4.7 Balancing Sustainability Considerations through Public Participation in South Africa: A Critical Reflection on Legislative Entitlements and the Role of the Judiciary

Louis J. Kotzé450


Abstract

Economic development is important for any developing country. In South Africa, the mining sector contributes significantly to economic development. However, its adverse effects on the environment are well known and long-term uncontrolled mining can have a devastating effect on the environment and consequently the livelihoods of people. If one seeks to ensure a holistic consideration of all sustainability considerations in environmental governance efforts, the decision to approve mining operations should not lie solely with government. Such an approach is contrary to the spirit of environmental governance which, to be sustainable, should embrace a multi-stakeholder approach in which the public is given the opportunity to influence government decisions that may negatively affect their environmental rights and interests. This case study investigates a landmark environmental decision by the South African Supreme Court of Appeal that illustrates how proper public participation can help ensure governance for sustainability in a developing country.

4.7.1 Introduction

South Africa has made great strides in its efforts to establish a modern and comprehensive body of environmental laws since the inception of the new democratic order in 1994. In an effort to break from the past governance approach, which was characterised by exclusion, elitism, and blatant discrimination, many of South Africa's new democratic laws focus on achieving greater transparency, public inclusion in the broader governance effort, promotion of equality and justice, and upliftment of the previously disadvantaged and formerly excluded sectors of society. This is also true for environmental governance in the country. Environmental governance has yet to be properly defined in a way that makes theoretical sense and is acceptable to everyone in a social, environmental, and economic context. This case study proposes that environmental governance be allowed a wide and all-encompassing definition given its ultimate goal of ensuring an economically, socially, and perhaps above all, environmentally sustainable, future for all. One attempt to define environmental governance is to say that it postulates:

A management process executed by institutions and individuals in the public and private sector to holistically regulate human activities and the effects of human activities on the total environment (including all environmental media, and biological, chemical, aesthetic and socio-economic processes and conditions) at international, regional, national and local levels; by means of formal and informal institutions, processes and mechanisms embedded in and mandated by law, so as to promote the common present and future interests human-beings hold in the environment.451

One thing that clearly emerges from this definition is the definitive role the public can play in actively participating in decision making (an element of governance) that might affect their economic, social, and environmental interests. This vital role of participating, engaging, and including the public in environmental governance is reiterated by South Africa's primary environmental framework legislation, the National Environmental Management Act 107 of 1998 (NEMA). The Act provides that:

The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.452

Various provisions in the Constitution of the Republic of South Africa, 1996 (Constitution) and NEMA have specifically been promulgated to facilitate greater public participation. Similarly, provisions on public participation can also be found in a plethora of environmental sectoral acts. A recent court decision vividly illustrates the role that public participation can play in influencing governmental decision making, where these legislative entitlements are properly utilised by the public and applied by the courts to promote and protect environmental interests in a constitutional democracy. In the Supreme Court of Appeal (SCA) decision, Director: Mineral Development, Gauteng Region and another v Save the Vaal Environment and others 1999 2 SA 709 (SCA) (Save the Vaal), a concerned public environmental interest group, by challenging a government decision to approve a mining operation on the grounds of administrative justice and environmental rights entitlements, successfully lobbied to halt this development.

Mining is arguably the mainstay of South Africa's economy and one can imagine that a developing country, under certain circumstances, would give preference to economic development over environmental protection. The reason for this is simple: the proceeds from mining would fill the state coffers and economically empower the previously disadvantaged and the poor. Mines are, however, responsible for major damage to the environment and human health as well as other social problems. Damage from mining is a global concern and not only confined to South Africa. The situation in South Africa is, however, particularly severe, since the activities of mining companies and related industries were not always adequately regulated by legislation in the pre-constitutional and environmental dispensation.453 There are various reasons for this, most of which are political in nature, including, amongst others, that the South African economy has been dependent on revenue generated by mines during times of political and economic isolation from the world. The consequences of unchecked and poorly regulated mining activities will be with South Africans for some time to come, and, if not properly overseen now and in the future, will exacerbate the already devastating effects on the environment.454

This case study investigates the role that public participation played in influencing authorisation for a proposed mining development in one of South Africa's most sensitive environments. In doing so, it critically reflects on the effectiveness of public participation as an element of the broader environmental governance effort by analysing the Supreme Court of Appeal decision of Save the Vaal.

