The effect of constitutional environmental protection on land ownership
Van der Merwe, Marga
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Communities sometimes hold private property rights in or adjacent to a protected area. Section 25 of the Constitution of the Republic of South Africa of 1996 (the Constitution) protects a person's private property in that the state may not unfairly deprive or expropriate such private property. The interest in the environment are protected by section 24 of the Constitution which entails that every person has the right to an environment that is not harmful to one's health or well-being and also that the environment has to be preserved for present and future generations. National parks are the most valuable natural resource in terms of nature conservation that South Africa has, as these parks harvest natural resources to be preserved for present and future generations. The question that arises is which restrictions are placed on owners in respect of nature conservation, and what the constitutionality of such restrictions is. The answer this question is somewhat difficult as both the right to property and the right to a safe and clean environment are both fundamental rights in the Constitution, and these rights deserve protection. That being said, it is important to understand that no right in the Bill of Rights is an absolute right and all rights are subject to limitations. Such limitations should adhere to the requirements set out in section 36 of the Constitution. A limitation of any constitutional right will be accepted if it is proportional. Section 36(1) of the Constitution amounts to a general proportionality test to ensure that any right contained in the Bill of Rights is only limited by a law of general application and if such limitation is reasonable and justifiable. The National Environmental Management Act 107 of 1998 (NEMA) as well as the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA) can be seen as laws of general application. NEMPA especially implies that private property holders may be deprived of their property, if it is situated in or adjacent to a protected area in order to conserve the environment, and this will also not be arbitrary as the private property holders are still allowed to reside on the land in question. NEMA as well as NEMPA makes provision that property may be expropriated for environmental purposes subject to compensation and the provisions of the Expropriation Act 63 of 1975. Limitation of property rights in order to protect and conserve the environment can thus not be seen as unconstitutional or unfair.
- Law