Why is the environment important to us?

The term "environment" is used to refer to everything that is around us: land, water, atmosphere, places of special importance, plant and animal life. The environment therefore has a tremendous influence on human life and the well-being of social communities.

The environment affects us all. We all need a healthy environment to live healthy lives: clean air and water, safe living areas, sufficient and healthy foods. When the environment becomes degraded, it affects us all in the long run, but poor people are the first to suffer.

We all strive for an improved quality of life – now and in the future. We all want our children to have better opportunities and to live healthy and happy lives. For that we need economic development, social justice and a healthy, sustainable environment.

In practice this means that

• our daily living and working environments must be improved,
• all people must have equal access to land and natural resources,
• we must use social, cultural and natural resources in a sustainable manner, and
• we must promote public participation in decisions about how the environment is used.

The Constitution

The constitution of a country guarantees basic human rights and provides guiding principles for society. The rights and the obligations that are expressed in the Constitution belong to each person and community in South Africa. In South Africa, we are fortunate to have a Constitution that recognises a healthy environment as a basic human right. This is not the case in all countries.

Basic human rights only become meaningful once we all accept that we have to work towards making them real. This means, on the one hand, that the State must follow the principles laid down in the Constitution. Citizens and communities, on the other hand, must demand that their rights be respected and must demonstrate that they take up the responsibilities that come with the rights.

You and your community can use your legal rights to ensure a better quality of life!

 

If your basic rights are not respected, you can: make a case in a court, complain to the Human Rights Commission, or complain to the Public Protector.

What are your environmental rights according to the Constitution?

The Constitution guarantees:

1. The right to an environment that is not harmful to human health or well-being (Section 24 (a))

   Everyone has this basic right and may take legal action to protect it.

2. The right to have the environment protected (section 24 (b))

   Government must comply with our constitutional right to have the environment protected by taking the necessary protective steps. Government must make laws that

   • prevent pollution and damage to the environment,
   • promote conservation, and
   • balance economic, social and environmental development.

   Government must ensure that reasonable measures are taken to protect the environment against harmful activities that may accompany social and economic development, even if such development is much needed.

   Government has initiated the promulgation of new laws to protect the environment. In 1998, the new National Water Act, the National Forest Act, the Marine Living Resources Act and the National Environmental Management Act were passed.

3. The right to equality and special measures to overcome unfair discrimination and disadvantage (section 9)

   In the past unfair discrimination disadvantaged specific communities and many people had to live and work in unhealthy environments. Everyone has the right to such affirmative action as may be necessary to ensure environmental justice.

4. The right to just administrative justice (section 33)

   Everyone has the right to expect Government to make fair decisions, listen to the concerns of people before decisions are taken, give reasons for its decisions and actions and provide dispute resolution by an independent court.

5. The right to a progressive realisation of basic human rights (section 7)

   All the rights in the Bill of Rights must be respected and protected. If the rights cannot be fulfilled immediately, effective steps should be taken to promote actions through which their progressive realisation can be achieved.

The National Environmental Management Act of 1998

In addition to the Constitution, we also have special environment legislation in South Africa: the National Environmental Management Act (NEMA). This new Act supports the principles of the Constitution and gives detail to the constitutional rights.

What does NEMA say?

1. We all have a right to sustainable development; therefore all important environmental factors must be considered before development decisions are taken (section 2).

2. Every person has the right to expect that the Government will make rational decisions that address the needs of people and ensure that development is socially, environmentally and economically sustainable. The environmental factors that must be taken into account include

   • not disturbing ecosystems and cultural assets,
   • not polluting and wasting resources, and
   • being responsible and cautious when using resources where uncertainty exist about the effects of such use.
   
    

3. All stakeholders have the right to be consulted on impact assessments (section 2 and Chapter 5)

4. The social, economic and environmental impacts of activities must be considered and the people affected must be consulted before decisions are made.

5. Everyone has the right to participate in dispute resolution (Chapter 4)

   If a dispute relating to environmental matters arises, any person may ask the decision-maker to appoint an independent person to investigate the matter and to chair meetings where all arguments and facts can be heard.

6. Everyone has the right to refuse to do hazardous work (section 29)

   A worker may not be held liable or be disciplined for refusing to do work that he/she honestly believes will pose an immediate or serious threat to the environment.

7. Everyone has the right to report risks (section 31)

   A person may not be held liable or be disciplined for reporting what is honestly believed to be an environmental risk to a public interest.

8. Everyone has the right to information (section 31)

   The State may obtain information that is necessary to fulfill its environmental responsibility and any member of the public may obtain such information from the State as long as it is in the public interest to be informed.

   This means that all persons responsible for threats to the environment, emissions into the soil, water or air or the handling of hazardous waste, is under obligation to report thereon.

9. Everyone has the right to demand that the environment be taken care of (section 28)

   We all have a duty to take care of the environment. Any person who harms the environment must take reasonable measures to avoid or minimise such harm, even if it was authorised by law. A responsible environmental officer may order any person who harms the environment to take remedial measures, and if a responsible officer does not do so, any member of the public may make a court application to enforce the duty of care.

10. Everyone has the right to legal standing to enforce environmental laws (sections 32 and 33)

    Any person who is concerned with the protection of the environment may make a court application or act as criminal prosecutor to enforce environmental rights and laws, and such a person can recover the costs of the court proceedings.

 

If your legal rights are not respected, you may take your case to court, complain to the Human Rights Commission and the Public Protector, ask advice from the special officer in the national Department of Environmental Affairs and Tourism who deals with complaints, ask your local, provincial or national government to appoint a conciliator, or lodge a complaint with the police.

An example of how to ensure that the new environmental rights are enforced

The following example shows how to excercise the right to

• demand that proper care is taken of the environment.
• refuse to do environmentally hazardous work.
• report activities that have an environmental risk.

 

Let us consider the example of a large corporation that sells a harmful chemical substance used by small farmers or businesses. The use of this substance causes environmental damage which the State is required to clean up. In terms of the NEMA, anyone now has the right to demand that proper care be taken of the environment. In the case of this example, this means that the large corporation must take reasonable measures to avoid, or minimise, the damage resulting from the use of the substance by farmers or businesses. The reason for this is that the large corporation is able to assess the hazards and to act responsibly. Previously, the corporation’s legal responsibility was not clear, and it would have been possible for the owners to shirk their legal duty. The new Act changes this – any member of the public can make a court application to enforce the right to demand that the environment be taken care of. If one of the farm workers using this hazardous substance honestly believes that it seriously threatens the environment, he or she has the right to refuse to do such work. NEMA protects workers and clearly states that they cannot be held liable, or be disciplined for refusing to do hazardous work. NEMA also gives workers the right to report an environmental risk to a government department or to parliament without fear of being disciplined, harassed or dismissed.