Environmental Law

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Aerospace law : the regulation of space activities and space exploration.
(1985) Reddy, Karunanidhi.; Soni, Ramanlal.
No abstract available.
Wilderness and the law.
(1992) Glavovic, Peter Dusan.; McQuoid-Mason, David Jan.
Wilderness areas face serious threats to their integrity and continued existence. The law has a critical role to play in their protection. To be effective, however, the law must be based on sound philosophical and socio-economic considerations. There is increasing recognition, internationally and nationally, of the utilitarian, intrinsic and biocentric values of wilderness and wildlife. There is also an international trend toward recognition and accommodation of tribal cultures and their traditional natural resource harvesting rights within national legal and political systems. Effective protection of the wilderness resource on which South African tribal cultures depend for their continued existence is essential. Communities adjacent to wilderness areas must be allowed to participate in the determination of the boundaries of, the preparation and implementation of the management plans for, and the benefits derived from, such areas. Wilderness management in South Africa must be linked to economic planning and rural development. The values of wilderness to humankind are increasingly being recognised and protected in international treaties and national legal systems. A comparative analysis of relevant events in the United States, in particular, clearly demonstrates that the most effective vehicle for establishment of a national wilderness system is a national wilderness statute. South Africa should acknowledge the international trend towards wilderness preservation, take instruction from the legal initiatives and protective mechanisms adopted in other countries, recognise that its wilderness is a global heritage, and accept ' that it has an obligation to protect what remains of its wild country, not only in the interests of its present and future generations, but also in the interests of the world community. A review of the history and current status of wilderness in South Africa, and of the laws which indirectly or directly provide protection of wilderness areas, wilderness values, or wilderness equivalents, suggests that there is a need for a new legal dispensation for the preservation of the remnants of South African wilderness. At present there is statutory protection of declared wilderness areas in State forests only, in terms of the Forest Act 122 of 1984. There is no direct legislative protection of wilderness on other public lands, and no legal protection of wilderness on private land. Effective and sustainable protection of South African wilderness will best be achieved through the medium of an appropriate national Wilderness Act.
An environmental law trilogy.
(1992) Ridl, Jeremy Andrew.; Glavovic, Peter Dusan.
No abstract available.
Townscape conservation (with reference to Pietermaritzburg).
(1994) Humphries, Fiona Anne.; Milton, John Robert Landrey.
Our environment (built and natural) is a thing of beauty and value, an inheritance, created by our forefathers for us and for future generations. In South Africa , conservation of cities has only recently become a reality. This study is an attempt to give a general picture of the conservation related mechanisms of townscape conservation in South Africa, with particular reference to Pietermaritzburg. Townscape conservation legislation in South Africa is presently administered in separate and unrelated sets of legislation. The National Monuments Act 28 of 1969 (chapter 2) on the one hand and the physical planning legislation (chapter 4) which is contained in a variety of provincial and local legislation on the other. There is also the Environment Conservation Act 73 of 1989 and other mechanisms (chapter 3) which incidentally promote the conservation of the South African townscape. This study will examine the legal principles available to the different mechanisms which facilitate townscape conservation, with particular reference to the City of Pietermaritzburg (chapter 5).
A consideration of the squatter issue in relation to the natural environment.
(1995) Maharaj, Maneera.; Milton, John Robert Landrey.
