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PUB2606EXAM PACK
, LEG Q & A
Assignment 2018
1 ASSIGNMENT 01: COMMENTARY
Question 1
What is the role of international and regional conventions (treaties) in South
African environmental law? [10]
Suggested answer
Environmental deterioration or damage do not only affect individual states but
also the entire world. In other words it is a cross border issue and not limited
to man-made borders.
It includes, for example, ozone depletion, global warming, loss of biodiversity,
air and marine pollution, extinction of species and nuclear damage.
To solve these environmental issues international cooperation is essential.
Therefore the role of international law in environmental issues is important.
In the sense South Africa also forms part of the international environmental law
community.
The United Nations (UN) has been at the forefront for many years in
international discussions and legal instruments on managing environment
matters. Examples include: The Convention on Biodiversity (CBD), the UN
Framework Convention on Climate Change (UNFCCC), the Basel Convention
on Control of Movement of Transboundary Waste, etc.
South Africa is party to many international and regional environment treaties
e.g. CITES, CBD, the Paris Agreement on Climate Change, the Kyoto
Protocol, etc. (there are many other examples of environmental treaties).
A treaty is written agreement between states and is a source of international
law. In other words states are bound by signing up to treaties.
Section 39 of Constitution of South Africa deals with the interpretation of the
Bill of Rights and states that international law must be considered and foreign
law may be considered.
South African courts must look for guidance to international sources (such as
international environmental principles), particularly regarding cases of fields of
law that are new – in other words issues that have not been before any court
in South Africa before. This could for example include the issue of climate
change etc.
Section 233 of the Constitution of South Africa provides that when interpreting
any legislation, courts must prefer any reasonable interpretation of the
legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.
,Question 2
Indicate how the term “environment” can be explained both in a broad and in a
narrow context. [10]
Suggested answer
It is a dynamic concept. It can and does change over time and may even differ
from one country to the next depending on the context in which it is used e.g.
in a socio-economic, cultural or political context.
In South Africa the term “environment” is viewed both in a broad and narrow
context:
The broader context includes the natural, spatial and social environment.
However, a wide (broad) interpretation may prove to be too broad, because it
includes virtually everything that influences human existence or quality of life.
A broad approach also means that all laws and policy could be classified as
environment law and policy, because all laws and policy deal with an aspect
of human existence.
On the other hand, the limited or narrow approach includes the natural
environment, but excludes the social environment.
Since the natural environment usually refers to natural resources, this
approach is too narrow, because much of the purely natural environment (i.e.
wilderness area) has been changed by human beings (to form the artificial
environment).
In South Africa the meaning of environment is also a policy question on which
opinions may differ because:
Although the scope of the meaning of environment still evolving, there is
sufficient clarity as far as the essential meaning of the term is concerned
The concept (environment) is regarded as being open-ended and therefore
still evolving.
The meaning and scope of the “environment” will be influenced by the
interpretation the courts will give to it particularly in terms of the right
enshrined in section 24 of Bill of Rights.
The most recent definition of “environment” in South Africa can be found in section 1
of NEMA
* The definition of “environment” per NEMA states:
the land, water and the atmosphere of the earth;
micro-organisms, plant and animal life;
any part or combination of (i) and (ii) and the interrelationship among and
between them; and
the physical, chemical, aesthetic and cultural properties and conditions of the
foregoing that influence human health and wellbeing.
[20]
, 3 SELF-EVALUATION ASSIGNMENT
Describe the procedure that has to be followed where the existence of a
historic building will be threatened by the building of a 900 m² shopping
centre. [15]
Suggested answer:
A “heritage resource” means any place or object of cultural significance. This could
include an historic or cultural building, a piece of land where an historic battle took
place, an area where special artefacts are to be found, historic grave sites, caves
where there are San paintings, and so forth.
A person who wishes to undertake certain types of development that will have an
impact on a heritage resource must include an assessment of the impact on the
heritage resource in question in his or her application. This procedure is set out in,
section 38 of the Act. What follows is a summary of the procedure to be followed
when planning a development that will affect a heritage resource.
A person who intends to undertake a specified development must, at the very
earliest stages of initiating such a development, notify the responsible heritage
resources authority and furnish it with details of the location, the nature and the
extent of the proposed development.
The responsible heritage resources authority must, within 14 days of receipt of a
notification – if there is reason to believe that heritage resources will be affected by
such development – notify the person who intends to undertake the development to
submit an impact assessment report. Such report must be compiled at the cost of the
person proposing the development, by a person or persons approved by the
responsible heritage resources authority with relevant qualifications and experience
and professional standing in heritage resources management. The responsible
heritage resources authority must specify the information to be provided in the report
it requires. However, the following information must be included:
● the identification and mapping of all heritage resources in the area affected
● an assessment of the significance of such resources in terms of the heritage
assessment criteria
● an assessment of the impact of the development on such heritage resources
● an evaluation of the impact of the development on heritage resources relative to
the sustain- able social and economic benefits to be derived from the development
● the results of consultation with communities affected by the proposed development
and other interested parties regarding the impact of the development on heritage
resources
● if heritage resources will be adversely affected by the proposed development, the
consideration of alternatives
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