Improvement in passing “reasonable legislative and other measures” shows that the environmental right in section 24 in the Bill of Rights has, in the short term, been progressively realised to a fair degree; however, the priority that the environment receives is subject to severe policy constraints.
Owing to this, the challenge facing environmental protection is the amount of resources the government is able and willing to contribute to the cause, says Environmental Law Association of South Africa chairperson Advocate Peter Kantor.
The social and economic rights in the Bill of Rights, such as health, housing and education, which need to be realised progressively over time, are in dire need of resources. However, the environmental right cannot be realised progressively over time in the same way as social and econimic rights, says Kantor.
“The natural environmental capital of the country, if not preserved from the outset, diminishes over time and may simply waste away. The effect is seldom felt directly by the average person but is likely to affect future generations,” stresses Kantor.
He adds that, committing resources to saving the environment does not convert into political capital in quite the same way as building houses, hospitals and schools does.
Kantor states, while good environmental laws have been made, enforcement has lagged far behind, placing certain aspects of the environment in jeopardy.
For example, the majority of waste sites are unpermitted, fish stocks are dwindling, critical biodiversity areas go unprotected, biodiversity of certain species is endangered, and water security and the effects of global warning are red flag issues. Controlling pollution comes at a price, and it takes skilled enforcement to make the polluter pay.
Another difficulty is that environmental law is such a broad and diverse area that it overlaps with almost all sectors of government in some way and its effectiveness therefore depends on each and every government structure.
The State has a constitutional duty to respect, protect, promote and fullfil the fundamental human rights as outlined in the Bill of Rights, while the courts are there to uphold the law, and it is the government’s duty to formulate the law and enforce it.
“Government policy does give heed to the environment but it needs to be a collective and intergrated effort, along with service delivery, in all government departments in all three spheres of government. This is however not presently the case although there are some exceptions.
“One would rather have to say that South Africa is on course for limited achievement of the objectives of the constitutional environmental right. An even higher price will be paid by future generations than the present,” concludes Kantor.