LEG2601 EXAM PACK 2025

LEG2601 Legal Aspects of Environmental Management 100 Marks 24 Hours THIS PAPER CONSISTS OF 6 (SIX) PAGES – INCLUDING INSTRUCTIONS. Honesty Declaration: In writing and submitting this paper you affirm that: 1. You understand what academic dishonesty entails and are aware of UNISA’s policies in this regard. 2. You have not allowed, and will not allow, anyone to copy your work with the intention of passing it off as his or her own work. 3. You did not make use of another student’s work with or without permission and submitted it as your own. PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. 1. The examination question paper counts 100 marks. 2. It consists of 4 (four) questions. Answer ALL of the questions. 3. The duration of the examination is 24 hours. Your answers must be submitted via myExams on 15 September on or before 8:00 (Central African Time). 4. This is an open-book examination. 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S - The study-notes marketplace S - The study-notes marketplace Page 4 of 6 understanding of the legal principles by looking at how well you applied the principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER SOURCE). 10. Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text. 11. A number of students lose marks because they do not approach problem-type questions correctly. When answering such questions, it is important to first clarify for yourself the area of work where the answer must be sought. Once you have done this, set out the relevant legal principles. Deal only with those principles that relate to the given facts. Next, apply these principles to the facts. This is where most of the students lose marks - they set out the law in some detail, but then do not illustrate how it applies to the factual situation they have been asked to solve. Finally, state your conclusion. PLEASE NOTE: If you experience technical problems, of any kind, on the day of the examination and your examination answers are not submitted by the cut-off time, you will be marked as absent. You have to apply online to be deferred to the next exam opportunity. No other type of submission of your examination answers will be accepted. S - The study-notes marketplace S - The study-notes marketplace Page 5 of 6 QUESTION 1 1.1. Distinguish between a public law relationship and a private law relationship. (6) 1.2. List any four sources of South African law. (4) 1.3. Define a “heritage resource” and indicate what type of environmental assessment must be undertaken if a development will have an impact on a heritage resource. (5) 1.4. Write a short note on your understanding of the public trust doctrine. (5) 1.5. Section 24(a) of the Constitution provides that “everyone has the right to an environment that is not harmful to their health or wellbeing”. Discuss the concept of wellbeing with reference to case law. Use your own words. (5) [25] QUESTION 2 2.1 Decisions are made concerning environmental and planning matters, and the implementation of rules and regulations are classified as administrative action. In terms of section 33 of the Constitution (the right to administrative justice), all administrative decisions must be lawful, reasonable and procedurally fair. In your own words, explain what the bold phrases mean in relation to environmental decision-making. (10) 2.2 Discuss, in your own words, the powers of Environmental Management Inspectors. (10) [20] QUESTION 3 S - The study-notes marketplace S - The study-notes marketplace Page 6 of 6 QUESTION 4 Read the following scenario to answer question 4.1-4.3. Remember to use your own words and apply the set of facts to each of your answers: Ripwaters (Pty) Ltd wants to build a housing estate in Limpopo, outside an urban area on a piece of undeveloped land. The proposed housing estate will bring about the transformation of an area of 10 hectares. 4.1 Identify which procedure the company must follow in terms of the Environmental Impact Assessment Regulations, 2010 to obtain the necessary authorisation for the development. After identifying the appropriate procedure, briefly list the applicable procedure. (16) 4.2 Assume that you are a concerned citizen who is staying next to the development site described in the scenario above and that the development of the housing estate has already started. You have not been notified of the development and want access to the following information: the environmental authorisation, the public participation process and the basic assessment. (i) Indicate which section of the Bill of Rights and which legislation are applicable and can be used to gain access to the above information. (2) (ii) Who can you approach to request the above information? (5) 4.3 A developer wants to undertake a development on a piece of land where there are historic grave sites and therefore must submit an impact assessment report to the responsible heritage resources authority. List the information that must be provided in the impact assessment report. (7) S - The study-notes marketplace S - The study-notes marketplace Question 1 1.1)Public Law Relationship - Public law is law governing the relationship between individuals (such as citizens and companies) and the state. - It is an unequal (↕ vertical) relationship, because one of the parties holds on authoritative position - Public law aims to protect the public interest - Public law comprises of constitutional law, administrative law, tax law and criminal law, as well as all procedural law. Private Law Relationship - Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligation (as it is called in civil legal systems) - It is a horizontal (↔ equal) relationship, meaning that the parties are on equal footing - The persons (also called “parties”) act in their own (private) capacity to further their own interests 1.2) Four Sources of South African Law - The constitution – the supreme law of the country - Legislation (acts of the national and provincial legislatures, governmental regulations) - Common law - International law 1.3)The term ‘heritage resource” refers to any place or object of cultural significance. The cultural Heritage Impact Assessment must be undertaken if a development will have an impact on a heritage resource. In the context of developments which threaten heritage resources, the Act provides for a National Heritage Resources Authority and for Provincial Heritage Resources Authorities. These authorities are responsible for protecting and managing certain categories of heritage resources and they are the authorities that must make the decision on whether to permit the development. S - The study-notes marketplace S - The study-notes marketplace - Public trust refers to a state-held resource which must be held for the benefit of the general public, referring to the free use of, or access to, such a resource by the general public - The principle of trusteeship, in contrast, entails that the trustee should protect the environment on behalf of future generations. 