Law Environment and DevelopmentJournal · CBIs and South African Law 57 4.1 Public Participation 58 4.2 Access to Information 63 4.3 Access to Justice 68 5. Conclusion 72. 1 INTRODUCTION

LEADLawEnvironment and

DevelopmentJournal

VOLUME

13/1

PROMOTING ENVIRONMENTAL JUSTICE THROUGHCIVIL-BASED INSTRUMENTS IN SOUTH AFRICA

Michelle Toxopeüs and Louis J. Kotzé

ARTICLE

LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

Law, Environment and Development Centre of SOAS University of Londonand the International Environmental Law Research Centre (IELRC).

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ISSN 1746-5893

This document can be cited asMichelle Toxopeüs and Louis J. Kotzé, ‘Promoting Environmental

Justice through Civil-Based Instruments in South Africa’,13/1 Law, Environment and Development Journal (2017), p. 47,

available at http://www.lead-journal.org/content/17047.pdf

Michelle Toxopeüs, Legal Researcher, Helen Suzman Foundation, South Africa Email: [email protected]

Louis J. Kotzé, Research Professor of Law, Faculty of Law, North-West University, South AfricaEmail: [email protected]

Published under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License

ARTICLE

PROMOTING ENVIRONMENTAL JUSTICE THROUGHCIVIL-BASED INSTRUMENTS IN SOUTH AFRICA

Michelle Toxopeüs and Louis J. Kotzé

TABLE OF CONTENTS

1. Introduction 49

2. Environmental Justice 51

3. Environmental Governance and Civil-Based Instruments 543.1 Public Participation 563.2 Access to Information 573.3 Access to Justice 57

4. CBIs and South African Law 574.1 Public Participation 584.2 Access to Information 634.3 Access to Justice 68

5. Conclusion 72

1INTRODUCTION

South Africa is rich in natural resources and renownedthe world over for its unique landscapes, biodiversityand natural resources. Unfortunately, this naturalheritage has been marred by racial oppression whichhas seen the majority of the people in South Africaexcluded from enjoying it. In particular, colonial andapartheid governance regimes favoured a small whiteminority which promoted its elitist conservationconcerns, while disenfranchising millions of peoplein the process by excluding them from environmentaland associated socio-economic benefits and services.1This fostered a legacy of environmental injustice inSouth Africa and created social and environmentalchallenges that still continue today.

With the birth of democracy in the 1990s, a new eraof constitutional environmentalism dawned which,among other aims, seeks to promote environmentaljustice, particularly as it relates to supporting the coreconstitutional values of human dignity, equality andfreedom.2 At a minimum, environmental justicerelates to the equitable distribution of environmentalbenefits and burdens; to the recognition of groupidentities and differences within society and how theseplay into peoples’ relationship with the environment;to specific environment-related needs of peopledifferently situated on the socio-economic ladder; andto ways through which people can obtain maximumbenefits from life-sustaining resources in an equitableway that also promotes justice in its broadest sense.3To this end, environmental justice is both backwardand forward looking: it highlights past and presentinjustices that arise as a result of environment-related

economic and social oppression and exclusion, whileat the same time advocating means by which to addressthese injustices.4

In South Africa, the achievement of environmentaljustice is squarely based on the prevailing constitutionaland statutory framework. The Constitution of theRepublic of South Africa, 19965 (Constitution)enshrines an environmental right which states‘[e]veryone has the right to an environment that is notharmful to their health or well-being’.6 As thefoundation of constitutional environmentalprotection in South Africa and as part of thetransformative vision of the Constitution,7 this rightmust address historical injustices and it must enablepeople to live in an environment that permits healthand well-being and promotes sustainabledevelopment.8 To a significant extent, then, theenvironmental right is also the constitutionalfoundation of environmental justice in South Africa,and it provides the foundation for the emergingdomestic paradigm of transformative environmentalconstitutionalism which is a key aspect of the broaderenvironmental justice movement in the country tothe extent that it emphasises environmental justice is‘an inherently transformative and redistributiveconcept.’9 The National Environmental ManagementAct10 (NEMA) is the framework environmental lawthat gives effect to the environmental right. To thisend the NEMA is a statutory tool used to furtherrealise the environmental right and similarly topromote environmental justice, by explicitly recognisingenvironmental justice and equitable access toenvironmental resources and benefits as important

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1 DA McDonald, ‘What is Environmental Justice?’ in DAMcDonald (ed), Environmental Justice in South Africa(University of Cape Town Press 2002) 1.

2 S 1(a) of the Constitution states that South African isfounded on the values of human dignity, equality andfreedom. Similarly, s 7(1) of the Constitution states thatthe Bill of Rights affirms these values.

3 D Schlosberg, ‘Reconceiving Environmental Justice:Global Movements and Political Theories’ (2004) 13Environmental Politics 517, 537.

4 McDonald (n 1) 3.5 Constitution of the Republic of South Africa 1996.6 S 24 of the Constitution.7 eg E Christiansen, ‘Transformative Constitutionalism in

South Africa: Creative Uses of Constitutional CourtAuthority to Advance Substantive Justice’ (2010) 13Journal of Gender, Race and Justice 575.

8 S 24(b) states that everyone has the right to have theenvironment protected for the benefit of present andfuture generations.

9 For a comprehensive account, M Murcott, ‘The Role ofEnvironmental Justice in Socio-economic RightsLitigation’ (2015) 132 South African Law Journal 876.

10 107 of 1998.

principles that must guide environmental governancein the country.11

In this article, we interrogate ways through which toachieve environmental justice in South Africa throughthe use of civil-based instruments (CBIs) ofenvironmental governance. The central hypothesis isthat CBIs are particularly well-suited to contribute tothe achievement of environmental justice since theyare essentially instruments which empower civil societyto become central stakeholders in environmentalgovernance by fostering active participation in thedecisions that may impact on the environment andpeople’s health and well-being.12 Through theseinstruments all of society, particularly disenfranchisedpeople suffering most from environmental injustice,are afforded a platform to pursue their environment-related interests that may be affected by the decisionstaken by government and private actors such aspolluting companies. In this sense, the public isrecognised as ‘co-governors’,13 a role in the performanceof which members of the public should be able tofacilitate a move towards greater environmental justicethrough their active recognition and participation, whileasserting and protecting their rights-based interests inthis respect.

For the purpose of the discussion we focus specificallyon public participation, access to information and accessto justice, all of which are generally accepted as CBIs,including in international law, notably through pivotalinstruments such as the Aarhus Convention on Accessto Information, Public Participation in Decision-making and Access to Justice in Environmental Mattersof 1998. Mirroring the South African constitutionalapproach to environmental protection, the AarhusConvention confirms in its preamble that: ‘everyperson has the right to live in an environment adequate

to his or her health and well-being, and the duty, bothindividually and in association with others, to protectand improve the environment for the benefit ofpresent and future generations’. It further reiteratesthat ‘to be able to assert this right and observe thisduty, citizens must have access to information, beentitled to participate in decision-making and haveaccess to justice in environmental matters’.14 WhileSouth Africa is not a signatory to the AarhusConvention, and while we do not focus on thisconvention’s provisions in the ensuing discussion, itsfocus on access to information, public participationand access to justice is a representative, encompassingand instructive one which fully embraces the desire topromote environmental justice-based concernsthrough these three CBIs.15 The original contributionof this analysis lies in its being the first interrogationin South African context to elaborate the more generaltheory of environmental governance and CBIs, to linkthis theory with the concept of environmental justice,and to critically evaluate domestic law provisions withinthe theoretical framework of environmentalgovernance, CBIs and environmental justice.

The discussion commences in Part 2 below with abrief description of the general and then the specificmeaning of environmental justice in South Africa. Part3 reflects on the generic meaning of environmentalgovernance, CBIs and then specifically on publicparticipation, access to information and access to justice.Part 4 constitutes the bulk of the discussion and offersa detailed account of the applicable South Africanconstitutional and statutory provisions, alongside adiscussion of relevant case law that pertains to publicparticipation, access to information and access to justicein the country. We conclude the discussion in Part 5.

Environmental Justice in South Africa

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11 S 2 of the NEMA. In addition to the NEMA, there arespecific environmental management acts (SEMAs) thatregulate sector-specific environmental management.Although they are vitally important in the environmentalregulatory regime, the scope of this discussion doesnot allow for an analysis of environmental justicethrough civil-based instruments (CBIs) provided for bythe SEMAs.

12 J Nel & W Du Plessis, ‘An Evaluation of NEMA Basedon a Generic Framework for Environmental FrameworkLegislation’ (2001) 8 SAJELP 1, 31.

13 ibid 31.

14 Convention on Access to Information, PublicParticipation in Decision-Making and Access to Justicein Environmental Matters, Århus, 25 June 1998, preamble.The connection between the rights-based approach andthe achievement of environmental justice is also evidentfrom Principle 1 of the Stockholm Declaration on theHuman Environment, 1972. Also see Principle 10 ofthe Rio Declaration on Environment and Development,1992.

15 As noted in the introduction, due to limitations oflength and because of this focus we do not discuss theissue of the right to administrative justice, which is aCBI and which is comprehensively regulated by s 33 ofthe Constitution and the Promotion of AdministrativeJustice Act 3 of 2000.

2ENVIRONMENTAL JUSTICE

Historically, environmental justice evolved as a socialmovement focused on advocating equality in thedistribution and sharing of environmental benefitsand burdens. The movement started in the UnitedStates of America (USA) and gained momentum inthe 1980s when those at the centre of experiencingenvironmental injustice were poor minoritycommunities agitating for political and socio-economicempowerment.16 While there are numerous otherapproaches, Wenz17 takes a pluralistic conceptualapproach to environmental justice, noting that it maybe understood in different ways depending on thecontext, where different notions of environmentaljustice will address different issues, as priorities changeaccording to context.18 Such an approach facilitates amulti-faceted view enabling the consideration ofvarious procedural and substantive issues relating toenvironmental justice.19 Substantive environmentaljustice fundamentally seeks the equitable distributionof environmental benefits and burdens, where thecrux of substantive environmental justice is based onequity. Procedural environmental justice, on the otherhand, advocates for informed and active participationin environmental decision-making and governance,20

while simultaneously providing the means to achievethe equitable distribution of environmental benefitsand burdens. The realisation of the substantive aspectsof environmental justice is therefore entirely contingenton the procedural aspects. In essence, then, the challengeattached to attempting to achieve environmental justiceis ensuring that substantive equality with respect tothe environment is achieved through procedural

measures that allow for all members of society to fullyparticipate in ensuring that their environment-relatedconcerns and interests are considered in environmentalgovernance, particularly those members whothemselves do not have the political and socio-economic means to do so.21

Environmental justice in South Africa must beunderstood in the country’s historical context, whichwas marked by environmental and other forms ofracial exclusion and discrimination.22 Although similarto the idea of environmental justice elsewhere in theworld, there are also differences, including the degreeto which oppressed people were affected, as millionsof South Africans experienced widespread andpernicious inequality and discrimination under the reignof apartheid.23

Environmental injustice in South Africa is rooted incolonial conservation, where environmental protectionpractices predominantly favoured the white, affluentand middle-class minority, and disregarded theinterests of the indigenous majority.24 This laid thefoundation for protecting the natural environment,notably through the proclamation of nature reservessuch as the Kruger National Park, where suchconservation practices were often accompanied by theforcible removal of people from their traditionalhomesteads and lands to accommodate elitist ‘white’conservation concerns.25 This process was exacerbatedthroughout the twentieth century with the introductionof segregation laws and, later, the implementation ofapartheid as an official policy. To a significant extent,the socio-economic structures of apartheid’soppressive policies have deeply affected the relationshipbetween people and their environment.26 Social justice


51

16 These minorities were mostly black people. Manyscholars agree that the decision to situate a hazardouswaste site in Warren County resulted in opposition anda movement that became the environmental justicemovement.

