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Masters Degrees (Environmental Law)

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    The definition of waste in the National Environmental Management Waste Act: have the amendments brought South Africa closer to a circular economy?
    (2023) Dos Santos Niz, Natercia Catherine.; Kidd, Michael Anthony.
    Abstract available in PDF.
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    A critical analysis of South Africa’s coastal access laws in light of the principle of coastal environmental justice.
    (2021) Maclou, Vanessa.; Freedman, David Warren.
    The purpose of this dissertation is to critically analyse the right to perpendicular coastal access in section 13 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEM: ICMA), as well as the right to parallel coastal access in section 18 of the Act, to determine whether and to what extent these access rights are capable of achieving the NEM: ICMA’s overarching object of equitable access to the coastal zone and whether and to what extent they advance the goal of environmental justice in South Africa. An analysis of the approach taken by the eThekwini Municipality towards implementing the provisions of section 13 and especially section 18 of the NEM: ICMA reveals some of the difficulties the statutory framework gives rise to. One of these is the relative lack of detail in the statutory provisions themselves. Another is the heavy burden they place on the local government, namely municipalities. The third implementation challenge arises out of the requirement for each local municipality to adopt its own unique set of by-laws which has the potential to create an inconsistency in the approach taken across all municipalities in the implementation process since the legal provisions require each local municipality to develop its own local by-laws to give effect to the coastal access provisions. An alternative and potentially better approach may be found in the statutory provisions governing public access to the coast in England and Scotland. Whilst both these countries may not have had the same historical disadvantages experienced in South Africa, they however serve as good comparators given the geographical similarities to South Africa. Not only do both countries have long coastlines similar to South Africa they have also both relatively recently conferred statutory rights of access to the coast on the public. More importantly, both countries have adopted very different approaches to securing a right to coastal public access. While Part Nine of the English Marine and Coastal Access Act of 2009 makes provision for a dedicated coastal access route around the entire country, Part One of the Scottish Land Reform (Scotland) Act of 2003 goes much further and makes provision for a general “right to roam” on foot across the entire country. Being informed by the statutory provisions governing public access to the coast in England and Scotland , some novel ideas have been unpacked to provide a basis for rethinking the approach to coastal public access in South Africa; one which is much bolder and more far reaching and thus more consistent with the notion of equitable access and environmental justice. These include creating a dedicated access route along the entire South African coastline, forming an external body such as a Coastal Agency for South Africa to develop and monitor the implementation of an outdoor code of coastal conduct. These novel ideas have the potential to broaden the scope and extent of conferring equitable access rights in South Africa to the extent that it subscribes to the principles of coastal environmental justice.
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    A critical discussion of the legality of South Africa’s lion bone trade.
    (2020) Tigere, James Tendai.; Kidd, Michael Anthony.
    On 28 June 2017, the then Minister of Environmental Affairs, Edna Molewa, set a legal quota of 800 lion skeletons (with or without skull) from the captive-bred population, making South Africa the world’s largest legal exporter of lion bones and skeletons. The figure of 800 appears to be based on the average lion bone trade over the previous ten years. In June 2018 the quota was hiked to 1 500, later slashed to 800 in December 2018, in line with the recommendation of the Parliamentary Portfolio Committee on Environmental Affairs that the quota be reconsidered. This dissertation argues that the quotas set in 2017 and 2018 for the export of lion bone skeletons were unlawful and unconstitutional and did not follow due process, as the decision did not comply with the administrative law requirements of legality, reasonableness and fair procedure. Animal welfare is one of the most contentious issues in debates about captive breeding and the trade in lion bones. These debates point to an important gap in animal welfare policies and laws in South Africa, with both the Department of Agriculture, Rural Development and Land Reform and the Department of Environment, Forestry and Fisheries reluctant to assume responsibility. The North Gauteng High Court in 2019 ruled in favour of the National Council of Societies for the Prevention of Cruelty to Animals, also known as the National Council of SPCAs, set aside the 2017 and 2018 quotas for the export of lion bones and declared them unlawful and invalid.
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    Integration of social, economic and environmental factors into land-use/town planning decisions in eThekwini Municipality.
