Involving South Africa’s Human Rights Commission in environmental protection: South African Human Rights Commission v Msunduzi Local Municipality

Abstract

Section 24 of the Constitution of the Republic of South Africa, 1996, provides that everyone has a right to an environment that is not harmful to their health or well-being. However, the protection of the environment faces challenges, such as the failure of municipalities to provide safe and sufficient drinking water, regularly collect waste and effectively deal with the spillage of sewage into water courses, amongst others. The imminent collapse of local government, which impacts all social, environmental and economic aspects of sustainability, intensifies these failures. Several mechanisms help ensure that municipalities fulfil their constitutional and legislative obligations – including those related to the protection of substantive and procedural environmental rights enshrined in the Constitution. Among these are civil protests and judicially ordered provincial interventions into failing municipalities. However, little attention has been paid to the role of Chapter 9 institutions in ensuring that local government respects, protects, promotes and fulfils its environmental rights obligations. Drawing on a mix of literature and the recently decided South African Human Rights Commission v Msunduzi Local Municipality case, this contribution advances the argument that the South African Human Rights Commission has vast potential to help protect and fulfil s 24 of the Constitution and also that litigation seems inevitable in propelling specific action. The authors also consider the interpretation of the constitutional environmental right and the use of structural interdicts in the case of breaches.

Keywords:

• South African Human Rights Commission
• environmental rights
• local government
• environmental law
• Chapter 9 institutions
• structural interdict

Acknowledgements

The authors thank the National Research Foundation, whose funding through the South African Research Chair in Cities, Law and Environmental Sustainability (grant number 115581) made this contribution possible. All errors and viewpoints are, however, the authors’ own.

Disclosure statement

No conflict of interest was declared by the authors.

Notes

1 See United Nations Human Rights Council The Human Right to a Clean, Healthy and Sustainable Environment (8 October 2021).

2 See, for instance, DR Boyd The Environmental Rights Revolution: a Global Study of Constitutions, Human Rights, and the Environment (2011); JR May & E Daly Human Rights and the Environment: Legality, Indivisibility, Dignity and Geography (2019); E Daly ‘Constitutional protection for environmental rights: The benefits of environmental process’ (2012) 17 International Journal of Peace Studies 71; R Mwanza ‘The relationship between the principle of sustainable development and the human right to a clean and healthy environment in Kenya’s legal context: An appraisal’ (2020) 22 Environmental Law Review 184; CB Soyapi ‘The courts and the constitutional right to a clean and healthy environment in Uganda’ (2019) 28 Review of European Comparative & International Environmental Law 152.

3 The impact of this right on the subsequent development of environmental law and governance in South Africa has been extensively explored over the years. See, for example, L Feris ‘Constitutional environmental rights: An under-utilised resource’ (2008) 24 South African Journal on Human Rights 29; AA du Plessis ‘South Africa’s constitutional environmental right (generously) interpreted: What is in it for poverty?’ (2011) 27 South African Journal on Human Rights 279; M Kidd ‘Environmental rights’ (1996) 7 South African Human Rights Yearbook 102; J Glazewski ‘Environmental justice and the new South African democratic legal order’ (1999) Acta Juridica 1; ON Fuo ‘The transformative potential of the constitutional environmental right overlooked in Grootboom’ (2013) 34 Obiter 77; and LJ Kotzé ‘The judiciary, the environmental right and the quest for sustainability in South Africa: A critical reflection’ (2007) 16 Review of European Community & International Environmental Law 298.

4 Section 24(a) of the Constitution.

5 Section 24(b)(i) of the Constitution.

6 These challenges have been noted by the courts in various cases, including Unemployed Peoples Movement v Eastern Cape Premier 2020 3 SA 562 (ECG). See J Wright, F Dube & A du Plessis ‘Judicial enforcement of mandatory provincial interventions in municipalities in South Africa’ (2022) 55 Verfassung und Recht in Übersee/World Comparative Law 105 for a discussion.

7 Electoral Commission of South Africa v Minister of Cooperative Governance and Traditional Affairs 2022 5 BCLR 571 (CC) para 195.

8 See Unemployed Peoples Movement (note 6 above); Coetzee v Premier, Mpumalanga Province Case No: 2799/2017 (unreported), Featherbrooke Homeowners Association NPC v Mogale City Local Municipality 11292/2020; Kgetlengrivier Concerned Citizens v Kgetlengrivier Local Municipality [2020] ZANWHC 95; Kgetlengrivier Concerned Citizens v Kgetlengrivier Local Municipalities [2020] ZANWHC 9.