17 PS Wenz, Environmental Justice (New York Press 1988) ascited in Schlosberg (n 3) 533.

18 Schlosberg (n 3) 533.19 Schlosberg (n 3) 534.20 M Hillman, ‘Environmental Justice: A Crucial Link

between Environmentalism and CommunityDevelopment’ (2002) 37 Community DevelopmentJournal 349, 351.

21 RT Ako, Environmental Justice in Developing Countries:Perspectives from Africa and Asia Pacific (Routledge 2013) 7.

22 For an in-depth analysis of the historical backgroundof environmental injustice in South Africa see F Khan,‘The Roots of Environmental Racism and the Rise ofEnvironmental Justice in the 1990s’ in DA McDonald(ed), Environmental Justice in South Africa (University ofCape Town Press 2002).

23 M Kidd, Environmental Law (Juta, 2nd ed 2011) 301.24 Khan (n 22) 17.25 ibid 18.26 Kidd (n 23) 301; P Steyn, ‘The Lingering Environmental

Impact of Repressive Governance: The EnvironmentalLegacy of the Apartheid Era for the New South Africa’(2005) 2 Globalizations 392, 392.

within the political sphere was distorted; a distortionthat was also reflected in the laws governing (or failingto govern) environmental issues in relation to accessto housing, potable water and sanitation.27 Theenvironment was seen as an instrument to be used bya politically powerful minority to further oppresspeople based on race,28 as the apartheid governmentshowed little empathy for the environmentalsufferings experienced daily by non-whites all acrossthe country.29 As Brand reminds us:

Perhaps the most debilitating and tragiclegacy of the 300 years of oppression,exclusion and discrimination alongracial lines in South Africa thatculminated in 43 years of apartheid rulein the 20th century is the devastatingimpoverishment and social andeconomic inequality left in its wake.30

As South Africa transitioned into a new democraticera in 1994, political and legal transformation percolatedinto the environmental domain as well, finally allowingoppressed South Africans the opportunity to formallyaddress their environmental justice concerns. Thepolitical focus had subsequently shifted from liberationto the broader realisation of fundamental humanrights, including the right to a healthy environment.31

The Environmental Justice Networking Forum(EJNF) was established, which sought to coordinatethe activities of organisations relating to issues ofenvironmental justice in South Africa.32 Reflecting theparticular meaning of environmental justice in thecountry, the EJNF understood environmental justiceat the time to embrace:

... social transformation directedtowards meeting basic human needsand enhancing our quality of life –economic quality, health care, housing,human rights, environmentalprotection, and democracy. In linkingenvironmental and social issues theenvironmental justice approach seeksto challenge the abuse of power whichresults in poor people having to sufferthe effects of environmental damagecaused by the greed of others.33

While reflecting the particular, virtually all-encompassing dimensions of environmental justicein the South African context, this definition also pointsto the critical need for people suffering fromenvironmental injustice to challenge the decisions andactions of powerful (mostly public power wielding)entities that impact on environmental quality and theirhealth and well-being. The important footwork initiallydone by the EJNF has since been carried forward andsignificantly amplified by the Centre for EnvironmentalRights, which has been, and continues to be, remarkablysuccessful in advancing environmental justice byemploying the CBIs we discuss in this article.34

The idea (and ideals) of environmental justice are mostaccurately captured by the country’s Bill of Rights;particularly the rights to equality, human dignity, andlife, as well as the constitutional environmental right.In terms of the right to equality: ‘[E]veryone is equalbefore the law and has the right to equal protectionand benefit of the law … [T]o promote theachievement of equality, legislative and other measuresdesigned to protect or advance persons, or categoriesof persons, disadvantaged by unfair discriminationmay be taken’.35 Section 10 provides ‘[E]veryone hasinherent dignity and the right to have their dignityrespected and protected’, while section 11 succinctlystates ‘[E]veryone has the right to life’. Clearly theseprovisions are geared towards achieving, among otherobjects, substantive equality and social justice. This


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27 For an in-depth look at the effects of the apartheidregime see Steyn (n 26) 392-97.

28 McDonald (n 1) 1.29 Steyn (n 26) 394. Although initiatives were later

implemented in townships to address the environmentalsuffering, Steyn argues that such efforts should not beseen as genuine attempts to improve living conditions,but rather as attempts to pacify the increase in oppositionas a result thereof.

30 Danie Brand, ‘The South African Constitutional Courtand Livelihood Rights’ in Oscar Vilhena, Upendra Baxiand Frans Viljoen (eds), Transformative Constitutionalism:Comparing the Apex Courts of Brazil, India and South Africa(Pretoria University Law Press 2013) 414.

31 Khan (n 22) 27.32 McDonald (n 1) 2.

33 EJOLT, ‘Environmental (In)Justice’ (date unknown)<http ://www.e jo l t .org/2013/02/environmenta l -injustice/>.

34 See the official website at <https://cer.org.za/>.35 S 9 of the Constitution.

http://www.ejolt.org/2013/02/environmental-injustice/

constitutionalism’ have subsequently emerged todenote a constitutional order that seeks to achievebroad social, economic, environmental, political andlegal transformation through constitutional and otherprovisions.38 Considering the transformative visionof the Constitution, there is an argument to be madeout in support of specifically focusing on andbenefitting those marginalised sectors of society thatsuffer the most from environmental injustices.

Returning to the environmental right and itsconnection with environmental justice, the judiciaryhas generously interpreted the concept of ‘well-being’in HTF Developers (Pty) Ltd v The Minister ofEnvironmental Affairs and Tourism and Others39 as an‘open-ended [concept] … manifestly … incapable ofdefinition’.40 ‘Everyone’ furthermore has the right toan environment that is not harmful to their health orwell-being, which emphasises the need to recognise allmembers of society and which supports the notionof environmental justice as pertaining to all membersof society regardless of race, level of income, educationand gender. Although South African courts have notextensively detailed the substantive meaning of theenvironmental right,41 it is clear that the nature of theright is anthropocentric or socially oriented:42 itfunctions as a ‘basic condition for human existence’,43

and it explicitly makes provision for sustainabledevelopment that is an imperative for the humancondition.44

In the South African context sustainable developmentconcerns ‘the integration of social, economic andenvironmental factors into planning, implementationand decision-making so as to ensure that developmentserves present and future generations’.45 Scholars have

could be done through ‘legislative and other measures’which, as we argue below, include CBIs. Narrowingdown the broader focus of social justice that thesethree rights seek to achieve more closely to theenvironmental domain, the Constitution’senvironmental right provides:

Everyone has the right –

(a) to an environment that is not harmfulto their health or well-being;

(b) to have the environment protected, forthe benefit of present and futuregenerations, through reasonablelegislative and other measures that –

(i) prevent pollution and ecologicaldegradation;

(ii) promote conservation; and

(iii) secure ecologically sustainabledevelopment and the use ofnatural resources whilepromoting justifiable economicand social development.36

When these rights are read together it becomes clearthat environmental justice, being part of the largersocial justice paradigm, must seek the equitabledistribution of environmental benefits and burdens:in accordance with the rights-based approach,environmental justice should ideally transform the livesof people and lead to better health and well-being foreveryone. This is supported by the transformativecharacter of the Constitution, which is peculiar toSouth Africa and other post-colonial countries thathave emerged from oppressive regimes and/orsituations leading to deeply entrenched inequalities andsocial injustices.37 The terms ‘transformativeconstitutionalism’ and ‘transformative environmental


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36 S 24 of the Constitution.37 Notably Brazil and India. For a detailed discussion see

Oscar Vilhena, Upendra Baxi and Frans Viljoen (eds),Transformative Constitutionalism: Comparing the Apex Courtsof Brazil, India and South Africa (Pretoria University LawPress 2013).

38 Among the many publications on transformativeconstitutionalism see Christiansen (n 7).

39 HTF Developers (Pty) Ltd v The Minister of EnvironmentalAffairs and Tourism and Others 2006 (5) SA 512 (T).

40 ibid para 18.41 A Du Plessis, ‘South Africa’s Constitutional

Environmental Right (Generously) Interpreted: What isin it for Poverty’ (2011) 27 SAJHR 279, 289.

42 L Feris, ‘Constitutional Environmental Rights: An Under-utilised Resource’ (2008) 24 SAJHR 29, 33.

43 ibid 33.44 An in-depth discussion of sustainable development is

beyond the scope of this article.45 S 1 of NEMA.

noted that this necessitates a balance between, and anintegration of, economic, social and environmentalconsiderations.46 Arguably, although sustainabledevelopment requires integration, the achievement ofequity remains one of the core objectives of sustainabledevelopment.47 This includes the need for equitywithin existing generations (intra-generational equity),equity between generations (inter-generational equity)and equity in terms of the inevitable trade-offs thatwill result from integrating social, economic andenvironmental concerns. Clearly then, environmentaljustice is deeply intertwined with sustainabledevelopment to the extent that both have equity attheir core and both have a social justice dimension; asDu Plessis48 notes: ‘sustainable development isimpossible in the absence of environmental justice’.We would suggest that the inverse is equally true.

In sum it could be said that the idea of environmentaljustice in South Africa is wrought from two centralideas.49 First, environmental justice is a social, civilmovement as it places people at the centre of itsconcerns while aiming at the equitable distribution ofenvironmental resources as well as adverseenvironmental impacts.50 This substantive objectiveof environmental justice can be achieved only by thoseagitating against environmental injustice, if they havethe procedural juridical means to do so.51 In the nextpart we reflect on the procedural civil-based governanceinstruments through which people are potentiallyenabled to ensure environmental justice for themselvesand for others.

3ENVIRONMENTAL GOVERNANCEAND CIVIL-BASED INSTRUMENTS

Environmental governance can broadly be defined as:

… a normative institutional regulatoryintervention and social construct thatis predominantly based on law and thataims to influence how people interactwith the environment. It entails apluralistic, dynamic, multi-level, multi-actor response and process of changewhich pragmatically aims to changehuman behaviour vis-à-vis theenvironment, and idealistically tooptimize environmental benefits anduse, while at the same time seeking toprotect and preserve sufficientenvironmental capital for present andfuture generations.52

In order to actualise environmental governance, or tomake it happen as it were, a wide variety of differentgovernance instruments are available. The predominantand most popular instruments that are used inenvironmental governance are traditional commandand control instruments, although alternativeinstruments have developed over the years which areused in tandem with, or as alternatives to, traditionalinstruments.53 Command and control instruments,such as penalties and statutory directives, are regulatorytools which include strong top-down, state-drivenmeasures that aim to ensure strict adherence toregulations that have been set and are enforced bypowerful public authorities.54 Market-based


54

46 See Kidd (n 23) 17.47 TL Field, ‘Sustainable Development versus

Environmentalism: Competing Paradigms for the SouthAfrican EIA Regime’ (2006) 123 SALJ 409, 415.