    (2021) Dlamini, Sibongile Patricia.; Kidd, Michael Anthony.
    The aim of the study is to show how eThekwini Municipality (‘eThekwini’) incorporates the principles of sustainable development and relevant environmental considerations into its development planning decision-making. The study included assessment of eThekwini’s land management planning and land-use management system, particularly the use of the Durban Metropolitan Open Space System (D’MOSS) in considering environmental factors, which are explicitly provided for in the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) and the eThekwini Municipality Spatial Planning and Land Use Management Bylaw, 2016 (‘Planning By-law’). It benchmarks eThekwini’s environmental considerations in its planning, parallel to identifying areas in need of improvement in eThekwini planning decisionmaking. The study finds that eThekwini uses D’MOSS to consider environmental factors as part of its planning decision-making on land development application (‘application’) in terms of the Planning By-law (s 44)(t) of the Planning By-law; and Regulations 9.4.1 and 9.5 of the Central, Inner-West, North, Outer-West and South (eThekwini Regional) Land Use Schemes (‘Schemes’). eThekwini included D’MOSS as part of the Schemes in 2010 to allow regulation of activities within D’MOSS areas in terms of Schemes (Municipal Spatial Development Framework 2019/2020 Final Draft Report [May 2019] at 116). Schemes require prospective developers to obtain ‘environmental approval’ for undertaking activities within D’MOSS areas prior to undertaking such activities in order to protect biodiversity in those areas by preventing transformation of natural areas flagged by D’MOSS (Regulations 9.4 and 9.5 of Schemes; and Davids et al 12). Environmental approval decision-making includes consideration of environmental/biodiversity impact advice after screening of proposed activities (proposal), by eThekwini’s Environmental Planning and Climate protection Department (Environmental Department) ‘for potential’ impacts on biodiversity (Regulations 9.4 and 9.5. of Schemes; and Davids et al 12). This Department would receive an application/proposal ‘proposed within or adjacent to D’MOSS’, screen and provide comment/advice to eThekwini planning decision-maker or the enquirer/applicant, whether or not it supports such proposal from an environmental perspective (Regulations 9.4.1 and 9.5 of Schemes). It is found that although environmental consideration is undertaken as part of eThekwini planning, decision-making on Schemes’ D’MOSS provisions lacks synergy with the Planning By-law decision-making on categories of applications regulated in terms of the Planning By-law.
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    Examining the scope and application of section 24G of the National Environmental Management Act 107 of 1998 (NEMA)
    (2020) Moodley, Poovindrin.; Kidd, Michael Anthony.
    The purpose of section 24G of NEMA is to identify, assess and manage the damage already incurred, together with future impacts arising from an unlawful commenced activity. It is not punitive and does not derogate from criminal prosecution at any stage, due to the unlawful commencement of the listed activity. The section 24G of NEMA decision would either be a refusal to authorise or an authorisation to conduct or continue with the rehabilitation and management of future impacts and environmental damage already incurred. All activities irrespective of whether the activity has an operational aspect or not, would fall within the scope of section 24G of NEMA. Although section 24G of NEMA, in its current form, is not of perfect lucidity, it is capable of being applied with reasonable certainty. The option of the use of environmental offsets as a remedial measure for addressing the damage already incurred, and by excluding decommissioning activities that have already been completed from its application, section 24G of NEMA can be applied affectively to serve its legitimate purpose.
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    An analysis of the South African law relating to involuntary displacement caused by infrastructure development.
    (2020) Bhengu, Sicelo Benswick.; Kidd, Michael Anthony.
    Abstract available in PDF.
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    A comparative analysis of approaches to air pollution control.
    (1999) Akinnusi, Abimbola Olabowale.; Kidd, Michael Anthony.
    Abstract available in PDF.
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    An analysis of the international regulation of hazardous waste from a South African perspective.
    (1996) McCann, Howard Earle.
    Abstract available in the PDF.
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    Protection of the environment through the application of section 24G of the National Environmental Management Act, 107 of 1998.
    (2018) Jikijela, Sgananda Malibongwe Lwazi.; Kidd, Michael Anthony.
