PER/PELJ - Pioneer in peer-reviewed, open access online law publications

Author Ledile Sekwakwa

Affiliation North-West University, South Africa

Email ledilemerriam@gmail.com

Date Submitted 26 April 2023

Date Revised 8 February 2024

Date Accepted 8 February 2024

Date Published 20 September 2024

Guest Editor Prof O Fuo

Journal Editor Prof W Erlank

How to cite this contribution

Sekwakwa L "Structural Interdicts for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality and Others (8407/2020P) [2021] ZAKZPHC 35*" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16044

Copyright

DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16044

The environmental right, as provided in section 24 of the
Constitution

Abstract

The environmental right, as provided in section 24 of the

Keywords

Environmental rights; local government; municipality; structural interdict; supervisory order.

……………………………………………………….

1 Introduction

Section 24 of the Constitution of the Republic of South Africa, 1996 (Constitution) recognises the right to the environment in order to ensure the health and well-being of the present and future generations. 1

.

* Ledile Sekwakwa. LLB (Cum Laude) LLM. Researcher, South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University. Email: ledilemerriam@gmail.com. ORCiD: orcid.org/0000-0002-4103-3218. The author wishes to thank the following people for their contributions in the early stages of preparing this article: Professor Anel du Plessis, Dr John Rantlo and Dr Nonhlanhla Ngcobo. This work is based on research conducted with the financial support of the National Research Foundation of South Africa (Grant No 115581). All viewpoints and any errors are the author's own.

1 Section 24 of the Constitution of the Republic of South Africa, 1996 (the Constitution).

Fundamentally, the right to the environment seeks to extend this benefit to all South Africans, not just a few. 2

2 SAHRC 2004 https://www.sahrc.org.za/home/21/files/Economic%20and%20Social %20Rights%20Reports.pdf xxi.

Although converting this vision of the benefit of the right to a healthy environment into reality has become more challenging, it is as vital to ensure the realisation of this right as that of any other right entrenched in the Bill of Rights. 3

3 SAHRC 2004 https://www.sahrc.org.za/home/21/files/Economic%20and%20Social %20Rights%20Reports.pdf xxi.

The inclusion of environmental rights in the South African Constitution signifies the need to protect the environment. The environment (which is understood to include surroundings made up of human beings, land, water and the atmosphere) significantly impacts on human livelihoods and development. 4

4 Section 1 of the National Environmental Management Act 107 of 1998 (NEMA); also see Du Plessis and Nel "An Introduction'' 12.

Section 24 of the Constitution, in conjunction with section 7(2), imposes a positive duty on the state to respect, protect and fulfil the environmental right contained in the Bill of Rights. 5

5 Section 24 read with s 7(2) of the Constitution.

These provisions necessitate positive action from the state to ensure an environment that does not pose harm to health and, thereby, people's well-being. The realisation of environmental rights for vulnerable members of society is important for the success of South Africa's vision of transformative constitutionalism. 6

6 Pheko v Ekurhuleni Metropolitan Municipality (No 3) (CCT19/11) [2016] ZACC 20 (26 July 2016) (Pheko case) para 1.

There is an interconnectedness between environmental rights, social justice and transformative constitutionalism, which emphasises the need for proactive measures to protect the most vulnerable members of society in order to establish a sustainable future. The courts play a crucial role in this context by granting effective relief in cases where environmental rights are violated. 7

7 Pheko case para 1.

In this

regard the courts ensure that municipalities perform their environmental duties through the remedies or orders they make, such as interdicts. 8

8 Pheko case para 1.

The author's aim is not to rehearse the details found in case law and literature, such as the content available in Du Plessis A (ed) Environmental Law and Local Government in South Africa 2nd ed (Juta Cape Town 2021). Instead, the intention is to establish a theoretical basis for this note. Against this background this note aims to determine whether the structural interdict can constitute an appropriate and effective relief for municipal violations of environmental rights. The structure of this paper is as follows: the first section analyses the legal framework for the municipal environmental mandate. An overview of the meaning and a discussion of the relevance of a "structural interdict" are given in the second section. The third section provides a brief background of the South African Human Rights Commission v Msunduzi Local Municipality (Msunduzi) case. 9

9 South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021) (Msunduzi case).

An analysis of prominent cases where a structural interdict formed part of the order is provided in the fourth section, and finally a discussion and concluding remarks are provided.

2 The legal framework for the municipal environmental mandate

The hierarchy for South African environmental legislation flows down from the Constitution, which, apart from the section 24 environmental right also contains several other rights with direct or incidental bearing on the environment. 10

10 Nel and Alberts "Environmental Management and Environmental Law" 38. One of the rights which has an indirect environmental bearing is the right to administrative justice.

Accordingly, the Constitution establishes the overarching legal framework for environmental matters in South Africa. The National Environmental Management Act 107 of 1998 (NEMA), gives effect to the environmental right in pursuit of the positive obligation placed on the state, or to some extent even on individuals. 11

11 Section 24(b) of the Constitution.

The adoption of NEMA as a primary environmental legal framework resulted in the promulgation of a range of other specific environmental management acts (SEMAs), which focus on specific environmental media or sectors, for example, water, waste, biodiversity or air quality. 12

12 Section 1 of NEMA; Nel and Alberts "Environmental Management and Environmental Law" 38.

These environmental sector acts are interpreted and applied in the context of NEMA and, more specifically, the environmental management principles outlined in section 2 of NEMA.