48 Du Plessis (n 41) 290.49 Z Patel, ‘Environmental Justice in South Africa: Tools

and Trade-offs’ (2009) 35 Social Dynamics 94, 97.50 D Hallowes and M Butler, ‘Power, Poverty and

Marginalized Environments’ in DA McDonald (ed),Environmental Justice in South Africa (University of CapeTown Press 2002) 52.

51 Patel (n 49) 97.

52 LJ Kotzé, Global Environmental Governance: Law andRegulation for the 21st Century (Edward Elgar 2012) 200.

53 J Nel and JA Wessels, ‘How to Use Voluntary, Self-Regulatory and Alternative Environmental ComplianceTools: Some Lessons Learnt’ (2010) 13 PELJ 48, 48.

54 AB Killmer, ‘Designing Mandatory Disclosure toPromote Synergies between Public and PrivateEnforcement’ in D Zaelke, D Kaniaru and E Kruzikova(eds), Making Law Work: Environmental Compliance andSustainable Development, vol 2 (Cameron May 2005) 50.

instruments (MBIs) such as environmental taxesinclude ‘fiscal and other economic incentives anddisincentives to incorporate environmental costs andbenefits into the budgets of households andenterprises’.55 Thus, instead of using inflexibleregulatory directives embedded in command andcontrol instruments, MBIs allow for greater flexibility,as individuals and companies are provided withfinancial incentives and disincentives which encouragethem to function in an environmentally responsiblemanner.56 Voluntary instruments, such as the ISO140001 environmental management system, areinitiatives that (mostly) industries choose to undertaketo advance their environmental performance, and theyare therefore not mandatory under law.57 In otherwords, no sanction can be imposed on those industryactors who choose not to comply, or who complyinadequately, with the measures. These instrumentsare largely supplementary in nature and are often usedto complement other environmental governancemechanisms.58

What emerges from the definition of environmentalgovernance above and from the brief discussion ofthe various types of governance instruments is thatenvironmental governance functions within the publicand private sectors and it has distinct public and privatecharacteristics. Its private character is evident from thenon-state involvement in voluntary instruments, andeven more starkly from the fourth category ofenvironmental governance instruments, i.e., CBIs. Theuse of CBIs allows the public to be involved in thegovernance of actions and decisions that impact onthe environment, health and well-being. Importantlyfor present purposes, the empowerment of civil societyin governing environment-related activities throughthe use of CBIs could potentially lead to greaterrecognition and representation of environmentaljustice concerns in the broader environmentalgovernance effort. CBIs ‘include all measures to


empower, inform, educate and co-opt civil society tobe involved in the enforcement process’.59 CBIsempower civil society to participate in the governanceof environmental matters as ‘outsiders’, which meansthat environmental governance is driven by individualsor representatives who do not wield public power andwho hail from ‘outside’ the traditional nucleus ofpublic power. The need for CBIs within the contextof environmental justice lies in their ability to empowercivil society to participate in environmental decision-making and governance and potentially to influencethese to the extent that civil society is recognised ashaving an important stake in, and influence on,decision-making outcomes. In this way, CBIs maypromote environmental justice interests becauseprocedural means (such as public participation, accessto information and access to justice) could influencethe equitable distribution of environmental benefitsand burdens that impact interests related to dignity,life, equality, health and well-being (substantiveenvironmental justice).

CBIs are provided for in the Constitution, inenvironmental and other legislation, or as conditionsattached to environmental authorisations. Forexample, when applying for an environmentalauthorisation for a listed activity in terms of the NEMAthat would require an environmental impactassessment (EIA), the applicant must ensure that theapplicable public information and participationprocedures are followed.60 This inclusion of civil-basedprocedures in an environmental authorisation,however, does not change the nature of such CBIs. Inother words, the fact that the CBI is included as aprerequisite for granting a command and control typeinstrument does not make the instrument ‘less “civil”based’.61 On the contrary, combining command andcontrol instruments and CBIs establishes a ‘uniqueinformal relationship between insiders andoutsiders’.62

The primary advantage of CBIs lies in the fact thatthey provide means for people to have a say inenvironmental governance, and consequently thepower to influence those decisions that could affect

55

55 OECD, ‘Welcome’ (2007) <https://stats.oecd.org>.56 UNEP, ‘UNEP Programmes and Secretariats in Geneva’

(2004) <http://www.unep.ch>.57 F Craigie, P Snijman and M Fourie, ‘Dissecting

Environmental Compliance and Enforcement’ in APaterson and LJ Kotzé (eds), Environmental Compliance andEnforcement in South Africa (Juta 2009) 60.

58 K Lehmann, ‘Voluntary Compliance Measures’ in APaterson and LJ Kotzé (eds), Environmental Compliance andEnforcement in South Africa (Juta 2009) 269.

59 Nel and Wessels (n 53) 50.60 S 24(4)(v) of the NEMA.61 Nel and Wessels (n 53) 52.62 Nel and Du Plessis (n 11) 18.

their health and well-being in the context ofenvironmental justice. This is particularly relevant fora country such as South Africa because of itstumultuous and largely exclusionary past that soughtto suppress activism by civil society. CBIs couldtherefore provide remedies to address environmentalinjustice by recognising all members of society andthereby empowering them to participate inenvironmental governance. While there are others, thefollowing section focuses on three types of CBIs thatrelate to environmental governance: publicparticipation, access to information, and access tojustice.

3.1 Public Participation

Public participation is central to any democraticgovernance order as it allows the public to have a say indecision-making that affects them. Public participationin environmental matters is ‘based on the right ofthose that may be affected, including foreign citizensand residents ... [to] have a say in the determinationof their environmental future’.63 By including foreigncitizens and residents, this definition aptlyacknowledges a broad spectrum of interested partiesthat may be involved in participation, particularly withinthe environmental sphere, which in turn speaks to thevalue of public participation as recognising equally allmembers of society – an important concern ofenvironmental justice as well.

While public participation is driven by the public, theprocesses and means that facilitate it must also to asignificant extent be provided for by the state. Oneway to ensure that it actually happens is to includepublic participation measures in laws and policies.There are generally two forms of public participationthat are found in legislation and policies: normativeand functional participation.64 The former focussesstrategically on the broader democratic values thatpublic participation must promote, while the latterfacilitates the practical and actual realisation of publicparticipation. For example, the NEMA provides for a

normative principle that the participation of allinterested and affected parties (I&APs) must bepromoted in environmental governance.65 But theNEMA also functionally provides that an applicationfor an environmental authorisation must includeparticipation procedures for all I&APs.66 Thisprovision is reinforced and implemented in practicethrough public participation provisions in the EIAregulations.67

In practice, it is important to provide for normativeparticipation in legislation, as it affords the public ajuridically legitimate platform to be involved indecision-making. However, it would be useless if theprovision were not functional in the sense thatparticipation could be efficiently implemented andused. Therefore, the results arising from publicparticipation must have been substantially consideredin the decision-making process for it to have had a realimpact on the outcome of the decisions that weremade. To this end, functional public participationincreases the legitimacy of decisions as it allows thepublic to actively participate in decision-making whilereinforcing the democratic values of transparency andaccountability.68

Another important aspect of public participation isthat it potentially could improve the quality of thedecisions that are made, as people (who may be morefamiliar with specific circumstances and even have moreexpert knowledge than public authorities) are giventhe opportunity to represent specific interests that maycontribute to more appropriate decisions in the end.69

The inclusion of public participation may also creategreater awareness of the myriad of environmentalissues that people face, and encourage behaviouralchanges regarding how people interact with theirenvironment.70


56

63 DK Anton and DL Shelton, Environmental Protection andHuman Rights (Cambridge University Press 2011) 357.

64 F Coenen, ‘Public Participation: Introduction’ in FHJMCoenen (ed), Public Participation and Better EnvironmentalDecisions (Springer 2009) 2.

65 S 2(4)(f) of the NEMA.66 S 24(4)(a)(v) of the NEMA.67 GN 982 of 4 December 2014 in GG 38282.68 Coenen (n 64) 2; also see Anton and Shelton (n 61) 381.69 Coenen (n 64) 2; S Casey-Lefkowitz et al, ‘The Evolving

Role of Citizens in Environmental Enforcement’ in DZaelke, D Kaniar and E Kruzikova (eds), Making LawWork: Environmental Compliance and Sustainable Development,vol 1 (Cameron May 2005) 559.

70 Coenen (n 64) 2.

3.2 Access to Information

Access to information is vitally important forenvironmental governance, because it allows forinformed decisions to be taken by all stakeholders,especially by members of the public when they seek torepresent their interests in environmental decision-making. A right to access to information can beunderstood both in a narrow sense and more broadly.71

In the narrow sense, the public has the freedom toseek information and the state is obliged to refrainfrom interfering with the public’s pursuit of suchinformation. More broadly, the public could have theright to receive environment-related information andthe state is obliged to obtain and publish relevantinformation pertaining to the environment.

In terms of the broader understanding, access toinformation can be further divided into two forms.Firstly, the public has a right to information held bythe state, which is widely recognised by the internationalcommunity as a human right.72 A second form of theright to access to information is also emerging – theright to access information that is held by privateentities.73 While the state is usually able to accessinformation from private bodies through licensing andenvironmental impact requirements,74 through thelatter right non-governmental organisations (NGOs)and members of the public are able to access the recordsof businesses and industries in order to examine theirenvironmental profiles and footprints to encourageimproved environmental performance.75

Access to information as a CBI is regularly used tosecure greater transparency and accountability for bothgovernment and industry where their actions mightimpact on the environment, serving at the same timealso as a means by which the public is informed about

environmental issues.76 Access to environmentalinformation has also been heralded as the cornerstoneof,77 and a prerequisite for,78 public participation inenvironmental governance, as it informs people aboutpertinent environmental issues and allows them tomeaningfully participate in environmental governance.After all, there must be an awareness and understandingof the issues at hand if the public are to make ameaningful intervention in their environmental justiceconcerns and protect their interests.

3.3 Access to Justice

While recognising that justice as a principle of law isvitally important, it may be of no use to people in afunctional sense if they are not able to access remediesavailable for judicial recourse. In other words, peoplewho have had their rights infringed upon or have experiencedinjustice need to be able to seek redress within legalstructures to achieve a just outcome. Access to justicewithin the environmental context can be defined as‘the public’s ability to turn to impartial, independentarbitrators to protect environmental rights or repairenvironmental damage to resolve [disputes] expeditiously’.79

Access to justice is often situated in and closely relatedto the locus standi paradigm. Access to justice entailsaccess to an independent court or forum which is ableto review and remedy injustices, and wide locus standiprovisions, which deal with whether a person’s legalinterest in a matter sufficiently allows for him or her tobring a matter before a court. Both of these aspects areimportant in exercising and protecting rights-basedenvironmental justice claims, as we show further below.

