergenerational equity in strategic climate change litigation with a view to highlighting its potential usefulness in the South African context. It begins by unpacking the theory of intergenerational equity and its differing interpretations. It goes on to consider what strategic climate change litigation is, what the key issues for litigants are, and what successful strategies have been employed in this exciting and rapidly growing area of law. Next, two cases – one from Colombia and one from Germany – in which litigants successfully utilised the principle of intergenerational equity in climate change litigation are analysed. Key lessons are then drawn with particular reference to the different interpretations of intergenerational equity and the main issues in climate change litigation highlighted earlier. Thereafter, the position of the principle of intergenerational equity is considered in the South African context, with a particular focus on the trickier elements of climate change litigation, namely: standing, rights and obligations, and remedies. Finally, the conclusion provides an overarching review and analysis of the principle of intergenerational equity as a strategic climate change litigation tool in South Africa.