Together with the Constitution, NEMA and the environmental sector acts, serve as an environmental legal framework, outlining the basic principles that, among other things, underpin the relationship among the people, the environment, and the government. 13

13 Section 2 of NEMA.

South Africa's government is divided into three spheres: the national, provincial and local. 14

14 Section 40(1) of the Constitution.

It is established that these "spheres are distinctive, interdependent and interrelated". 15

15 Section 40(1) of the Constitution.

The Constitution allocates and assigns functions, duties and powers to each sphere. 16

16 For instance, see s 156(1)(a) of the Constitution.

It is stated that all spheres of government and all organs of state must "cooperate, consult and support one another on matters involving and affecting the environment". 17

17 Section 41(1)(h) of the Constitution.

In this system of government, municipalities possess the authority to govern on their own initiative without interference from other spheres of government. 18

18 Section 152(1)(b) read with s 156(1)(a) of the Constitution.

Although the "environment" is listed as a concurrent function of national and provincial competence in terms of schedule 4A, 19

19 Schedule 4A of the Constitution.

local government, functioning as an autonomous entity, is not exempted from upholding the provisions of section 24 of the Constitution. 20

20 Fuo "Environmental Rights Protected in the Constitution" 4.

Du Plessis also observes that "local government is co-responsible, together with the national and provincial government, for the realisation of section 24 of the Constitution". 21

21 Du Plessis 2015 PELJ 1856.

As a result, local government has to conform to the fundamental obligations of section 7(2) of the Constitution, which is to "respect, protect, promote and fulfil" the rights contained in the Bill of Rights. 22

22 Section 7(2) of the Constitution; this section, in conjunction with s 24, establishes municipalities as co-responsible, along with the other two spheres of government and all other organs of state, for safeguarding, realising, and promoting an environment that does not pose a risk to health and thereby, people's well-being.

This section emphasises the responsibility entrusted to local government in fulfilling the provisions of section 24 of the Constitution. Section 152(1)(d) of the Constitution further places local government under an obligation to promote a safe and healthy environment. 23

23 Section 152(1)(d) of the Constitution.

In addition, the Local Government: Municipal Systems Act 32 of 2000 also contains provisions that mandate local government to contribute towards realising the constitutional environmental right. 24

24 Section 11(3)(l) of the Local Government: Municipal Systems Act 32 of 2000.

According to section 156(1) of the Constitution, a municipality is granted executive authority over local government matters listed in relevant schedules of the Constitution, along with any responsibilities assigned to it

by the national and provincial government. 25

25 Section 156(1) of the Constitution.

Municipalities have the right to perform all functions as provided for in schedules 4B and 5B of the Constitution, subject to national and provincial legislation. 26

26 Section 156(1) read with schedules 4B and 5B of the Constitution.

Moreover, the courts have provided clarification on their interpretation of the interplay between section 24 and the authority of local government, particularly regarding the role of municipalities in realising the environmental right. For example, in Le Sueur v eThekwini Municipality 27

27 Le Sueur v eThekwini Municipality (9714/11) [2013] ZAKZPHC 6 (30 January 2013) (Le Sueur case).

the High Court adjudicated whether the Municipality had the authority in terms of the Constitution or any other law of general application to legislate on environmental issues. 28

28 Le Sueur case para 3; Humby 2014 PELJ 1661.

The court turned to the South African framework of environmental law and other sources of environmental law in deciding this matter. 29

29 Du Plessis 2015 PELJ 1859.

The judge who presided over this matter reiterated that the principles of NEMA apply to all organs of the state, including every municipality. 30

30 Le Sueur case para 34.

The court finally ruled that municipalities are authorised to regulate environmental matters from the micro level for the protection of the environment and that the eThekwini Municipality's use of its spatial planning instruments did not transgress the constitutional or other environmental powers of the national and provincial authorities. 31

31 Le Sueur case para 40; Du Plessis 2015 PELJ 1860.

The precedent set in the Le Sueur case is essential in confirming that municipalities have the authority to legislate on environmental matters. 32

32 Humby 2014 PELJ 1685.

As mentioned above, NEMA outlines the principles supporting the notion that municipalities have an environmental mandate. 33

33 Section 2(1) of NEMA.

For example, NEMA provides for the duty of care and the remediation of environmental damage. 34

34 Section 28 of NEMA.

The section 28 duty of care has been interpreted to mean that "every person has the legal obligation or responsibility to avoid acts or omissions likely to cause harm to the environment". 35

35 Chauke Critical Analysis of the Law on Duty of Care to the Environment 20.

The duty of care in section 28 of NEMA is one way in which the environmental rights in section 24 of the Constitution and section 2(4)(p) 36

36 Section 2(4)(p) of NEMA stipulates that the expenses associated with addressing pollution, environmental degradation, resultant adverse health effects, and the efforts to prevent, control, or minimise further pollution, environmental damage, or adverse health effects must be borne by those responsible for causing harm to the environment.

of NEMA are made concrete. The duty of care is imposed on every person who causes, has caused or

may cause significant environmental pollution or degradation. 37

37 Section 28(1) of NEMA.

It has been established that this duty involves taking "reasonable measures to prevent pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment". 38

38 Section 28(1) of NEMA; Erasmus 2011 https://static.pmg.org.za/docs/ 120828analysis_0.pdf 3.

The general duty of care under NEMA may frequently be construed in conjunction with the particular obligation of the SEMAs to increase and enhance its scope and impact and to combat severe environmental pollution and degradation. 39

39 Oosthuizen et al "National Environmental Management Act 107 of 1998'' 177.

The literature reveals that the measures listed in section 28(3) of NEMA 40

40 Section 28(3) of NEMA states that the reasonable measures to be taken by any person responsible for, or potentially causing, significant pollution or degradation of the environment may encompass actions such as: (a) investigating, assessing, and evaluating the environmental impact; (b) informing and educating employees about the environmental risks associated with their work and the proper procedures to prevent significant pollution or degradation; (c) discontinuing, altering, or controlling any act, activity, or process causing the pollution or degradation; (d) containing or preventing the movement of pollutants or the factors causing degradation; (e) eliminating any source of pollution or degradation; or (f) addressing and rectifying the effects of the pollution or degradation.

can be regarded as the minimum legal standard for the duty of environmental care. This effectively imposes a legal obligation on affected or relevant parties to actively monitor and identify the significance of environmental pollution or degradation. 41

