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Published online by Cambridge University Press: 28 July 2009
The question of human rights approaches to environmental protection is particularly pertinent in South Africa because its people are currently negotiating a set of constitutional principles which will lay the foundation for a future democratic and representative government in the country. The future direction of South African human rights law and environmental law particularly will be shaped by events in the near future as a new bill of rights is likely to include an environmental clause. The next few months will see the tabling of a set of constitutional principles and a draft bill of rights, the establishment of a transitional executive and elections for a constituent assembly. The latter body will finalize the form and content of a new constitution and bill of rights, drafts of which are currently being negotiated and circulated for comment by the political role players in the negotiating process. In broad constitutional terms, South Africa is departing from the Westminster model of parliamentary sovereignty on which its constitutional structure has been traditionally based and is moving towards the American model of public power being subjected to norms laid down in a bill of rights. The courts exercising their power of review will play a vital role in ensuring the success of the new dispensation. While the new bill of rights will obviously have vertical application, meaning that it will serve as a standard against which future parliamentary statutes will be measured, it is not yet clear whether it will also have horizontal application, whereby alleged contraventions of constitutional norms will be used by private legal persons in disputes between themselves.
1 Elections have been set down for April 1994.
2 Barney Desai, “An environmental policy for the Pan Africanist Congress of Azania.” Discussion document (undated).
3 Albie Sachs, Protection Human Rights in a New South Africa, 139.
4 (WIP 66) (undated), 29. See more generally Cock, J. and Koch, E. (eds.), Going Green—People, Politics and the Environment, Cape Town, 1991, and Ramphele, M. with McDowell, C. (eds.), Restoring the Land: Environment and Change in Post Apartheid South Africa, London, 1991.Google Scholar
5 See Fuggle, and Rabie, , Environmental Management in South Africa, Cape Town, 1992, 92.Google Scholar
6 South African Law Commission, Summary of Interim Report on Group and Human Rights, Project 58, August 1991.
7 May 1993.
8 Article 11.
9 Article 53.
10 Environmental Rights and the South African Constitution, Habitat Council, Cape Environment Trust and Environmental Law Association of South Africa, 05 1993.Google Scholar
11 A Charter for Social Justice, a contribution to the South African Bill of Rights debate, Corder, H., et al. , 1992.Google Scholar
12 The Negotiating Forum comprises some 26 parties involved in the negotiating process.
13 In July 1993.
14 Clause 24 of the Sixth Progress Report of the Technical Committee on Fundamental Rights During the Transition dated 15 July, 1993.
15 See generally, Crawford, J. (ed.), The Rights of Peoples, Oxford, 1988.Google Scholar
16 Indeed environmental factors may generate economic activity in that particular measures may be required in a particular development as a result of environmental factors.
17 See for example Pathak, R. S., “Human rights and the development of environmental law in India”, [1988] Commonwealth Law Bulletin 1171.Google Scholar