As noted in the preceding Chapters, ESD could mean development that seeks to conserve or preserve the continued existence of the earth's ecological systems. Preserving the earth's finite resources has become a major goal of sustainability, globally, such that it has become a precondition for the existence of the environmental rule of law. It may be recalled that based on the 2016 IUCN, ESD is a precondition for the existence of the environmental rule of law in a legal system.1 Simply put, given that the 2016 IUCN regards the environmental rule of law as the legal framework of substantive and procedural "rights and obligations that incorporates the principles of" ESD in the rule of law,2 a legal system cannot function effectively without environmental substantive and procedural laws that provide for ESD.
It is therefore important for a legal system to have substantive laws that seek to protect the environment through measures such as ESD. However, if such substantive laws are implemented in a way that is not participatory, lawful, transparent, fair and/or reasonable or rational, "the environmental rule of law's procedural rights and obligations" create a basis upon which one can enforce the substantive rights and obligations in judicial review proceedings.3 Worth mentioning is that judicial review is a process whereby judges review the constitutionality of conduct undertaken by private parties, the executive or legislature
1 Iucn World Declaration on the Environmental Rule of Law 2016 2.
2 Iucn World Declaration on the Environmental Rule of Law 2016 2.
3 Iucn World Declaration on the Environmental Rule of Law 2016 2.
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and accordingly can declare such conduct invalid on the basis of being inconsistent with the Constitution.4 In South Africa, the grounds upon which the process of enforcing substantive laws through judicial review is generally through the right of access to information,5 the right to just administrative action6 and the principle of legality that emerges from the rule of law.7 These grounds for judicial review are discussed seriatim.
Section 32 of the Constitution affords everyone the procedural right of access to information. This procedural right imposes an obligation on both private actors and the state to provide access to information upon request. The right of access to information as entrenched in section 32 of the Constitution is given effect through the Promotion of Access to Information Act (PAIA).8 PAIA acknowledges that the apartheid system promoted a culture of unresponsiveness and secrecy amongst the private and public sectors, which brought about the "abuse of power and human rights violations".9 PAIA further states that the right of access to information is mandatory to promote a culture of accountability and transparency.10 Further, PAIA outlines the details of how one may lodge a request for access to information11 as well as the limited grounds that could warrant the refusal of such request.12 It is also noteworthy that should one request information from private entities, it must be for the purpose of protecting a right. That is to say, access to information could be for the protection of the environmental right where,
4 Hoexter Administrative Law in South Africa 108.
5 Section 32 of the Constitution.
6 Section 33 of the Constitution.
7 Section 1 of the Constitution states that South Africa is founded on values such as the rule of law and the supremacy of the Constitution.
8 Section 32 of the Promotion of Access to Information Act 2 of 2000 (hereinafter PAIA). An example of a section 32 and PAIA environmental law dispute is Veja (hereinafter VEJA), which concerned transparent environmental decision making in the private sector. In addition, an example of a section 32 and PAIA environmental law dispute is De Lange V Eskom Holdings Ltd 2012 (1) SA 280 (GSJ), which concerned transparent environmental decision making by the state.
9 Preamble of PAIA
10 Preamble of PAIA.
11 Sections 11 and 18 of PAIA provide for a request from a state organ. Sections 50 and 53 of PAIA provide for a request from the private sector.
12 Sections 33 to 46 of PAIA provide for grounds of refusal that a state may invoke and sections 62 to 70 of PAIA provide for grounds of refusal that private bodies may invoke.
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for example, a community requests access to records from polluters whose conduct has been alleged to be negatively impacting upon the community's health and well-being.13 Another ground for judicial review in South Africa could be based on section 33 of the Constitution. Section 33 of the Constitution provides for the procedural right to just administrative action (a particular type of public power).14 According to this right, all administrative action, including decisions by the executive in the course of implementing environmental laws, must be fair, lawful and reasonable.15 Furthermore, upon request, written reasons must be given for administrative action.16 Noteworthy is that the right to just administrative action is given effect through the Promotion of Administrative Justice Act (PAJA).
The objective of PAJA is to promote good governance, an efficient administration, and a culture of openness, transparency and accountability in the exercise of public power.17 Moreover, PAJA, among other things defines administrative action, outlines the requirements for procedurally fair administrative action, details the grounds upon which someone adversely affected by administrative action could rely on when considering judicial review, and offers remedies that could be granted in judicial review proceedings.18 Since PAJA's enactment, legal action "for the judicial review of administrative action now ordinarily arises in PAJA".19 Environmental law cases that challenge environmental decision-making are mostly adjudicated in the framework of judicial review proceedings
13 VEJA paras 49-53.
14 Section 33 of the Constitution. The term "administrative action" is defined in section 1 of PAJA. Quinot and Maree "Administrative Action" 76-93.