    Listed / specified activities are undertaken following authorisation through an environmental impact assessment process. It is an offence to commence them without authorisation, which may attract sanctions through administrative, civil or criminal measures. These measures have proven to be inadequate, which leads to the question: what possible remedies could be effective in such instances. The promulgation of s24G was meant to answer this by introducing a process which might ‘correct’ problems associated thereto. However, s24G proved to be controversial and confusing, and possibly not aligned to the enabling provisions under which it was housed. Furthermore, a number of concerns were raised, such as being a fait accompli authorisation, potential for abuse, being inimical to sustainable development principles, possible unconstitutionality (double punishment for the same crime in contravention of the country’s founding constitutional provisions), etc. This study sought to investigate whether these concerns are warranted, whether consideration is given to the environment in the s24G process, and the ex post facto environmental authorisation jurisprudence in the country. This study found that environmental considerations were central to the s24G process and its outcomes, making it a possible solution to listed / specified activities undertaken without authorisation. Courts, however, have been inconsistent and somewhat contradictory in their interpretation of ex post facto authorisations, which makes it difficult to adequately allay some of the concerns. This study also found that concerns regarding s24G may have been warranted at its promulgation but may no longer be sustained by the current provisions as amended, because of refinement thereof over the years. Empirical evidence suggests that most of those who apply for s24G ‘correction’ in the Province of KwaZulu/Natal are companies, and many ultimately get authorisation. This is in line with the observations in other provinces. However, data is not readily available and where it is, it sometimes has gaps, making it almost impossible to make definitive findings. In this regard, it may be necessary to consider making the s24G application process and data thereof transparent and easily accessible.
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    To list or not to list? The legal debate around the listing of trout as an invasive alien species.
    (2019) Baijnath, Sharlene.; Kidd, Michael Anthony.
    The South African government has made numerous attempts to curtail the spread of Invasive Alien Species, such as rainbow and brown trout, through legislation such as the listing of Invasive Alien Species under National Environmental Management: Biodiversity Act (Act 10 of 2004). In the case of trout species, such attempts have been consistently resisted by stakeholders and this ongoing controversy around regulation of trout prompted the need for this dissertation. This dissertation aims to understand existing South African legislative framework surrounding invasive trout and to determine whether stakeholder’s resistance to the proposed regulation of trout is justified or not. Although extensive, South African legislation surrounding Invasive Alien Species has been criticised for its fragmented nature. It is evident, despite compelling reasons for trout stakeholders’ resistance to regulation of trout, that proposed regulation of invasive trout is necessary when potential threats, posed to biodiversity—rich South Africa, are considered. A key reason for stakeholders’ resistance to proposed regulation of trout was an ineffective Public Participation Process employed by authorities. South Africa could benefit, in future, by ensuring a transparent Public Participation Process is diligently followed.
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    An evaluation of the environmental regulations for the protection of avifaunal biodiversity in light of solar energy development.
    (2020) Govender, Alicia.; Kidd, Michael Anthony.
    The socio-economic benefits associated with solar energy facilities considering the energy crisis, coupled with its positive impacts of a reduced carbon footprint provide the case for solar energy. The inarguable need for solar energy in South Africa is further supported by the latest Integrated Resource Plan (2019). Solar energy is still, however, an emerging energy technology in South Africa, and comes with associated negative impacts, many of which are still unknown, and pose a serious threat to avifauna, directly, indirectly and cumulatively. The South African Constitution, along with other supporting legal framework currently in place, is recognised for its fundamental environmental right offering protection to biodiversity which encompasses avifauna as part of wildlife to be protected. The state is obligated to fulfil its Constitutional responsibility to adequately assess every environmental application for construction and operation of solar energy facilities to minimise potential harm to avifauna through sustainable development mechanisms. Lastly, this paper highlights the importance and practical relevance of the principle of sustainable development, and provides recommendations that can guide developers to sustainably develop solar energy facilities in assisting South Africa in striking a proper balance in its transition to a low-carbon society while protecting and conserving avifauna.
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    Is the regulation of single-use plastic in South Africa a waste of time?
    (2019) Frost, Lauren Hayley.; Kidd, Michael Anthony.