9 Ibid.

10 See, for example, SAHRC ‘Final report of the Gauteng provincial inquiry into the sewage problem of the Vaal River’ (17 February 2021).

11 For an exposition of judicially ordered provincial interventions into failing municipalities, see in general L Chamberlain & T Masiangoako ‘Third time lucky? Provincial intervention in the Makana Local Municipality’ (2021) 138 South African Law Journal 423. For a discussion on civil protest action in local government, see M Stoffels & A du Plessis ‘Piloting a legal perspective on community protests and the pursuit of safe(r) cities in South Africa’ (2019) 34 Southern African Public Law 1.

12 The recently decided Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2022] 1 All SA 796 (ECG) is a good case in point.

13 Section 181(1) of the Constitution establishes six Chapter 9 institutions: the SAHRC, the Public Protector, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Auditor-General, and the Electoral Commission.

14 For critical analyses of the role of local government in the fulfilment of the constitutional environmental right in the South African context, see AA du Plessis Fulfilment of South Africa’s Constitutional Environmental Right in the Local Government Sphere (2008); AA du Plessis “Local environmental governance” and the role of local government in realising Section 24 of the South African Constitution’ (2010) 21 Stellenbosch Law Review 265; O Fuo ‘Role of courts in interpreting local government’s environmental powers in South Africa’ (2015) Commonwealth Journal of Local Governance 17.

15 South African Human Rights Commission v Msunduzi Local Municipality 2021 3 All SA 939 (KZP).

16 The site is located on Lot 1853 of the Farm Darvil No 15036 in New England Road, Pietermaritzburg in KwaZulu-Natal.

17 Msunduzi (note 15 above) para 14.

18 Ibid para 14.

19 Ibid para 34.

20 The permit to operate the landfill site was issued in terms of the Environmental Conservation Act 73 of 1989, s 20. These minimum standards for the operation of the landfill site were annexed to the SAHRC’s founding papers in Msunduzi (Annexure JBS2) – see para 23 fn 7 of the judgment. Section 20 of the Environmental Conservation Act was repealed by s 81 of the National Environmental Management: Waste Act 59 of 2008, although this did not affect the validity of the permit issued for the operation of the landfill site. Notwithstanding, the Msunduzi Local Municipality successfully applied for a replacement permit, which was issued in the variation licence for all of its activities pertaining to the management and protection of water sources from pollution – see Msunduzi (ibid) paras 29–30.

21 Msunduzi (ibid) paras 42, 46, 47, 49.

22 The national government conducted meetings, site inspections and engagements with the Msunduzi Local Municipality hoping to secure compliance with applicable environmental legislation to no avail. The Court said that these national engagements were undertaken in terms of the constitutional provision regulating co-operative governance and also in terms of legislation for the monitoring, supervision and oversight of municipalities by the national government (ibid para 42), resulting in the latter issuing a notice of non-compliance in terms of NEMA (para 43).

23 See, for example, P Harper ‘Dumpsite fire that smoked out Pietermaritzburg is finally out’ (1 August 2020) Mail & Guardian; L Bhengu ‘Lawsuit threats as Msunduzi landfill fire leaves city under cloud of smoke’ (8 October 2019) Sowetan Live.

24 Msunduzi (note 15 above) para 14.

25 Ibid para 15.

26 Section 38 of the Constitution defines anyone who can approach the courts for relief concerning infringements of the Bill of Rights as a person or persons acting:

(a). in their own interests

(b). on behalf of another person who cannot at in their own name

(c). as a member of, or in the interest of, a group or class of persons

(d). in the interest of its members (in the case of an association.)

27 National Environmental Management Act 107 of 1998 (NEMA).

28 Section 32 of NEMA, titled ‘Legal standing to enforce environmental laws’, provides an extended replica of s 38 of the Constitution by regulating who may litigate in environmental rights matters.

29 Msunduzi (note 15 above) para 69.

30 National Environmental Management: Waste Act, s 20(b), failure to operate a waste management site without a waste management licence; and s 28(1)-(3), duty of care and obligation to remediate environmental damage.

