Municipal Courts and Environmental Justice in South African Local Government

South African law establishes environmental justice (EJ) as among the environmental management principles to direct decision-making. EJ's inclusion as a guiding principle in the National Environmental Management Act 107 of 1998 (NEMA) is relevant because of its legacy of continuing environmental injustices and inequalities concerning natural-resource dependent services and benefits. Also, the municipal service delivery of water and sanitation, electricity, land matters and municipal health should supplement, not compromise local communities' environments, and access should be equitable. In the event of service delivery-related environmental injustices, it is to be expected that communities must have remedial options available, one of which may be access to the judicial system. Therefore, this article seeks to identify and explain the role municipal courts may play specifically in strengthening the relationship between municipal service delivery and improved grass-root level environmental justice in South Africa. The underlying question is whether such courts can be agents of (environmental) change where local communities are exposed to environmental harm due to the failure of municipal services or the environmentally harmful actions of other community members or local industries.


Introduction
Environmental justice (hereafter EJ) is an established notion that recognises and advocates the fair distribution of environmental hazards and benefits in communities. McDonald 1 and Newton 2 argue that EJ concerns itself with environmental injustices inherent in the relationship between people and the environment. It invokes special inclusivity and connection between the present and future generations by protecting their environmental interests and equalising the impact on them of resource depletion.
South African law recognises EJ as part of the constitutionally entrenched environmental right, which provides everyone with a right to an environment that is not detrimental to their health and well-being. 3 Alongside recognising the people's right to a healthy environment, one may assume that section 24 of the Constitution advocates and is aimed at EJ for all. The evidence of this cannot be gainsaid. The courts' jurisprudence on section 24 explicitly emphasises that environmental protection is justifiable if the development would improve the people's lives and well-being, whether socially or economically. 4 Construed in the light of the obligations under section 24 of the Constitution, the National Environmental Management Act, 107 of 1998 (hereafter NEMA) requires integrating the environment, social and economic factors. 5 NEMA provides, for example, that ꞌꞌEJ must be pursued services. 13 Many communities are directly and indirectly exposed to indoor or outdoor pollution, poor urban planning and the impact of climate change, among other things, on an ongoing basis. 14 Given the relationship between human health and well-being and the environmental dependency of valuable services, it is possible to argue that where municipal service delivery fails and threatens human health and well-being, EJ is threatened.
All injustice arising from non-compliance with EJ should, in principle, be judicially challengeable. The Constitution provides that everyone can approach the courts or any impartial courts when their rights enshrined in the Bill of Rights are infringed or when communities are faced with injustices. 15 In this article the focus is on whether the South Africa judiciary is designed to adequately facilitate access to courts for local communities when EJ and environmental rights are threatened due to poor municipal performance. Put differently, this article engages with whether the judiciary is a suitable agent for environmental change.
In particular, a reciprocal nexus is drawn between environmental injustice and low (poor) essential municipal services. The specific question posed is how Municipal Courts can contribute to EJ in South Africa. The objective is to explore how a judicial institution situated in the local sphere of government (i.e. Municipal Courts) 16 could help address specific manifestations of environmental injustice in the local government sphere. Attention is also paid to the common threats to EJ and factors which hamper access to justice in environmentally relevant cases involving local community actors.
Municipal Courts refer to a division of the courts that focus only on local matters. 17 Municipal Courts have exclusive jurisdiction in terms of by-law 13 Stats SA 2017 http://www.statssa.gov.za/publications/P0318/P03182017.pdf 2-6; Stats SA 2015 http://www.statssa.gov.za/publications/P0310/P03102014.pdf. 14 Khanyisa Community Development Organisation v Director: Development Management: Region 2, Western Cape Department of Local Government, Environmental Affairs and Development 2020 2 All SA 485 (WCC). 15 Reading ss 34 and 38 of the Constitution together. 16 While exploring the functioning and powers of Municipal Courts it is noted at the outset that this paper does not intend to explore the functioning of a specific Municipal Court or Courts. Instead, it sets out to conceptually consider how a local court (as a type of judicial institution) devoted to municipal matters could potentially assist in resolving and addressing matters of environmental injustice as they occur in local communities across South Africa. violations dealing with nuisance matters such as street-trading, municipal planning, outdoor advertising, public open spaces, water services, and waste dumping. 18 These Courts have delegated authority from the Department of Justice and Constitutional Development (hereafter the DoJ & CD) and the National Prosecuting Authority (hereafter the NPA). The delegation was prompted in order to conduct prosecutions concerning a failure to comply with a provision of other legislation that is administered by the municipality and traffic violations. 19 The discussion is divided into four sections. Section 1 explores the meaning and relevance of EJ in the South African municipal context. It sketches the historical background and theoretical account of the emergence of EJ's notion in jurisdictions not confined to South Africa. Section 2 discusses the meaning and relevance of the right to access justice in the South African municipal context from judicial recourse for environmental injustices. Section 3 critically looks at the role and place of Municipal Courts in the South African judicial system with a specific focus on what these courts could contribute to EJ in the country's cities. The last section concludes the discussion and charts a future research and action agenda for Municipal Courts and the role they could potentially play in EJ at the local level. (DoJ & CD). In the United States of America for example, the use of the term "municipal" in combination with courts refers to a lower court of record which has both civil and criminal jurisdiction over misdemeanour offences such as domestic violence, speeding tickets, evictions, parking violations and damages on default judgements. 2 Environmental justice in the South African municipal context