Environmental conservation is the achievement of the highest quality of living for mankind by the rational utilization of the environment. It advocates practices that will perpetuate the resources of the Earth on which man depends or in whose continued existence man takes an interest, and is opposed to the view that resources may always be used in the short run for personal profit or for the immediate benefit of living generations. In addition to the numerous obstacles to environmental conservation, m South Africa conservation has recently also become threatened by the establishment of squatter settlements throughout the country. This study is an attempt to give a general picture of how the squatter issue has been dealt with in South Africa, both legislatively and judicially; and also to examine the implications of these legislative and judicial decisions for environmental conservation. Instances of squatting can be attributed to rapid urbanisation, population growth and housing shortages. Unfortunately the quest for shelter forces people to live in squalor and poverty and these living conditions create many negative environmental impacts. The Prevention of Illegal Squatting Act 52 of 1951 1s the most comprehensive piece of legislation aimed at controlling squatting. However from the cases ansmg out of the provisions of this Act it is clear that environmental protection is not an aim of the Act; instead the Act reflects the State's policies of apartheid, influx control and controlled urbanisation. Recently the Less Formal Townships Establishment Act 113 of 1991 was enacted, in order to prevent squatting, by affording people the opportunity to own homes in less formal settlements. While this Act goes a long way in addressing housing needs it does not do so with due consideration for environmental protection. The single case on this Act also does not concern itself with environmental protection or conservation. This study concludes that, for the moment at least, environmental conservation is not a priority in South Africa. The focus at present is on securing the right to shelter for all South Africans. However, our Constitutional Bill of Rights recognises the right to shelter as well as the right to a healthy environment and the submission of this study is that both these rights should be given equal status.
Conservation legislation in Transkei.
(1995) Matyumza, Mlamli Mncedi.; Milton, John Robert Landrey.
Societies in Transkei, particularly those along the coast, are confronted to varying degrees by the problem and prospects of having to be removed from the areas which they have occupied for decades, sometimes from time immemorial, to make space for government schemes intended for the conservation of the environment and its resources, as determined by various conservation legislation (Chapters 3 and 4). These people have to be settled in new areas which lack the natural resources which they enjoyed in their old areas and on which they depended for their survival and their traditional style of life. What exacerbates the situation is that these removals are not accompanied by development programmes to compensate the people for their loss. Furthermore, the establishment of these conservation areas does not offer any incentives for them to appreciated and see the benefit of conservation (Chapters 5 and 6). Furthermore, although some of the conservation legislation anticipates that there should be consultations with, and participation by, the local people before the conservation programmes are implemented in order for them to present their opinions, it does not seem that the government officials charged with the control and administration of the legislation comply with this requirement. The result is that these conservation programmes are met with resistance from the local people, resulting in the government failing to attain the objectives of the legislation. This study will briefly deal with the history and development of conservation legislation in Transkei from the Colonial era (Chapter 2), and examine the provisions of the applicable conservation legislation during the self-government of Transkei including its independence up to its reincorporation into South Africa during April 1994.
An analysis of the international regulation of hazardous waste from a South African perspective.
(1996) McCann, Howard Earle.
This dissertation briefly explains the effects of continuing the hazardous waste trade, followed by a discussion of Thor Chemicals as a local example of this trade and its effects, before going on to discuss the international attempts at trying to curb this trade. The focus of attention will then turn to the merits and demerits of imposing an international ban. Finally, the document will conclude with a critical analysis of the law and policy governing hazardous waste in South Africa and possible suggestions to enable effective regulation of such waste in the future .
An analysis of the international regulation of hazardous waste from a South African perspective.
(1996) McCann, Howard Earle.
Abstract available in the PDF.
Property rights and environmental conservation.
(1996) Fitzpatrick, Russell Anthony.
The intention of this dissertation is not to embark on a discussion on the desirability of a property clause, nor to undertake a full analysis of the property and environmental clauses as they appear in both the interim and working draft constitutions. Instead it is my intention to analyze the inherent conflict that exists between property rights, specifically ownership, and environmental conservation. This will be assessed against the backdrop of the common law, case law and in the light of both the interim and working draft constitutions. Due to the fact that the terms "deprived" and "expropriate", as used in both constitutions, broadly correspond to the concepts of police powers and eminent domain, and since measures taken in the name of environmental conservation are invariably carried out under the auspices of the States police power, it is necessary to :- (a) assess the "deprivation"-"expropriation" conflict and emphasise the ambiguity that can arise in interpreting and differentiating between the two terms; (b) draw a distinction between police power deprivations and expropriatory deprivations. Foreign jurisdictions have experienced grave problems in drawing this distinction, which has been further exacerbated by the concept of inverse condemnation. U.S takings jurisprudence is analyzed to elicit the resultant chaos which will emerge if the courts do not come up with an adequate solution. A possible solution is offered which will provide the courts with an analytical framework within which to work; and (c) assess, although to a lesser extent, the courts ability to review Parliamentary enactments and administrative action.