1.5)“Well-being” is regarded in the wider sense which includes spiritual or psychological characteristics and an individuals need to be able to connect with nature. Question 2 2.1) • To be performed “lawfully” the action must comply with all the requirements of the law. This means that the relevant prescriptions of the constitution, other legislation and case law (e.g., the sources of law) must be complied with. Any administrator must act within the powers conferred on him or her by the empowering legislation (the legislation that confers the powers). In the enabling legislation we find instructions relating to the scope and content or nature of administrative power. If any administrator exceeds the statutory powers laid down in the enabling legislation, we say that the action is ultra vires (which is unlawful). • A “reasonable” administrative action is a decision based on the consideration of all the relevant and objective facts and circumstances. A reasonable decision is therefore a decision based on reason and not based on, for e.g., subjective opinion. A reasonable decision is a suitable and necessary decision in the circumstances and reflects that the administrator has weighed up the advantages and disadvantages before reaching the decision. In terms of PAJA, an unreasonable administrative action is so unreasonable that no reasonable person could have so exercised the power or performed the function. • The obligation to comply with “fair procedures” requires that both parties involved in the case have the opportunity to present their side of the story to the presiding officer, and that the presiding officer must be objective and impartial when making a decision on the matter. These are known as the rules of natural justice, which has been included in PAJA. S - The study-notes marketplace S - The study-notes marketplace • May give an offender an admission of guilt fine instead of being tried by a court for the offense. • Has the power to seize any item as well as to stop, enter and search vehicles, vessels and aircraft. • Can carry out routine inspections on buildings, land or premises to ascertain that there is compliance with the legislation or any permit or authorisation issues. EMIs are organs of state and perform administrative action when, for example, issuing a compliance notice. Their actions are therefore subject to the scrutiny of senior officials who will check that they exercise their powers as set out in the Constitution (s 33) and the relevant legislation. Question 3 3.1) Before someone can ask a court to review an administrative action, there is an important rule in the PAJA that must be complied with, the rule of exhaustion of internal remedies. This means that, where the law sets out procedures allowing someone to review or appeal a decision of the administration, there must be used up before an affected person can approach a court. Internal remedies are ways of correcting, reviewing or appealing administrative decisions using the administration itself • Administrative officials dealing with these problems are well able, and have the expertise needed to deal with the problems on the spot. • The matter may therefore be dealt with expediently and cheaply, without the long delays that are encounted in court cases. Court cases, on the other hand, are expensive and timeconsuming, and judicial officers often have less hands-on experience of technical environmental problems than officers working in this field. • Although administrative control is not the same as the judicial control exercised by the courts, the administrative controlling bodies and officials have powers and functions to evaluate and resolve administrative disputes. 3.2) Criminal sanctions are widely used to enforce environmental rules and to control actions that contravene the law. Criminal sanctions are provided for in legislation and are also referred to as criminal penalties or measures. These sanctions are very important and are used extensively in S - The study-notes marketplace S - The study-notes marketplace 3.3) An interdict is a remedy that may be instituted against the administration or a private individual. It may be used to prevent a certain activity from being carried out or it may be used to make a person undertake a particular act. An interdict is regularly used in environmental disputes, because it is aimed at preventing unlawful action lor threatened unlawful action by the administration or an individual. A mandamus is a type of mandatory interdict which is aimed at compelling and administrative body perform its statutory duty. However, a mandamus cannot stipulate how the power should be exercised. 3.4) Internal administrative control is control exercised within the administration itself. It is an important and effective means of control, which is exercised by either senior officials or specially constituted bodies. In instances where a person feels aggrieved by a decision taken by a certain official, the aggrieved person can take the matter further: He or she can have the matter reconsidered or re-examined by a more senior official. In such instances, terms such as “appeal’ or “review” reflect that the decision will be reconsidered by a second decision-maker. Each department has its own structure (and channels) for internal administrative control, which is provided for in legislation. Senior or superior officials exercise control over the acts of more junior officials. NEMA contains specific provisions regarding this type of control. In terms of section 43(1), an aggrieved person may appeal to the Minister against a decision taken by any person qualified to make a decision on a certain matter. Question 4 4.1) In order to undertake the proposed development, the developer is required to submit an Environmental Impact Assessment as the proposed development triggers listing activity 27 of LN 1 which is the clearance of an area of 1 hectare or more, but less than 20 hectares of indigenous vegetation, except where such clearance of indigenous vegetation is required for— (i) the undertaking of a linear activity; or S - The study-notes marketplace S - The study-notes marketplace by means of selective chemical application would not constitute clearance of indigenous vegetation. The pruning of shrubs under a power line would not constitute clearance, unless the pruning is done in such a way that the shrubs die- off as a result of the pruning. The preparation and submission of the Environmental Impact Assessment consists of Six Distinct Phases. 1. The Screening Phase Screening is an exercise undertaken during the planning and design of a proposed project. During screening, the need for an EIA is determined as well as the level of assessment that would be required. During this phase, potential fatal flaws must also be identified, such as unavailability of technical and scientific information that the EIA requires, or lack of funding or legal approvals (e.g., land use rights) for new infrastructure, such as water supply, housing, hospitals, schools, or lack of services and infrastructure, e.g., water, electricity, sewage. This phase allows for corrective measures that are important to the EIA process to be undertaken, for example, acquisition of missing information that is critical for informed decision-making. The outputs of the Screening phase are: • A classification, according to its environmental sensitivity, of the project and its alternatives; • Confirmation about whether an EIA is required or not; • If an EIA is required, confirmation on the level of assessment required. 