A case heard in February this year, in which the body corporate of KwaZulu-Natal’s Dolphin Cove property development sued the Kwadukuza municipality and the KwaZulu-Natal Department of Agriculture, Environmental Affairs and Rural Development for the reconstruction of a promenade along the Ballito coastline, is one of the many issues exemplifying the unfortunate state of environmental law implementation in South Africa, says University of the Witwatersrand School of Law professor Tracy-Lynn Humby.
In March 2007, a storm washed the previous structure away and was, as a result, rebuilt in September 2009 by the municipality.
According to the body corporate, the reconstruction of the promenade constituted an offence, as the municipality had failed to obtain the necessary environmental authorisations from the provincial department beforehand.
The municipality defended its decision through the National Environmental Management Act (NEMA), which makes provision for such an offence to be addressed. The municipality was, therefore, allowed to correct its unlawful activity.
Its defence was that the prome-nade was constructed as a result of public pressure and the need to realise the socioeconomic benefits of tourism.
By using this case, Humby shows how poorly environmental law is implemented in the country.
Firstly, the municipality’s environmental expert did not support its application for environmental authorisation, indicating an intra- and interdepartmental conflict, says Humby.
Meanwhile, she also points out, the failing cooperative governance model that the Constitution and the courts endorse, in which the department had not responded to the application for condonation of the construction of the prome- nade by the time the case was heard, indicates a lack of understanding of the law which led to delay and confusion on the part of government.
With the promenade con-structed, the municipality’s application confirmed that there were some significant short-term benefits and no likely negative impacts on the long-term natural processes.
“The municipality seemed to believe an intentional violation of the law was permissible because Section 24G of the NEMA allowed it to ‘correct’ its behaviour,” says Humby.
The new suite of environ- mental laws generated from this case added multiple layers of regulatory activity; however, the reconstruction of the promenade did not indicate whether it was ultimately protecting the natural environment, neither did it ensure that its use increased the generation of other forms of capital.
Further, despite the issuing of a predirective, the department did not act against the municipality by using its powers to institute criminal prosecution or impose administrative fines.
Humby adds that, the NEMA and other specific environmental legislation contain far-reaching and innovative mechanisms of enforcement, yet they are not used, possibly resulting in the outcome of this specific case.
“The picture at the moment is somewhat bleak. Unless the South African government can get its house in order, unless organs of State obey the law, and unless officials use their powers, our environmental laws are not going to stop the destruction of our natural heritage,” concludes Humby.