15 Section 33 of the Constitution.
16 Section 33 of the Constitution.
17 Section 33 of the Constitution.
18 See PAJA's section 1 (definitions), sections 3 and 4 ("requirements for procedural fairness"), section 6 ("grounds of review") and section 8 (remedies).
19 Bato Star 25. The court in Minister of Health V New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) paras 92-96 has also advised litigants to rely on PAJA and not on section 33 when seeking for judicial review of administrative action.
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based on PAJA, since the implementation of laws such as NEMA and the Specific Environmental Management Acts (SEMAs)20 largely amounts to "administrative action".21 The third basis for judicial review in South Africa is the rule of law.22 The rule of law, as a constitutional value in terms of section 1 of the Constitution, creates a ground for the judicial review of public power with respect to the principle of legality on the basis that the exercise of the public power was inconsistent with the law or irrational.23 The principle of legality has also been invoked to challenge public power in the judicial review of environmental decisions, where no other more definite ground for judicial review existed.24 In other words, judicial review may be invoked on the basis of enforcing elements such as predictability and the absence of bias and arbitrariness in decisions affecting the environment.25
Judicial review based on the environmental rule of law would therefore require that the public and private sphere fully account for environmental values when making decisions that could have an impact on the environment.26 This means that judicial review is part of South Africa's system of checks and balances. Stated differently, judicial review is part
20 In terms of section 1 of NEMA, the phrase "Specific Environmental Management Act" means the: 1.
Environment Conservation Act Act 73 of 1989; 2. National Water Act Act 36 of 1998; 3. National Environmental Management: Protected Areas Act Act 57 of 2003; 4. National Environmental Management: Biodiversity 10 of 2004; 5. National Environmental Management: Air Quality Act 39 of 2004; 6. National Environmental Management: Integrated Coastal Management Act 24 of 2008; or 7.
National Environmental Management: Waste Act 59 of 2008 . The phrase also includes any regulation or other subordinate legislation made in terms of any of the SEMAs.
21 Earthlife para 10.
22 Section 1 of the Constitution. Also see Fedsure Life Assurance Ltd V Greater Johannesburg Transitional Metropolitan Council (hereinafter Fedsure) paras 56, 57, 58.
23 Fedsure paras 56, 57, 58.
24 Normandien Farms (Pty) Ltd V South African Agency for Promotion of Petroleum and Exploitation Soc Ltd 2020 (6) BCLR 748 (CC) is an instructive example of the application of the principle of legality with regard to public power that concerns the implementation of environmental law.
25 Voigt Rule of Law for Nature: New Dimensions and Ideas in Environmental Law xv; Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of Rule of Law for Nature" 7.
26 Voigt Rule of Law for Nature: New Dimensions and Ideas in Environmental Law xv; Bugge "Twelve Fundamental Challenges in Environmental Law: An Introduction to the Concept of Rule of Law for Nature" 6, 17, 25, 26; Kotzé "Sustainable Development and the Rule of Law for Nature: A Constitutional Reading" 135.
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of South Africa's model of separation of powers, which gives the judiciary the latitude to intrude into the jurisdiction of the executive and legislature.27 The judiciary is given such authority so as to ensure that the executive or legislature does not abuse its power, and to ensure that the rights enshrined in the Constitution are fulfilled.28
Pursuant to this system of checks and balances, the judiciary is vested with the authority to "interfere" in the exercise of power by the legislature or executive so as to uphold South Africa's constitutional values through transformative adjudication.29 Moreover, based on South Africa's constitutional design, the judiciary is not only an independent organ of the state, but is also subject to the Constitution and the law alone.30 Liebenberg,31 thus, expounds that the Constitution empowers the judiciary to ensure that the other organs of state act within the confines of the law, whilst fulfilling their constitutional obligations. The author further argues, the only appropriate method of fulfilling such task is through transformative adjudication.32 It thus bears repeating, that when engaging in judicial review, judges ought to engage in legal reasoning that accords protection to an individual's rights as entrenched in the Constitution.33 In the context of this thesis, judges, in the judicial review of environmental law cases, ought to strive to enforce the rights to environmental protection and to an environment that is not harmful to the well-being and health of an individual. Arguably, such legal reasoning requires judges to engage in developing and applying constitutional values such as ESD.