2. The Scoping Phase In order to ensure efficiency and effectiveness, an environmental assessment must be focused. It is not about gathering all possible information on all possible aspects, but about focusing on the key issues that are relevant to the specific course of action under consideration. Scoping does not, however, start with a blank slate. The legislation highlights several specific relevant considerations that must be considered during the EIA process, such as the minimum requirements set out in section 24(4) of NEMA. The Scoping phase is when the scope of the EIA is determined, by identifying the issues to be addressed and alternatives to be considered. Scoping is also informed by consultation with interested and affected parties (I&APs). I&APs are informed about the proposed project and its alternatives, and their comments on the issues to be addressed and alternatives to be considered are invited. An important output from consultation with I&APs will be a clear understanding of the key issues and alternatives that must be further addressed in the EIA. A key issue is defined as an unresolved question or concern about the potential social, economic or ecological consequences of the S - The study-notes marketplace S - The study-notes marketplace In South Africa there are two main EIA processes that are followed, namely, the Basic Assessment and Scoping and Environmental Impact Reporting processes. “Scoping” is included in both of these EIA processes, but it is undertaken as the first part of an integrated scoping and assessment procedure during the Basic Assessment process, where it generates an integrated scoping and assessment report (the Basic Assessment Report). On the other hand, during the Scoping and Environmental Impact Reporting process there is a separate scoping phase from which a Scoping Report is generated before proceeding to the assessment phase. 3 The Specialist Study Phase While specialist studies are usually prepared during the assessment phase of an EIA, the involvement of specialists might well be required during the Screening or Scoping phases. Specialists are experts in their field, for example, geologist, botanist, economist, etc., appointed to address key issues that were identified during the Scoping phase of the EIA. Their brief is to predict changes that are likely to result from the proposed project and its alternatives, assess the implications of these changes for the socioeconomic and ecological environment, and propose measures that will enhance impacts that are positive and avoid or mitigate those impacts that are negative. Specialists must also recommend monitoring and review programmes to assess the effectiveness of mitigation and enhancement measures and set quantifiable standards for measuring these. The aim of the Specialist Studies Phase is to provide information on both the positive and negative impacts associated with the project alternatives. The studies also present recommendations for actions that may either enhance potential benefits or minimise harmful effects. 4. The Integration and Assessment Phase During this phase of the EIA, the findings of the specialist studies are integrated with other available information and synthesized into an Environmental Impact Assessment Report (EIAR). Depending on the level of assessment required, this takes the form of either a Basic Assessment Report or an Environmental Impact Report. The EIAR includes a description of the impacts that remain after mitigation measures have been applied for the proposed project and its alternatives. This phase of the EIA is also informed by public participation with the I&APs being afforded the opportunity to comment, and the assessment being required to address these comments. The aim of the Integration and Assessment Phase is to prepare information that assists in making a well-informed project decision (i.e., whether the project should proceed and if so, under what conditions). This information should be presented in a clear, understandable format to the project proponent, authorities and interested and affected parties. S - The study-notes marketplace S - The study-notes marketplace • Inform stakeholders about the proposed project and its alternatives, and all potential environmental impacts; • Provide an opportunity for the public to present their views, concerns and values, and to influence project design in a positive manner; • Obtain local and traditional knowledge; • Reduce conflict through early identification of contentious issues; • Increase public confidence in the process and provide transparency and accountability in decision making by the project proponent and the authorities. The public participation process will be checked by the competent environmental authority for the following: • Legal requirements: did the process comply with prescribed minimum legal requirements in terms of procedure? • Was the consultation effective: did it fulfil the objectives for public participation, as described above? • Access to and quality of the information provided during the public consultation process: was sufficient relevant information provided in a form that was easily understood? Were stakeholders given sufficient time to read, discuss, and consider the information and its implications? Were responses provided to issues/problems that were raised? • Timing and venue for public consultation: were the venues and timing of events appropriate? Did it encourage maximum attendance and free exchange of views by stakeholders? Were these stakeholders generally representative of all interested and affected parties? 6. Authority Review and Decision Making The final EIA Report is submitted to the competent environmental authority Department of Environmental Affairs & Development Planning and Department of Mineral Resources, Western Cape, who will review it to determine, firstly, whether its information is adequate for informed decision-making. Secondly, once it is decided that the information presented is adequate, the authority will either grant or refuse environmental authorisation. This decision is subject to appeal by any I&APs, including the project developer. The decision on the application will clearly state whether the environmental authorisation is granted or refused for the proposed project. If granted, the environmental authorisation will state which alternative was approved and why, and state the conditions attached to the authorisation. S - The study-notes marketplace S - The study-notes marketplace The promotion of access to information Act 2 of 2000 (PAIA) has been promulgated to give effect to this right. Access to information is also a right that a private individual may enforce against other private persons. In terms of PAIA, a request for a record (information) may not be refused if the disclosure of the record would reveal evidence of substantial contravention of, or failure to comply with, the law and an imminent and serious public safety or environmental risk. 4.3) A person who wishes to undertake certain types of development that will have an impact on a heritage resource must include an assessment of the impact on the heritage resource in question in his or her