Locus standi in environmental litigation : a South African perspective.
(1997) Ramagoma, Thendo Resnic.; Kidd, Michael Anthony.
Environmentalists citizens groups, legal practitioners academics and the ordinary citizens in South Africa today are over-excited with the prospects of the environmental rights litigation under the final Constitution of the Republic of South Africa Act 108 of 1996 signed by the State President in Cape Town on the 18th December 1996. For the first time in the history of South Africa environmental rights have been lifted to the status of fundamental constitutional and human rights. From an environmental perspective the upliftment of environmental rights to the level of constitutional protection is a great achievement that will benefit all South Africans. This dissertation throws some light on the concept of locus standi and public interest litigation as they have developed In the New South African Constitution followed by an exposition of the common law rules of legal standing. The focus of attention will then turn to the extent to which the Interim Constitution of the Republic of South Africa Act 200 of 1993 and the final Constitution of the Republic of South Africa Act 1996 extend or broaden the scope of standing followed by a brief survey of legal standing of environmental associations in various countries. Finally the document will conclude with a brief commentary on the law of standing in South Africa and possible suggestions for reform.
The transportation of hazardous waste in South Africa : a comparative analysis of South African, British, American and Australian legislation.
(1998) Athienides, Angela.
This dissertation examines the regulatory measures/legislation governing the road transportation of hazardous waste in South Africa, the United States, Australia and Britain. The document compares the legislation/regulatory measures that exist in South Africa to those that exist in the United States, Australia and Britain. In so doing the document highlights the shortcomings that presently exist in the legislation/regulatory measures governing the road transportation of hazardous waste in South Africa as well as the shortcomings that exist in the legislation/regulatory measures governing the road transportation of hazardous waste in the United States, Australia and Britain and which must therefore be avoided. The document concludes by suggesting improvements which can and ought to be made to the South African law governing the road transportation of hazardous waste.
A comparative analysis of approaches to air pollution control.
(1999) Akinnusi, Abimbola Olabowale.; Kidd, Michael Anthony.
Abstract available in PDF.
A critical analysis of the development of water law in South Africa.
(1999) Singh, Suhana.
This paper entails a critical analysis of the development of water law in South Africa. It examines the historical development process of the law, discussing the tendencies followed in Roman and Roman Dutch Law systems. The principles of water allocations which had been adopted into the South African law system by the courts and legislature is analysed. A review of the water allocation mechanism of the Water Act 54 of 1956 indicate that the water law thereunder is outdated, no longer reflecting the needs of our society. Especially since it was based on antique systems of water allocation derived from European countries where the climate and hydrology are different to South Africa. With the advent of a new democratic Government, the principles of fairness and equity as embodied in the Constitution, demanded that South African water law be reviewed. This mammoth task was undertaken by the Minister of Water and Forestry Affairs, Professor Kader Asmal. After a two year consultative period process, the National Water Act 36 of 1998 was enacted. The provisions of this Act indicate a radical departure from the previous system of water allocation.
Intellectual property rights and biological diversity : an international legal analysis.
(1999) Mneney, Edith.; Kaburise, John K. B.
