WHO IS ACCOUNTABLE FOR ENVIRONMENTAL RIGHTS?

We have a right to an environment that is not harmful to our health or wellbeing, which is protected by a robust legislative framework, but where does the buck stop when it comes to accountability? A multi-faceted approach is required.

In the last decade South Africans have experienced a litany of infrastructure issues that have hindered the supply of clean water and working sewerage systems, and which could be seen as an infringement of citizens’ basic human rights.

The lack of delivery of clean water, the flowing of untreated effluent and the dumping of toxic chemicals into rivers, and the growing problem of acid mine drainage have now become commonplace issues.

Johannesburg is currently experiencing major water outages, largely attributable to electricity loadshedding and poorly maintained electric pumps, but also due to the ageing infrastructure of pipes.

Over the past few years, Durban’s tourist economy has been decimated. High levels of E. coli have been recorded in the sea off the City’s popular beaches, resulting in their closure during the busy holiday season.

The Wrongs With Vague Rights

Professor Craig Sheridan, a chemical engineer based in the School of Geography, Archeology and Environmental Studies, says that the Constitution is confusing because there is no indication that citizens have the right to water although it’s clear that citizens have the ‘right of access’ to sufficient water.

“It is perceived that we are supposed to get a basic allocation of free water, yet one wonders whether this rather means the access to a tap or stand tap that is supposed to give us water.

“What we do have is a democratic right to an environment which is not harmful to our health or wellbeing. This is not ‘access to an environment’,” he says.

“The problem with many of these legal phrases, in my opinion, is that they are vague. Who, for example, defines harmful versus not harmful? I guess that answer often sits in the legislative limits of what you are allowed to put into the atmosphere or into water. So, if you discharge water containing effluent into the environment, there will be limits as to what is allowed to be pumped into other systems.”

Whether it’s a nebulous right to access, or to actual water, or to a non-harmful environment, Sheridan says that we have a responsibility to become more water-efficient, as Cape Town did: “During the Day Zero crisis it became even more critical that sewerage could not go back into the dams without being treated first. Contaminants need to be removed and only purified water pumped back into the rivers and dams.”

Culpability And Environmental Rights

In the early 2000s, while doing his PhD in Chemical Engineering at UCT, Sheridan consulted on a case where the Oude Molen distillery in Grabouw was pumping alcoholic effluent into the Klipdrift River, due to the malfunctioning pumps pumping cooling water from reservoirs into the effluent disposal dam. The director of the company pleaded guilty in the court case that ensued. But this director’s admission of guilt is evidently the exception, not the norm. Mazi Choshane, who is a junior attorney and active in the Environmental Justice Programme at Wits, says that it’s concerning that, despite having robust environmental laws in place, there seems to be a lack of accountability – and one of the primary challenges is often the enforcement of these laws, she says – particularly in mining.

Robust Laws Lack Enforcement

“The Department of Mineral Resources and Energy plays a crucial role in managing and regulating the mining sector, including addressing environmental and social challenges associated with mining activities,” says Choshane. “But legacy issues related to the sector, such as acid mine drainage which is a major ongoing environmental issue, and the rehabilitation of derelict and ownerless mines, are of major concern. They pose serious risks to water quality, ecosystems, and human health.”

Chosane points out that in 2021, an estimated 6 100 mines in South Africa were classified as “derelict and ownerless”. And when the United Nations Special Rapporteur on Toxics and Human Rights visited South Africa between 31 July and 11 August 2023, he noted that while we have a robust legislative framework that supports accountability and effective remedies, law enforcement and implementation often fall short.

“This lack of enforcement allows powerful entities to act without consequence, undermining confidence in democracy and the environmental rule of law,” says Choshane.

Increased Litigation But Less Attention

Ruchir Naidoo, an advocate and PhD candidate in Environmental Law as Wits, says that there is an upward trend in environmental litigation. “Civil society and political parties are exercising their constitutional rights to a clean and healthy environment through our courts,” he says.

Naidoo points out that in February 2024, the residents of Verulam, a town in KwaZulu-Natal, appealed to the United Nations for assistance with a severe water supply crisis which they deemed to be a violation of human rights.

There is also an increase in youth and community-based initiatives across various sectors, particularly relating to climate change and pollution issues, according to Naidoo. “But while it appears that there is a growing sense of environmental awareness and people are taking action, environmental issues continue to receive far less attention than South Africa’s historic issues of poverty, crime and unemployment.”

He concurs with Chosane that South Africa has excellent environmental legislation, but non-compliance with and poor enforcement of those laws mean that negative impacts on the environment continue to be felt in large parts of the country, and very often in the most vulnerable and historically disadvantaged communities, such as those in Verulam.

What will it take to invoke our democratic right to an environment which is not harmful to our health or wellbeing?

Chosane believes that, while international commitments to and membership of relevant global bodies provide a framework and platform for addressing environmental issues, the root causes of environmental challenges require a multi-faceted approach involving the government, civil society, the private sector, and the public. C