application. This procedure is set out in, section 38 of the Act. A person who intends to undertake a specified development must, at the very earliest stages of initiating such a development, notify the responsible heritage resources authority and furnish it with details of the location, the nature and the extent of the proposed development. The responsible heritage resources authority must, within 14 days of receipt of a notification – if there is reason to believe that heritage resources will be affected by such development – notify the person who intends to undertake the development to submit an impact assessment report. Such report must be compiled at the cost of the person proposing the development, by a person or persons approved by the responsible heritage resources authority with relevant qualifications and experience and professional standing in heritage resources management. The responsible heritage resources authority must specify the information to be provided in the report it requires. However, the following information must be included: • the identification and mapping of all heritage resources in the area affected • an assessment of the significance of such resources in terms of the heritage assessment criteria • an assessment of the impact of the development on such heritage resources 8 • an evaluation of the impact of the development on heritage resources relative to the sustain- able social and economic benefits to be derived from the development • the results of consultation with communities affected by the proposed development and other interested parties regarding the impact of the development on heritage resources • if heritage resources will be adversely affected by the proposed development, the S - The study-notes marketplace S - The study-notes marketplace Reference List Black, Donald 1976 The behaviour of Law. New York: Academic Press Communication Services Western Cape Government Environmental Affairs and Development Planning Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN 3. Forcese, Craig; Dodek, Adam; Bryant, Philip; Carver, Peter; Haigh, Richard; Liston, Mary; MacIntosh, Constance (2015). Public Law: Cases, Commentary and Analysis (Third ed.). Toronto, ON: Emond Montgomery Publishing Ltd. p. 4. ISBN . Mattei, Ugo; Bussani, Mauro (18 May 2010). "The Project - Delivered at the first general meeting on July 6, 1995 - The Trento Common Core Project". The Common Core of European Private Law. Turin, Italy: Common Core Organizing Secretariat, The International University College of Turin. Retrieved 8 September 2011. Researching South African Law from Globalex, by Amanda Barratt and Pamela Snyman, updated in 2018 by Salona Lutchman S - The study-notes marketplace S - The study-notes marketplace 1 LEG2601 May/June 2018 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT Duration: two hours (120 minutes) 100 marks Examiners: First: Mr H Coetzee Second: Ms E Raubenheimer Closed-book examination This examination question paper remains the property of the University of South Africa (Unisa) and may not be removed from the examination venue. This examination question paper consists of four (4) pages.  Answer all the questions.  Pay attention to the ALLOCATION OF MARKS for each question and adapt your answer accordingly.  Refer to relevant CASE LAW and OTHER LEGAL AUTHORITY.  Credit will be given for a SYSTEMATIC PRESENTATION, GRAMMATICALLY CORRECT LANGUAGE and references to LEGAL AUTHORITY. S - The study-notes marketplace S - The study-notes marketplace 2 Question 1 1.1 What is the role of international and regional conventions (treaties) in South African environmental law? Make sure to refer to the following aspects in your answer: the transcendental nature of environmental issues (including relevant examples); cooperation; the normative value of a treaty; examples of treaties; Section 39 of the Constitution on whether to consider international and foreign law; and Section 233 of the Constitution on interpreting legislation. (12) (max 12 marks) Environmental deterioration or damage is affecting not only individual states but also the entire world (cross borders). √ Such deterioration includes, for example, ozone depletion, global warming, loss of biodiversity, air and marine pollution, extinction of species and nuclear damage (any example). √ These examples of environmental problems are indicative that environmental deterioration transcends state borders, which emphasises the role and importance of international law in environmental issues. √ In order to tackle these problems international cooperation is essential and South Africa forms part of the international environmental law community. √ South Africa is a party to many international and regional environmental treaties√ that require cooperation with other nations in order to improve the environment √ Examples include the Antarctica treaties for the protection of the continent of Antarctica and its natural resources; the protection of endangered wildlife [fauna and flora] in terms of the Convention on International Trade in Endangered Species of Wild and Flora [CITES]; and the Convention on Biodiversity,(any two examples) √√ A treaty is a written agreement between states and is a source of international law. √ A state that has signed a treaty is bound by it. √ Section 39 of the Constitution deals with the interpretation of the Bill of Rights and provides that when interpreting the Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law. √ In other words, the courts must look for guidance to international law sources, √ particularly regarding cases or fields of law they have not dealt with before (e.g. human law, which includes environmental rights). Courts may also refer to foreign law (e.g. English, American and Canadian law) where applicable. √ Section 233 of the Constitution furthermore provides that when interpreting any S - The study-notes marketplace S - The study-notes marketplace 3  African customary law regulates individual relationships between members of the family, rather than relationships between individuals and the state. √ 1.3 The structure within which environmental law functions can be seen as a triangle, with each angle representing the relationship between the different parties and/or institutions. Name the three parties and/or institutions. (3)  Organ of state √  Owner/applicant (any one of the two) √  Neighbours/third parties, interested and affected parties (any of the three) √ 1.4 The National Environmental Management Act 107 of 1998 (NEMA) states that “environment” means the surroundings within which humans exist and that are made up of a number of components. Define the term “environment” as per NEMA. (13) Environment means the surroundings within which humans exist and that are made up of (i) the land, √ water √ and atmosphere √ of the earth; (ii) micro-organisms, √ plant √ and animal √ life; (iii) any part √ or combination √ of (i) and (ii) and the interrelationships √ among and between them; and (iv) the physical, √ chemical, √ aesthetic and cultural √ properties and conditions of the foregoing that influence human health and wellbeing.” √ [30] Question 2 2.1 There are ten questions. Each question is accompanied by a number of options as possible answers. Only