41 Oosthuizen et al "National Environmental Management Act 107 of 1998'' 179.

It also requires affected or relevant parties to take reasonable measures to effectively address such significant environmental impacts. 42

42 Oosthuizen et al "National Environmental Management Act 107 of 1998'' 179.

In the event that a responsible party does not comply with this duty, the relevant official may issue a directive that the responsible party take certain measures. 43

43 Section 28(4) of NEMA; the section stipulates that the Director-General, the Director-General of the department responsible for mineral resources, or a provincial head of the department, may, following adequate opportunity for affected parties to disclose their relevant interests, instruct any person causing, having caused, or likely to cause significant pollution or degradation of the environment to: (a) halt any activity, operation, or undertaking; (b) investigate, evaluate, and assess the impact of specific activities and submit a report; (c) initiate specific measures by a designated date; (d) diligently pursue and maintain those measures; and (e) conclude those measures by a specified reasonable date. It is important to note that if urgent action is imperative for environmental protection, the Director-General or a provincial head of the department may issue such a directive, subsequently consulting and providing an opportunity to inform as soon as reasonably possible.

NEMA introduces remedies which allow any interested person to apply to the court for an order that directs the relevant official to take steps specified in section 28(4) of NEMA to ensure that the responsible party addresses significant pollution

or environmental degradation. 44

44 Section 28(12) of NEMA.

Furthermore, sustainable development is a prominent theme and goal of NEMA, and it creates a framework in which court orders such as structural interdicts could fit in cases where the environmental duty of care has been compromised. The repeated mention of sustainability throughout NEMA and the definition of sustainable development in section 1 of NEMA clearly indicate the need for the protection and realisation of a healthy environment.

3 Structural interdict: an overview

In South Africa, Chapter 8 of the Constitution governs the judiciary. Section 165 of the Constitution rests the judicial authority of the Republic upon the courts, emphasising their independence, which is subject only to the Constitution and the law. 45

45 Section 165(2) of the Constitution.

This section explicitly prohibits any interference with the functioning of the court by any organ of state or any individual. 46

46 Section 165(2) of the Constitution.

Moreover, every court order binds all persons and organs of state to which it applies. 47

47 Section 165(5) of the Constitution.

This provision emphasises the autonomy of the courts, upholds the principle of the separation of powers, affirms the supremacy of the Constitution, and underscores the obligation of both the state and its citizens to respect and comply with the judgments made by the courts. 48

48 Kotze and Du Plessis 2010 Journal of Court Innovation 160.

Section 172(1)(b) of the Constitution allows courts to issue "any order that is just and equitable" in constitutional matters. This section empowers courts to make orders such as structural interdicts to ensure compliance. It has been established that "a structural interdict consists in part of an interdictory relief". 49

49 An interdict is a form of order that declares what the legal position is, but it can also tell a party to do something (a mandatory interdict) or not to do something (a prohibitory interdict).

In that light, a structural interdict can be defined as an order under which the court controls compliance with its orders. 50

50 Thakur 2018 https://hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability.

This definition entails that the court retains the supervisory jurisdiction and participates in the implementation of its orders by requiring the relevant party to report to it on the measures the party has taken to carry out the court's orders. 51

51 Swanepoel Potential of Structural Interdicts 84.

Accordingly, the court will direct the relevant party to perform a specific action or abstain from certain conduct to remedy the established violation determined during the liability stage of adjudication. 52

52 Swanepoel Potential of Structural Interdicts 85.

Typically such an order will include specified timeframes within which particular actions must

be undertaken. 53

53 Swanepoel Potential of Structural Interdicts 85.

Under supervision, compliance with this interdictory relief is essential for the remedy to qualify as a structural interdict. 54

54 Swanepoel Potential of Structural Interdicts 85.

It would be an appropriate proposition to suggest that structural interdicts could be most suitable for remedying violations of constitutional environmental rights. They have the capacity to address systemic violations effectively. 55

55 Swanepoel Potential of Structural Interdicts 85.

However, their appropriateness hinges on the active involvement of various stakeholders during the remedial design phase. 56

56 Swanepoel Potential of Structural Interdicts 85.

Additionally, the court must retain adequate supervisory jurisdiction over the case for such relief to be considered appropriate. 57

57 Swanepoel Potential of Structural Interdicts 85.

A structural interdict is made up of five elements. 58

58 Currie and De Waal Bill of Rights Handbook 199; Woolman et al 2018 https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf.

Firstly, the court issues a declaration specifying how a municipality violated an individual's or a group's constitutional rights or failed to fulfil its constitutional obligations. 59

59 Currie and De Waal Bill of Rights Handbook 199; Woolman et al 2018 https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf.

Secondly, the court instructs the relevant sphere of government to comply with its constitutional obligations. 60

60 Currie and De Waal Bill of Rights Handbook 199; Woolman et al 2018 https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf.

Thirdly, the relevant sphere of government is required to prepare and submit a comprehensive report to the court on a specified date, typically under oath. 61

61 Currie and De Waal Bill of Rights Handbook 199; Woolman et al 2018 https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf.

The report should outline a detailed action plan for addressing the identified violations, granting the responsible state agency the flexibility to choose its approach to comply with the constitutional rights at issue rather than the court dictating a specific solution. 62

62 Swanepoel Potential of Structural Interdicts 85.

Fourthly, upon receiving the report the court evaluates whether the proposed plan adequately rectifies the constitutional infringement and whether it brings the sphere of government into compliance with its constitutional obligation. 63

63 Currie and De Waal Bill of Rights Handbook 199.

In the fifth and final step the court issues a final order that integrates the approved plan and any court-ordered amendments. 64

64 Currie and De Waal Bill of Rights Handbook 199.

Any failure by the sphere of government to adhere to the

plan or associated requirements following this step is considered contempt of court. 65

65 Currie and De Waal Bill of Rights Handbook 199.

The structural interdict is a valuable tool to combat potential non-compliance. 66