    The aim of a partial or complete ban of the use of single-use plastic in food packaging would be to reduce the amount of plastic waste that plagues South Africa and results in pollution to both our land and water resources. The reduction of plastic pollutants is not only important for the short term health of animals, plants and humans but it is critical to ensure that these resources are preserved for future generations. As such, in curbing plastic pollution we would also be meeting one of the objectives of the National Environmental Management Act1 as well as numerous obligations we have as signatories to international agreements. Measures to regulate the use of single-use plastic bags have been implemented in some international jurisdictions already. These are useful to consider for both their suitability for implementation in South Africa and to identify any challenges that may have resulted and may be relevant to South Africa. South Africa is already behind many countries that have to date either partially or completely banned certain plastic products and therefore if we do not act soon, we will find ourselves under increasing pressure from the international community to conform. The banning of these products is best approached in phases and manufacturers and consumers need time to adapt in order to avoid negative consequences that may result. It is therefore important that we expedite this process as it will take some time to finalise. here are a number of potential challenges to the implementation of bans of single-use plastic. For South Africa in particular, the economic impact of a partial or total ban of single-use plastic will be an important consideration for a country that can ill afford a loss of jobs in the single-use plastic manufacturing industry. The consideration of this aspect in the paper and whether such challenges can be overcome is important given the economic downturn being faced by South Africa currently. However, whilst these challenges may exist, the conclusion is that regulating the manufacture and use of single-use plastic in South Africa is not a waste of time. This is quite simply because the scourge of plastic waste is not an issue that we can continue to ignore nationally or globally. It will have a devastating effect on our environment and it is imperative that we all apply our minds to how government, business and individuals can best deal with the problem before it is too late.
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    Evaluation of the water use licensing regime of the National Water Act in advancing the protection and conservation of water resources.
    (2019) Mdlalose, Nompumelelo Portia Sibusisiwe.; Kidd, Michael Anthony.
    No abstract provided.
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    Environmental and social legal compliance assessment in oil, gas and mining sectors: the case of Total E & P and Metorex in Democratic Republic of Congo.
    (2019) Barhasima, Makala Justin.; Kidd, Michael Anthony.
    Ongoing concerns regarding environmental degradation in mining, oil and gas areas, the high number of abandoned mines, oil and gas fields have highlighted the need for enhanced environmental compliance in the Extractive Industries (EI) sector. These concerns give rise to questions about the implementation and enforcement of environmental laws and standards to avoid and manage the environmental and social impacts of mining, oil and gas operations. With this in mind, this study provides a discussion on the environmental and social compliance in the oil, gas and mining sectors in the DRC, the national key environmental legislation and international standards applicable in the context of the DRC and assesses compliance with two case studies companies, namely; Total E&P, Block III and Metorex, Ruashi Mining. Having established a solid understanding of environmental and social compliance in the EI, the legal framework and standards around it, the institutions vested with their implementation and enforcement; it is important to emphasise that the DRC has made a progress in its environmental laws and standards development, but the country still faces a significant number of environmental regulatory challenges and deficiencies notably showing vague, duplicate and unclear requirements; uncertainties and institutional conflicting mandates within government environmental institutions. As a “post-conflict “country, the DRC continues to struggle to eradicate instability, repeated political crises, weak governance, mismanagement of natural resources and entrenched corruption. Ongoing fighting over the control of the DRC’s considerable mineral wealth sustains a climate of insurgencies in the eastern provinces; fuelling the country’s persistent governance crisis and limiting its governing authority. Coupled with endemic corruption and institutional lack of capacity, this situation undermines the effort of implementation and enforcement of environmental laws and international standards and ultimately weakens environmental and social compliance of the case study companies; though the case study companies are required to implement the UN guiding principles on business and human rights (UNGPS) and the OECD guidelines for multinational enterprises to achieve environmental and social compliance in their operations. In Total E&P Block III; water pollution, degradation of agricultural land, deforestation are very serious concerns, but safeguard the Virunga National Park from oil exploration is the current major concern. At Metorex Ruashi Mining, contamination of groundwater, agricultural land and air pollution, noise, destruction of private properties by explosives, insufficient to non-existent of communities’ engagement, artisanal and illegal mining issues and human right abuses are crucial non-compliance.