one option or statement in each question is correct. You must identify the correct option and write down the option you have chosen (a, b, c or d) next to the question number. (10) 2.1.1 South Africa’s framework environmental legislation is the … . (a) Biodiversity Act 10 of 2004 (b) National Water Act 36 of 1998 (c) National Environmental Management Act 107 of 1998 (d) Environment Conservation Act 73 of 1989 2.1.2 An “organ of state” as per Section 239 of the Constitution excludes … . S - The study-notes marketplace S - The study-notes marketplace 4 2.1.4 The need to preserve natural resources for the benefit of future generations is referred to as … equity. (a) environmental (b) intergenerational (c) historic (d) private 2.1.5 An environmental assessment practitioner (EAP) must … . (a) have an operating licence (b) be independent (c) be 22 years or older (d) belong to an assessment association 2.1.6 In Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (SCA) the court held that … . (a) services must be provided impartially, fairly and equitably, and without bias (b) public participation and transparency do not impose unnecessary and costly burdens on developers (c) a high standard of professional ethics must be promoted and maintained (d) public participation and transparency do impose unnecessary and costly burdens on developers 2.1.7 In Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 10 BCLR 105 (CC) it was ruled that the building of a filling station requires an application for … . (a) rezoning and an application for environmental authorisation (b) rezoning only (c) a basic assessment only (d) an environmental authorisation only 2.1.8 In … the court held that “pure economic principles will no longer determine, in an unbridled fashion, whether a development is acceptable”. (a) BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, S - The study-notes marketplace S - The study-notes marketplace 5 2.1.10 A mandamus … . (a) stipulates how an administrative body should exercise its power (b) compels an administrative body to perform its statutory duty (c) is the same as the Aquilian action (d) compels a person who transgresses environmental law to pay a fine [10] Question 3 3.1 Give a brief description of environmental assessment and list the two types of environmental impact assessment (EIA) processes that the National Environmental Management Act 107 of 1998 (NEMA) provides for in the Environmental Impact Assessment Regulations. (5) Essentially, environmental assessment is a tool which facilitates integrated decision-making √ to manage change in which environmental considerations are taken into account in the planning and development process. √ More broadly, environmental assessment is a process whereby information on the potential, capacities and functions of natural systems and resources is evaluated and documented so as to facilitate sustainable development planning and decisionmaking √ and to anticipate and manage the adverse effects and consequences of proposed developments. √ Listing notice 1 = GN R 983 requires a basic assessment because the specific development will not have a severe impact on the environment. √ Listing notice 2 = GN R 984 requires a scoping and environmental impact reporting (S&EIR) because development will have a more severe impact on the environment. √ 3.2 A main fundamental right that has an impact on environmental management is the right to approach a competent court (as per Section 38 of the Constitution). Describe how the scope of this right (locus standi) has been further extended in Section 32 of S - The study-notes marketplace S - The study-notes marketplace 6 Apart from the persons/bodies entitled to approach the court in terms of section 38 of the Constitution (above), any person, or group of persons, may now, in terms of the Act, seek appropriate relief “in the interest of protecting the environment”. √ 3.3 The National Heritage Resources Act 25 of 1999 refers to heritage resources. Define the term “heritage resource” and give two examples of heritage resources. (4) (max 4 marks) A “heritage resource” means: any place √ or object √ of cultural significance. √ This could include an historic or cultural building, √ a piece of land where an historic battle took place, √ an area where special artefacts are to be √ (for example historic grave sites, caves where there are San paintings, and so forth). 3.4 Sustainable development is an important principle of environmental management. Name another five principles of environmental management. (5)  the polluter pays principle √  the preventative principles √  the precautionary principle √  the duty of care (to avoid harm to the environment) √  the public trust (doctrine) √ [30] Question 4 4.1 As part of a public participation process, written notice must be given to a number of persons and/or institutions. Name these persons and/or institutions. (7) ● the owner √ or person in control √ of that land if the applicant is not the owner or in control of the land ● the occupiers √ of the site where the activity is to be undertaken ● owners and occupiers of land adjacent √ to the site ● the municipal councillor √ of the ward S - The study-notes marketplace S - The study-notes marketplace 7 questioning suspects, √ issuing written notices √ where people refuse to answer questions, √ inspecting √ and copying √ any relevant book or document, √ as well as taking photographs √ and samples relevant to any investigation, √ EMIs have the following specific powers: ● may issue a compliance notice √ if a person has not complied √ with a term or condition of a permit, authorisation, licence or the provisions of environmental legislation. √ ● may give an offender an admission of guilt fine √ instead of being tried by a court for the offence. ● has the power to seize any item √ as well as to stop, enter and search √ vehicles, vessels and aircraft. ● can carry out routine inspections √ on buildings, land or premises to ascertain that there is compliance with the legislation or any permit or authorisation issued. 4.3 A criminal sanction can be used as a direct sanction or as an indirect sanction. Describe each sanction and provide examples. (6) When a criminal penalty is used in a direct way, as a primary or independent sanction, √ it means that the environmentally harmful activity is outlawed √ directly. Therefore, certain actions are illegal √ and are in contravention of the provisions of )the relevant environmental legislation. In this case, the actual act of doing something constitutes an offence. √ Any example (any environmental act that refers to prohibition)√ An indirect (or subsidiary or supplementary) √ penalty. This means that an enforcement measure √ is used to ensure compliance. Such an enforcement measure involves an administrative measure such as a permit, authorisation or a licence. √ The criminal sanction will be invoked only if and when such an enforcement measure has failed. √ Any example (any act without licence etc.) √ S - The study-notes marketplace S - The study-notes marketplace 8 by the administration or an individual (e. g. preventing unlawful pollution/threatening pollution, or preventing unlawful administrative action or threatened unlawful action). √ An interdict may be interim or final. √ [30] Total {100} © Unisa 2018 S - The study-notes marketplace S - The study-notes marketplace LEG Q & A Assignment 2018 1 ASSIGNMENT 01: COMMENTARY Question 1 What is the role of international and regional conventions (treaties) in South African environmental law? [10] Suggested answer  Environmental deterioration or damage do not only affect individual states but also the entire world. In other words it is a cross border issue and not limited to man-made borders.  