A contemporary definition of environmental justice
While the initial discourse on EJ primarily focussed on the diversity and place-specificity of the United States of America (USA), 20 this article adopts a broader definition of the notion to expand its influence and application. The notion of EJ evolved from a social movement by the late 1980s and 1990s to a notion of environmental law, which now concerns environmental equity 21 and the distribution of environmental harms. 22 In an unequal society such as South Africa's, environmental benefits and resources such as water and clean air are (still) not distributed equally to everyone. 23 Dugard, Alcaro and others argue that the ideology of domination and hegemony continues to shape and influence these resources' distribution paradigm, especially in poor and marginalised communities. 24 This suggests that a more inclusive definition would translate into an understanding of EJ that focusses on the total living environment of both the present and future generations, free from racial discrimination and excessive, unfairly distributed externalities. 25 A more inclusive understanding of EJ recognises the synergies between the living environment and environmental policy, legislation and government action as they manifest in the provision of public services and public 20 The notion of environmental justice (EJ) was initially employed as a socioenvironmental movement to explore and demonstrate the reasons why communities and individuals experience issues of unevenly distributed environmental harm, racism, and natural resource-related injustice in the USA. Since its inception in the USA, EJ has undergone significant conceptual development beyond the unfair and unequal distribution of environmental hazards and benefits. decision-making. 26 A broader understanding of EJ draws on the understanding of "justice" as being premised on three theoretical dimensions, namely justice as distribution, justice as a procedure, and justice as recognition. Together, these three dimensions help frame the conditions and circumstances under which it would be possible to identify environmental injustice and argue for judicial action in a context such as that of South Africa.

Distributive environmental justice
Distributive justice refers to the fair distribution of resources, goods, duties and responsibilities throughout society. 27 Munalula notes that distributive justice is a principle that guides the just distribution of benefits, services and burdens. 28 According to Schlosberg, an individual cannot access distributive justice without duly having justice in the procedures of distribution for producing equitable distribution. 29 It follows that in the environmental context, distributive EJ refers to the fair distribution of environmental burdens or the adverse effects of environmentally harmful facilities. 30 The relevance of the above to a broader understanding of EJ is that distributive EJ focusses on the process of distributing environmental goods and resources fairly (green spaces, clean water, air and green transport infrastructure). In the local context, this would mean that everyone in society gets a fair share of services that the municipality must provide in terms of the Constitution or legislation. 31