66 Mbazira Socio-Economic Rights Project 17.

This remedy allows the court to monitor the implementation of the court's order, for example by requiring the relevant party (the respondent/defendant) to report to the court on actions taken to enforce that order. 67

67 Mbazira Socio-Economic Rights Project 17.

This implies that the court will put in place interim steps and issue directives until such time that it is satisfied that the constitutional infringement has been remedied. This remedy, therefore, provides a continuous performance regime in that the court will continue to get involved in litigation until it is satisfied that the violation has been rectified. 68

68 Swanepoel Potential of Structural Interdicts 85.

Accordingly the aim of a structural interdict is not simply to "deter, as is the case with most other constitutional remedies, but rather to remedy the structural violation by focusing on changes that need to be effected in institutional or organisational design and functioning". 69

69 Swanepoel Potential of Structural Interdicts 85.

The structural interdict, therefore, seeks to adjust future behaviour and is deliberately fashioned rather than logically deduced from the nature of the legal harm suffered. 70

70 Swanepoel Potential of Structural Interdicts 85; Thakur 2018 https://hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability.

With the above said, one could argue that the benefit of a structural interdict is that the court remains in charge, which could be beneficial to the extent that the order will be realised. One advantage of using a structural interdict in the Msunduzi case is that through the flexible and pragmatic exercise of supervisory jurisdiction, the High Court created a dynamic dialogue between the judiciary and the local government in remedying the violation of the constitutional environmental right by the local government. 71

71 Msunduzi case.

Therefore, the characteristics of structural interdict mirror a major part of the remedy imposed by the High Court in the Msunduzi case.

4 SAHRC v Msunduzi case: background and decision

The case of South African Human Rights Commission v Msunduzi Local Municipality had to do with the New England Road Landfill Site in Pietermaritzburg (the landfill site) and the purported failure of the Msunduzi Municipality (the Municipality) to fulfil its constitutional duty in managing and maintaining the landfill site in a way that did not negatively impact on the health and well-being of the residents of Pietermaritzburg and the

neighbouring areas. 72

72 Msunduzi case para 1.

The applicant in this matter was the South African Human Rights Commission (the Commission). 73

73 The South African Human Rights Commission is a national institution established in terms of Chapter 9 of the Constitution. The constitutional role of the Commission is to protect and promote the fundamental human rights enshrined in Chapter 2 of the Constitution as well as inter alia to take steps to secure appropriate redress where human rights have been violated.

The Commission's involvement arose due to its constitutional duty of promoting and protecting human rights. 74

74 Chapter 9 of the Constitution.

The Commission's powers to act are further fortified by the provision of section 38 of the Constitution 75

75 Section 38 of the Constitution; a person seeking remedy has the option to act in his or her own interest, on behalf of a group or class of people whose interests are impacted, or in the broader public interest.

and section 32 of NEMA. 76

76 Section 32 of NEMA stipulates that any person or group of persons has the right to seek suitable remedies concerning any actual or imminent violation of any provision within this Act or SEMA.

The first respondent is the Msunduzi Municipality. The second respondent is the Head of the Department of Economic Development, Tourism and Environmental Affairs, Province of KwaZulu-Nata, while the third respondent is the Member of the Executive Council (MEC) for Economic Development, Tourism and Environmental Affairs, Province of KwaZulu-Natal. 77

77 Msunduzi case paras 4 and 5.

The respondents are responsible for waste management in the province in terms of the National Environmental Management Act: Waste Act 59 of 2008 (Waste Act).

The brief facts of the case are that the Msunduzi Local Municipality had a long history of non-compliance with its duties under NEMA, the National Water Act, 78

78 National Water Act 36 of 1998 (the National Water Act).

the Waste Act and its Waste Management Licence (WML). 79

79 Msunduzi case para 32.

The applicant applied to the court for a declaratory order and structural interdict in order to bring the Municipality into compliance with its constitutional duties in terms of section 24 of the Constitution. 80

80 Msunduzi case para 101.

The Commission commenced with an investigation of the Municipality's operation of the landfill site and its failure to comply with its constitutional obligations in terms of section 24 of the Constitution and other various provisions of NEMA, the Waste Act and the National Water Act. 81

81 These provisions included s 20(b) of the National Environmental Management: Waste Act 59 of 2005 (the Waste Act), ss 31L(4), 28(1)and (3) of NEMA and s 19(1) of the National Water Act and its obligation in terms of international law.

The residents of Pietermaritzburg made what can only be regarded as a desperate plea for assistance, asking the Commission to intervene to hold the Municipality accountable for its ongoing failure to maintain the dump site

in a way that would not endanger their health and welfare. 82

82 Msunduzi case para 14.

Numerous newspaper articles, media stories and petitions from ordinary citizens and civil society organisations echoed this need for assistance. 83

83 Msunduzi case para 14.

The Commission's founding affidavit outlined a lengthy history of the Municipality's non-compliance with the WML and its statutory obligations. 84

84 Msunduzi case para 32.

Following the investigation by the Commission, the then National Department of Environmental Affairs conducted audits on the site, together with the MEC, engaging with the Municipality to improve its management and operation of the landfill site. 85

85 Msunduzi case para 33 read with para 36.

Consequent to these audits the Department issued a compliance notice in terms of section 31L of the NEMA in 2019. 86

86 Section 31L of NEMA empowers an environmental management officer to issue a compliance notice; s 31L(1)of NEMA provides that an environmental management inspector, within his or her mandate in terms of s 31D, may issue a compliance notice in the prescribed form and following a prescribed procedure if there are reasonable grounds for believing that a person has not complied— (a) with a provision of the law for which that inspector has been designated in terms of s 31D; or (b) with a term or condition of a permit, authorisation or other instrument issued in terms of such law.

