The role of South Africa's environmental rights in transformative constitutionalism

Abstract

This study discusses the role of and extent to which South Africa's environmental right contributes to transformative constitutionalism. Prior to the enactment of the Constitution of the Republic of South Africa, 1996 socio-economic entitlements and environmental concerns were not constitutionally protected. This contributed to maldistribution of environmental resources and socio-economic entitlements, the effects of which are still prevalent to date. South Africa's unjust and discriminatory past called for (and continues to do so) the need to transform people's lives for the better inter alia through the redistribution of socio-economic entitlements. The Constitution seeks to redress past injustices through the provision of access to socio-economic entitlements and environmental protection so as to improve people's quality of life. This constitutional transformative vision is mostly assessed in the light of the realisation of the socio-economic rights of access to water, food, healthcare, housing and healthcare. The main reasoning behind advancing transformation through the provision of socio-economic rights is that they seek to promote the redistribution of material resources so that people's quality of life can be improved. Despite the emphasis placed on redistribution, there is little mention by the judiciary or in the literature of the function of the environmental right in this context, although this is the right which seeks to protect and promote the sustainable use of environmental resources so that they can be continuously available to the present and future generations for the purpose of fulfilling the socio-economic transformation agenda. This study seeks to extend the discussion of transformative constitutionalism by addressing the transformative nature of the environmental right and the extent to which it may contribute to transformation in South Africa.