Procedural environmental justice
Procedural justice is part of the discourse on EJ. 32 It denotes the right to equal concern and respect in political and civil decision-making processes about environmental goods and opportunities (e.g. jobs and sustainable development that resolve disputes and that pertain to the distribution of resources. 34 It is a core feature of EJ in conflicts and decisions relating to natural resources. The relationship between distributive justice and the judicial pursuit of EJ provides opportunities for society to access courts and exercise its rights to be heard and given information and reasons for any decision. 35 In the context of municipal service delivery, distributive EJ means that providing services to the community is procedurally fair. The provision of essential municipal services must duly consider the overall needs and values of the community openly and transparently. 36 One procedure provided for in South Africa to recognise the overall needs and values of a local community is related to the development and adoption of an Integrated Development Plan (IDP). 37 The IDP process requires consultation with and the participation of the local community in order to reflect the council's vision for the long term concerning critical development and the distribution of basic amenities such as water, sanitation and refuse collection, among other things. 38

Environmental justice as "recognition"
Justice as "recognition" emphasises who is given respect by whom, and who is and who is not valued in the decision-making process, for example, concerning the distribution of natural resources or access to environmentally dependent services. 39 This dimension of justice also concerns how non-recognition negatively affects the opportunities available to vulnerable and disadvantaged groups in society. 40 In the environmental context, justice as recognition involves all interested and affected parties and environmental management stakeholders. 41 In the context of South African local government, this typically suggests that municipalities may not design laws, policies or strategies that unfairly discriminate against people directly or indirectly. Municipalities may not discriminate against people due to gender, age, culture, race, pregnancy, sexual orientation or colour regarding the provision of basic municipal services such as water and sanitation, health-care, food and waste removal. 42 This means that for laws, policies and strategies to contribute to EJ, vulnerable and marginalised people in poor and low-income communities must be able to get access to services that the municipality must provide in terms of the Constitution and legislation.

Environmental justice as a concept of South Africa law
EJ is expressly provided in NEMA as follows: Environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons. 43 EJ is also implied in the following principle: Equal access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access to it by categories of persons disadvantaged by unfair discrimination. 44 In the absence of a clear definition of what EJ entails from a South African environmental management perspective, the above principles give some sense of what EJ is supposed to mean. Significant emphasis is placed on the meaningful involvement of all people in environmental governance and complementary civil-based instruments, particularly public participation. Similarly, public participation constitutes a crucial civil-based instrument for ensuring that state decisions do not negatively impact on the environment and people. 45 In a similar vein, mechanisms such as public participation and notice-and-comment procedures serve as environmental governance tools to consider local communities' environmental concerns whenever an environmental injustice is triggered. 46 Sector-specific environmental laws are also devoted to the principle of EJ as envisaged by NEMA. For example, the National Environmental Management: Air Quality Act 39 of 2004 (NEM: AQA) determines that "the burden of health impacts associated with polluted ambient air falls most heavily on the poor" and acknowledges that the "minimisation of pollution is the key to ensuring that air quality is improved" for everyone. 47 The fact that NEM: AQA recognises the rights of the poor concerning the environment feeds directly into the aims of EJ. In a similar vein, the National Environment Management: Waste Act 59 of 2008 (NEM: WA) acknowledges the fact that while failures in waste management may have significant negative impacts on the environment, the minimisation of pollution and waste (recycling, reusing and reducing) may be conducive to the environment. 48 The minimisation of waste may be one of the keys to realising and ensuring that the environment is protected equally for everyone.
Against the background of the above, the following section links EJ and municipal services in South Africa. The point of departure is that a right to essential municipal services 49 and the scope of section 24 of the Constitution could be meaningfully linked to the EJ discourse.