It includes, for example, ozone depletion, global warming, loss of biodiversity, air and marine pollution, extinction of species and nuclear damage.  To solve these environmental issues international cooperation is essential. Therefore the role of international law in environmental issues is important. In the sense South Africa also forms part of the international environmental law community.  The United Nations (UN) has been at the forefront for many years in international discussions and legal instruments on managing environment matters. Examples include: The Convention on Biodiversity (CBD), the UN Framework Convention on Climate Change (UNFCCC), the Basel Convention on Control of Movement of Transboundary Waste, etc.  South Africa is party to many international and regional environment treaties e.g. CITES, CBD, the Paris Agreement on Climate Change, the Kyoto Protocol, etc. (there are many other examples of environmental treaties).  A treaty is written agreement between states and is a source of international law. In other words states are bound by signing up to treaties.  Section 39 of Constitution of South Africa deals with the interpretation of the Bill of Rights and states that international law must be considered and foreign law may be considered. S - The study-notes marketplace S - The study-notes marketplace Question 2 Indicate how the term “environment” can be explained both in a broad and in a narrow context. [10] Suggested answer  It is a dynamic concept. It can and does change over time and may even differ from one country to the next depending on the context in which it is used e.g. in a socio-economic, cultural or political context.  In South Africa the term “environment” is viewed both in a broad and narrow context:  The broader context includes the natural, spatial and social environment.  However, a wide (broad) interpretation may prove to be too broad, because it includes virtually everything that influences human existence or quality of life.  A broad approach also means that all laws and policy could be classified as environment law and policy, because all laws and policy deal with an aspect of human existence.  On the other hand, the limited or narrow approach includes the natural environment, but excludes the social environment.  Since the natural environment usually refers to natural resources, this approach is too narrow, because much of the purely natural environment (i.e. wilderness area) has been changed by human beings (to form the artificial environment).  In South Africa the meaning of environment is also a policy question on which opinions may differ because:  Although the scope of the meaning of environment still evolving, there is sufficient clarity as far as the essential meaning of the term is concerned  The concept (environment) is regarded as being open-ended and therefore still evolving.  The meaning and scope of the “environment” will be influenced by the interpretation the courts will give to it particularly in terms of the right enshrined in section 24 of Bill of Rights. The most recent definition of “environment” in South Africa can be found in section 1 of NEMA S - The study-notes marketplace S - The study-notes marketplace 3 SELF-EVALUATION ASSIGNMENT Describe the procedure that has to be followed where the existence of a historic building will be threatened by the building of a 900 m² shopping centre. [15] Suggested answer: A “heritage resource” means any place or object of cultural significance. This could include an historic or cultural building, a piece of land where an historic battle took place, an area where special artefacts are to be found, historic grave sites, caves where there are San paintings, and so forth. A person who wishes to undertake certain types of development that will have an impact on a heritage resource must include an assessment of the impact on the heritage resource in question in his or her application. This procedure is set out in, section 38 of the Act. What follows is a summary of the procedure to be followed when planning a development that will affect a heritage resource. A person who intends to undertake a specified development must, at the very earliest stages of initiating such a development, notify the responsible heritage resources authority and furnish it with details of the location, the nature and the extent of the proposed development. The responsible heritage resources authority must, within 14 days of receipt of a notification – if there is reason to believe that heritage resources will be affected by such development – notify the person who intends to undertake the development to submit an impact assessment report. Such report must be compiled at the cost of the person proposing the development, by a person or persons approved by the responsible heritage resources authority with relevant qualifications and experience and professional standing in heritage resources management. The responsible heritage resources authority must specify the information to be provided in the report it requires. However, the following information must be included: ● the identification and mapping of all heritage resources in the area affected ● an assessment of the significance of such resources in terms of the heritage assessment criteria ● an assessment of the impact of the development on such heritage resources S - The study-notes marketplace S - The study-notes marketplace ● plans for mitigation of any adverse effects during and after the completion of the proposed development ● The report is submitted to the heritage resources authority, which must make a decision on the matter. OCTOBER/NOVEMBER 2017 EXAMINATION PAPER Question 1 1.1 List any 5 (five) sources of the law and indicate which source or sources are the most commonly used source in environmental matters. (5) the Constitution; Parliamentary/national legislation; Provincial legislation (provincial ordinances); Legislation by municipal councils/municipalities (bylaws); Delegated legislation (such as regulations GN R 983 and 984); common law; case law; customary law; international law. Environmental concerns are relatively modern concerns and therefore the Constitution and legislation are taken as the most important sources of environmental management. 