LEG2601 Assignment 2 (ANSWERS) Semester 1 2024 - DISTINCTION GUARANTEED

LEG2601 Assignment 2 (ANSWERS) Semester 1 2024 - DISTINCTION GUARANTEED. Answers, guidelines, workings and references..... .... Question 1 Complete Marked out of 1.00 Question 2 Complete Marked out of 1.00 QUIZ … is an example of a heritage resource protected under the National Heritage Resources Act 25 of 1999. a. Great-grandmother’s vase. b. A collection of South African 1 cent coins (no longer in circulation). c. Any gravesite. d. A building older than 60 years. A number of specifi c fundamental rights have an impact on the environmental management. Which one is not one of those? a. The right to approach a competent court (_locus standi_). b. The right to clean water. c. Just administrative action. d. Access to information. Question 3 Complete Marked out of 1.00 Question 4 Complete Marked out of 1.00 Question 5 Complete Marked out of 1.00 A public law relationship is … a. based on a voluntary agreement between the subjects. b. an unequal (vertical) relationship. c. where the parties act in their own capacity. d. less complex than a private law relationship. If a specifi ed development impacts on a heritage resource, … a. a scoping and environmental impact assessment report is required in terms of the National EnvironmentalManagement Act. b. a basic assessment report is required in terms of the National Environmental Management Act. c. an archaeological heritage assessment report is required in terms of the National Heritage Resources Act d. an environmental assessment is required in terms of the National Heritage Resources Act. Public participation allows both sides to be heard before the relevant authority makes its decision. This aspect of the Right toJust Administrative Action is best described as … a. the right to reasons. b. reasonableness. c. lawfulness. d. procedural fairness. Question 6 Complete Marked out of 1.00 Question 7 Complete Marked out of 1.00 Question 8 Complete Marked out of 1.00 Section 24(a) of the Constitution states that everyone has the right to an environment that is … . a. healthy and clean b. good for one’s wellbeing c. not harmful to their health or wellbeing d. healthy and just Section 38 of the Constitution sets out categories of persons who have capacity to take a matter to court (_locus standi_).Which category best describes FuelCo – a company wishing to establish a fuel station? a. Someone acting on behalf of another person who cannot act in his or her own name. b. A company is not a person and has no legal standing. c. Someone acting in their own interest. d. An association acting in the interests of its members. Sustainable development is said to be the integration of social, economic, and environmental factors into planning,implementation and decision-making. What procedures in the National Environmental Management Act give practical effectto this defi nition of sustainable development? a. Cooperative governance procedures. b. Judicial procedures. c. Compliance and enforcement procedures. d. Basic assessment procedures. Question 9 Complete Marked out of 1.00 Question 10 Complete Marked out of 1.00 The person responsible for compiling an environmental assessment report is… . a. the environmental management inspector b. the environmental assessment practitioner c. the environmental specialist d. the developer Which of the following forms part of South Africa’s environmental legislation: a. Clean Air Act b. Mineral and Petroleum Resources Development Act c. Endangered Species Act d. National Environmental Policy Act 3/18/24, 3:37 PM Assessment 2 (page 1 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 1 Not yet answered Marked out of 1.00 QUIZ … is an example of a heritage resource protected under the National HeritageResources Act 25 of 1999. a. Great-grandmother’s vase. b. A collection of South African 1 cent coins (no longer in circulation). c. Any gravesite. d. A building older than 60 years. Clear my choice 3/18/24, 3:38 PM Assessment 2 (page 2 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 2 Not yet answered Marked out of 1.00 QUIZ A number of specifi c fundamental rights have an impact on the environmentalmanagement. Which one is not one of those? a. The right to approach a competent court (_locus standi_). b. The right to clean water. c. Just administrative action. d. Access to information. Clear my choice 3/18/24, 3:41 PM Assessment 2 (page 3 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 3 Not yet answered Marked out of 1.00 QUIZ A public law relationship is … a. based on a voluntary agreement between the subjects. b. an unequal (vertical) relationship. c. where the parties act in their own capacity. d. less complex than a private law relationship. Clear my choice 3/18/24, 3:43 PM Assessment 2 (page 4 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 4 Not yet answered Marked out of 1.00 QUIZ If a specifi ed development impacts on a heritage resource, … a. a scoping and environmental impact assessment report is required interms of the National Environmental Management Act. b. a basic assessment report is required in terms of the NationalEnvironmental Management Act. c. an archaeological heritage assessment report is required in terms of theNational Heritage Resources Act d. an environmental assessment is required in terms of the National HeritageResources Act. Clear my choice 3/18/24, 3:44 PM