4.7.2 Description

Sasol Mining Ltd. is one of South Africa's largest gas and petroleum companies. The company held mineral rights in an area near the Vaal River,455 which is well-known for its environmentally sensitive characteristics. In May 1996, Sasol Mining sought governmental authorisation to commence open-cast coal mining in the area. Sasol Mining approached the Director of Mineral Development Gauteng (Director)456 for authorisation in the form of a section 9 mining licence in terms of the Minerals Act 50 of 1991.

Save the Vaal Environment (Save) is an unincorporated environmental association comprising concerned members owning property and residing along the Vaal River. Although unincorporated, it has a written constitution that lists its objectives as, inter alia, ‘assisting its members to protect and maintain the environmental integrity of the Vaal River and its environs for current and future generations.’457 Save was united in its opposition to the development and exploitation of the coal reserves by open-cast mining in the area in question. Its concerns were primarily environmental:458 the Rietspruit Wetland would be destroyed;459 fauna and flora would be threatened (amongst these 254 bird species, 44 endemic animal species, and 33 species of reptiles and amphibians); pollution caused by noise, light, dust and waste would adversely affect the ‘spiritual, aesthetic and therapeutic qualities associated with this area’; water quality would be affected; and property values would decrease.460

The present appeal raises the question of whether interested parties (Save), wishing to oppose an application by the holder of mineral rights for a mining licence (Sasol Mining), are entitled to raise environmental objections and be heard by the Director. In other words, does a concerned group have the right to be heard by the relevant competent authority responsible for evaluating and issuing a mining licence; the consequences of which may very well affect the group's environmental rights and interests?

The issue revolved around the administrative law principle of audi alteram partem. This principle is derived from the South African common law (specifically the rules of natural justice) and, plainly put, means that everyone has a right to be heard where his or her interests could be affected by an administrative or government decision.461 The audi principle can therefore be employed to facilitate effective public participation by raising objections to administrative government decisions which may affect environmental rights and interests, certainly in those instances where concerned citizens have not been given the opportunity to raise objections to administrative decisions earlier in the process.

Initially, the Director refused Save a hearing to air its objections, and the mining licence was subsequently issued. The Court a quo (High Court of first instance in South Africa) found that Save in fact had a right to be heard. The Director appealed in casu against this decision of the High Court. The remainder of this section reflects on those parts of the Court's decision that dealt with the audi principle.

Save argued that the audi principle should have been applied by the Director. They contended that:

The rule comes into operation whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting a person in his or her liberty or property or existing rights or interests, or whenever such a person has a legitimate expectation of a hearing, unless the statute expressly or by necessary implication indicates the contrary, or unless there are exceptional circumstances which would justify a court in not giving effect to 462

The substantive rights or interests Save relied on were the environmental right enshrined in section 24 of the Constitution. This right states that:

Everyone has the right

  1. to an environment that is not harmful to their health or well-being; and

  2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:

    1. prevent pollution and ecological degradation;

    2. promote conservation; and

    3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The Director argued that the audi principle was expressly excluded by section 9 of the Minerals Act 50 of 1991 because the section was formulated in peremptory terms. Section 9 states that Director shall issue the license if he is satisfied, inter alia:

  1. with the manner in which and scale on which the applicant intends to mine the mineral concerned optimally under such mining authorisation;

  2. with the manner in which such applicant intends to rehabilitate disturbances of the surface which may be caused by his mining operations;

  3. that such applicant has the ability and can make the necessary provision to mine such mineral optimally and to rehabilitate such disturbances of the surface.

The Court found that some of the matters in section 9 involved environmental issues, for example, an enquiry into how the applicant (in this instance Sasol) intends to rehabilitate disturbance to the surfaces which may be caused by the mining operations. It added that:

This provision requires the Director to enquire into the nature and extent of the terrain which would be violated by the relevant mining operations, the effect of such violation and how the terrain could and should be rehabilitated. In casu, he would have to take into account the alleged likelihood of damage to the Rietspruit wetland and the question if, and to what extent, the wetland could be rehabilitated. These are environmental matters about which the respondents have legitimate concerns.463

The Court accordingly found that the Director would therefore have to give Save an opportunity to be heard at the stage of considering the license application.