The purpose of the compliance notice was to bring to the attention of the Municipality some of the areas identified in the investigation report and to require the Municipality to take action to remedy those identified areas. 87

87 Msunduzi case para 42.

With no significant corrective action taken by the Municipality, the situation worsened further with many uncontrolled fires on the landfill site, some of which resulted in the surrounding air quality being affected to the point that schools and highways in close proximity to the site had to close. 88

88 Msunduzi case para 42.

The Department laid criminal charges against the Municipality following its failure to comply with its environmental duties, which were set out in the compliance notice on the site. 89

89 Msunduzi case para 46.

The matter is still pending. 90

90 Msunduzi case para 46; at the time of writing this note the criminal case was still pending.

However, the Department issued more compliance notices which the Municipality ignored or to which instead it failed to respond appropriately. 91

91 Msunduzi case para 44; the Department eventually received the Municipality's response to one of the compliance notices of 26 July 2019, together with a draft action plan, but the action plan was never effectively implemented by the Municipality, which led to significant fires breaking out at the landfill site.

The Commission approached the court, seeking an interdict that would bring the Municipality into compliance with its constitutional obligation relating to managing and operating the landfill site. The relief sought by the

Commission was two-fold. 92

92 Msunduzi case para 10.

In the first place it sought declaratory relief against the Municipality regarding the Municipality's violation of the terms of its WML, its failure to comply with compliance notices issued by the Department from time to time, its blatant failure to comply with section 24 of the Constitution, its fundamental breaches of various provisions of other relevant legislation such as the Waste Act, NEMA and the National Water Act, as well as its failure to fulfil its obligations in terms of international law. 93

93 Msunduzi case para 10.

In the second place, the Commission sought a structural interdict to allow the court to exercise some form of supervisory jurisdiction over the Municipality to ensure the implementation of the order. 94

94 Msunduzi case para 10.

Against the above background the issue before the court was whether the Municipality's violation of its WML, the compliance notices issued by the Department and the MEC, and the applicable legislation mentioned above constituted a violation of section 24 of the Constitution. 95

95 Msunduzi case para 69.

Secondly, whether the Municipality had discharged its duty of care as provided in the NEMA, the Waste Act and the National Water Act and its obligations in terms of international law. 96

96 Msunduzi case para 69.

The court held that it is evident that the operation and management of a landfill site is a highly regulated activity. 97

97 Msunduzi case para 73.

The legislative provisions provided under NEMA, the Waste Act and the National Water Act are obviously intended to stop such activity from harming the environment, thus ensuring that the health and welfare of ordinary citizens are not jeopardised. 98

98 Msunduzi case para 85.

The Municipality was obliged, throughout its operation of the landfill site, to comply with the provisions of the Waste Act and other legislative provisions. 99

99 Msunduzi case para 86.

Section 16 of the Waste Act imposes a duty on the Municipality regarding its waste management. It is required inter alia to ensure that waste is treated and disposed of in an environmentally safe manner. 100

100 Section 16 of the Waste Act provides as follows; "(1) a holder of waste must, within the holder's power, take all reasonable measures to— (a) avoid the generation of waste and where such generation cannot be avoided, to minimise the toxicity and amounts of waste that are generated; (b) reduce, reuse, recycle and recover waste; (c) where waste must be disposed of, ensure that the waste is treated and disposed of in an environmentally sound manner; (d) manage the waste in such a manner that it does not endanger health or the environment or cause a nuisance through noise, odour or visual impacts; (e) prevent any employee or any person under his or her supervision from contravening this Act; and ( f ) prevent the waste from being used for an unauthorised purpose. (2) Any person who sells a product that may be used by the public and that is likely to result in the generation of hazardous waste must

It is

take reasonable steps to inform the public of the impact of that waste on health and the environment. (3) The measures contemplated in this section may include measures to— (a) investigate, assess and evaluate the impact of the waste in question on health or the environment; (b) cease, modify or control any act or process causing the pollution, environmental degradation or harm to health; (c) comply with any norm or standard or prescribed management practice; (d) eliminate any source of pollution or environmental degradation; and (e) remedy the effects of the pollution or environmental degradation. (4) The Minister or MEC may issue regulations to provide guidance on how to discharge this duty or identify specific requirements that must be given effect to, after following a consultative process in accordance with sections 72 and 73. (5) Subsection (4) need not be complied with if the regulation is amended in a non-substantive manner."

also required to manage waste in such a manner that it does not endanger the health of the citizenry or the condition of the environment. 101

101 Section 16 of the Waste Act.

The court indicated that the series of events presented before it by the Commission clearly demonstrated that there had been an abject failure on the part of the Municipality to comply with its WML and to fulfil its constitutional duties to the citizens of Pietermaritzburg and surrounding areas. 102

102 Msunduzi case para 88.

The court further found that consistent violations by the Municipality of the legislative framework enacted to give effect to section 24 of the Constitution constituted a violation of section 24 of the Constitution. 103

103 Msunduzi case para 90.

Therefore, the court ruled that the Municipality had breached section 24 of the Constitution. 104

104 Msunduzi case para 109.

The court further ordered a structural interdict, under which the court gave directives with which the Municipality had to comply. 105

105 Msunduzi case para 109.

The court ordered that within a month of its order the Municipality must file an Action Plan with the court, which must substantially comply with the terms detailed in the court order. 106

106 Msunduzi case para 4.

One of the terms mentioned in the court order was that the Action Plan must explain the steps the Municipality would take to comply with the Revised Compliance Notice and the Variation Waste Management Licence, and must set measurable, periodic deadlines for progress. 107

107 Msunduzi case para 4.

Given that the Commission had established that the Municipality had violated section 24 of the Constitution and the reasonable measures contemplated in section 24, it could be held that the court was prompted to order the declaratory relief sought. 108

108 Msunduzi case para 102.

Section 172(1)(b) of the Constitution permits a court to make any order that is just and equitable. In relation to the Msunduzi case this section provided the court with wide discretion to provide the citizens of Pietermaritzburg with an effective relief that would

ensure compliance by the Municipality with its constitutional obligations. 109

109 Msunduzi case para 103.

Therefore, the structural interdict ordered by the court could be seen as an effort to bring the Municipality into compliance with its constitutional obligations.