4CBIs AND SOUTH AFRICAN LAW

The discussion in this part includes an analysis of theuse of the three CBIs analysed above within the


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71 Anton and Shelton (n 63) 357.72 Art 19 of the Universal Declaration of Human Rights,

1948; art 19 of the International Covenant on Civil andPolitical Rights, 1966; art 10(1) of the EuropeanConvention on Human Rights, 1950; and art 13 of theAmerican Convention on Human Rights, 1969.

73 D Zaelke, D Kaniaru and E Kruzikova, ‘InformationRegulation’ in D Zaelke, D Kaniaru and E Kruzikova(eds), Making Law Work: Environmental Compliance andSustainable Development, vol 2 (Cameron May 2005) 13.

74 Anton and Shelton (n 63) 357.75 Zaelke, Kaniaru and Kruzikova (n 73) 14.

76 ibid 13.77 M Kidd, ‘The National Environmental Management Act

and Public Participation’ (1999) 6 SAJELP 21, 26.78 Anton and Shelton (n 63) 357.79 ECLAC, ‘Economic Commission for Latin America and

the Caribbean’ (2013) <http://www.cepal.org>.

Constitution states that one of the objects of localgovernment is to encourage community involvementin the matters of local government.82 In Borbet SouthAfrica (Pty) Ltd and Others v Nelson Mandela BayMunicipality83 (Borbet), the High Court noted theinfluence that the Constitution has had on the role ofpublic participation in local governance (arguablyincluding by extension the broader governance regime):

The Constitution has fundamentallytransformed the landscape of publicparticipation in local governance. Organsof local governance are not only requiredto conduct themselves lawfully and inaccordance with the principles of legality,they are also ... required to extend thereach of local participatory democraticprocesses by actively incorporatingeffective public participation in theirdecision-making.84

This could place a particularly important obligationon local governments, as the sphere of governmentclosest to the mass of people, to facilitate publicparticipation within their executive functions.85 To besure, this obligation is ‘extensive and far-reaching’86

to the extent that thoroughgoing public participationis required. Therefore, local government is required todo more than ensure that public meetings are heldand that information is easily accessible. It must alsoput structures in place that ensure capacity buildingwithin the community, which will allow members ofthe community to participate effectively.87

The Constitution further requires the publicadministration more generally to be governed by

environmental governance regime by examining theconstitutional environmental framework and otherrelevant statutory provisions, including court cases thathave dealt with these CBIs. The analysis seeks toindicate, throughout, the potential of these CBIs inpromoting environmental justice.

4.1 Public Participation

The Constitution does not provide an explicit right topublic participation and no single statute in SouthAfrica comprehensively regulates the facilitation ofpublic participation in a generic sense. This does notmean, however, that public participation is not criticallyimportant in South Africa. In Doctors for LifeInternational v Speaker of the National Assembly andOthers80 (Doctors for Life) the Constitutional Courtstressed the importance of public participation inSouth Africa’s constitutional democracy by stating that:

… participation by the public on acontinuous basis provides vitality to thefunctioning of representativedemocracy. It encourages citizens of thecountry to be actively involved in publicaffairs, identify themselves with theinstitutions of government and becomefamiliar with the laws as they are made.It enhances the civic dignity of thosewho participate by enabling their voicesto be heard and taken account of. Itpromotes a spirit of democratic andpluralistic accommodation calculated toproduce laws that are likely to be widelyaccepted and effective in practice. Itstrengthens the legitimacy of legislationin the eyes of the people. Finally, becauseof its open and public character it acts asa counterweight to secret lobbying andinfluence peddling.81

Public participation, thus conceived, is realised througha panoply of legal provisions. While the Constitutiondoes not specifically provide for a right to publicparticipation, it does provide for other rights whichmay facilitate public participation. For example, the


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80 2006 (6) SA 416 (CC).81 Para 115.

82 S 152(1)(e) of the Constitution.83 2014 (5) SA 256 (ECP).84 Para 1.85 Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151

(SCA) para 23. Also see ss 5(1)(a)-(g), 29(b)(i) and ch 4 ofthe Local Government: Municipal Systems Act 32 of2000, which extensively provides for public participationin local government.

86 Borbet para 72.87 Para 80. For example, local government may be required

to allocate resources to the task of public participationin matters relating to the environment and to ensurethat structures are established by the legislation that meetthe objectives of effective participation.

democratic values and principles, including publicparticipation in policy-making.88 Being generic, these‘basic values and principles governing publicadministration’ also apply to environmentalgovernance, promoting as they would seek to do theinvolvement of the public in decision-makingprocesses and allowing stakeholders to effectivelyadvocate environmental issues.89 Some of these valuesand principles related to public participation include:that a high standard of professional ethics must bepromoted and maintained; that public administrationmust be development-oriented; that services must beprovided impartially, fairly, equitably and without bias;that people’s needs must be responded to, and thepublic must be encouraged to participate in policy-making; that public administration must beaccountable; and that transparency must be fosteredby providing the public with timely, accessible andaccurate information.

The judiciary has confirmed that in facilitating publicparticipation in decision-making, public bodies have a‘broad discretion to determine how best to fulfil theirconstitutional obligation to facilitate publicinvolvement in a given case, so long as they actreasonably’.90 In other words, the question is whetherthe public body has taken reasonable measures toensure public participation. In determining whetheror not the National Assembly had adequately facilitatedpublic participation in a law-making process, theConstitutional Court noted in Doctors for Life:

... [w]hat is ultimately important is thatthe Legislature has taken steps to affordthe public a reasonable opportunity to

participate effectively in the law-makingprocess. Thus construed, there are atleast two aspects of the duty to facilitatepublic involvement. The first is the dutyto provide meaningful opportunities forpublic participation in the law-makingprocess. The second is the duty to takemeasures to ensure that people have theability to take advantage of theopportunities provided.91

When these aspects of public involvement aretranslated by a public body to facilitate publicparticipation in the decision-making process, a publicbody must not only provide stakeholders with anopportunity to meaningfully participate, but must alsoestablish measures that ensure that stakeholders havethe ability to utilise the opportunities to participate indecision-making. Although public participationguidelines exist that specifically focus on the EIAprocess (see the discussion below), it may be necessaryfor environmental authorities in future to considerdrafting a standard generic guideline on the facilitationof public participation in all environmental matters.Such a guideline must at a minimum be based on andseek to realise the basic values and principles governingthe public administration discussed above. Withoutsuch a guideline, public participation might be construedby public officials as a bare minimum to be achievedrather than an authentic process that genuinely seeksthe input of all interested and affected parties. If sucha guideline is implemented, it may also lead to a moremeaningful participation process which in turn couldpromote environmental justice. In the guidelinegovernment could create situation-based assessmentsto understand the needs and conditions of theproposed development and the community. Therefore,not all the public participation processes will be identicalin their execution and implementation. This may guidethe use of ‘reasonable’ public participation and alsolead to decisions that are more environmentally just inthe procedural sense, as the public would be able tomeaningfully participate rather than to be participantsin a tick-box exercise.

88 S 195 of the Constitution.89 LA Feris, ‘The Role of Good Environmental Governance

in the Sustainable Development of South Africa’ (2010)13 PELJ 73, 76.

90 Doctors for Life para 145. While this was applied in thecontext of Parliament’s obligation to facilitate publicparticipation in the legislative process, it is arguably alsorelevant to government’s duty to facilitate publicparticipation regarding decision-making in governance,as both forms of public participation seek to promotethe principles of participatory democracy. Thisobligation also applies to local governments in facilitatingpublic participation in executive and legislative affairs.See Democratic Alliance v Ethekwini Municipality para 24 andBorbet para 60.

91 Doctors for Life para 129. Also see Merafong DemarcationForum and Others v President of the Republic of South Africa andOther 2008 (5) SA 171 (CC), which again confirmed andapplied the standard of reasonableness.

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The need for public bodies to facilitate effective publicparticipation was emphasised in South African PropertyOwners Association v Johannesburg MetropolitanMunicipality and Others92 (SAPOA), where theappellant claimed that a decision made by theJohannesburg Metropolitan Municipality (the City)regarding an increase in business property rates wasinvalid, because it had, inter alia, failed to adequatelyfulfil its statutory obligations to ensure publicparticipation in decision-making regarding thebudget.93 The Supreme Court of Appeal (SCA) foundthat the City had not followed the procedures requiredto ensure adequate public participation and that thetime given for stakeholders to respond to the amendedproposals to the budget had been unreasonablyshort.94 Therefore, although the City had providedmeasures for public participation, the limitedtimeframe which stakeholders were given did notenable them to effectively utilise that opportunity toparticipate. The SAPOA case illustrates the importanceof establishing a suitable timeframe for effectivelyfacilitating public participation, which is also true inenvironmental law, where delayed public participationin decision-making is often a significant challenge.95

Governance, as we have seen above, involves a processof decision-making, which essentially comes down toadministrative decisions taken by public authorities.96

In this context, the question before the SCA in TheDirector: Mineral Development, Gauteng Region and Anotherv Save the Vaal Environment and Others,97 (Save the Vaal)was whether interested parties who wished to opposean application by the holder of mineral rights for amining licence were entitled to raise environmentalobjections and to be heard by the Director of MineralDevelopment (the Director). This case dealt inter alia

with public participation in an administrative action(embedded as this case was in the broader paradigmof administrative justice)98 and focused on whetherthe audi alteram partem rule, which promotes the rightto be heard in cases where interests have been affected,could be applied. Both the court a quo and the SCAfound that the audi-principle did apply and thattherefore a right existed in the case of thisadministrative action for the interested parties to objectto concerns related to the development. The audi-principle that is found in administrative law can beused in this way to facilitate effective public participationby relying on this principle to raise objections toadministrative government decisions which may affectenvironmental rights and interests, certainly in thoseinstances where concerned citizens have not been giventhe opportunity to raise objections to administrativedecisions. In other words, the audi-principle may beused effectively as a means to participate in decision-making relating to the environment. To this end, thepublic can also rely on the extensive provisions of thePromotion of Administrative Justice Act (PAJA);99

specifically its provisions governing procedurally fairadministrative action (public hearings, notice andcomment procedures), the right to written reasons,and judicial administrative review on proceduralgrounds.100 The Act is firmly based on and gives effectto the constitutional right to administrative justicewhich provides, among others:

92 2013 (1) SA 420 (SCA).93 The City initially tabled and published a budget for

public comment. However, during this processadditional facts came to the City’s attention whichnecessitated a further increase to the business propertyrates. SAPOA and other I&APs had limited time torespond to the new proposals.

94 2013 (1) SA 420 (SCA), paras 40-41.95 LC Paddock, ‘The Role of Public Engagement in

Achieving Environmental Justice’ in Le Bouthillier Y etal (eds), Poverty Alleviation and Environmental Law (EdwardElgar 2012) 129.