27 Gargarella, Pilar and Theunis "Courts, Rights and Social Transformation: Concluding Reflections" 260;
Hodgson 2018 SAJHR 76-77; Davis 2016 SALJ 267; Liebenberg Socio-Economic Rights 68-71.
28 Gargarella, Pilar and Theunis "Courts, Rights and Social Transformation: Concluding Reflections" 260;
Hodgson 2018 SAJHR 76-77; Davis 2016 SALJ 267; Liebenberg Socio-Economic Rights 68-71.
29 Davis 2016 SALJ 267.
30 Section 165 of the Constitution. Also see Economic Freedom Fighters V Speaker of the National Assembly; Democratic Alliance V Speaker of the National Assembly 2016 (3) SA 580 (CC) para 1.
31 Liebenberg Socio-Economic Rights 71.
32 Liebenberg Socio-Economic Rights 71-75.
33 Lenta 2004 SAJHR 567.
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Furthermore, Liebenberg34 avers that judicial review requires judges not to only reason in a way that respects their institutional role, but in a way that also respects the institutional roles of the executive and legislature respectively. Thus, South Africa's separation of powers model requires that judges should, when engaging in judicial review and transformative adjudication, not entirely disregard the text of the law that they are tasked to interpret and apply.35 A complete disregard of the text of the law judges are tasked to interpret or apply would be unjustly encroaching into the domain of the legislature.36
This means that when engaging in the judicial review of environmental law cases, judges must consider environmental laws such as section 24 of the Constitution in general, NEMA and the other SEMAs, where appropriate. That is to say, even in the judicial review of environmental law cases, judges are constitutionally obliged to promote, protect, respect and fulfil all rights enshrined in the Bill of Rights, including the environmental right in section 24. Thus, the constitutional separation of powers system of checks and balances requires judges to promote, protect, respect and fulfil the environmental right as provided for in section 24. Promoting, protecting, respecting, and fulfilling the environmental right requires judges to, in the course of judicial review, promote the values that underlie South Africa's democratic society.37
Therefore, when engaging in the judicial review of environmental law cases, judges ought not to disconnect from the Constitution's goal of environmental protection through values such as ESD. As Langa38 notes, although judges are vested with the authority to make laws as part of the separation of powers model, they must also strive to bring the law in compliance with the rights and values envisaged by the Constitution. In the context of this thesis, judges ought to, in the course of the judicial review of environmental law
34 Liebenberg Socio-Economic Rights 71.
35 Langa 2006 Stell LR 357.
36 Langa 2006 Stell LR 357.
37 Section 39 of the Constitution.
38 Langa 2006 Stell LR 357.
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cases, strive to make all applicable laws conform with the environmental right and ESD as a value reflected within the Constitution. By seeking to conform all laws with ESD, judges simultaneously engage in substantive legal reasoning and transformative adjudication by embracing the substantive and procedural laws that afford everyone the right to have the environment protected.
As a consequence, judges take part in realising outcomes of ESD such ecological integrity, environmental justice and poverty reduction. For instance, as Hodgson39 contends, the constitutional model of separation of powers is designed not to only obligate all branches of government to promote, protect, fulfil and respect the rights in the Constitution, but to also work on eliminating inequality and combating poverty. The judiciary is therefore presented with the task of not only protecting the environment, but of promoting social justice issues such as environmental justice and poverty eradication. Hence, the adjudication of environmental law cases ought to be a platform wherein judges address and expose environmental injustices of the Anthropocene. As Collins expounds:
As the arbiters of justice in the Anthropocene, judges have the potential to radically transform environmental governance in the public interest or, alternatively, to be mere spectators in the ongoing process of environmental degradation.40
Accordingly, South African judges, as essential agents of environmental and social transformation, are constitutionally obligated to radically change environmental governance in the interest of the public so as to fully respond to realising environmental protection and an environment that is not harmful to the health and well-being of everyone. ESD operates as a constitutional value pursuant to which South African judges may do so. ESD, therefore, calls upon the judiciary, as a key governance actor, not to only consider the well-being of people, but also requires the judiciary to consider the well- being of the planet/nature, through the environmental rule of law. The section that follows aims at unpacking the manner in which the judiciary could have developed and
39 Hodgson 2018 SAJHR 66, 73, 88-89.
40 Collins "Judging the Anthropocene: Transformative Adjudication in the Anthropocene Epoch" 310.
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applied ESD as a constitutional value in environmental rights adjudication, particularly in the judicial review of environmental law disputes. The section also examines how courts could employ the environmental rule of law to realise ecological integrity, environmental justice and poverty eradication as outcomes of ESD.
5.3 The pursuit of 'ecologically' sustainable development by the judiciary