Assessment 2 (page 5 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 5 Not yet answered Marked out of 1.00 QUIZ Public participation allows both sides to be heard before the relevant authoritymakes its decision. This aspect of the Right to Just Administrative Action is bestdescribed as … a. the right to reasons. b. reasonableness. c. lawfulness. d. procedural fairness. Clear my choice 3/18/24, 3:45 PM Assessment 2 (page 6 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 6 Not yet answered Marked out of 1.00 QUIZ Section 24(a) of the Constitution states that everyone has the right to anenvironment that is … . a. healthy and clean b. good for one’s wellbeing c. not harmful to their health or wellbeing d. healthy and just Clear my choice 3/18/24, 3:47 PM Assessment 2 (page 7 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 7 Not yet answered Marked out of 1.00 QUIZ Section 38 of the Constitution sets out categories of persons who have capacity totake a matter to court (_locus standi_). Which category best describes FuelCo – acompany wishing to establish a fuel station? a. Someone acting on behalf of another person who cannot act in his or herown name. b. A company is not a person and has no legal standing. c. Someone acting in their own interest. d. An association acting in the interests of its members. Clear my choice 3/18/24, 3:49 PM Assessment 2 (page 8 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 8 Not yet answered Marked out of 1.00 QUIZ Sustainable development is said to be the integration of social, economic, andenvironmental factors into planning, implementation and decision-making. Whatprocedures in the National Environmental Management Act give practical effect tothis defi nition of sustainable development? a. Cooperative governance procedures. b. Judicial procedures. c. Compliance and enforcement procedures. d. Basic assessment procedures. Clear my choice 3/18/24, 3:51 PM Assessment 2 (page 9 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 9 Not yet answered Marked out of 1.00 QUIZ The person responsible for compiling an environmental assessment report is… . a. the environmental management inspector b. the environmental assessment practitioner c. the environmental specialist d. the developer Clear my choice 3/18/24, 3:54 PM Assessment 2 (page 10 of 10) LEG2601-24-S1  Welcome to Legal Aspects of Environmental Law (LEG2601)  Assessment 2 Question 10 Not yet answered Marked out of 1.00 QUIZ Which of the following forms part of South Africa’s environmental legislation: a. Clean Air Act b. Mineral and Petroleum Resources Development Act c. Endangered Species Act d. National Environmental Policy Act Clear my choice 4  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 * The definition of “environment” per NEMA states:  the land, water and the atmosphere of the earth;  micro-organisms, plant and animal life;  any part or combination of (i) and (ii) and the interrelationship among and between them; and  the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing. [20] 2 ASSIGNMENT 02: COMMENTARY 06 April 2018 (multiple choice) Unique assignment number: 689054 There are ten (10) questions. Each question is provided with a number of options as possible answers. Only one option or statement in each question is correct. You must identify the correct option (a, b, c or d). [10] Question 1 A public law relationship is … . (a) where the parties act in their own capacity (b) less complex than a private law relationship (c) an unequal (vertical) relationship (d) based on a voluntary agreement between the subjects LEG2601/201 5 Question 2 Part A of Schedule 4 of the Constitution outlines …. (a) cooperative government. (b) functional areas of concurrent national and provincial power (c) functional areas in respect of which provinces have exclusive legislative competence. (d) intergovernmental relations. Question 3 In Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) the court held that … . (a) public participation and transparency do impose unnecessary and costly burdens on developers (b) land-use planning and management do not take place within the framework of the Constitution and the right to the environment (c) land-use planning and management take place within the framework of the Constitution and the right to the environment (d) public participation and transparency do not impose unnecessary and costly burdens on developers Question 4 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) a basic assessment only (b) an environmental authorisation only (c) rezoning only (d) rezoning and an application for environmental authorisation Question 5 The … are the most important sources of environmental management in South Africa. (a) Constitution (b) Case law and provincial legislation (c) Constitution and legislation (d) Parliamentary legislation 6 Question 6 A basic assessment must be carried out if the authorisation applied for is in respect of an activity listed in Government Notice … . (a) R 982 (b) R 983 (c) R 984 (d) R 985 Question 7 An environment assessment practitioner (EAP) must … . (a) comply with regulation 15 of the Environmental Impact Assessment Regulations (b) comply with regulation 18 of the Environmental Impact Assessment Regulations (c) be independent (d) be subjective Question 8 A heritage resource is … . (a) a place or object of cultural significance (b) a place or object of economic significance (c) the Provincial Heritage Resources Authority (d) the National Heritage Resources Authority Question 9 If a specified development impacts on a heritage resource, … . (a) public participation must be waived (b) an evaluation of sustainable social and economic benefits is irrelevant (c) the responsible heritage resources authority must be notified (d) an assessment of the impact of the development on the heritage resource is unnecessary LEG2601/201 7 Question 10 A mandamus … . (a) compels a person who transgresses environmental law to pay a fine (b) is the same as the Aquilian action (c) compels an administrative body to perform its statutory duty (d) stipulates how an administrative body should exercise its power 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 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 consideration of alternatives ● 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. 4 THE OCTOBER/NOVEMBER 2017 EXAMINATION PAPER (Please take note that the answers we provide for the questions in the examination paper are suggested answers. They are meant to guide and assist you in preparing for the examination. Furthermore, they provide guidelines on how you should answer a question using only essential points rather than re-writing the study guide. Pay careful attention to the general comments below on how to formulate your answers to the questions in the examination.) 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. LEG2601/201 9 1.2 The right of access to information is one of the fundamental rights that either support or have an impact on the environmental right. Name another two (2) fundamental rights that either support or have an impact on the environmental right. Briefly explain how these two rights support or have an impact on the environmental right. (10) The answer consist of two main parts namely the right to just administrative action; and the right to approach a competent court (locus standi etc). Right to just administrative action (brief discussion - Max 5 marks) Administrative justice or “just administrative action” lies at the heart of any democratic state that strives for justification, fairness and accountability, as well as public participation in the administration of government affairs. Administrative justice, 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. 10 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 example, subjective opinion. 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. Right to approach a competent court plus brief discussion (Max 5 below) Locus standi (legal standing) is the capacity to take a matter to court and to be a party in a case. 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. LEG2601/201 11 Kidd (Environmental law 2008 at 11) states that the public-trust doctrine adopted in South Africa resembles “trusteeship” rather than public trust. 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. 1.4 What is the role of international and regional conventions (treaties) in South African environmental law? Motivate your answer by referring to examples. (10)  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. 12  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] Question 2 2.1 There are ten (10) questions. Each question is provided with 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 (a,b,c or d) next to the question number. (10) 2.1.1 Part A of Schedule 4 of the Constitution outlines …. (a) cooperative government. (b) functional areas of concurrent national and provincial power (c) functional areas in respect of which provinces have exclusive legislative competence. (d) intergovernmental relations. 2.1.2 An “organ of state” as per section 239 of the Constitution excludes … (a) a court or a judicial officer (b) the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs (c) the Department of Correctional Services (d) the Department of Environmental Affairs 2.1.3 A public law relationship is … . (a) where the parties act in their own capacity (b) less complex than a private law relationship (c) an unequal (vertical) relationship (d) based on a voluntary agreement between the subjects LEG2601/201 13 2.1.4 In Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) the court held that … . (a) public participation and transparency do impose unnecessary and costly burdens on developers (b) land-use planning and management do not take place within the framework of the Constitution and the right to the environment (c) land-use planning and management take place within the framework of the Constitution and the right to the environment (d) public participation and transparency do not impose unnecessary and costly burdens on developers 2.1.5 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) a basic assessment only (b) an environmental authorisation only (c) rezoning only (d) rezoning and an application for environmental authorisation 2.1.6 Sustainable development as applied in South Africa … . (a) integrates environmental protection and social upliftment (b) integrates environmental protection and economic development (c) integrates environmental protection and decision-making processes (d) integrates environmental protection, economic development and social upliftment 2.1.7 If a specified development impacts on a heritage resource, … . (a) public participation must be waived (b) an evaluation of sustainable social and economic benefits