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    Critical analysis of the independence of environmental assessment practitioners in South Africa.
    (2020) Buthelezi, Gugulethu Patricia.; Kidd, Michael Anthony.
    Environmental Assessment Practitioners (EAPs) are at the centre of the Environmental Impact Assessment (EIA) process. Their competence and ethics, therefore, are crucial in facilitating the EIA process. This research aims to analyse the extent to which the current South African (SA) EIA regulations ensure EAP independence. The key findings from other professions that place emphasis on independence reveal that factors such as financial interest, prior relations and managerial advisory services, competency, contractual arrangements, close personal relations and government and political influence interfere with independence. In the SA context, the independence of EAPs continues to be debated even after vigorous changes in the EIA regulations. The recent regulation of the EAP profession in SA marks a much-needed intervention. However, it does not guarantee EAP independence while they are still being appointed by the project proponent. Results from Kenya and Botswana do not expressly state in their EIA regulations that they have EAP independence. It appears that international practice places more emphasis on the views and opinions of the affected communities during the public participation process rather than EAP independence. In parallel, Intervenor Funding is adopted to provide financial assistance to the affected communities to encourage their participation during the EIA process in order for the process to be objective. Thus, there is still potential to strengthen EAP independence in SA. In order to achieve the desired outcome of independence, the Competent Authority (CA) must appoint EAPs on behalf of the project proponents rather than allowing EAP-client relationships. Moreover, adoption of the Intervenor Fund concept, where EAPs will be compensated for their services, is a concept that SA should consider.
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    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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    An analysis of the legal and practical application of an agreement in terms of section 29 of the spatial planning and land use management act 16 of 2013 for state infrastructure planning, using the South African National Roads Agency SOC Ltd (SANRAL) as an example.
    De Villiers, Jacques.
    Through the relevant case law and legislation, this paper explores the context of planning law in South Africa as it relates to the implementation of state infrastructure. With the adoption of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) in 2015, the planning of state infrastructure needed to comply with the provisions contained therein. It necessarily follows that those organs of state responsible for this planning need to rethink their processes and procedures relating to planning. The overlapping of constitutional planning competencies between the spheres of government has made planning for the implementation of state infrastructure increasingly complex and difficult. As a result, while there are a number of provisions in SPLUMA that obliquely relate to planning for the implementation of state infrastructure, there are numerous practical and legal difficulties associated with each one. It is revealed that the most legally and practically appropriate approach is an agreement in terms of Section 29 of SPLUMA. Using the South African National Roads Agency SOC Ltd (SANRAL) as an example of an organ of state who undertakes this type of planning, one is able to illustrate clearer the practical consequences in this regard.
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    The regulation of genetically modified organisms (GMOs): a South African legal analysis.
    (2002) Mupangavanhu, Brighton Murisa.; Kidd, Michael Anthony.
    Abstract available in pdf.
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    A comparative study of legislation relating to the establishment and management of wildlife protected areas in South Africa and Tanzania.
    (2006) Laltaika, Elifuraha Isaya.; Kidd, Michael Anthony.
    In the last two decades, conservation of biodiversity has moved from being a preserve of wildlife enthusiasts into forming a lead agenda in the world conferences. Many Conventions and declarations also came into being within this time frame. In the national level, different jurisdictions have enacted pieces of legislation that are in line with the Conventions. To delineate part of a country's territory as a Protected Area and manage it by a legislative enactment is the most reliable way of conserving the said biodiversity. This is because; well managed, Protected Areas have a proven capacity to preserve diversity of species as well as their respective genetic materials in their natural state. This thesis is an attempt to study laws relating to the establishment and management of Protected Areas in a comparative perspective. South Afiica and Tanzania have been chosen as case studies. The two countries are endowed with abundant biodiversity and have signified their willingness to conserve the said biodiversity by enacting pieces of legislation and by signing various regional and international Conventions. An assessment of the current laws of the two countries reveal that the new constitutional dispensation in South Afiica has enhanced the enactment of (despite some pitfalls) exemplary provisions that are worthy emulating by Tanzania whose many laws are a relic of its colonial past.