Biological diversity is defined in Article 2 of the Convention on Biological Diversity as the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. This, includes diversity within species and of ecosystems. Biological diversity and its components is valuable in meeting the social, economic, scientific, educational and other human needs. Biological diversity is also important for revolution and maintaining of life sustaining systems of the biosphere. For many years biological resources were treated as coon heritage of mankind; free access was consequently accepted. Most of the genetic resources used for developing new products originated from developing countries in the South; on the other hand research and development in respect of new technologies is carried out mostly by firms in developed countries in the North. New products resulting thereof are subsequently protected by the intellectual property rights (IPR). It is now recognised that new products using biological resources benefit directly or indirectly from indigenous knowledge. Such knowledge is of significant value for the understanding of the natural environment and for sustainable use of natural resources. However, the contribution made by these communities does not receive the same recognition or protection as products which benefit from their knowledge. Existing IPR systems were not designed to extend benefits to indigenous knowledge. Changes in this area were necessitated by concerns about the significant reduction of biological diversity due to certain human activities. These concerns coupled with the recognition that issues of conservation of biological resources cannot be dealt with without addressing issues of equity in access to and sharing of both genetic resources and technologies, recognition of the role of indigenous and local communities, eradication of poverty and international co-operation among others. The Convention on Biological Diversity entered into force in 1993 as a global effort into addressing these issues. It is recognised in the Convention that access to and transfer of technology among members are essential elements for the attainment of its objectives. Parties are therefore called upon to facilitate access and transfer technologies that are relevant to conservation and sustainable use. Protection to IPR holders is provided by the requirements that access to and transfer of technology which is subject to patents and other IPR is to be provided on terms which recognise and are consistent with the adequate and effective protection of IPR. The relationship between environmental protection and IPR is thus made an important issue which may influence implementation of the Convention. This thesis focuses on the study of national and international IPR regimes and their role in implementation of the provisions of the convention. Limitations of these regimes are identified, recent developments in addressing these limitations are analysed and possible alternatives are proposed. This study purports to supplement global efforts to effectively implement provisions of the Convention.
Environmental NGO's and CBO's towards an understanding of their role in the development and implementation of environmental law : an examination from an urban perspective.
(2001) O'Connor, Rory Noel.
No abstract available.
The promotion and protection of public health in South Africa through environmental legislation with specific reference to air pollution.
(2001) Nepfumbada, Mbulungeni.; Mubangizi, John Cantius.
The Constitution of South Africa I, (the Constitution) envisages in the Bill of Rights that: Everyone has the right -(a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected. for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; II. promote conservation; and III. secure ecologically sustainable development and use of natural resources while promolingjuslifiable economic and social development.3 There are other statutes that support the Constitution. for example, the National Environmental Management Act (NEMA).4 This Act states in its preamble that : " Whereas many inhabitants of South Africa live in an environment that is not harmful to their health and well being everyone has the right to an environment that is not harmful to his or her health or well being; and everyone has the right to have the environment protected, for the benefit of present and futu re generations, through reasonable legislative and other measures that prevent pollution and ecological degradation ... Both the Constitution and NEMA are not only concerned with the environment but also with the health and well·being of South Africans. The World Health Organization (WHO) has defined health, as ' more than the absence of disease and infirmity, it is a state of complete physical, mental and social well-being.' Environmental health in broad term is concerned with factors in the environment associated with health, well-being and disease, including physical, chemical and biological conditions.
Environmental impact assessments in Southern Africa : towards a regional protocol.
(2001) Kalima, Justin Moses.; Kidd, Michael Anthony.
Abstract available in PDF file.
The influence of English poaching laws on South African poaching laws.
(2001) Couzens, Edmund William Franz.; Cowling, Michael G.
This dissertation examines the laws relating to poaching in South Africa - where these laws originated, how they were influenced by the long history of laws against poaching in England, and how they were shaped by factors unique to South Africa. In particular, what is examined is the extent to which laws against poaching were designed and employed historically as a deliberate foam of social control,. and to enable control of property and access to natural resources, in both England and South Africa. The dissertation is divided into two sections. The first section is an examination of English laws and mores against poaching from the date of the Norman Conquest, I066, until near the end of the Victorian era in the late nineteenth century, The second section is an examination of South African laws against poaching, from the early years of the Cape Colony until the early part of the twentieth century. Where appropriate,comparisons are drawn and distinctions made between the English and the South African experiences. Direct and indirect influences which the English poaching and game laws had on South African laws are considered Aspects of English and South African history which are considered include game legislation, preservationist policies, colonial expansion, class consciousness~indigenous hunting systems, and resistance to and enforcement of laws against poaching. The overriding impression gained from a historical study o/poaching laws and other game legislation is that these laws were never concerned solely with preservation of wild animal species for any intrinsic worth these species might have, or even for conservation purposes. Rather, such laws have been driven by the narrow economic and social interests of the upper classes and the lawmakers. The experience of both England and South Africa has been that (he more scarce natural resources become, the more strictly these are reserved to the dominant political groups. It is not always easy to distinguish between influence on and parallel evolution of legal experiences, but numerous features of English laws can be found within South African history. Some are clearly deliberate impositions,. but there are also important invasions by elitist consciousness. However, there are also important differences. In particular, the Roman-Dutch common law in South Africa had a Significant influence on poaching laws. And to an extent South African history was shaped by a reaction to the restrictions ofEnglish poaching laws. The objection might be made that this dissertation deals as much with general game control laws, as with laws enacted strictly to deal with poaching. The word 'poaching' is itself not encountered in South African legislation in the period under discussion. However, the conclusion reached is that the aim and the effect of the game laws in South Africa and England has historically been the transformation of the lower class hunter, the subsistence hunter, into an illegal hunter or 'poacher '.
