THE same level of legal certainty of interpretation and of meanings of the environmental statutes, regarding older laws such as com- pany law, cannot yet be offered to students studying environmental law, says University of the Wit-watersrand (Wits) Environmental Law’s Professor Tracy-Lynn Humby.

“This is a relatively new area of law with much of South Africa’s environmental statute established post-1994 and still under development. The statutes are in place but legal interpretation and clarifications by South African courts have yet to be determined through case laws,” she says.

A legal area such as company law seems more solid and established because the application of the law to diverse factual scenarios has been tested by the courts.

Humby believes this contributes to the incorrect perception that environmental law is a soft subject.

Humby explains how, for example, directors of a company can be held criminally liable for any form of environmental pollution unless it can be proved that the directors took reasonable steps to prevent it. However, the difficulty is in interpreting what those reasonable steps should be.

The development of case laws and interpretations of the various environmental laws can take many years. However, it is possible to discuss law with reference to case studies, which examine how the law might apply.

Meanwhile, in established law such as company law, a number of court cases have developed over the years, which give companies, attorneys and individuals certainty on what the statute means and how the court will interpret the aspects of that law.

A Complex Field
Further, students enrolling to study the specialist field of environmental law often underestimate its complexity and broad aspects, Humby says.

The average student takes about six months to understand the National Environmental Management Act and the environmental- impact assessment process.

This is followed by further study of several regulatory regimes, such as biodiversity, water, air, land, mining and waste, and, eventually, environmental law specialisa- tion.

Each of these branches of environmental law is allocated a study period of about six months.

“Many students expect to complete the entire course in a short period and are frustrated when they realise that this is not the case,” says Humby.

Diversity
Another educational challenge is the difficulty of striking a pedagogical balance in relation to the diverse students taking up environmental law studies.

While the Wits School of Law enrols a number of lawyers, some just out of their Bachelor of Law programmes, a number of non-lawyers, such as environmental assessment consultants, representatives from resource- intensive companies, scientists and government employees, also enrol for environmental law courses.

Nonlawyers do not have the same level of understanding of fundamental legal concepts, legislation and legal terms that law students or practising lawyers have.

Mediation is often necessary and Wits offers additional readings and consultations for students around the fundamental concepts.

Further, the students each want to learn different things, such as what a specific law means for different com- panies. Ideally, the School of Law would cater for those specific needs, but this is at times constrained by a lack of sufficient teaching and financial resources, she says.

“The professors also need to strike a careful balance between context and text. Wits ensures that it incorporates a critical perspective on the examination of environmental law – how appropriate the law is for each situation, how it could be different and how environmental law relates to constitutional standards,” concludes Humby.