July 18, 2007 Edition 1 The Mercury

JUST as South Africa’s far-sighted environmental protection laws are coming under fresh attack from developers and economic hardliners, the Constitutional Court seems to have ridden to the rescue.

Judge Sandile Ngcobo and fellow judges of the Constitutional Court have issued a landmark ruling reaffirming the constitutional right of every South African and their unborn children to a healthy, sustainable environment.

Overturning a series of recent decisions by government departments, the high court and the Supreme Court of Appeal, Judge Ngcobo made it clear that an independent judiciary and all government departments had a duty to protect and nurture the ecological roots that nourished society and the economy.

“Pure economic factors are no longer decisive . . . (and) when the need arises to intervene to protect the environment, they (the courts) should not hesitate to do so,” Ngcobo said in written judgment handed down on June 7 (http://www.constitutionalcourt.org.za/site/fuelretailers.htm).

He emphasised that the needs and desires of developers should not enjoy primacy over the needs of society as a whole.

Curiously, the recent Constitutional Court case involved an environmental impact assessment for a new petrol station in Mpumalanga that was challenged by a petrol retailer’s association. This point was not lost on the sole dissenting judge, Albie Sachs, who noted: “It is ironic that the first appeal in this court to invoke the majestic protection provided for the environment in the Bill of Rights comes not from concerned ecologists but from an organised section of an industry, frequently lambasted both for establishing worldwide reliance on non-renewable energy sources and for spawning pollution. So be it. The doors of the court are open to all and there is nothing illegitimate or inappropriate in the Fuel Retailers’ Association of Southern Africa seeking to rely on legal provisions that may promote its interests.”

Judge Sachs said he fully supported the “eloquent and comprehensive” manner in which Judge Ngcobo had highlighted the importance of environmental law in South African society and emerging legal trends in the International Court of Justice.

Instead, his dissent was based on his belief that the facts in this particular case seemed to involve the profits of a small group of fuel sellers, rather than unacceptable environmental threats.

However, Judge Ngcobo and the other judges stressed that the identity or motive of the litigant should not be an issue when the Constitutional Court was asked to uphold the law without fear, favour or prejudice.

Recalling the approach of former Norwegian prime minister Gro Harlem Brundtland, in her landmark report, Our Common Future, Judge Ngcobo said that unlimited development was detrimental to the environment, just as destruction of the environment was detrimental to the developer.

The economy was no longer just about the production of wealth, just as ecology was not just about the protection of nature - and in the future, environmental considerations should be afforded much greater weight in economic and development policy.

Significantly, Judge Ngcobo also chided government officials entrusted with protecting the environment - saying they seemed to be shirking their duty to make tough decisions that might lead to conflict between environmental decision-makers and town-planning officials.

If they took decisions that led to conflict, then so be it. This was their duty.

And a similar duty lay with the courts to protect the environment, which was “vital to life itself”.

Posted on July 18th, 2007
Filed under: Newspaper and Media