The Director further argued that the ‘mere issuing of a mining licence ... in terms of s[ection] 9 of the Act can have no tangible, physical effect on the environment. For this reason no rights are infringed and there is no case for a hearing’.464 The Court found this argument to be flawed since:

The granting of the s[ection] 9 licence opens the door to the licensee and sets in motion a chain of events which can, and in the ordinary course of events might well, lead to the commencement of mining operations. It is settled law that a mere preliminary decision can have serious consequences in particular cases ... which may have grave results. In such a case the audi rule applies to the consideration of the preliminary decision.

The Court came to the conclusion that the audi principle applies when application for a mining licence is made to the Director, and that Save therefore had a right to object and air its concerns and objections to the development by way of a hearing. The Court also indicated that the hearing need not be a formal one. Concerned citizens could merely be notified of the application and be given an opportunity to raise their environmental objections and concerns.465 In what is perhaps its most profound finding, especially as far as protection of environmental rights and interests in South Africa is concerned, the Court stated that:

...the application of the [audi] rule is indicated by virtue of the enormous damage mining can do to the environment and ecological systems. What has to be ensured when application is made for the issuing of a mining licence is that development which meets present needs will take place without compromising the ability of future generations to meet their own needs (the criterion proposed in the Brundtland Report) ... Our Constitution, by including environmental rights as fundamental, justiciable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative processes in our country. Together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns.466

The appeal was accordingly dismissed with costs and at the time of writing, in the absence of a valid mining license, Sasol has not commenced mining operations in the area.

4.7.3 Evaluation

The anomaly presented in Save the Vaal illustrates the sometimes difficult decisions government and the courts have to make to balance sustainability considerations in a developing country. Kidd467 notes that public participation, certainly from the mining sector point of view, may seem an unnecessary and costly burden on developers. Such an approach, according to the author, is incorrect. The issue at stake is not ‘to curtail the opportunities of interested parties to make representation at important stages of the development process, but rather to ensure that the methods of allowing the public a chance to be heard are appropriate in the circumstances’.468 Moreover, the Supreme Court of Appeal decision does not mean that mining should be prohibited in all circumstances where the environment may be threatened. The discretion to issue a mining license still lies with the relevant competent authority, but now and in future, the authority has to consider all elements of sustainability. The judgment in Save the Vaal therefore stresses the ‘how’ element of environmental governance rather than the ‘what’ element by obliging government to reform its ‘administrative’ decision-making processes to include comprehensive consideration of all sustainability elements. One of the most effective ways this can be achieved is to force government to consider public environmental concerns.

The approach of the Court in Save the Vaal also suggests that if decision making concerning authorisation of proposed developments is entirely left to government without adequate public participation, one could easily end up with a situation in which only the economic component of sustainability is promoted without due regard to the social and environmental considerations necessary to sustain life on Earth. Concerned members of the South African public have a constitutional environmental right which protects environmental interests.469 They should, in all administrative decisions that might affect the environment, be given the appropriate opportunity to raise any objections concerning these rights and interests. Conversely, government must take note of these constitutional entitlements and must further ensure that administrative decision making does not under any circumstances infringe rights and interests flowing from these entitlements. What clearly emerges is the significant role environmental rights can play to protect sustainability interests, if these rights are properly enforced by means of, inter alia, administrative law remedies such as the audi alteram partem principle. Rights in themselves are of little value if not properly enforced. Public participation through the audi rule accordingly can provide a fairly simplified and effective mechanism to protect and enforce environmental rights.

It is also evident that legal and administrative (environmental governance) processes must change to conform to the principles of sustainability. If government from its own accord does not make this paradigm shift, the public now has a comprehensive ‘arsenal’ of mechanisms by which government could be ‘forced, kicking and screaming if needs be, into to new “ideological climate”’.470 What clearly transpires from Save the Vaal, is that public participation can be used effectively in public endeavours to force government to consider all sustainability issues throughout the entire environmental governance sequence.

4.7.4 Conclusion

Decisions affecting sustainable livelihoods are complex, mainly because of the complexities arising from the sustainability concept itself. The content, parameters, and dimensions of environmental governance also are wrought with uncertainties and complexities. What is clear is that sustainability should be the ultimate ideal or objective of environmental governance. It is also clear that environmental governance postulates a multi-stakeholder approach in which public inputs in decision making are crucial to keep governance decisions on a sustainable path.