5 Structural interdict: reflections on the case law

This part of the case note analyses some cases where the court had to order a structural interdict to enforce judicial compliance. Early in the development of our constitutional jurisprudence South African courts granted structural interdicts as a remedy for cases involving socio-economic rights and rights with similar forms of positive obligation on the state. 110

110 Currie and De Waal Bill of Rights Handbook 199.

The courts have resorted to the structural interdict because of its significance to both the applicants and the government. 111

111 Mbazira 2008 SAJHR 9.

The courts have also underlined the structural interdict as an appropriate response to systemic violations. 112

112 Mbazira 2008 SAJHR 9.

One court has observed that other remedies "such as the prohibitory interdict, mandamus, and awards of damages, are inappropriate to remedy systemic failures or the inadequate compliance with constitutional obligations, particularly when one is dealing with … rights of a programmatic nature". 113

113 S v Zuba 2004 4 BCLR 410 (E) para 36.

One of the prominent cases includes the judgment handed down in the Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency (No 2) (Allypay case). 114

114 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency (No 2) [2014] ZACC 12 (17 April 2014) (Allpay case).

This case involved the South African Social Security Agency's (SASSA) and Cash Paymaster Services' (CPS) agreement to provide social benefits, which was declared unconstitutional by the Constitutional Court, but the pronouncement of invalidity was postponed while a just and equitable remedy was being found. 115

115 Allpay case paras 1, 3 and 78.

The court subsequently commanded SASSA to conduct a new tender evaluation and make a decision about a new award. 116

116 Allpay case para 78.

Additionally, it issued a structural order that called on SASSA to update the court at certain points during the new tendering process. 117

117 Allpay case para 78.

In the end SASSA declared that it would begin making social payments on its own by 31 March 2017 and opted not to award a new tender. 118

118 Black Sash Trust v Minister of Social Development (CCT48/17) [2017] ZACC 8 (17 March 2017) (Black Sash case) para 3; CDH 2017

The court

https://www.cliffedekkerhofmeyr.com/news/publications/2017/dispute/dispute-resolution-alert-16-march-private-sector-beware-current-sassa-cps-saga-is-a-significant-case-study-for-public-private-partnerships.html.

acknowledged this guarantee and revoked its supervisory order, thereby relinquishing control over the situation. 119

119 Black Sash case para 4.

Later it became clear that SASSA had not only been unable to assume responsibility for the payment of social grants by the deadline but also had neglected to notify the court of this, despite being fully aware of its problem beforehand. 120

120 Black Sash case para 6; Thakur 2018 https://hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability.

Furthermore, SASSA's suggested course of action was to ask the court for permission to sign another contract with CPS without going through a tendering procedure. 121

121 Black Sash case para 7.

The Black Sash Trust v Minister of Social Development 122

122 Black Sash case.

emanated from the judgment in the Allpay case, wherein the Black Sash Trust filed an urgent application directly with the Constitutional Court asking for an injunction that, among other things, required SASSA to outline its plans for handling the payment of social funds. 123

123 Black Sash case para 23.

In the Black Sash case the court considered whether it was competent to resume supervision in respect of SASSA's conduct since it had discharged its supervisory order, the continued performance of SASSA's and CPS' obligations in respect of the payment of social grants, and SASSA's responsibilities to either run another tender process or take over the payment of social grants itself. 124

124 Black Sash case para 34; Thakur 2018 https://hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability.

The court held that "SASSA and the Minister have used the discharge by the Court of its supervisory jurisdiction as justification that there was no need for them to inform or approach the court when it became clear that SASSA would not be in a position to assume the duty to pay the grants itself". 125

125 Black Sash case para 59.

The court further held that that conduct was disingenuous and incorrect. 126

126 Black Sash case para 59.

It is arguable that litigants win cases against the government, but the government does little or nothing to produce the tangible benefits that these litigants were entitled to expect from their success. 127

127 Davis 2004 ESR Review 6.

This leads to courts ordering structural interdicts to enforce compliance. However, supervisory orders also come with disadvantages and difficulties. Most cases in which structural interdicts were ordered, some of which are discussed above, do not present a positive picture of structural interdicts as efficient judicial mechanisms. The success of a structural order ultimately depends on how

willingly the executive obeys court directives. When the executive fails to comply there is a real risk that the judiciary's authority will be compromised, weakening the rule of law. As already indicated, supervisory interdicts can also create unnecessary complications regarding the principle of the separation of powers. 128

128 Qumbu 2021 PELJ 16.

Since a structural interdict is a subjective form of relief, in that the terms of the order may differ from case to case, it should be used cautiously, as it may interfere with an institution's autonomy. 129

129 Qumbu 2021 PELJ 16.

6 Discussion

The progressive next step after ordering structural interdicts in the case of breaches of socio-economic rights sees courts now resorting to ordering structural interdicts even in cases involving the breach of environmental rights. 130

130 See for example, Featherbrooke Homeowners Association NPC v City of Mogale Local Municipality (High Court: Gauteng Local Division, Johannesburg) (unreported) case number 11292/2020 of 25 January 2021.

A case in point is Trustees for the Time Being of Groundwork Trust v The Minister of Environmental Affairs 131

131 Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022) (DeadlyAir case).