96 Feris (n 89) 75.97 1999 (2) SA 709 (SCA).

98 Administrative justice aims to, inter alia, ensure goodgovernance and administration, ensure fair dealing inadministrative context, enhance protection of theindividual against abuse of state power, promote publicparticipation in decision-making, and strengthen thenotion that public officials are answerable andaccountable to the public they are meant to serve. GEDevenish, K Govender and D Hulme, AdministrativeLaw and Justice in South Africa (Butterworths 2001) 14-16.

99 Act 3 of 2000.100 Although the scope of this discussion does not allow

for a detailed analysis of administrative justice, it isimportant to note the close relationship between publicparticipation, administrative justice and decision-making.See for a more comprehensive account, LJ Kotzé, ‘TheApplication of Just Administrative Action in the SouthAfrican Environmental Governance Sphere: An Analysisof Some Contemporary Thoughts and RecentJurisprudence’ (2004) 7 PELJ 58; A Paterson and LJ Kotzé(eds), Environmental Compliance and Enforcement in SouthAfrica: Legal Perspectives (Juta 2009); Cora Hoexter,Administrative Law in South Africa (2nd ed, Juta 2012).

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(1) Everyone has the right to administrativeaction that is lawful, reasonable andprocedurally fair.

(2) Everyone whose rights have beenadversely affected by administrative actionhas the right to be given written reasons.101

In terms of this right, environmental governancedecisions that have been taken by authorities mustcomply with the minimum requirements of legality(i.e., they must be lawful). Procedural fairness, for itspart, relates to the principles of natural justice thatinclude, inter alia, the principles of audi alteram partemand nemo iudex suo causa.102 While procedural fairnessrelates to the procedural aspect of natural justice,reasonableness relates to the substantive element ofnatural justice, by which a court is afforded theopportunity to investigate the justification ofadministrative actions.103 Especially with respect tothe last point, and relating to the overall role of thejudiciary in promoting the public participation aspectsof administrative justice, PAJA provides that “[A]nyperson may institute proceedings in a court or a tribunalfor the judicial review of an administrative action.”104

In addition to these general provisions, the NEMAspecifically recognises the importance of and providesfor extensive public participation in environmentalgovernance.105 To this end:

[t]he participation of all interested andaffected parties in environmentalgovernance must be promoted, and allpeople must have the opportunity todevelop the understanding, skills andcapacity necessary for achieving equitableand effective participation, andparticipation by vulnerable anddisadvantaged persons must beensured.106

While this principle is not enforceable per se because itis a principle, it must at the very least guide decision-making and could be relied on by parties who contendthat proper public participation has not taken place. Inenvironmental governance, it is arguably important toprovide the public with a platform to participate inenvironmental governance,107 but it is also importantto ensure that such participation is aligned with aninformed and clear understanding of the issues at handand a capacity to participate effectively. Therefore, atleast in theory, the mere fact that participation isprovided for within environmental governance anddecision-making structures should not amount to arigid acceptance that the purpose of effectiveparticipation has been accomplished. Rather,participation should be evaluated case by case, on thebasis of whether or not members of the public weresufficiently informed, and fully understood their rightsand duties with respect to a governance decision.

The NEMA also recognises the important role thattraditionally marginalised groups such as women andthe youth play in environmental governance, andemphasises that their participation in environmentalgovernance should be promoted.108 This is furthersupported by the principle that public participationshould allow for and promote traditionalknowledge.109 By recognising all forms of knowledge,the NEMA essentially elevates the importance of allmembers of society participating in and contributingto the decision-making process.

Furthermore, the NEMA makes provision for publicparticipation in the process of submitting anapplication for an environmental authorisationthrough its integrated environmental managementprovisions (otherwise referred to as its EIA

101 S 33 of the Constitution.102 S 3 of PAJA; Devenish, Govender and Hulme (n 98)

129.103 Devenish, Govender and Hulme (n 98) 130-131.104 S 6(1) of PAJA.105 Primarily through ss 2 and 24 of the NEMA.106 S 2(4)(f) of the NEMA.

107 One concrete possibility to achieve greater civil societyparticipation in compliance and enforcement (which istraditionally reserved for public authorities), is throughthe Department of Environmental Affairs’ multi-stakeholder Environmental Monitoring Committees. See,for a detailed discussion, L Chamberlain, ‘BeyondLitigation: The Need for Creativity in Working to RealiseEnvironmental Rights’ (2017) 13/1 Law, Environmentand Development Journal 1.

108 S 2(4)(q) of the NEMA.109 S 2(4)(g) of the NEMA.

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provisions),110 which must be read with the 2014 EIARegulations (EIA regulations).111 The EIA regulationscomprehensively provide for public participationrelated to its listed activities,112 while guidelines havealso been published dealing with public participationin the EIA process.113 In general, chapter 5 of theNEMA dealing with EIAs, as read with chapter 6 ofthe EIA regulations, provides for public participationprocesses in the granting and rejection of anenvironmental authorisation for a listed activity.114 TheEIA regulations do not require that the applicationitself be subject to public participation.115 Only oncethe application has been submitted to the competentauthority and the basic assessment or scoping reporthas commenced are stakeholders notified of theproposed development116 through public notices.117

However, reasonable alternative measures should betaken to notify people of the invitation to participate‘in those instances where a person is desirous of butis unable to participate in the process due toilliteracy’.118 Once the decision has been made to grantthe environmental authorisation, the only remedy forstakeholders is to appeal the decision in terms of theNational Appeals Regulations.119

While the public participation procedures providedfor in the process of applications for an environmentalauthorisation are commendable, they relate only to

certain listed activities which require an EIA and notto the broader environmental governance effort. TheNEMA also does not provide for robust opportunitiesto participate in the monitoring and enforcement ofenvironmental compliance other than through privateprosecution provisions.120 This is a concern to theextent that civil society is able to meaningfullyparticipate in the initial preparation and decision-making phases of a development, but then given littleopportunity to participate in the monitoring andenforcement of environmental compliance after thefact, which in many cases are crucial. Not providing thepublic with procedural opportunities to participate inthe monitoring and enforcement of environmentalauthorisations throughout the lifecycle of adevelopment (other than through access toinformation and judicial mechanisms) potentiallycould restrict the continued endeavour to achieve thegoal of environmental justice, especially to the extentthat many environmental impacts arise only once aproject has started. There is accordingly a need for thelegislature to revisit the NEMA in this respect and toconsider including within this frameworkenvironmental law comprehensive provisions thatcould properly facilitate continued ex post facto publicparticipation.

While it did not deal with formal public participationprocesses per se, the potential positive impact ofeffective public participation and its ability to directpublic opinion and to mobilise people to activelyparticipate in environmental governance can be seen inPetro Props (Pty) Ltd v Barlow and Another,121 (PetroProps). In this case, an application for an interdict wasbrought before the court to prevent the respondentfrom continuing with a public campaign that had beenraised against the construction of a fuel station whichhad been approved by the environmental authority inan ecologically sensitive area. As part of the publiccampaign, Ms Barlow, an environmental activist andthe respondent in the present case, sought to mobilisepublic opinion against the development and tochallenge the approval process, including through theuse of media, public meetings, submissions directedto various governmental levels and representations tothe owners of the filling station. The Court found in

110 Ch 5 of the NEMA. According to s 23(2)(d) one of thegeneral objectives of integrated environmentalmanagement is to ‘ensure adequate and appropriateopportunity for public participation in decisions thatmay affect the environment’.

111 GN 982 of 4 December 2014 in GG 38282.112 Ch 6, EIA regulations.113 GN 807 of 10 October 2012 in GG 35769. Although

these guidelines are not legally binding, they provideimportant information that clarifies certain issues andguides the process of participation.

114 Which consists of either a basic assessment or a scopingand environmental impact report, and where applicable,a closure plan.

115 Regs 16-18 of the EIA regulations, which deal with thegeneral application requirements, do not require thatthe application itself needs to be subject to publicparticipation. This application includes a descriptionof the location of the activity and a location plan.

116 In terms of regs 19 and 21 of the EIA regulations.117 Reg 41(2) of the EIA regulations.118 Reg 41(2)(e) of the EIA regulations.119 GN 993 of 8 December 2014 in GG 38303 as amended

by GN 205 of 12 March 2015 in GG 38559.120 S 33 of the NEMA.121 2006 (5) SA 160 (W).

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favour of the respondent,122 recognising that herinterest in mobilising the public campaign was selflessand geared towards the protection of theenvironment.123 Cases such as Petro Props show howmobilising a community to enforce environmentalrights through participating in dialogue can havepositive effects. Public participation facilitates dialoguebetween stakeholders, and when construed within theenvironmental decision-making paradigm, it providesa means for the public to exercise their environmentalrights, including related aspects of environmentaljustice.124 To this end Du Plessis125 suggests thatpublic participation should go beyond informationfeedback and consultation towards a more constructiveform of participation which facilitates open planning,public monitoring and assistance in environmentalinspections. This could require a broad revision ofnational environmental policy and legislation that isapplicable to all spheres of government, to createuniformity in the structure and purpose of publicparticipation in environmental governance, and wouldultimately amount to taking several steps forward inpromoting environmental justice through publicparticipation.

4.2 Access to Information

While public participation is not enshrined as aconstitutional right, the right to access to information is:

(1) Everyone has the right of access to –

(a) any information held by the state; and

(b) any information that is held by anotherperson and that is required for the exerciseor protection of any rights.126

The importance of this right in a constitutionaldemocracy, and more particularly in the context of

(environmental) governance and CBIs, cannot beoveremphasised:127 the public is able to participatemore effectively as co-governors, decision makers,monitors of environmental compliance, watchdogsand whistle-blowers where access to informationregarding the environment is easily available andaccessible. Participation that is promoted through accessto information could lead to more environmentallyjust decisions, as civil society is placed in an informedposition to effectively and meaningfully participate inthe decisions that impact their health and well-being.The Constitutional Court confirmed this position,albeit in a broader sense, when it stated:

[t]he importance of this right [to accessto information] in a country which isfounded on values of accountability,responsiveness and openness, cannotbe gainsaid. To give effect to thesefounding values, the public must haveaccess to information held by the State.Indeed, one of the basic values andprinciples governing publicadministration is transparency. And theConstitution demands that transparency“must be fostered by providing thepublic with timely, accessible and accurateinformation”. Apart from this, accessto information is fundamental to therealisation of the rights guaranteed inthe Bill of Rights.128

The general constitutional right to access to informationseems to be fully supported by the NEMA, whichsituates this right and its significance in theenvironmental domain. The NEMA provides for accessto environmental information as a matter of principleby stating that ‘[d]ecisions must be taken in an openand transparent manner, and access to informationmust be provided in accordance with the law’.129 Whilethis generally applies to the actions of the state ingovernmental decisions that may affect the

122 The court was essentially required to weigh up thecompeting interests of the applicant’s property rightagainst the respondent’s right to freedom of expression.

123 Para 55.124 A Du Plessis, ‘Public Participation, Good Environmental

Governance and Fulfilment of Environmental Rights’(2008) 11 PELJ 1, 22.

125 ibid.126 S 32 of the Constitution.

127 W Peekhaus, ‘Biowatch South Africa and the Challengesin Enforcing its Constitutional Right to Access toInformation’ (2011) 28 Government InformationQuarterly 542, 543.