is irrelevant (c) the responsible heritage resources authority must be notified (d) an assessment of the impact of the development on the heritage resource is unnecessary 14 2.1.8 A mandamus … . (a) compels a person who transgresses environmental law to pay a fine (b) is the same as the Aquilian action (c) compels an administrative body to perform its statutory duty (d) stipulates how an administrative body should exercise its power 2.1.9 A heritage resource is … . (a) a place or object of cultural significance (b) a place or object of economic significance (c) the Provincial Heritage Resources Authority (d) the National Heritage Resources Authority 2.1.10 When applying for an interim interdict a number of elements need to be shown. Which one of the below is NOT one of these. (a) that no other satisfactory remedy is available (b) a prima facie right (c) that an environmental permit or authorisation has already been granted (d) that the balance of convenience favours the granting of the interim relief [10] Question 3 3.1 Discuss the following three environmental management principles: the ‘polluter pays’ principle, the precautionary principle and the preventative principle. (10) The “polluter pays” principle: The idea behind the “polluter pays” principle is that the costs of pollution should be borne by the generator of the pollution rather than society at large. In other words the person that polluted should be accountable. 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. LEG2601/201/1/2019 5 2 ASSIGNMENT 02: COMMENTARY 11 April 2018 (multiple choice) Unique assignment number: 884165 There are ten (10) questions. Each question is provided with a number of options as possible answers. Only one option or statement in each question is correct. You must identify the correct option (a, b, c or d). [10] Question 1 The National Environmental Management Act, 107 of 1998 (NEMA) provides in Chapter … for procedures for cooperative governance. (a) two (b) three (c) four (d) six Question 2 The term “sustainable development” emerged within the context of … . (a) food security (b) environmental degradation (c) water security (d) energy security Question 3 A number of specific fundamental rights have an impact on the environmental management. Which one is not one of those? (a) The right to clean water (b) Just administrative action (c) Access to information (d) The right to approach a competent court (locus standi) LEG2601/201/1/2019 6 Question 4 In … it was ruled that the building of a filling station requires an application for rezoning and an application for environmental authorisation. (a) Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) (b) 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 (c) BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs 2004 5 SA 124 (WLD) (d) Van Huyssteen v Minister of Environmental Affairs and Tourism 1995 9 BCLR 1191 (C) Question 5 Environmental management inspectors (EMIs) may issue a compliance notice if a person has not complied with a term or condition of a … . (a) license (b) permit (c) permit, authorisation, licence or the provisions of environmental legislation (d) permit, authorisation and licence Question 6 A scoping and environmental impact reporting (S&EIR) process must be carried out if the authorisation applied for is in respect of an activity listed in Government Notice … (a) R 982 (b) R 983 (c) R 984 (d) R 985 Question 7 An environment assessment practitioner (EAP) must … . (a) be independent and perform his work in an objective way (b) have 5 years’ experience (c) be independent and perform his work in such a way that it always favours the applicant (d) have 10 years’ experience LEG2601/201/1/2019 7 Question 8 Which one of the following is obligatory information that must be included in an impact assessment report involving a heritage resource? (a) The qualification(s) of the environmental impact assessor (EIA). (b) The name and rank of the environmental inspector (EMI). (c) The identification and mapping of all heritage resources in the area affected. (d) The water quality of the area. Question 9 The precautionary principle is … . (a) mainly aimed at social upliftment (b) is provided for in the National Environmental Management Act 107 of 1998 (NEMA) (c) is not provided for in NEMA (d) mainly aimed at economic growth Question 10 The process of granting or refusing … is one method of enforcing environmental rules. (a) permits, licenses or authorisations (b) permits and or authorisations (c) permits and licences (d) authorisations and locus standi [10] 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 4 Assignment 02 Unique assignment number: 824152 Question 1 The term “environment” is … . 1) defined in the National Environmental Management Act, 107 of 1998 (NEMA) 2) the same in other countries and regions 3) of no importance to environmental law 4) defined in the Constitution Question 2 The principle of judicial precedent … . 1) functions in the absence of a system of case law reporting 2) requires that all decisions of the magistrates’ courts are published in law reports 3) requires a hierarchy of courts 4) means that the higher courts are bound by decisions of the lower courts Question 3 An environmental authorization is granted by … . 1) an EAP (environmental assessment practitioner) 2) an IAP (interested and affected party) 3) a competent authority 4) an EMI (environmental management inspector) Question 4 Sustainable development … . 