(DeadlyAir case), where the court was confronted with determining whether high levels of pollution in a specific area constituted a breach of section 24(a) of the Constitution, which provides that "Everyone has the right to an environment that is not harmful to their health or well-being." This case sought to draw attention to the government's failure to formulate and implement its own plan to address the public health concern and the violation of the fundamental right to an environment that is not harmful to health and well-being. The court declared that the poor air quality in the High Priority Area was in breach of residents' constitutional right to an environment that is not harmful to their health and well-being. 132

132 DeadlyAir case para 241.

The court further ordered the Minister of Environmental Affairs to prepare, initiate and prescribe, within 12 months, regulations in terms of section 20 of the National Environmental Management: Air Quality Act 133

133 National Environmental Management: Air Quality Act 39 of 2004.

to implement and enforce the Highveld Plan. 134

134 DeadlyAir case para 241.

The order also held the Minister responsible and thereby forced the Minister to discharge its environmental duties. 135

135 DeadlyAir case para 241.

The DeadlyAir case and the Msunduzi case marked the moment when the judiciary had to clearly express its intentions to order structural interdicts as remedies to enforce organs of state to discharge their environmental duties. The judgments in both the Msunduzi case and the DeadlyAir case in themselves are crucial in advancing environmental rights and contributing to South Africa's jurisprudence on

environmental law. 136

136 Werner, Wilson and De Waal 2022 https://www.cliffedekkerhofmeyr.com/export/ sites/cdh/news/publications/2022/Practice/Dispute/Downloads/Dispute-Resolution-Environmental-Law-Alert-21-April-2022.pdf.

Given the courts' finding that the constitutional right to a healthy environment had been breached, the terms of the structural interdict will hopefully impact positively on the manner of enforcement of the action plan. 137

137 Werner, Wilson and De Waal 2022 https://www.cliffedekkerhofmeyr.com/export/ sites/cdh/news/publications/2022/Practice/Dispute/Downloads/Dispute-Resolution-Environmental-Law-Alert-21-April-2022.pdf.

However, the exercise of supervisory powers by the court can be seen as the court overlapping into exercising executive powers, which amounts to replacing the power of the executive with judicial discretion. 138

138 Mbazira 2008 SAJHR 20.

Such a substitution can be seen to be legitimate only when the political entities are "seriously and persistently in default". 139

139 Mbazira 2008 SAJHR 20.

In such circumstances, judicial discretion may be a necessary and acceptable replacement for political discretion. 140

140 Mbazira 2008 SAJHR 20.

In the same vein, it can be argued that courts typically get involved in institutional disputes due to the necessity to fill a void that the other arms of government have created due to inaction or neglect rather than to take affirmative action in opposition to them. 141

141 Mbazira 2008 SAJHR 20.

It has become evident that government non-compliance has served as the foundation for the courts' involvement in enforcing judicial compliance.

It has been established that, in cases where an organ of state has failed to fulfil its constitutional mandate, courts have relied on structural interdicts to supervise the execution of a court order and the state's actions relative to the order. It can be stated that a structural interdict may be an appropriate remedy when a constitutional right has been breached, since it can remedy the breach by instructing the violator to take specific steps to comply with its obligations firstly and consequently to report back to the court on the extent to which it has adhered to the court's order.

It has become evident from the cases discussed above that the court order requiring perpetrators to report within a stipulated timeframe places the courts in a supervisory role in that regard. Fuo 142

142 Fuo 2013 Murdoch University Law Review 32.

believes that the use of supervisory interdicts demonstrates the courts' commitment to improving the lives of impoverished, disadvantaged and often marginalised South Africans. Taking into account Fuo's perspective on structural interdicts, their application in the environmental context holds considerable importance. The adverse impacts of environmental harm disproportionately affect the poor and marginalised, especially when municipalities fall short of

safeguarding the environment. This deficiency positions the courts to assist disadvantaged communities by issuing structural interdicts, thereby overseeing and assisting local authorities in fulfilling their duty of care.

7 Conclusion

The precedent set in the Msunduzi case is essential in establishing that a structural interdict is an appropriate and effective remedy when the constitutional right to a healthy environment has been breached. It has been established that municipalities have a significant responsibility in realising section 24 of the Constitution. Based on the preceding discussions, it is proposed that courts can discharge their constitutional powers by issuing structural interdicts in cases where there exists a potential for non-compliance with environmental obligations by local government. An order of this sort would help local government to fulfil its environmental duties and regain the trust of the residents impacted. In this situation the court would serve as the guardian. However, structural interdicts have proven to present challenges which could be perceived as barriers. Therefore, from a theoretical standpoint this paper notes that the court's supervisory order is commendable since it may allow the court to exercise its supervisory jurisdiction to ensure that the government complies with its constitutional obligation to uphold environmental rights. However, research suggests that the success of a structural interdict depends in practice on how willingly the executive obeys the court's directives. In most cases executives tend to ignore the court's directives.

Upon ordering structural interdicts, as identified in part three above, it becomes increasingly important for the courts to prioritise sustainability in their decisions. This is because sustainability ensures that the right to a healthy environment is not a fleeting privilege but a right that can be enjoyed by generations to come. Sustainability stands as the central element in all policies pertaining to environmental rights in South Africa. Consequently, it is imperative for courts to deliver judgments that promote sustainability in the environmental context. As this paper has focussed exclusively on structural interdicts for environmental rights violations, it has become apparent that structural interdicts are necessary to ensure that the government's relevant spheres discharge their environmental duties. In this light, supervisory orders in cases of constitutional breaches concerning the right to a healthy environment are indispensable to the advancement of environmental rights.

Bibliography

Literature

Chauke Critical Analysis of the Law on the Duty of Care to the Environment

Chauke V Critical Analysis of the Law on the Duty of Care to the Environment in South Africa: Challenges and Prospects (LLM-dissertation University of Limpopo 2017)

Currie and De Waal Bill of Rights Handbook

Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta Cape Town 2014)

Davis 2004 ESR Review

Davis D ''Socio-Economic Rights in South Africa: The Record of the Constitutional Court after Ten Years'' 2004 ESR Review 3-7

Du Plessis 2015 PELJ

Du Plessis A "The 'Brown' Environmental Agenda and the Constitutional Duties of Local Government in South Africa: A Conceptual Introduction" 2015 PELJ 1846-1880

Du Plessis and Nel "An Introduction''

Du Plessis A and Nel JG "An Introduction'' in Du Plessis A (ed) Environmental Law and Local Government in South Africa 2nd ed (Juta Cape Town 2021) 1-40