The protection of the environment through the use of criminal sanctions : a comparative analysis with specific reference to South Africa.
(2002) Kidd, Michael Anthony.; Milton, John Robert Landrey.
The purpose of this work is to examine critically the use of criminal sanctions in the enforcement of environmental law in South Africa. The two principal issues considered are, first, whether criminal sanctions are the best enforcement instrument and, if not, what alternative enforcement tools exist. Second, the thesis considers ways in which the use of criminal sanctions can be made more effective in those cases where it is found that criminal sanctions do have a role to play. In determining the object of criminal law in the context of environmental regulation, it is concluded that the primary aim is deterrence. The question that this raises is whether deterrence can adequately be achieved through use of alternatives to the criminal sanction. A comprehensive analysis of South African environmental legislation reveals an overwhelming reliance on the command and control approach to regulation, with criminal sanctions being used in almost all cases as the primary enforcement mechanism. It is argued that there are several shortcomings of criminal law that militate against its use as the default enforcement mechanism and the conclusion reached is that they should be reserved for the most serious contraventions of the environmental law. The thesis examines several viable alternatives to criminal sanctions, both administrative and civil, and makes recommendations as to how these can be used effectively instead of criminal sanctions. Following this initial conclusion, the focus then shifts onto how the use of criminal sanctions can be improved in those (serious) cases for which they should be reserved. It is agued, first, that the use of strict criminal liability is not necessary. This is followed by an examination of vicarious and corporate liability where recommendations are made for ways in which these aspects can be improved. The issue of sentencing environmental crime is then considered and it is argued that penalties are largely adequate but suggestions are made as to innovative sentencing options. Finally, several procedural improvements are put forward. In conclusion, a model enforcement chapter for environmental legislation is mooted, taking into account the various recommendations made in the course of the thesis.
An environmental analysis of the privilege against self- incrimination as a potential problem for environmental liability: with particular reference to corporations.
(2002) Shabalala, Sibusiso Godfrey.; Kidd, Michael Anthony.
This paper is divided into two parts, namely, Part I- deals with two important concepts, namely, the Development of Corporate Criminal Liability (Chapter Two) and the Development of the Corporate Environmental Crime (Chapter Tltree). Part II- deals with the Privilege Against Self- Incrimination as a potential evidential problem in Corporate Environment Criminal Liability (Cltapter Four). Chapter Five deals with recommendations and suggestions to our Environment Criminal Liability. Our Final Constitution had massive impact m the different fields of law, and environmental law ,vas not an exception to these developments. One such development or should be termed as a problem, in the context of this paper, is the privilege against self- incrimination afforded to corporate offenders in terms of our Final Constitution. As a result this paper undertakes an environmental analysis on how the privilege, if extended to corporations, may pose an evidential problem in corporate environment criminal prosecution against corporate offenders. Thus a comparative study is also undertaken with an objective of viewing how other jurisdictions dealt with this issue, and also to recommend suggestions to our country on how to deal with this matter. By way of conclusion it is suggested that our judiciary, if the matter do end up in court, should clarify vividly whether the privilege is extended to corporations or not. This matter, it is suggested, should be decided from an environmental law perspective and not from a criminal law perspective.

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