The relevance of environmental justice in the municipal context
This section is premised on the view that the absence of basic municipal services such as water and sanitation and waste removal can impact on communities' experience of EJ. Municipalities are mandated to provide services in local communitiesseveral of which are dependent on the availability or protection of natural resources and ecosystems. 50 Municipal services contribute to the quality of people's lives and well-being. 51 This section explains how municipalities in South Africa are expected to provide services and fulfil their developmental mandate as entrenched in the notion of "developmental local government". 52 The rationale is that municipal services are inextricably tied to developmental local government. 53

The nexus between developmental local government, environmental justice and municipal service delivery
The Constitution obliges municipalities to provide services sustainably, promote socio-economic development and a safe and healthy environment for local communities. 54 According to the Municipal Systems Act, each municipality exercises its executive and legislative authority towards promoting and undertaking "development" in communities. 55  in this instance refers to the improvement of the quality of life of everyone, but especially the poor and disadvantaged, and safeguarding the living standards of future generations. 56 The Municipal Systems Act inadvertently emphasises that development must benefit everyone in society concerning their social, economic, environmental, institutional and infrastructural interests. 57 Although "developmental local government" (hereafter DLG) has a particular meaning which does not refer directly to EJ, it is of relevance to EJ if one considers its emphasis on fairness, inclusivity and equality. The notion of DLG, as contained in the White Paper on Local Government (hereafter WPLG), has a significant impact on the daily lives of South Africans. 58 It defines the notion as the commitment of municipalities "to working with citizens and groups within the community to find sustainable ways to meet their social, economic and material needs and improve the quality of their lives." 59 Arguably DLG also unintentionally emphasises the relationship between the pursuit of EJ and the realisation of several socioeconomic rights such as access to health-care, food, water and housing.
Steytler and De Visser argue that DLG should not occur at the expense of the environment and people. 60 DLG is about more than municipal service delivery, but the latter is a crucial part thereof. The WPLG provides that municipal service delivery must be accessible to all without discrimination and be affordable in the sense that those who cannot afford to pay for the services must get at least a minimum level of provision. 61 Furthermore, the WPLG provides that for services to reflect the purpose of improving the daily lives of people in society, the services must be of good quality, safe and sustainable. 62 The idea of universal affordability addresses issues of social inequality broadly by reason that EJ protects the rights of poor and low-income communities. For this reason, a legitimate aim and function of municipalities to promote development in the lives of the people in the communities they 56 Section 1 of the Municipal Systems Act; Steytler and De Visser Local Government Law ch 1. 57 Reading ss 1 (definitions of the terms "development" and "local community") and 5(1)(g) of the Municipal Systems Act together. serve directly translates into the affirmation of EJ. The nexus between DLG (the provision of services) and EJ could be established in that people should have equitable access to environmental resources, benefits and services, several of which are natural resource-dependent. 63 This means that municipal service delivery pertaining to water and sanitation, electricity, land matters and municipal health should supplement, not compromise, the state of local communities' environment, and that access should be equitable. 64 The failure to adequately (reasonably) provide such services to all affects DLG (service delivery) and amounts to a breach of the law. The breach also threatens EJ, if one considers its three dimensions (distribution, procedural and EJ as recognition).
Any injustice arising from non-compliance with EJ should, in principle, be able to be judicially challenged. Therefore, it merits to highlight the importance of accessing justice in matters of environmental injustice as related to municipal service delivery.
3 Meaning and relevance of the right to access to justice in the South African municipal context

The need for access to justice in local communities
According to Dugard, having access to justice relates to the individual's or society's right to be heard when seeking legal redress. 65 She highlights difficulties that defeat the purpose of accessing justice, especially socioeconomic hardships such as gross inequalities, legal costs and geographical disparities. 66 A lack of financial assistance, legal empowerment, or sometimes the necessary information on how the judicial system works contributes to its failures. 67 In these circumstances people need assistance, be it of a financial kind or concerning education, in order to be able to benefit from the judicial system, especially when instituting legal proceedings concerning a matter of service delivery or EJ in particular.
Access to justice allows communities that are environmentally, socially, economically, politically or otherwise marginalised to improve their livelihoods. 68 Access to justice promotes peoples' capabilities, security and 63 Sections 2(4)(c) and ( personal choices while at the same time, taking advantage of the law to prevent and address injustices. 69 For this reason, enabling access to justice grants local communities the power to address or seek remedies in instances where harm occurs or where service delivery is not sufficient. 70 Access to justice and legal empowerment also make it possible to realise one's rights, such as the right to water, food, sanitation, property, housing, education, and a healthy environment. 71

