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 fulfils 24 of the Constitution and also that litigation seems inevitable in pro-pelling specific action. The authors also consider the interpretation of the constitutional environmental right and the use of structural interdicts in the case of breaches.