Governance for sustainability will remain a pipe dream if administrative or governance decisions that may negatively impact on the environment are not transparent, inclusive, and representative of the views of all people living in a particular environment. Legislative entitlements that protect environmental rights and interests, should be relied on by a vigilant public by means of public participation processes to ensure an equitable consideration of all sustainability dimensions in all environmental governance processes. Moreover, the public should be encouraged to actively partake in environmental governance and to rely on all possibly available legal entitlements and mechanisms at its disposal to ensure a sustainable future.

Surely there are many and varied means available to a concerned public that wishes to protect its environmental rights and interests. The audi rule, certainly in South Africa's case, is not the only mechanism available to induce, encourage, and further facilitate active public participation. Constitutional, environmental framework, and sectoral legislation provisions all aim to give effect to public participation. However, as one of the tools to facilitate broad-based public participation, the right to be heard, especially when applied to environmental governance as illustrated in the present case, makes it incumbent on government to reinvent environmental governance processes so as to better conform to the generally accepted principles of sustainability. It goes without saying that public involvement in environmental decision making is crucial to ensure that government adequately recognises public environmental concerns, which often revolve around maintaining an acceptable environment that is not harmful to health and well being.


450 Louis J. Kotzé, B Com, LLB, LLM, LLD, is Associate Professor of Law, Faculty of Law, North West University, (Potchefstroom Campus), South Africa, Louis.Kotze@nwu.ac.za

451 Kotzé, L.J. ‘Environmental Governance Perspectives on Compliance and Enforcement in South Africa’ in Paterson, A. R. and Kotzé, L.J. An Environmental Law Perspective on Compliance and Enforcement in South Africa (Juta Law Publishers: Cape Town, 2008).

452 S 2(4)(f).

453 The pre-constitutional era includes the period prior to 1993, that is. before the enactment of the Constitution of the Republic of South Africa 200 of 1993. South Africa had little or no law to regulate environmental issues during this period. It was only after the promulgation of the 1996 Constitution that the bulk of South Africa's environmental laws were established. See further, ‘White Paper on a Minerals and Mining Policy for South Africa’ in Government Gazette 19344 of 20 October 1998. Chapter 4 of the White Paper particularly highlights the relationship between mining and the environment. See also Mabiletsa, M. and Du Plessis, W. ‘Impact of Environmental Legislation on Mining in South Africa’ 2001 South African Journal of Environmental Law and Policy pp. 185–215.

454 See, for example, Feris, L.A. ‘The Asbestos Crisis: The Need for Strict Liability for Environmental Damage’ 1999 Acta Juridica pp. 287–302, for a discussion on the effects of asbestos mining in South Africa.

455 This river also supplies, inter alia, the greater Gauteng area, South Africa's economic centre, with water for domestic and industrial use.

456 A provincial government sphere.

457 714B–714C.

458 714D.

459 Save contended that the wetland: covers approximately 1,000 hectares. The wetland in its present state annually filters and purifies naturally in excess of 2 million cubic metres of improved quality water into the Vaal Barrage. This large volume of water makes a valuable contribution to water quality in the Vaal Barrage. It is alleged that the wetland will be at least partially destroyed by the envisaged open-cast mining. It is further alleged that the eventual replacement of the overburden after the mine has been worked out would not restore the wetland because the upper layer of hydric soil will have been replaced by undifferentiated soils without water storage capabilities. The affected wetland will thus be permanently destroyed. Furthermore, removal of the overburden to reach the coal seams will result in natural seepage water making contact with iron pyrites in the exposed coal seams. This will create weak sulfuric acid solutions and leaching of acid water into the Vaal Barrage is likely. Par 714G–714J.

460 714F–715F.

461 See for a detailed discussion on the application the principle, Pretorius, D.M. ‘The Outsider and Natural Justice: A Re-examination of the Scope of Application of the Audi Alteram Partem Principle’ THRHR Vol. 63 .pp. 93–110.

462 716C–716E. Emphasis added.

463 717E–717F. Emphasis added.

464 717J–718A.

465 719A.

466 719B–719D.

467 Kidd, M. ‘Vaal Environment Saved?’ SAJELP Vol. 6, 1999, pp. 152–153.

468 Kidd, M. ‘Vaal Environment Saved?’ SAJELP Vol. 6, 1999, p. 153.

469 Kotzé, L.J. ‘The Judiciary, the Environmental Right and the Quest for Sustainability in South Africa: A Critical Reflection’ RECIEL Vol. 16 No. 3, 2007 pp. 298–311.

470 Kidd, M. ‘Vaal Environment Saved?’ SAJELP Vol. 6, 1999, p. 154.

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