It is important to review where we have come from over the past 20 years and how much has been achieved during that time. South Africa’s Constitution makes provision for environmental protection in its Bill of Rights. This must be viewed in the context of a long history of environmental issues not being treated seriously. The constitutional framework sets the spirit and tone for an array of environmental legislation that gives effect to the constitutional provisions. While we have some of the best environmental laws in the world, we need to continue to exercise vigilance, as implementation remains one of our biggest challenges.
Constitutional provisions arm society, but do not tell us that society is better for them. Environmental rights focus on protecting natural resources and also have a strong people-orientated focus, given our past history. The two aspects are intricately intertwined, and are articulated by many in the environmental sector as environmental justice. This is also an acknowledgment that society has limits in terms of how much it can socialise the trade-off we have been making for a very long time with dirty industrialism. In the past, we effectively said: “Let firms and the economy generate surplus; let people be uplifted, and we will worry about environmental externalities later.” This is a fair call and trade-off to make if economic agents in society and those tasked to protect the public interest keep to their promise to fix the damage they have caused. In reality, this never happens. Those who put profit ahead of fixing the environment tend to adhere to the law of ‘rather delay or block than remedy a particular legacy’.
The provisions in the Bill of Rights make the assumption that the State will always be there to protect the public interest. This may be a naive assumption. The State is a contested place and, just like society, there are competing interests. Often, the arms of the State meant to safeguard the interests of society can be subjected to undue pressure and influence by those wanting to advocate for economic interests at all costs. Weaker arms of the State often succumb to the pressure and grant authorisations without due process or full consideration of the facts. This tendency has become more pronounced in the last few years and those of us who work in the environmental sector have numerous cases we can point to.
The State, in fact, either has limited capacity to oversee environmental issues or its capabilities are being compromised. This should be of concern for all upright corporations that wish to see South Africa prosper and grow.
Some people want to continue to believe that environmental issues are worth sacrificing for the sake of economic prosperity. The argument put forward is that we need to create or preserve jobs and to fight poverty. No environmentalist in his or her right mind is antijobs or propoverty. The antipoverty argument is often used to obfuscate the fact that investors are always seeking to cash in at the highest rate of return as quickly as possible. They want to minimise any obstacles in the way to their realising this objective. For example, despite mining having taken place in South Africa for more than 100 years, during which time environmental rights were least protected, high unemployment and poverty persisted. We still have one of the highest Gini coefficients in the world.
Despite the fact that companies have achieved rapid paybacks from some of their assets, they do not go the extra mile in dealing with their environmental externalities or at the very least complying with the basics. This tells us that the story of jobs and poverty is not just about environmental rights interfering with development but that other factors are, in fact, at play. We must expect that, under our new constitutional dispensation, environmental rights sit side by side with economic and labour interests. And, unless there is recognition of the critical role environmental protection plays in sustaining the natural resources on which economic growth and, by extension, jobs ultimately depend, environmentalists will have no option but to keep up the pressure.
The pursuit of environmental litigation is an important defensive measure for environmental rights. Environmentalists are often pitted against more resourceful opponents. To characterise the forces that environmentalists are up against as opposition is to imply that environmentalists and environmental justice are involved in some sort of war. This is not the case. Most of the court cases that one analyses involve the improper application of existing provisions, the exercise of poor administrative justice and, in some cases, proper governance oversight by both the State and firms is lacking. Today, environmentalism has to be understood in relation to broader governance issues in the country. This goes wider than the environment. There are debates about State capture, the constitutionality of decisions, a range of conflicts of interests that are being pursued despite a public outcry and many other areas of the rule of law that are being compromised daily. In this context, environmentalists are not only defending an interest on a rights-based approach but are also fulfilling an important societal role – which is defending the Constitution and ensuring the integrity of the rule of law.
We are at an important juncture in our history. Even for environmentalists, the ground has shifted. The issues go beyond just the defence of environmental rights and increasingly include failure by the executive arm of the State to bring to the fore the importance of State governance. It is a universal matter which we should all be concerned about. Environmentalism is now involved in a wider fight that concerns the whole of society. The collapse of governance also sets in motion the decline of the proper functioning of society, if not its collapse. This cannot be good for anybody, not even corporations.