The Constitution
The Constitution enunciates a right to access justice (the courts) to enable anyone to enforce the rights in the Bill of Rights. 72 Section 34 of the Constitution provides that: Everyone has the right to have any dispute that the application of law can resolve decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
The right to access to justice provides that everyone may approach the courts or other independent and impartial forums when their human rights (to life, dignity or privacy, among others) are violated, or where legal claims are concerned. 73 This means that courts and tribunals or forums have the power to make determinations and offer appropriate redress about such infringements or claims. 74 Frequently the right to access to courts operates in parallel with the right to legal representation for individuals or interested groups who cannot afford legal services. 75 According to Currie and De Waal, any individual involved in a dispute has three distinct rights, as guaranteed in section 34 of the Constitution, should such an individual resort to this provision. 76 They posit that the right to access to justice provided in the Constitution creates a right to access to courts. 77 They argue further that tribunals or forums involved in resolving disputes other than courts (judicial structures) should be independent and impartial when resolving disputes. 78 Thirdly, they require that those disputes be resolved in a fair and public hearing in order to embrace the guarantees of a fair trial or proceedings. 79 The primary purpose of this right is to protect individuals' interests should disputes arise as to which legal rules are applicable. Insisting on the use of section 34 of the Constitution gives effect to the principle of good order or the rule of law, which prohibits self-help in matters that would require judicial intervention. 80 Although the right to access to justice guarantees direct and indirect access to courts or administrative structures, courts have not interpreted this right as granting immediate legal standing. 81 Prospective litigants still need to adhere to the rules of legal standing. 82 The right to access to justice is entirely justified when a prospective litigant has sufficient interest in the subject matter concerned. 83 For this reason, section 38 of the Constitution broadly determines that to have access to justice (the courts) or tribunals and to be able to institute judicial proceedings, litigants must have a sufficient interest in these proceedings to enforce their rights successfully. 84

National Environmental Management Act 107 of 1998
Section 32(1) of NEMA expressly provides that any person or group of persons may help protect the environment or natural resources by seeking appropriate relief of any breach of a statutory provision in the Act. In this context, NEMA broadens access to justice by providing for appropriate relief and exempting indigent litigants who institute legal proceedings in the interest of protecting the environment from the payment of costs. 85  This section provides that any person has the requisite legal standing to enforce the rights in the Bill of Rights if that person (a) is acting in his or her own interest; (b) is acting on behalf of another person who cannot act in his of her own name; (c) is acting as a member of, or in the interest of, a group or class of persons; (d) is acting in the public interest; and (e) an association acting in the interest of its members. 85 Sections 32 (1) and (2)  Access to justice is not confined to direct access to administrative structures or courts. Alternative dispute resolution (ADR) mechanisms could also prove beneficial to people involved in environmental or EJ-related disputes. This is because ADR mechanisms are often more cost-effective, flexible and confidential, and their use might encourage poor and vulnerable people to pursue EJ. 86 Section 34 of the Constitution directly grants everyone the right to dispute resolution using another independent and impartial tribunal or forum.
The use of ADR mechanisms obviates the barriers of financial constraints or delays in prosecution. 87 This is because ADR is understood to be mechanisms that resolve disputes outside courts. Its forms include mediation, 88 arbitration, 89 conciliation 90 and facilitation. 91 Authors such as Pretorius 92 and Bendeman 93 point out that the use of ADR methods brings justice to more people, especially the poor, at a lower cost and at a more acceptable speed. NEMA refers explicitly to two ADR methods, namely, conciliation 94 and arbitration. 95 The aim of referring disputes to conciliation and arbitration per NEMA is to have fair decision-making, conflict management and environmental protection while at the same time facilitating access to justice in environmental matters. 86 Brand ꞌꞌNature of the Arbitration Processꞌꞌ 100. The characteristics of litigation include formality (the procedure is determined by the Constitution or legislation), the outcome is enforceable, which sometimes destroys ongoing relationships between parties, and the law of precedent is strictly applied.