1) is mainly aimed at social upliftment 2) is mainly aimed at economic development 3) includes intergenerational equity 4) is not provided for in the National Environmental Management Act (NEMA). LEG2601/202 5 Question 5 Criminal sanctions may … . 1) only be used in a direct way 2) only be used in an indirect way 3) be used in a direct and an indirect way 4) not take into account the cost incurred by the state for the rehabilitation of the environment Question 6 In … the court held that participation and transparency do not impose unnecessary and costly burdens on developers. 1) Minister of Public Works and others v Kyalami Ridge Environmental Association and others 2001 7 BCLR 652 (CC) 2) Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) 3) BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs 2004 5 SA 124 (WLD) 4) Van Huyssteen v Minister of Environmental Affairs and Tourism 1995 9 BCLR 1191 (C) Question 7 If a specified development impacts on a heritage resource, … . 1) public participation must be waived 2) an assessment of the impact of the development on the heritage resource is unnecessary 3) the responsible heritage resources authority must be notified 4) an evaluation of sustainable social and economic benefits is irrelevant Question 8 The scoping and environmental impact reporting procedure … . 1) requires the appointment of an environmental management inspector (EMI) 2) requires the appointment of an integrated environmental management specialist 3) is the same as the basic assessment procedure 4) is more thorough than the basic assessment procedure 6 Question 9 … is an organ of state. 1) A judicial officer 2) A magistrate 3) A court 4) The Mpumalanga Department of Agriculture, Rural development, Land and Environmental Affairs Question 10 The following is an example of judicial control … . 1) Appeal to a higher court 2) Appeal to the MEC of a province 3) Appeal to a provincial development department 4) Appeal to a more senior official in the relevant department 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. 6 2 ASSIGNMENT 02: COMMENTARY – Unique assignment number: 653441 There are ten (10) questions. Each question is provided with a number of options as possible answers. Only one option or statement in each question is correct. You must identify the correct option (a, b, c or d). [10] Multiple Choice Questions: 1) An “organ of state” as per section 239 of the Constitution excludes … . (a) a court or a judicial officer (b) the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs (c) the Department of Correctional Services (d) the Department of Environmental Affairs 2) A public law relationship is … . (a) where the parties act in their own capacity (b) less complex than a private law relationship (c) an unequal (vertical) relationship (d) based on a voluntary agreement between the subjects 3) Part A of Schedule 4 of the Constitution outlines …. (a) cooperative government. (b) functional areas of concurrent national and provincial power (c) functional areas in respect of which provinces have exclusive legislative competence. (d) intergovernmental relations. 4) A heritage resource is … . (a) a place or object of cultural significance (b) a place or object of economic significance (c) the Provincial Heritage Resources Authority (d) the National Heritage Resources Authority 5) If a specified development impacts on a heritage resource, … . (a) public participation must be waived (b) an evaluation of sustainable social and economic benefits is irrelevant (c) the responsible heritage resources authority must be notified (d) an assessment of the impact of the development on the heritage resource is unnecessary LEG2601/201 7 6) 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) a basic assessment only (b) an environmental authorisation only (c) rezoning only (d) rezoning and an application for environmental authorisation 7) Sustainable development as applied in South Africa … . (a) integrates environmental protection and social upliftment (b) integrates environmental protection and economic development (c) integrates environmental protection and decision-making processes (d) integrates environmental protection, economic development and social upliftment 8) When applying for an interim interdict a number of elements need to be shown. Which one of the below is NOT one of these. (a) that no other satisfactory remedy is available (b) a prima facie right (c) that an environmental permit or authorisation has already been granted (d) that the balance of convenience favours the granting of the interim relief 9) A mandamus … . (a) compels a person who transgresses environmental law to pay a fine (b) is the same as the Aquilian action (c) compels an administrative body to perform its statutory duty (d) stipulates how an administrative body should exercise its power 10) In Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) the court held that … . (a) public participation and transparency do impose unnecessary and costly burdens on developers (b) land-use planning and management do not take place within the framework of the Constitution and the right to the environment (c) land-use planning and management take place within the framework of the Constitution and the right to the environment (d) public participation and transparency do not impose unnecessary and costly