PER: 2010 Volume 13 No 5
http://hdl.handle.net/10394/4035
2024-03-28T20:20:39ZWhen certainty and legality collide: The efficacy of interdictory relief for the cessation of building works pending review proceedings
http://hdl.handle.net/10394/4075
When certainty and legality collide: The efficacy of interdictory relief for the cessation of building works pending review proceedings
Summers, R
Effective legal redress against unlawful building works or construction activities can
be an elusive target. Given the desirability of legal certainty attached to
administrative decisions in terms of which building plans are approved, should the
practical implications of this principle trump the equally important principle of
legality? This article examines the – at times – competing imperatives of certainty
and legality in the context of several recent decisions of the Western Cape High
Court that related to applications for interdictory relief for the cessation of allegedly
unlawful building works. The practical difficulties for an applicant in these
circumstances are particularly acute when the relief is sought pending the final
determination of an application for judicial review of the impugned administrative
decision to grant building plan approval. The article highlights the approach of the
Western Cape High Court in three cases to invoking considerations of legality in
circumstances where building works had reached an advanced stage and the
respondent had effectively achieved what has been described as an "impregnable
position". The principal difficulty for an applicant lies in the fact that where
interdictory relief is sought against building works that have reached an advanced
stage, this potentially renders an eventual successful review application brutum
fulmen.
2010-01-01T00:00:00ZUnpacking the public trust doctrine: A journey into foreign territory
http://hdl.handle.net/10394/4074
Unpacking the public trust doctrine: A journey into foreign territory
Van der Schyff, Elmarie
The past decade has borne witness to the transformation of South Africa's natural
resources law with the introduction of a new legal concept, that of "public
trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it
is embodied in South African legislation encapsulates the sovereign's duty to act as
guardian of certain interests to the benefit of the nation as a whole. In the quest to
demystify the incorporation of the concept of "public trusteeship" in South Africa, this
article, as a first tentative step, focuses solely on the public trust doctrine as it
functions in American jurisprudence. It is the aim of this article to give a thorough
theoretical exposition of the development and application of the public trust doctrine
in American jurisprudence in order to provide the South African scholar with a
perspective on a legal construct founded on the philosophical notion that
governments exercise a "fiduciary trust" on behalf of their people.
2010-01-01T00:00:00ZMisplacing nema? A consideration of some problematic aspects of South Africa's new EIA regulations
http://hdl.handle.net/10394/4073
Misplacing nema? A consideration of some problematic aspects of South Africa's new EIA regulations
Ridl, J; Couzens, E
In mid-2006, new Regulations governing environmental impact assessment were
published in terms of the National Environmental Management Act 107 of 1998. It is
argued in this article that the old Regulations under the Environment Conservation
Act 73 of 1989, which were replaced, had proved inadequate not because of any
inherent deficiency, but because they were never properly implemented and
because they were instead subjected to much inaccurate criticism. The article then
canvasses the old Regulations and considers criticisms thereof, before canvassing
the new Regulations and assessing differences between the old and the new.
Various specific concerns and potential shortcomings are raised and considered;
and various interpretations are offered of problematic provisions. A prognosis for the
success and/or failure of the new Regulations is then put forward in the context of
the South African government's present approach to economic growth,
environmental protection and the enforcement of environmental legislation. Finally, it
is argued that there are danger signs that the new Regulations will be as
misunderstood and misapplied as were the old Regulations and that the fundamental
principles of the National Environmental Management Act are likely not to be
adhered to in the implementation of the new Regulations.
2010-01-01T00:00:00ZPublic interest environmental litigation: recent cases raise possible obstacles
http://hdl.handle.net/10394/4072
Public interest environmental litigation: recent cases raise possible obstacles
Kidd, Michael
Despite the broadening of locus standi in environmental cases by both Section 38 of
the Constitution of the Republic of South Africa, 1996, and Section 32 of the National
Environmental Management Act 107 of 1998, two recent cases suggest that the preconstitutional
approach to locus standi still holds sway in our Courts. Moreover,
failure to recognise the environmental right in Section 24 of the Constitution may be
an impediment to applicants' ability to bring an interdict application successfully.
Correct use of the relevant constitutional provisions ought to obviate such problems,
but alternatives are suggested. In the course of the article, it is suggested that the rule in Patz v Greene is no longer relevant and should be consigned to the history books.
2010-01-01T00:00:00Z