128 Brümmer v Minister for Social Development andOthers 2009 (6) SA 323 (CC) paras 62, 63.

129 S 2(4)(k) of the NEMA.

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environment, the SCA noted in Company Secretary ofArcelormittal South Africa v Vaal Environmental JusticeAlliance130 (VEJA) that it could also apply, in principle,to the decisions and activities of corporate bodies thatmay have an impact on the environment.131 Thisposition is reiterated by the constitutional provisionon access to information, which makes it clear that accessto information may be requested from the state or aprivate body. The inclusion of private bodies underthe remit of the principle of access to information isparticularly relevant when considering the significantpotential and real impact private actors have on theenvironment, on the health and well-being of people,and on their related environmental justice concerns.While commercial confidential information is usuallyexcluded from the reach of a right to access toinformation, the NEMA provides in its definition of‘commercially sensitive information’ that ‘details ofemission levels and waste products must not beconsidered to be commercially confidential’.132 This isimportant because public and private bodies oftenrefuse to provide environmental information on thegrounds of confidentiality.133

The NEMA’s EIA regulations also provide for accessto information measures during the process ofconsidering environmental authorisations.134 While theNEMA initially included an express provision on accessto environmental information,135 it was later repealedafter the Promotion of Information Act136 (PAIA)had been enacted. Therefore, it is fitting to provide adetailed account of access to environmental informationthrough the PAIA, as this now forms the primary basisfor information requests in general, including perimplication those requests relating to the environment.137

The PAIA was enacted to give effect to theconstitutional right to access to information,138 and isthe primary statutory means to assert the right to accessto information,139 including also environmentalinformation. It reiterates the role of access toinformation in the protection and promotion of otherrights, as it explicitly acknowledges that it seeks to ‘activelypromote a society in which the people of South Africahave effective access to information to enable them tomore fully exercise and protect all of their rights’.140

The PAIA also confirms the Constitution’s provisionthat the requester has a right to gain access to informationthat is held by both public and private bodies.141

Requests that are made to public bodies must followthe procedural requirements for filing requests forinformation,142 but the requestor is not required toprovide reasons for the request.143 Like all other rightsin the Bill of Rights, the right to access to informationis not absolute,144 and there are several grounds forrefusal of the request, as listed in the PAIA.145 One ofthe reasons most regularly cited by public bodies forrefusing a request for environmental information isthe protection of the commercial information of thirdparties.146 Where someone fails to give a decision onwhether to grant access to the requested information

130 2015 (1) SA 515 (SCA).131 Para 66.132 S 1 of the NEMA.133 This definition can be used to help gain access to

certain information that the public or private bodyrefuses to release on the grounds of confidentiality,particularly if the information relates to emission levelsand waste products.

134 Particularly see Regs 4(2)(a), 5(3), 26(h), 34(6) and 40(2)of the EIA regulations.

135 S 31 of the NEMA.136 2 of 2000.137 While the PAIA provides for the voluntary disclosure

of information by public bodies, the discussion belowfocusses only on requests for information regulatedby the PAIA.

138 S 9(a) of the PAIA.139 Institute for Democracy in South African and Others v African

National Congress and Others 2005 (5) SA 39 (C) para 17.140 Preamble of the PAIA.141 Parts 2 and 3 of the PAIA respectively.142 S 18 of the PAIA.143 This interpretation was confirmed in Transnet Ltd and

Another v SA Metal Machinery Co (Pty) Ltd 2012 (2) SA 50(CC), where the court stated at para 9 that ‘…once arequester has complied with the proceduralrequirements for access and overcome the refusalgrounds in chapter 4, he or she must be given access.[Section] 11 makes that clear. Not only that, [section]11(3) makes it equally plain that the requester’s reasonsare not relevant’.

144 All rights in the Bill of Rights can be limited in termsof s 36 of the Constitution, but only once very strictconditions have been met.

145 Ch 4 of Parts 2 and 3 of the PAIA respectively.146 In terms of s 36 of the PAIA. Other relevant grounds

for refusal include the mandatory protection of theprivacy of a third party who is a natural person (s 35);manifestly frivolous or vexatious requests; substantialand unreasonable division of resources (s 45); and thatthe report which contains the requested informationcannot be found or does not exist (s 23).

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within 30 days after the request has been received, therequest is deemed to have been refused.147 Althoughthe PAIA provides requesters with an internal appealmechanism against decisions made by public bodies,148

once the internal appeal process has yielded no differentoutcome, the requester’s only other option is toapproach the courts to enforce his or her right to accessto information. Encouragingly though, if a case ispresented in court, the party who seeks to limit theright to access information by refusing to grant accesshas the onus to prove that such a limitation is justified.149

Particularly relevant to the discussion of obtainingaccess to information from public bodies in theenvironmental context is the case of Trustees, BiowatchTrust v Registrar: Genetic Resources and Others,150 wherethe applicant was the Biowatch Trust (Biowatch), anenvironmental NGO which sought to obtaininformation from public bodies151 regardinggenetically modified organisms (GMOs). Biowatchsubmitted four requests to the Department ofAgriculture (the Department) over a period of eightmonths for information regarding the manner inwhich decisions permitting GMO crops had beenmade. The Department partially released someinformation while it ignored other requests, uponwhich Biowatch instituted proceedings in the HighCourt, seeking access to information from the Registrarof Genetic Resources. Biowatch’s application in theHigh Court prompted intervention from threeproducers of GMOs including Monsanto, which wasgranted leave to intervene in order to prevent Biowatchfrom gaining access to confidential information whichMonsanto had provided to the Registrar. While thePAIA had already been promulgated, it had not yetcommenced by the time that Biowatch filed its initialrequest for information to the Department. The Courtsubsequently rejected the respondent’s argument thatthe PAIA applied retrospectively.152 Monsanto’s

application for leave to intervene in court proceedingswas based on the fact that the requested informationwas confidential, yet it failed to provide substantialevidence to convince the Court that the informationthat Biowatch had requested was in fact commerciallysensitive and therefore confidential.153 The Courtsubsequently found in favour of Biowatch and heldthat eight of the eleven requests for information shouldbe granted.

While the judgment was favourable to Biowatch andits efforts to pursue environmental justice, the veryfact that it had to resort to judicial measures to enforceits right to access to information highlights the needfor the establishment of an independent institutionto promote, protect and enforce the right toinformation in terms of the Constitution and thePAIA.154 Not only are court proceedings costly, butthey are also time-consuming. In the Biowatch case ittook five years to obtain the information that hadinitially been requested, and another four years toresolve the matter of costs. This may have far-reachingimplications from a policy and governanceperspective155 on the eventual usefulness of theinformation requested, as:

... there is an inverse relationshipbetween [information’s] age andusefulness, particularly when exercisedas a leverage right in pursuit of otherconstitutional and legislated rights.[Therefore]... access delayed is oftentantamount to access denied.156

This is particularly true regarding environmentalinformation. Where information relating to theenvironmental impacts of a development is requestedand subsequently rejected, the development may becompleted before the information is eventually

147 Ss 27 and 58 of the PAIA respectively.148 Ch 1 of part 4 of the PAIA.149 S 81(3) of the PAIA.150 2005 (4) SA 111 (T).151 Including the Ministry of Agriculture, particularly the

Directorate of Genetic Resources.152 Although the Court held that it would not be unfair to

allow for PAIA grounds for refusing access toinformation, because the right to information is notabsolute. However, the Registrar failed to cite any PAIAgrounds for the refusal of Biowatch’s request.

153 Peekhaus (n 127) 547.154 Although the SAHRC is mandated to monitor

compliance with the PAIA and the implementationthereof, the SAHRC cannot enforce compliance.Therefore the SAHRC cannot take corrective measuresagainst bodies who fail to comply with the PAIA.

155 This also has practical implications. Oftentimes NGOsand local communities do not have the financialresources needed to address imminent threats to theenvironment, health and well-being.

156 Peekhaus (n 127) 550-551.

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received through court proceedings. As a result, theinformation could have lost its significance.157

Environmental degradation may also threaten therealisation of other rights, including the right to lifeand the right to access to sufficient food and water.158

Therefore, where the requested information relates toenvironmental degradation or pollution, a delay inaccessing such environmental information may leadto a delayed response to its adverse impacts on otherrights.

While requests that are made to a private body need tocomply with certain procedures,159 the requestor is alsorequired to prove that the ‘requested record is requiredfor the exercise or protection of any right’.160 Thisthreshold requirement has been interpreted by the SCAto mean ‘reasonably required ... provided that it isunderstood to connote a substantial advantage or anelement of need’.161 While the requestor must showhow the information would assist the exercise orprotection of the rights,162 ‘mere compliance with thethreshold requirement of “assistance” will not beenough’.163 Therefore, it is accepted that whetherinformation is required for the exercise or protectionof rights will be determined within the parameters setout in jurisprudence and with due regard to the factsof each case.164

While the parameters set down by the SCA aresubstantially broad, it may still be difficult for therequester to prove there is a substantial link betweenthe requested record and the right that it affects, becauserequesters do not necessarily know the exact contentsof the record, making it difficult to establish such alink.165 In recognising this difficulty, the courts havestated:

... the degree of connection [betweenthe information requested and theprotection or enforcement of a right]should not be set too high or theprincipal purpose of PAIA will befrustrated. These words “required forthe protection and exercise of rights”must therefore be interpreted so as toenable access to such information aswill enhance and promote the exercise andprotection of rights.166

The willingness of the courts to apply this broadinterpretation of the threshold requirement in theenvironmental context was illustrated by the SCA inCompany Secretary of Arcelormittal South Africa v VaalEnvironmental Justice Alliance167 (Arcelormittal), whichprimarily dealt with the interpretation of section 50of the PAIA dealing with the right to access to therecords of private parties. Before instituting courtproceedings in the court a quo, the Vaal EnvironmentalJustice Alliance (VEJA), an environmental NGO, sentArcelormittal (a multinational steel company) noticeson two separate occasions requesting certaininformation that VEJA asserted was ‘necessary forthe protection of the section 24 constitutional rightsand [which was] in the public interest’.168 The VEJAwent on to state that it required this information toensure that Arcelormittal carried out its obligationsunder the NEMA and various other environmentallaw provisions.169 Arcelormittal eventually rejected the

157 This, of course, will not be the case if the requestorapplies for and is granted an interdict prohibitingfurther progress to the development before theconclusion of the primary matter of access toinformation. However, it does emphasise theimportance of information served timeously and ofalternative avenues to gain speedy access to relevantinformation.

158 D Shelton, ‘Human Rights, Environmental Rights, andthe Right to Environment’ (1991) 28 Stan J Int’l L 103,112.

159 S 53 of the PAIA.160 S 50(1)(a) of the PAIA. The full provision states: (1) A

requester must be given access to a record of a privatebody if – (a) that record is required for the exercise orprotection of any rights.

161 Clutchco (Pty) Ltd v Davies 2005 (3) SA 486 (SCA) para 13.This interpretation was further confirmed in UnitasHospital v Van Wyk and Another 2006 (4) SA 436 (SCA).