31 NEMA, s 31(L)(4), failure to comply with a notice in terms of this Act.

32 National Water Act 36 of 1998, s 19(1), failure to prevent and remediate water pollution.

33 According to the Court (Msunduzi (note 15 above) para 81), the municipality’s international obligations arose from the 1981 African Charter on Human and Peoples’ Rights (to which South Africa is a State party), specifically art 16 (right to enjoy the best attainable state of physical and mental health), art 24 (right to a generally satisfactory environment favourable to development), and art 16(2) (duty of a state to take all necessary steps to protect human health); the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, in particular art 4(2)(c), duty to undertake all appropriate measures to prevent pollution to hazardous waste and all pollution that arises from the management of such waste so as to mitigate impact on the environment and human health; and the 1966 International Covenant on Economic, Social and Cultural Right, art 12, the right to enjoy the standard of physical and mental health.

34 Msunduzi (note 15 above) para 85.

35 Ibid para 85.

36 Ibid paras 86, 88.

37 Ibid para 89.

38 Section 2(1) and (4)(i)-(viii) of NEMA.

39 Msunduzi (note 15 above) paras 88, 89(c).

40 The municipality failed to act quickly in several instances, such when a series of fires broke out at the landfill site (ibid para 42). It only responded to a compliance notice after more than a month – see paras 44–45. Even after the response, fires continued to break out at the landfill site – see para 47.

41 Ibid para 95. The Court quoted various precedent setting judgments on the duty of organs of state to be exemplary in their compliance with constitutional obligations. These included Merafong Demarcation Forum v President of the Republic of South Africa 2008 10 BCLR 968 (CC); Lesapo v North West Agricultural Bank 1999 12 BCLR 1420 (CC); and MEC for Health, Eastern Cape v Kirland 2014 3 SA 481 (CC).

42 Msunduzi (note 15 above) para 96.

43 Ibid para 88.

44 Local Government: Municipal Systems Act 32 of 2000. The section provides that councillors have a duty to see to it that community members live in a safe and healthy environment and to contribute to the progressive realisation of, inter alia, the constitutional environmental and water rights.

45 Constitution, s 24.

46 Msunduzi (note 15 above) para 89.

47 Ibid para 89.

48 See, for example, Du Plessis (note 14 above) and O Fuo & L Feris ‘Environmental rights protected in the Constitution’ in AA du Plessis (ed) Environmental Law and Local Government in South Africa (2021).

49 See the discussion in Wright et al (note 6 above).

50 This article provides that the state must respect, protect, promote and fulfil the rights in the Bill of Rights.

51 This provision states that one of the objects of local government is to promote a safe and healthy environment.

52 Msunduzi (note 15 above) para 89.

53 Many of the interpretational concerns raised in A du Plessis ‘Adding flames to the fuel: Why further constitutional adjudication is required for South Africa’s constitutional right to catch alight’ (2008) 15 South African Journal of Environmental Law and Policy 57 have not yet been addressed by the Constitutional Court or any other of South Africa’s courts.

54 Msunduzi (note 15 above) para 1 of the order.

55 Ibid para 2 of the order.

56 Ibid para 3.6 of the order.

57 Ibid para 3 of the order.

58 Structural interdicts require the violator to rectify the breach of a constitutional right under the supervision of the court. The structural interdict typically consists of five elements. I Currie & J de Waal The Bill of Rights Handbook 6 edn (2013) 217–219. See also N Swanepoel ‘Die aanwending van die gestruktureerde interdik in die Suid-Afrikaanse konstitusionele regsbedeling: ’n Eiesoortige beregtingsproses – regte’ (2015) 12 Litnet Akademies 374, 378. The Constitutional Court first acknowledged structural interdicts as a valid and applicable remedy in 1998 in Pretoria City Council v Walker 1998 2 SA 363 (CC), in which it was held that litigants seeking either a declaratory or mandatory order to vindicate a constitutional right could also obtain a court order that the sphere of government in question take appropriate steps as soon as possible to eliminate the violation of rights and to report back to the court in question. P Swanepoel The Potential and Role of Structural Interdicts to Constitute Effective Relief for Socio-Economic Rights Cases (2017) 88–135 analyses a number of historic socio-economic rights cases in which the courts resorted to the structural interdict as a form of relief.

59 Msunduzi (note 15 above) para 4 of the order.

60 Ibid para 10 of the order.

61 Ibid para 4 of the order.

62 Ibid para 4 of the order.

63 See the extensive discussion of the suitability of structural (supervisory) interdicts in matters involving local government in A du Plessis ‘The judiciary’s role in shaping urban space in South Africa as per the sustainable development goals’ (2018) 24 South African Journal of Environmental Law and Policy 5, 31–37.