burdens on developers LEG2601/201 5 Question 3: Assume that EnergyCo are granted all necessary environmental authorisations. What administrative measures are available to authorities should EnergyCo not comply with the conditions of their permit? (6) Suggested answer: Compliance notice & explanation “The EMIs 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. A person who receives a compliance notice and who wishes to lodge an objection may make representations to the Minister or MEC. The permit/authorisation/licence may be revoked by the Minister or Member of the Executive Council (MEC) if a person fails to comply with a compliance notice.” (Study Guide page 112) Duty of Care & explanation Section 28 of NEMA mandates a duty to care for the environment and to take reasonable steps to do so. EMI’s can issue a “Duty of Care notice” to ensure developers comply with this duty. Non-compliance with this notice may result in criminal sanctions. (Study Guide page 45) Revoking a licence & explanation “The permit/authorisation/licence may be revoked by the Minister or Member of the Executive Council (MEC) if a person fails to comply with a compliance notice.” (Study Guide page 112) Other EMI powers & explanation An EMI has general powers, including the ability to seize items; stop, enter and search vehicles and other forms of transport. Furthermore, EMIs routinely inspect buildings, land and premises to ensure compliance with both legislation and the empowering environmental authorisation. (Study Guide page 112) [NOTE: Remember, answers are not necessarily from one part of the study guide. These questions cover multiple chapters in your study guide. We are testing your ability to understand environmental management holistically – drawing from all your knowledge to give us a complete answer.] 6 2 ASSIGNMENT 02: COMMENTARY Multiple Choice Questions: Question 1 Sustainable development is said to be the integration of social, economic, and environmental factors into planning, implementation and decision-making. What procedures in the National Environmental Management Act give practical effect to this definition of sustainable development? 1) Compliance and enforcement procedures. 2) Judicial procedures. 3) Cooperative governance procedures. 4) Basic assessment procedures. Question 2 A public law relationship is … 1) where the parties act in their own capacity. 2) less complex than a private law relationship. 3) an unequal (vertical) relationship. 4) based on a voluntary agreement between the subjects. Question 3 Public participation allows both sides to be heard before the relevant authority makes its decision. This aspect of the Right to Just Administrative Action is best described as … 1) procedural fairness. 2) reasonableness. 3) the right to reasons. 4) lawfulness. Question 4 … is an example of a heritage resource protected under the National Heritage Resources Act 25 of 1999. 1) A collection of South African 1 cent coins (no longer in circulation). 2) Great-grandmother’s vase. 3) Any gravesite. 4) A building older than 60 years. LEG2601/201 7 Question 5 If a specified development impacts on a heritage resource, … 1) a basic assessment report is required in terms of the National Environmental Management Act. 2) a scoping and environmental impact assessment report is required in terms of the National Environmental Management Act. 3) an archaeological heritage assessment report is required in terms of the National Heritage Resources Act. 4) an environmental assessment is required in terms of the National Heritage Resources Act. Question 6 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: … 1) a basic assessment only. 2) rezoning and an application for environmental authorisation. 3) an environmental authorisation only. 4) rezoning only. Question 7 Section 38 of the Constitution sets out categories of persons who have capacity to take a matter to court (locus standi). Which category best describes FuelCo – a company wishing to establish a fuel station? 1) Someone acting on behalf of another person who cannot act in his or her own name. 2) Someone acting in their own interest. 3) An association acting in the interests of its members. 4) A company is not a person and has no legal standing. Question 8 Which one of the following elements is NOT necessary to show when applying for an interim interdict? 1) No other satisfactory remedy is available. 2) A prima facie right exists. 3) An environmental permit or authorisation has already been granted. 4) The balance of convenience favours the granting of interim relief. 8 Question 9 A mandamus … . 1) compels an administrative body to perform its statutory duty. 2) compels a person who transgresses environmental law to pay a fine. 3) stipulates how an administrative body should exercise its power. 4) is the same as the Aquilian action. Question 10 In Director, Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others 1999 2 SA 709 (HHA) the court held that … 1) public participation and transparency do not impose unnecessary and costly burdens on developers. 2) public participation and transparency do impose unnecessary and costly burdens on developers. 3) land-use planning and management do not take place within the framework of the Constitution and the right to the environment. 4) land-use planning and management do take place within the framework of the Constitution and the right to the environment.