162 Cape Metropolitan Council v Metro Inspection Services (WesternCape) CC and Others 2001 (3) SA 1013 (SCA) para 28.

163 Unitas Hospital v Van Wyk and Another 2006 (4) SA 436(SCA) para 17.

164 ibid para 18.

165 W Peekhaus, ‘South Africa’s Promotion of Access toInformation Act: An Analysis of Relevant Jurisprudence’(2014) 4 Journal of Information Policy 570, 580.

166 M & G Media Ltd and Others v 2010 FIFA World CupOrganising Committee South Africa Ltd, and Another 2011 (5)SA 163 (GSJ) para 354.

167 2015 (1) SA 515 (SCA).168 Para 8 (SCA).169 Para 8 (SCA).

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VEJA’s requests on the grounds that the VEJA hadfailed to base its requests on a right that they sought toprotect or exercise, as required by section 50 of thePAIA. The VEJA subsequently instituted proceedingsin the High Court to declare the refusal invalid, andfurther to order Arcelormittal to supply the VEJAwith the requested information. The High Courtconsidered the meaning of the word “required” insection 50(1)(a) of the PAIA170 and stated that ‘theuse of the word “required” rather than, for example,the use of the word “necessary”, in Section 50(1)(a)creates a far lower “threshold” than that contendedfor’ by Arcelormittal.171 It considered the VEJA’srequests in relation to the environmental right whichit sought to protect and exercise and held that refusingthe VEJA’s application would hinder its ability topreserve and protect the environment, notably as anactive advocate for environmental justice.172 A furtherinstructive observation by the SCA that illustrates thejudiciary’s appreciation of CBIs in the broaderenvironmental justice context of South Africa was theCourt’s acknowledgement at the outset of thejudgment that:

… the world, for obvious reasons, isbecoming increasingly ecologicallysensitive … citizens in democraciesaround the world are growing alert tothe dangers of a culture of secrecy andunresponsiveness, both in respect ofgovernments and in relation tocorporations. In South Africa, becauseof our past, the latter aspect hasincreased significance.173

Underscoring the importance of allowing concernedpeople access to environmental information in orderto pursue environmental justice concerns, the SCAmade it patently clear that ‘[C]orporations operatingwithin our borders, whether local or international,must be left in no doubt that in relation to theenvironment in circumstances such as those under

discussion, there is no room for secrecy and thatconstitutional values will be enforced’.174

Accessing information from a private body throughthe PAIA may provide some difficulties, as we haveseen in Arcelormittal. For example, the requestor mustprove that the information that has been requested is‘required’ for the exercise and protection of rights.While the courts have interpreted this PAIA thresholdin rather broad terms, there is no means of assessingwhether a private body’s decision to reject a request forinformation based on the PAIA threshold is reasonableoutside of court. In other words, there is no internalappeal mechanism for a decision made by a privatebody to reject a request for information – a problemwhich is exacerbated in cases where the request hasbeen deemed to be refused. Therefore, an aggrievedrequester’s only option is often to submit anapplication to the courts for the decision to be reviewed.While the courts are fully capable of deciding on amatter based on the individual facts of the case, asseen in the Arcelormittal case, it would be time-consuming and costly for the public to institute anapplication for every explicit and deemed refusal ofaccess to information by a private body. Again, thishighlights the need for the establishment of anindependent body that would provide the public witha timely, cost-effective and independent alternative tothe judicial review of decisions. If such a body existed,applicants for information would be able to accesstimely justice against unjust non-disclosure whichprevented their participation in environmentallysensitive matters.

Finally, despite numerous encouraging signs from thejudiciary on promoting the right of access toinformation in favour of the public, theimplementation of access to information provisionshas been lacklustre in many instances. Governmenthas acknowledged this of its own accord in theNational Development Plan175 (NDP), which sets outthe national development strategy until 2030:176

170 S 50(1)(a) reads ‘(1) A requester must be given access toany record of a private body if- (a) that record is requiredfor the exercise or protection of any rights’.

171 Para 8 of Vaal Environmental Justice Alliance v CompanySecretary of ArcelorMittal South Africa Limited and AnotherCase 39646/2012 (SGHC) 1 September 2013 (unreported).

172 Para 14 (SGHC).173 Para 1 (SCA).

174 Para 82 (SCA).175 National Planning Commission of South Africa,

‘National Development Plan 2030’ (2012) <http://w w w . p o a . g o v . z a / n e w s / D o c u m e n t s /N P C % 2 0 N a t i o n a l % 2 0 D e v e l o p m e n t % 2 0 P l a n %20Vision%202030%20-lo-res.pdf >.

176 ibid 24.

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http://www.poa.gov.za/news/Documents/NPC%20National%20Development%20Plan%20Vision%202030%20-lo-res.pdf

Ineffective implementation of thePromotion of Access to InformationAct is due to wilful neglect, lack ofappreciation of the importance of theright, an institutional culture of riskaversion and/or secrecy and a lack oftraining. The absence of a useableenforcement mechanism is one of theprimary obstacles. Unlike most modernaccess to information laws, the act doesnot create a specialist adjudicatory body,such as an information commissioneror commission. Such a body shouldbe established to dispense quick,accessible and inexpensive access tojustice for those appealing to withholdinformation, or so-called deemedrefusals where no answer comes inresponse to a request.177

Similarly, the South African Human RightsCommission (SAHRC)178 has noted the PAIA’sineffective implementation by stating in its 2014 annualreport that ‘public bodies do not comply substantivelywith PAIA and instead adopt a tick box approach’.179

Therefore, while provisions for access to environmentalinformation are adequately made, and seemingly usedto their fullest extent by the courts, which are ratheropen to their liberal interpretation and application,poor day-to-day implementation of these provisionsthreatens to weaken the impact that access toinformation has as a CBI to promote environmentaljustice on the back of the environmental right.

These and other concerns related to obtaining accessto information could very well be addressed soon withthe establishment of the Information Regulator; an

independent statutory body created in terms of theProtection of Personal Information Act (POPI).180

The Regulator is empowered in relation to POPI andPAJA: to educate; to monitor and enforce compliancewith respect to public and private bodies; to consultwith interested parties; to handle complaints; toconduct research and report to Parliament; to createcodes of conduct; and to facilitate cross-bordercooperation in matters related to information.181 Atthe time of writing, the Regulator’s official websitehad already been launched and its main staffcomponent has been appointed. With an expectationthat it could soon commence with its activities, thecreation of the Regulator could go a long way inimproving access to environmental information,thereby simultaneously strengthening environmentaljustice claims.

4.3 Access to Justice

The Constitution generously provides for access tojustice measures by including a right to have disputesresolved through a fair public hearing before a court,tribunal or other forum.182 Another right enshrinedin the Constitution that has allowed for improvedaccess to justice is its provision of generous legalstanding. While including an environmental right inthe Bill of Rights has bolstered potentialenvironmental claims, its enforcement potential hasarguably likewise been bolstered through the broadlocus standi provision. The Constitution provides inthis respect:

Anyone listed in this section has theright to approach a competent court,alleging that a right in the Bill of Rightshas been infringed or threatened, andthe court may grant appropriate relief,including a declaration of rights. Thepersons who may approach a court are –

(a) anyone acting in their own interest;

177 ibid 452.178 The SAHRC is mandated in terms of ss 32 and 83-85 of

the PAIA to monitor compliance with the PAIA and theimplementation thereof.

179 SAHRC, ‘Annual Report’ (2014) 22 <https://w w w . s a h r c . o r g . z a / h o m e / 2 1 / f i l e s /2013_14%20SAHRC%20ANNUAL%20REPORT%20AS%20AT%2031%20MARCH%202014.pdf>. See,for a detailed discussion of practical issues related toobtaining access to environmental information, therange of transparency reports produced by the Centrefor Environmental Rights <https://cer.org.za/programmes/transparency/publications-by-the-cer>.

180 4 of 2013. See, Chapter 5 of the Act.181 S 40 of POPI.182 S 34 of the Constitution reads: ‘Everyone has the right

to have any dispute that can be resolved by theapplication of law decided in a fair public hearingbefore a court or, where appropriate, anotherindependent and impartial tribunal or forum’.

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https://www.sahrc.org.za/home/21/files/2013_14%20SAHRC%20ANNUAL%20REPORT%20AS%20AT%2031%20MARCH%202014.pdf

https://cer.org.za/programmes/transparency/publications-by-the-cer

(b) anyone acting on behalf of anotherperson who cannot act in their ownname;

(c) anyone acting as a member of, or inthe interest of, a group or class ofpersons;

(d) anyone acting in the public interest;and

(e) an association acting in the interestof its members.183

Locus standi, as provided for by the Constitution, isstarkly contrasted with legal standing as per thecommon law position in the pre-constitutionaldispensation. According to the common law a personhad legal standing, and was therefore able to approacha court, only if he or she could prove either personalharm or damage;184 or could prove that his or herrights had been affected.185 While the narrow commonlaw position could potentially exclude a significantnumber of potential claimants that had sufferedenvironmental injustices, it also worked particularlyadversely in that it prevented people (such as thoseworking in an environmental NGO) from acting onbehalf of others.

By providing for a broader scope for the enforcementof rights before a court, the Constitution now affordslocus standi to a much broader category of persons toapproach a court in matters where a right in the Bill ofRights has been affected. However, the common lawprovisions for locus standi should not be disregardedcompletely as they still apply to matters that do notinvolve a right enshrined in the Bill of Rights.186 Feris187

notes in this respect the need to develop the commonlaw provisions for locus standi in environmental mattersin order to bring them in line with the broaderprovisions for locus standi provided for by theConstitution. This should ensure that a body with theobjective of protecting the environment will also havelocus standi at common law, where rights-based claimsare not at issue.

On paper at least, South Africa’s constitutionalprovisions on access to justice probably rank amongthe most progressive in the world. At a more practicallevel, however, many people in South Africa do nothave the financial means to actively pursue costly courtproceedings; especially including those who oftensuffer most from environmental injustices. As aconsequence, public interest litigation has becomeincreasingly important in advancing justice in SouthAfrica, as it provides litigation opportunities and reliefto a broad spectrum of people, including marginalisedsectors of sciety.188 Civil society interest groups, suchas the Centre for Environmental Rights mentionedearlier, play a critical role in assisting those who areunable to access justice. Public interest litigation hasfurther benefits within the environmental context tothe extent that it could, inter alia , promoteenvironmental justice in cases where ‘marginalisedcommunities bear the brunt of environmentaldegradation’.189 While litigation costs may pose anobstacle to access justice, it has long been establishedby the Constitutional Court in Ferreira v Levin andOthers190 that a flexible approach to costs is necessary,which stems from two basic principles:

… the first being that the award ofcosts, unless expressly otherwiseenacted, is in the discretion of thepresiding judicial officer, and the secondthat the successful party should, as ageneral rule, have his or her costs... The

183 S 38 of the Constitution.184 See Patz v Greene and Co 1907 TS 427.185 See Dalrymple v Colonial Treasurer 1910 TS 372.186 L Feris, ‘Environmental Rights and Locus Standi’ in A

Paterson and LJ Kotzé (eds), Environmental Complianceand Enforcement in South Africa (Juta 2009) 149; Y Burnsand M Kidd, ‘Administrative Law and Implementationof Environmental Law’ in HA Strydom and ND King(eds), Fuggle and Rabie’s Environmental Management in SouthAfrica (Juta 2009) 263.