64 Ibid.

65 Ibid.

66 For other concerns, see P Swanepoel (note 58 above) 137–147.

67 Specifically the principles relating to the status of national institutions.

68 Article 3(iv) of the section on competence and responsibilities.

69 For more on the SAHRC, see: <https://www.sahrc.org.za>.

70 United Democratic Movement v Speaker of the National Assembly 2017 8 BCLR 1061 (CC) para 1.

71 R Malherbe & D Barnard Sub-National Constitutional Law in South Africa (2017) 40.

72 F Dube ‘Enhancing democratic accountability through constitutionalism in South Africa’ (2019) PhD diss, North-West University 142.

73 See the Constitution, s 181(5), which provides that Chapter 9 institutions report to the National Assembly annually. Reporting to the National Assembly does not mean that these institutions are subservient to the legislature – see Dube (ibid) 143.

74 Since its inception, the SAHRC has published a number of investigative reports concerning the right to water, farming evictions, and tolerance and diversity, among others. See <https://www.sahrc.org.za/index.php/sahrc-publications/findings> for a list of these findings.

75 South African Human Rights Commission v Agro Data CC [2022] ZAMPMBHC.

76 Ibid paras 60–61. See also OC Okafor ‘The South African Human Rights Commission: A holistic assessment’ in T Maluwa (ed) Law, Politics and Rights (2014) 162–164.

77 Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) para 56.

78 This corresponds with the view of Malherbe & Barnard (note 71 above) 40, who state with regards to Chapter 9 institutions that: ‘Although all these institutions have a specific role to play to support and promote constitutional democracy, the crucial role that the Auditor-General and the Public Protector play in strengthening good governance and constitutional democracy is emphasized’.

79 Agro Data (note 75 above) para 59.

80 See, for instance, Agro Data (ibid) para 58.

81 Some of the leading cases are South African Human Rights Commission v City of Cape Town [2020] ZAWCHC 84 (interdicting the City of Cape Town from carrying out brutal evictions of vulnerable people in winter at the height of the Covid-19 pandemic); Qwelane v South African Human Rights Commission 2021 6 SA 579 (CC) (interdicting hurtful speech); South African Human Rights Commission v Khumalo [2019] 1 All SA 254 (GJ) (interdicting hate speech). Also see ss 13 and 15 of the South African Human Rights Commission Act 40 of 2013 for more details on the SAHRC’s powers and functions related to its investigations and collection of information.

82 See some of the SAHRC’s hearing reports <https://www.sahrc.org.za/index.php/sahrc-publications/hearing-reports>.

83 See the outcome of the hearing reports (ibid).

84 Malherbe & Barnard (note 71 above) 136.

85 For a discussion of the defined jurisdiction of the Commission, see Okafor (note 76 above) 162–163.

86 Section 13(1)(a)(i) of the SAHRC Act.

87 Section 13(1)(a)(ii) of the SAHRC Act.

88 Section 13(1)(a)(iii) of the SAHRC Act.

89 Okafor (note 76 above) 164. See, also, Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) para 56.

90 Also see s 13(1)(a) and (b) of the SAHRC Act in terms of which the Commission may investigate any alleged violation of human rights and after a diligent investigation it may bring the matter to a competent court or tribunal in its own name or on behalf of a person or group of persons.

91 Examples include the Australian Territory, New Zealand and Hungary. See further, M Shindo ‘Environmental Ombudsman: Its role in the system of accountability mechanisms for administrative environmental decision making’ in C Voigt (ed) International Judicial Practice on the Environment: Questions of Legitimacy (2019) 391.

92 Section 14(a) of the SAHRC Act.

93 Section 14(b) of the SAHRC Act.

94 While in this contribution we critique the court in the Msunduzi case for not having elaborated more on the meaning and implications of the constitutional environmental right, it should be noted that the mandate and scope of powers of the SAHRC allows (even mandates) it to do significant work in this regard.

95 Section 27(1)(b) of the Constitution.

96 Articles 3(g) (competence section) and (g) (methods section).

Additional information

Notes on contributors

Meeschka Diedericks

Meeschka Diedericks postgraduate researcher: South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University

Felix Dube

Felix Dube postdoctoral fellow: Department of Public, Constitutional and International Law, College of Law, University of South Africa

Anél du Plessis

Anél du Plessis professor of law and National Research Foundation South African Research Chair in Cities, Law and Environmental Sustainability, North-West University