1.2 The right of access to information is one of the fundamental rights that S - The study-notes marketplace S - The study-notes marketplace therefore, encapsulates the democratic values and principles that underpin the public administration in terms of section 195 of the Constitution. NEMA, in section 2, echoes these values and principles by providing that development must meet the requirements of public participation and transparency. These principles apply to the actions of all the organs of the state and serve as guidelines when an organ of state exercises its functions and takes decisions. These principles are contained in section 33 of the Bill of Rights, which reads as follows: (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote efficient administration. Any decisions made concerning environmental and planning matters, and the implementation of the rules and regulations, are classified as administrative action; in other words, it is action by government bodies or officials who are empowered to take such action in terms of legislation. In terms of section 33 of the Bill of Rights, all administrative action must be lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) has given effect to this right to ensure lawful, reasonable and procedurally fair administrative action against individuals To be performed “lawfully”, the action must comply with all the requirements of the law. This means that the relevant prescriptions of the Constitution, other legislation and case law (e.g. the sources of law) must be complied with. A “reasonable” administrative action is a decision based on the consideration of all S - The study-notes marketplace S - The study-notes marketplace It is a basic rule of all legal systems that a party may take a matter to court only if he or she has an “identifiable interest in the outcome” of the case. However, the Constitution has broadened the scope of the legal standing of individuals and groups to seek relief in matters involving fundamental rights (e.g. the environmental right); this means that more people with identifiable interests in the outcome of a case may now approach the court. Section 38 of the Constitution provides that anyone listed in the section has the right to approach a competent court in a case where a right in the Bill of Rights has been infringed or is threatened. The court may grant appropriate relief (a remedy) in such a case. In NEMA, the scope of locus standi has been further extended: 1. The Act provides that any person (or group of persons) may now approach a court regarding an infringement, or threatened infringement, of any provision of law (e.g. not only in terms of rights in the Bill of Rights) concerned with the protection of the environment or the utilisation of natural resources. 2. Apart from the persons/bodies entitled to approach the court in terms of section 38 of the Constitution (above), any person, or group of persons, may now, in terms of the Act, seek appropriate relief “in the interest of protecting the environment”. 1.3 The public trust doctrine is found in one of the principles of NEMA, namely section 2(4)(o). Explain what the public trust entails with regard to the environment. (5) The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage. Kidd (Environmental law 2008 at 11) states that the public-trust doctrine adopted in South Africa resembles “trusteeship” rather than public trust. S - The study-notes marketplace S - The study-notes marketplace  Environmental deterioration or damage do not only affect individual states but also the entire world. In other words it is a cross border issue and not limited to man-made borders.  It includes, for example, ozone depletion, global warming, loss of biodiversity, air and marine pollution, extinction of species and nuclear damage.  To solve these environmental issues international cooperation is essential. Therefore the role of international law in environmental issues is important.  In the sense South Africa also forms part of the international environmental law community.  The United Nations (UN) has been at the forefront for many years in international discussions and legal instruments on managing environment matters. Examples include: The Convention on Biodiversity (CBD), the UN Framework Convention on Climate Change (UNFCCC), the Basel Convention on Control of Movement of Transboundary Waste, etc.  South Africa is party to many international and regional environment treaties e.g. CITES, CBD, the Paris Agreement on Climate Change, the Kyoto Protocol, etc. (there are many other examples of environmental treaties).  A treaty is written agreement between states and is a source of international law. In other words states are bound by signing up to treaties.  Section 39 of Constitution of South Africa deals with the interpretation of the Bill of Rights and states that international law must be considered and foreign law may be considered.  South African courts must look for guidance to international sources (such as international environmental principles), particularly regarding cases of fields of law that are new – in other words issues that have not been before any court in South Africa before. This could for example include the issue of climate change etc.  Section 233 of the Constitution of South Africa provides that when interpreting any legislation, courts must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. [30] S - The study-notes marketplace S - The study-notes marketplace This principle has been adopted in South Africa in a number of policy documents and has been included in NEMA in section 2(4)(p): The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment. Precautionary principle This principle calls for the application of preventative measures in situations of scientific uncertainty where a course of action (i.e. a certain development of land) may cause harm to the environment. This principle has been included in section 2(4)(a)(vii) of NEMA as a relevant factor that must be considered to establish whether a development is socially, environmentally and economically sustainable. This means that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions. Preventative principle: This principle requires that environmental degradation should be prevented. Since pollution often cannot be completely prevented, this principle is not regarded as an absolute principle, as reflected in NEMA, section 2(4)(a)(viii): “[T]hat negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied” (in other words mitigated). This principle has been included in section 2(4)(a)(viii) of NEMA as a relevant factor that must be considered to establish whether a development is socially, environmentally and economically sustainable. 3.2 Give a description of environmental assessment and list the two types of EIAs (assessment processes) that NEMA provides for in the Environmental Impact Assessment Regulations. (5) The answer consist of two parts A & B Part A: S - The study-notes marketplace S - The study-notes marketplace  In other words it assess development’s impact on the environmental. Part B:  A basic assessment must be carried out if the authorisation applied for is in respect of an activity listed in Government Notice R 983. (in other words where the activity will not have a severe impact on environment).  A scoping and environmental impact reporting process (S&EIR) must be carried out if the authorisation applied for is in respect of an activity listed in Government Notice R 984 (where the activity will have a severe impact on the environment). 