187 Feris (n 186) 149 as emphasised in an obiter dictum byPickering J in Wildlife Society of Southern Africa and Othersv Minister of Environmental Affairs and Tourism of the Republicof South Africa and Others 1996 (3) SA 1095 (Tk) 1105A-B.

188 LJ Kotzé and L Feris, ‘Trustees for the Time Being ofthe Biowatch Trust v Registrar, Genetic Resources andOther: Access to Information, Cost Awards and theFuture of Public Interest Environmental Litigation inSouth Africa’ (2009) 18 RECIEL 338, 339.

189 ibid.190 Ferreira v Levin No and Others; Vryenhoek and Others v Powell

No and Others 1996 (2) SA 621 (CC). This judgement oncosts was given separately from the judgment given onthe merits of the case.

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second principle is subject to a largenumber of exceptions where thesuccessful party is deprived of his orher costs.191

Following this, the question arose in Biowatch, alreadydiscussed above, as to ‘whether the general principlesdeveloped by the courts with regard to cost awardsneed to be modified to meet the exigencies ofconstitutional litigation’.192 Despite Biowatch beinglargely successful in its application, the High Courtfound that some of its requests for information, aswell as its notice of motion, were formulated in aninept manner, prompting the High Court to disregardthe general rule that the costs should follow theresult.193 Consequently, the state was not ordered topay the costs in Biowatch’s favour, with the High Courtinstead ordering Biowatch to pay Monsanto’s costs.

Biowatch was eventually granted leave to appeal to theConstitutional Court. Although the High Courtdecision focussed on the right to access to information,the Constitutional Court case also focussed on ‘theproper judicial approach to determining costs awardsin constitutional litigation’.194 The ConstitutionalCourt found that the lack of precision in the courtdocuments submitted by Biowatch had not preventedthe High Court from handing down a ‘thorough andwell-substantiated judgement on the merits’.195 Thestate was ordered to pay Biowatch’s costs in the HighCourt as well as the Constitutional Court196 becauseit had continuously failed to supply information thatit was duty bound to provide.197 The ConstitutionalCourt also dealt with the cost order of the court a quoagainst Biowatch for Monsanto’s costs. Although thelitigation involved competing interests (Biowatch’sright to access information versus Monsanto’s right toprivacy), the question revolved on whether the statehad fulfilled its constitutional obligation to ‘separatethe confidential wheat from the non-confidentialchaff ’.198 Monsanto, the Court noted, had no choice

but to interfere with the proceedings. Therefore, thestate was ordered to bear the costs of the successfullitigant and no cost order was made against any of theprivate parties.199 The order against Biowatch to payMonsanto’s costs was subsequently set aside.

Collectively seen, such decisions related to the oftenprohibitive impacts of litigation costs bode well forthe promotion of public interest environmentallitigation, which often has at the core of its concernsthe promotion of environmental justice. Morespecifically, the Biowatch case has to a large extent beenan emphatic leap in the right direction for civil societyin breaking down the financial barriers to access tojustice. Not only did the Constitutional Court findthat the matter of costs that subsequently required itsintervention was in the interest of justice, but it alsooverturned a decision made by the High Court thatwould have had grave effects on public interestenvironmental litigation. From an environmentaljustice perspective, the procedural platform created toaccess justice through affordable means has beenbroadened and arguably more people will in theory beable to approach courts to have environmentaldisputes resolved.

Narrowing the focus of access to justice to theenvironmental domain specifically, the NEMAdedicates a chapter to fair decision-making and conflictmanagement, which largely deals with conciliation andarbitration,200 and which makes provision for judicialmatters.201 According to the NEMA, a court maydecide not to award costs against an unsuccessfullitigant if it is of the opinion that the litigant actedout of concern for the public or environmental interestand has made an effort to use other means that arereasonably available to obtain the relief sought.202

However, this does not apply to proceedings that arefrivolous or vexatious. In Wildlife and EnvironmentalSociety of South Africa v MEC for Economic Affairs,Environment and Tourism, Eastern Cape and Others,203

the court held that while the applicant had acted outof a genuine concern for the environment and in thepublic interest, the court was obliged to make a cost191 Para 3.

192 Para 12.193 Para 68.194 Biowatch (CC) para 1.195 Para 44.196 Para 52.197 Para 49.198 Para 53 and 54.

199 Para 56200 Ch 4 of the NEMA.201 Ss 32-35 of the NEMA.202 S 32(2) of the NEMA.203 2005 (6) SA 123 (ECD).

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order against the applicant because the application wasunreasonable and unnecessary.204

In addition to the broad constitutional locus standiprovisions, the NEMA further broadens locus standiin environmental matters that do not necessarilyinvolve the constitutional environmental right, butnevertheless involve aspects of the environment.Section 32(1) of the NEMA provides:

(1) Any person or group of personsmay seek appropriate relief in respectof any breach or threatened breach ofany provision of this Act, including aprinciple contained in Chapter 1, or ofany provision of a specificenvironmental management Act, or ofany other statutory provisionconcerned with the protection of theenvironment or the use of naturalresources-

(a) in that person’s or group ofperson’s own interest;

(b) in the interest of, or on behalf of, aperson who is, for practical reasons,unable to institute such proceedings;

(c) in the interest of or on behalf of agroup or class of persons whoseinterests are affected;

(d) in the public interest; and

(e) in the interest of protecting theenvironment.205

In terms of this very liberal provision, virtually anyoneis able to approach a court where the matter involves

the environment, even if the matter does notspecifically pertain to the environmental right enshrinedin the Constitution.

This was particularly evident in Lionswatch Action Groupv MEC: Local Government, Environmental Affairs andDevelopment Planning and Others,206 where the applicant’slegal standing to review a decision, which granted aresidential development company authorisation toproceed with a listed activity in terms of the NEMA,was challenged. The applicant was an umbrellaorganisation which represented the interests of variousneighbourhood-based associations registered asI&APs in the prospective residential development, butwas itself not a registered I&AP. The High Court firstconsidered the applicant’s standing in terms of theConstitution. It held that the impugned decision didnot affect the applicant’s rights and interests. Therefore,it did not enjoy own-interest standing. As theassociations it represented could litigate in their ownname, the applicant also did not enjoy legal standingto act on their behalf; nor did the applicant seek tolitigate as a member of a ‘group or class of persons’ orin the public interest. Therefore, the applicant did notenjoy locus standi as provided by the Constitution.However, the Court held that the applicant’s groundsfor review were broad enough to encompass legalstanding in the interest of protecting the environmentin terms of the NEMA. This clearly illustrates thevalue of the NEMA’s broader locus standi provision inpractice; enabling litigants to challenge decisions andactions in the interest of the environment andencouraging environmentally concerned watchdoglitigation.

However, not all courts have been as open to makinguse of the extended locus standi in environmentalmatters provided for by the Constitution and theNEMA, falling back instead on the trite and muchnarrower common law position of locus standi, despitehaving the NEMA and the Constitution at theirdisposal. For example, in Tergniet and Toekoms ActionGroup and Others v Outeniqua Kreosootpale (Pty) Ltd207

(Tergniet), the respondents sought to rely on the testfor locus standi that was established in Patz v Greene and

204 At 143J-144C. This reflects the need to raise substantiveissues in court applications and the court’s discretionin such matters. Similarly in Silvermine Valley Coalition vSybrand van der Spuy Boerderye and Others 2002 (1) SA 478(CPD) 493C-E an environmental NGO was not orderedto pay all the costs of the unsuccessful application, butwas ordered to pay costs that were wasted because ithad brought the application on an urgent basis withoutjustification.

205 S 32(1) of the NEMA.

206 [2015] ZAWCHC 21.207 Tergniet and Toekoms Action Group and Others v Outeniqua

Kreosootpale (Pty) Ltd Case 10083/2008 (C) 23 January 2009(unreported).

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Co208 (read with Roodepoort-Maraisburg Town Council vEastern Properties (Prop) Ltd)209 which required theapplicants to prove that they had suffered actual harmor damage. The Court curiously reverted to thecommon law position of locus standi discussed above,despite the applicants emphasising the application ofsection 38 of the Constitution and section 32 of theNEMA. Kidd210 rightly points out that ‘[A]lthoughthe court reached the “right” decision with regard tothe applicants’ locus standi, the court’s approach isanachronistic and unacceptable. This decision couldhave been made before 1996.’ The Court failed torecognise the constitutional and legislative provisionsfor locus standi in its reasoning, which potentially sendsa message that these provisions are somewhatirrelevant, which of course they are not.211 It is to behoped that other courts in future will refrain fromengaging in such a narrow approach and insteadexplore to the fullest extent, the liberal constitutionaland statutory provisions on access to justice inenvironmental matters.

5CONCLUSION

Our analysis above suggests that, on balance, SouthAfrica’s constitutional, broader statutory andenvironmental law framework amply andcomprehensively provides for the three maininternationally recognised CBIs of public participation,access to information and access to justice inenvironmental matters. These CBIs could potentially,and often do, play an important role in assistingpeople to pursue their environmental justice-relatedconcerns. With few exceptions, South African courtshave also proven decidedly willing to use theseprovisions in support of claimants agitating for theirenvironmental justice concerns. This trend is certainly

in line with the Constitution’s transformative vision;a vision that must be supported and driven by privateand public actors in the broader governance effort. Asformer Deputy Chief Justice Dikgang Moseneke said:‘… transformative constitutionalism is certainly notan event. It is a process that all wielders of public andprivate power are duty-bound to advance’.212

We also advocated the increased use of CBIs inenvironmental governance with a view specifically topromoting environmental justice. By recognising civilsociety’s role as an active participant in environmentalgovernance, CBIs can significantly promote proceduralenvironmental justice in the context of theenvironmental and other related rights, which is integralto the pursuit of substantive environmental justice.We fully support the view that the exercise andprotection of environmental rights and the pursuitof environmental justice ‘will not only depend on thediligence of public officials, but on the existence of alively civil society willing to litigate [and advocate] inthe public interest’.213 For civil society to rise to theoccasion and to meaningfully participate asenvironmental co-governors that have the ability toinfluence environmental justice outcomes, the use ofCBIs must be unreservedly encouraged.

208 Patz v Greene and Co 1907 TS 427.209 Roodepoort-Maraisburg Town Council v Eastern Properties (Prop)

Ltd 1933 AD 87.210 M Kidd, ‘Public Interest Environmental Litigation:

Recent Cases Raise Possible Obstacles’ (2010) 13 PELJ27, 30.

211 ibid 33.

212 Dikgang Moseneke ‘Transformative Constitutionalism:Its Implications for the Law of Contract’ (2009) 20 StellLR 3, 13.

213 Biowatch (CC) para 19.

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LEAD Journal (Law, Environment and Development Journal) is jointly managed by theLaw, Environment and Development Centre, SOAS University of London

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