Ecologically sustainable development as a constitutional value : South African perspectives

Abstract

In South Africa, constitutional values generally play a vital role in the adjudication of disputes. This is aligned with section 39(2) of the Constitution which mandates courts to promote the values underpinning an open and democratic society. However, in the adjudication of environmental law disputes, courts have not sufficiently developed a specific constitutional value to help guide the adjudication of such rights. Fortunately, the environmental right in section 24 of the Constitution could provide guidance on this matter. Notably, section 24(b) (iii) provides for the right to have the environment protected through 'ecologically' sustainable development. It is upon section 24(b) (iii)'s particular injunction for environmental protection through 'ecologically' sustainable development that this thesis is premised. It argues that 'ecologically' sustainable development could, through the environmental rule of law, be developed and applied by courts as a constitutional value in environmental rights adjudication. When applied through the environmental rule of law, 'ecologically' sustainable development promotes development within the parameters of ecological sustainability. Thus, 'ecologically' sustainable development ensures that economic and social development is not pursued at the expense of the environment. Consequently, it is only when 'ecologically' sustainable development is fully operational that we could hope to achieve ecological integrity, environmental justice and poverty reduction. This thesis is an original contribution that is ground breakingly examining the use of a clear constitutional value in environmental adjudication in South Africa. Thus, as far as this thesis could ascertain, no comprehensive research has been conducted, specifically on the manner in which the judiciary has applied ESD as a constitutional value in developing the jurisprudence on the environmental right. Cumulatively, the topicality of this thesis is hinged on it being the first to examine the manner in which ESD could be employed in the adjudication of environmental disputes in South Africa for the purpose of realising section 24.