3.3 Are people who live in the vicinity of a factory causing air pollution entitled to request the owner of the factory to disclose information on air pollution levels? Discuss with reference to the applicable constitutional provision and legislation. (10) Access to information is viewed as a basic requirement in any democratic state that strives for transparency, participation and accountability. The Bill of Rights sets out the right of access to information in section 32: (1) Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. The Promotion of Access to Information Act 2 of 2000 (PAIA) has been promulgated to give effect to this right. Access to information is also a right that a private individual may enforce against other private persons. S - The study-notes marketplace S - The study-notes marketplace In terms of PAIA, a request for a record (information) may not be refused if the disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law and an imminent and serious public safety or environmental risk. The people living in the vicinity of the factory may, as in the case mentioned above, use this right to request the owner of the factory to disclose information on air pollution levels so that these levels may be compared with legal requirements or standards. 3.4 List any five (5) specific environmental acts (SEMAs). (5) Any five of the below  National Environmental Management: Protected Areas Act 57 of 2003 (NEM: PAA),  National Environmental Management: Biodiversity Act 10 of 2004 (NEM: BA),  National Environmental Management: Waste Act 59 of 2008 (NEM:WA),  National Environmental Management: Air Quality Act 39 of 2004 (NEM:AQA),  National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEM:ICMA),  Environment Conservation Act 73 of 1989,  National Water Act 36 of 1998 (NWA) and  World Heritage Convention Act 49 of 1999. [30] Question 4 4.1 Criminal sanctions can be used as a direct (primary or independent) sanction or as an indirect (subsidiary or supporting) sanction to enforce environmental rules. Give an example of each (both a direct and an indirect criminal sanction) and indicate which sanction is to your mind more effective. (5) In many cases, criminal sanctions are used mainly as an indirect (or subsidiary or supplementary) penalty. This means that an enforcement measure is used to ensure S - The study-notes marketplace S - The study-notes marketplace It is preferable to use an indirect sanction rather than a direct sanction because of the relative ease of proving the offence. 4.2 Discuss the role of an environment practitioner (EAP) in the assessment procedure. (10) Before conducting a basic assessment (BA) or a scoping and environmental impact reporting (S&EIR) in respect of a proposed activity, an applicant must appoint an EAP at their own cost to manage the application. The applicant must take all reasonable steps to verify whether the EAP to be appointed complies with the general requirements for EAPs and must provide the EAP with access to all information at the disposal of the applicant regarding the application, whether or not such information is favourable to the applicant. An EAP must comply with certain requirements in terms of regulation 13. An EAP must - ● be independent; ● have expertise in conducting EIAs, including knowledge of the Act, these Regulations and any guidelines that have relevance to the proposed activity; ● perform the work relating to the application in an objective manner even if this results in views and findings that are not favourable to the applicant; ● ensure compliance with these Regulations; ● take into account, to the extent possible, all the relevant matters when preparing the application and any report, plan or document relating to the application; ● disclose to the applicant, registered interested and affected parties and the competent authority = (writing of report) all material information in the possession of the EAP that reasonably has, or potential of influencing any decision to be taken with respect to the application by the competent authority in terms of these Regulations, or the objectivity of any report, plan or document to be prepared by the EAP in terms of these Regulations for submission to the competent authority. S - The study-notes marketplace S - The study-notes marketplace ● may issue a compliance notice if a person has not complied with a term or condition of a permit, authorisation, licence or the provisions of environmental legislation. ● may give an offender an admission of guilt fine instead of being tried by a court for the offence. ● has the power to seize any item as well as to stop, enter and search vehicles, vessels and aircraft. ● can carry out routine inspections on buildings, land or premises to ascertain that there is compliance with the legislation or any permit or authorisation issued. To sum up: EMIs are organs of state and perform administrative action when, for example, issuing a compliance notice. Their actions are therefore subject to the scrutiny of senior officials who will check that they exercise their powers as set out in the Constitution (s 33) and the relevant legislation. 4.4 What is environmental justice? (5) *This is an open ended question based on the interpretation of section 2(4)(c) of NEMA The National Environmental Management Act 107 0f 1998 (NEMA) includes the notion of environmental justice by stating: “environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons” ((s 2(4)(c) of NEMA). Environmental justice is about social transformation directed toward meeting human need and enhancing the quality of life – economic equality, health care, shelter, human rights, species preservation, and democracy – using resources sustainably. A central principle of environmental justice stresses equal access to natural resources and the right to clean air and water, adequate health care, affordable shelter, and a safe workplace. Environmental problems therefore remain inseparable from other social injustices such as poverty, racism, sexism, unemployment, urban deterioration etc. It includes all of the following elements and aspects such as: S - The study-notes marketplace S - The study-notes marketplace Tut 201 – s1 2019 Question 1 Discuss the importance of an environmental right in South African law. Refer to section 24 of the Constitution. [15] Suggested answer: Environmental rights have been incorporated in many national constitutions and given different emphases. In some cases, environmental rights require that governments protect natural resources and the environment by taking positive action (e. g. by adopting formal environment policies and legislation). Another approach is to make it a duty of each of the country’s citizens to protect and conserve the natural environment. Over the years, various proposals have been put forward for the inclusion of an environmental right in the South African Constitution: the first provision in section 29 of the interim Constitution was extended by section 24 of the Constitution. It reads as follows: Everyone has the right: (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. Section 24 has two components, section 24(a) and 24(b). Section 24(a) states that everyone has the right to an environment that is not harmful S - The study-notes marketplace S - The study-notes marketplace  It is argued that the term “wellbeing” should refer to the aesthetic and spiritual dimensions of the natural environment. Dune mining at the St Luc