A recent court ruling challenges us to consider how environmental rights should be balanced against socio-economic rights Jenny Hall, Robyn Stein and Claire Tucker At the Rio Earth Summit in 1992, poverty “alleviation” was recognised as a key to achieving “sustainable development”. When we host Rio+10 next year, this issue will, no doubt, be an agenda item. A judgement of the Constitutional Court, handed down just last week, tests the real relationship between poverty and the environment. The mainly white residents of upmarket Kyalami used the environment as a reason to block temporary housing of Alexandra flood victims in their neighbourhood. The court said the case was “unfortunate” it held that it was “time that attention be paid to the [victims’] needs”. The case arose out of the consequences of the disastrous flooding in 2000, as a result of which some Alexandra flood victims were accommodated in military tents erected on municipality-owned land. They lived in deplorable conditions and did not have sufficient water and sanitation services. The president appointed a Cabinet committee to deal with the disaster. It was agreed that there was an urgent need to accommodate the flood victims and that a “transit camp” would therefore be established. A portion of state land on which the Leeuwkop prison is erected was identified as the most suitable site. Affected government departments agreed that the “transit camp” could be established on the prison site. No discussions were, however, held with residents in the vicinity of Leeuwkop. They first learned of the government’s plans when a contractor moved on to the prison site and started work. The Kyalami residents came together in June 2000 and formed a residents’ association. The residents demanded that the minister of public works suspend operations on the site. They alleged the establishment of the “transit camp” on the prison site involved an alteration in the use of the land and was being carried out in contravention of the Environment Conservation Act, 1989, and the National Environmental Management Act, 1998. The residents therefore attempted to rely on the environment as a reason to block temporary housing of Alexandra flood victims in their neighbourhood. Litigation then ensued with an application by the Kyalami residents in the high court. After hearing argument on the application, the high court granted an interim interdict preventing the establishment of a “transit camp” on the prison site. The government applied to the Constitutional Court for leave to appeal against the order made by the high court. It contended that the appeal was urgent and raised important constitutional issues. The effect of the Constitutional Court’s decision was to overturn the decision of the high court.
The court ruled that although the interests of the Kyalami residents may have been affected, the case did not only concern their interests. The Alex residents also have rights, and a right to housing in particular. Unfortunately, the court did not have cause to consider the balance between the different parties’ environmental rights it would have been interesting if the applicants had countered the resident’s contention that their environmental rights would have been impaired by asserting that their own environmental rights had been infringed given their current living conditions.
The judgement challenges us to consider how environmental rights are to be balanced against the other socio-economic rights. It also reminds us that at the heart of South African environmental rights is the right to an environment that is not harmful to health. Consider the ill health effects of the environment in which the Kyalami residents sought to entrench the flood victims, 10 to a tent without adequate water, sanitation or privacy. Environmental rights do not exist in isolation of other guaranteed rights. The flood victims had a clear constitutional right to be given access to housing. The fact that property values may have been affected by low-cost housing development, the court held, was only relevant to government’s housing policies. The court said that this could not stand in the way of government’s constitutional obligation to address the needs of homeless people. In addition the constitutional right that all South Africans have to dignity was surely abused by the temporary housing given to the flood victims and the attempts by wealthy suburban residents to keep them there. The court noted the absence of meaningful legislation to deal with the flood disaster. That gap is a critical one in the South African context. The legislature’s silence on the management of perceived or real environmental concerns in such circumstances potentially facilitates the environment being used as a counter measure to development issues, rather than establishing parameters for giving effect to the inter-relationship of the environment with development. Certainly that gap allows the privileged to assert what is or is not allowed in their own backyards. The existing environmental legislative framework is to be reformed in a process initiated by the Department of Environmental Affairs and Tourism. The challenge of the law reform process will therefore be to integrate the implications of the different socio-economic rights contained in the Constitution so that sustainable development is properly translated into legislation.
Certain of the new and inherited environmental statutes demand proper consultation. If the government had properly consulted the Kyalami residents, the lengthy legal proceedings could have been truncated. After a year of court battles the flood victims still live in horrible circumstances.
As much as discrimination is generally now outlawed, so too environmental discrimination cannot pass constitutional muster. Why then does the existing legal framework still facilitate the advantaged pitting their right to “well being” against the rights of the poor to health, life and dignity. The urban and rural poor live in areas without infrastructure, sanitation or adequate water, where they have no choice but to absorb the polluting outputs of industrial activity. This cannot be a fulfillment of the Constitution’s promise of “a better life for all”. As a developing country we need to acknowledge the unevenness with which development continues to take place at home. We all need a sustainable environment and socially just development to survive. Jenny Hall is an environmental lawyer practising at Environmental Counsel. Robyn and Claire Tucker are environmental lawyers at Bowman Gilfillan Inc