Fuo "Environmental Rights Protected in the Constitution"

Fuo ON "Environmental Rights Protected in the Constitution" in du Plessis (eds) in Du Plessis A (ed) Environmental Law and Local Government in South Africa 2nd ed (Juta Cape Town 2021) 3-30

Fuo 2013 Murdoch University Law Review

Fuo ON "The Right of Access to Sufficient Water in South Africa: Comments on Federation for Sustainable Environment and Others v Minister of Water Affairs [2012] ZAGPPHC 128" 2013 Murdoch University Law Review 21-37

Humby 2014 PELJ

Humby T "Localising Environmental Governance: The Sueur Case" 2014 PELJ 1660-1689

Kotze and Du Plessis 2010 Journal of Court Innovation

Kotze LJ and Du Plessis A "Some Brief Observation on Fifteen Years of Environmental Rights in South Africa" 2010 Journal of Court Innovation 157-176

Mbazira Socio-Economic Rights Project

Mbazira C Socio-Economic Rights Project 3rd ed (Community Law Centre, University of Western Cape Cape Town 2008)

Mbazira 2008 SAJHR

Mbazira C ''From Ambivalence to Certainty: Norms and Principles for the Structural Interdicts in Socio-Economic Rights Litigation in South Africa" 2008 SAJHR 1-28

Nel and Alberts "Environmental Management and Environmental Law"

Nel JG and Alberts R "Environmental Management and Environmental Law in South Africa: An Introduction" in King ND, Strydom HA and Retief FP (eds) Environmental Management in South Africa (Juta Cape Town 2018) 1-55

Oosthuizen et al "National Environmental Management Act 107 of 1998"

Oosthuizen M et al "National Environmental Management Act 107 of 1998" in King ND, Strydom HA and Retief FP (eds) Environmental Management in South Africa (Juta Cape Town 2018) 125-207

Qumbu 2021 PELJ

Qumbu B "The Role of the Courts in Advancing Water Security in South Africa" 2021 PELJ 1-35

Swanepoel Potential of Structural Interdicts

Swanepoel P The Potential of Structural Interdicts to Constitute Effective Relief in Socio-Economic Rights Cases (LLD-thesis Stellenbosch University 2017)

Case law

Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency (No 2) [2014] ZACC 12 (17 April 2014)

Black Sash Trust v Minister of Social Development (CCT48/17) [2017] ZACC 8 (17 March 2017)

Featherbrooke Homeowners Association NPC v City of Mogale Local Municipality (High Court: Gauteng Local Division, Johannesburg) (unreported) case number 11292/2020 of 25 January 2021

Le Sueur v eThekwini Municipality (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

Pheko v Ekurhuleni Metropolitan Municipality (No 3) (CCT19/11) [2016] ZACC 20 (26 July 2016)

S v Zuba 2004 4 BCLR 410 (E)

South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)

Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022)

Legislation

Constitution of the Republic of South Africa, 1996

Local Government: Municipal Systems Act 32 of 2000

National Environmental Management Act 107 of 1998

National Environmental Management: Air Quality Act 39 of 2004

National Environmental Management: Waste Act 59 of 2005

National Water Act 36 of 1998

Internet sources

CDH 2017 https://www.cliffedekkerhofmeyr.com/news/publications/2017/dispute/dispute-resolution-alert-16-march-private-sector-beware-current-sassa-cps-saga-is-a-significant-case-study-for-public-private-partnerships.html

Cliffe Dekker Hofmeyr 2017 Private Sector Beware: Current SASSA/CPS Saga is a Significant Case Study for Public-Private Partnership https://www.cliffedekkerhofmeyr.com/news/publications/2017/dispute/dispute-resolution-alert-16-march-private-sector-beware-current-sassa-cps-saga-is-a-significant-case-study-for-public-private-partnerships.html accessed 30 January 2023

Erasmus 2011 https://static.pmg.org.za/docs/120828analysis_0.pdf

Erasmus GJ 2011 An Analysis of Section 24G of the National Environmental Management Act https://static.pmg.org.za/docs/120828analysis_0.pdf accessed 30 January 2023

SAHRC 2004 https://www.sahrc.org.za/home/21/files/Economic%20and %20Social%20Rights%20Reports.pdf

South African Human Rights Commission 2004 5th Economic and Social Rights Report https://www.sahrc.org.za/home/21/files/Economic%20and %20Social%20Rights%20Reports.pdf accessed 1 February 2023

Thakur 2018 https://hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability

Thakur C 2018 Structural Interdicts: An Effective Means of Ensuring Political Accountability? https://hsf.org.za/publications/hsf-briefs/structural-interdicts -an-effective-means-of-ensuring-political-accountability accessed 30 September 2022

Werner, Wilson and De Waal 2022 https://www.cliffedekkerhofmeyr.com/ export/sites/cdh/news/publications/2022/Practice/Dispute/Downloads/Dispute-Resolution-Environmental-Law-Alert-21-April-2022.pdf

Werner M, Wilson L and De Waal L 2022 The Deadly Air Case: How the High Court Confirmed the Right to a Healthy Environment https://www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2022/Practice/Dispute/Downloads/Dispute-Resolution-Environmental-Law-Alert-21-April-2022.pdf accessed 30 January 2023

Woolman et al 2018 https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf

Woolman S 2018 et al Constitutional Law of South Africa https://constitutionallawofsouthafrica.co.za/wp-content/uploads/2018/10/Chap09.pdf accessed 30 January 2023

List of Abbreviations

CDH

Cliffe Dekker Hofmeyr

CPS

Cash Paymaster Services

ESR Review

Economic and Social Rights in South Africa

MEC

Member of the Executive Council

NEMA

National Environmental Management Act 107 of 1998

PELJ

Potchefstroom Electronic Law Journal

SAHRC

South African Human Rights Commission

SAJHR

South African Journal on Human Rights

SASSA

South African Social Security Agency

SEMA

specific environmental management act

WML

Waste Management Licence