87
Pretorius "Introduction and Overview" 1-2. 88 Pretorius "Introduction and Overview" 4; Albertyn "Specialized Arbitration and Mediation" 114; Wiese Alternative Dispute Resolution 1-5. Mediation refers to a voluntary process which involves a third person (a mediator) who is impartial and neutral and assists the parties to resolve their dispute. Mediation is voluntary both in its initiation and in its continuation. 89 Reading ss 1 and 3 of the Arbitration Act 42 of 1965 together. De Jong 2014 PELJ 2358. Arbitration is understood to be a "private" process whereby parties voluntarily opt to settle their dispute outside of court. Arbitration is also a form of adjudication. Pretorius "Introduction and Overview" 5. Wiese Alternative Dispute Resolution 7. 90 Conciliation is more or less the same as mediation. The difference is that the conciliator makes a formal recommendation to the parties for settlement of the dispute in addition to being a mediator. See Pretorius "Introduction and Overview" 4.

91
Facilitation denotes the process where a facilitator assists two parties or more to resolve a dispute in some form of meeting. Pretorius "Introduction and Overview" 4.

Jurisprudence on the right to access to justice
The courts have interpreted the right to access to justice in such a way as to enhance access for the poor and low-income communities and to curb the recourse to self-help. According to the court in Concorde Plastics (Pty) Ltd v NUMSA, 96 access to justice is the initial requirement for the stability of an orderly community and to ensure that prospective litigants have legal mechanisms capable of resolving disputes among themselves. 97 The emphasis on access to justice is on the fact that access to the courts ensures that society is at peace and regulated in terms of law and that the institutionalised mechanisms used are fair and are seen to be fair.
The ruling in Nedbank v Thobejane 98 is an example of the courts recognising the right to access justice as enshrined in section 34 of the Constitution. The central question in this case was whether financial institutions must consider the cost implications and the principles concerning access to justice when instituting legal proceedings in the lower or superior courts. 99 The court held that financial institutions are obliged to consider the rights and the status of poor and low-income communities when choosing a court in which to resolve disputes. 100 According to the court's reasoning, the right to access justice aims to give members of society a meaningful opportunity to institute and efficiently defend any legal action in a court of law. 101 The court further emphasised that section 34 of the Constitution places positive duties on the state to remove any restriction, regulation, social or economic hurdle that may prevent the possibility of access to justice. 102 This judgement illustrates the fact that without cognisance of the development of the right to access to justice in the pursuit of effective redress when harm occurs, the ideal of equal access for all will not be attained in the current South African legal dispensation. 103 Where legal and valid opportunities to seek redress are lacking for whatever reason, this could amount to and exacerbate pre-existing injustices such as environmental injustices. Therefore, a right to enforce environmental law is essential in promoting access to EJin the local and other contexts. In this sense, it is possible to reason that in matters regarding access to justice concerning EJ, the state must take into consideration, commensurate with its duties stipulated in section 7(2) of the Constitution, that access to justice requires that people can claim and seek remedies in the judicial system when environmental harm occurs. This means that access to EJ through courts and other forums enables residents who are adversely affected by environmental injustices to participate in and have claims adjudicated relatively and openly, as envisaged by section 34 of the Constitution.
However, the question remains as to why it is still problematic for people (individuals and groups such as communities) to prosecute non-compliance with environmental law in South Africa. Why is access to the courts in cases of environmental injustice an ideal rather than a practicality? To answer this question, it is essential to consider the elevation of some judicial institutions (municipal courts) in terms of their potential to provide access to justice and EJ in local government.

The nature of municipal courts
The potential role of municipal courts in the judicial system is significant, but the challenge is that the role has not yet been clearly defined. "Municipal court" is understood to refer to a division of a magistrate's court that has powers and functions in the handling of municipal matters only. 104 Municipal courts are described as specialist "district magistrates' courts dealing with municipal matters" and as separate lower courts. 105  According to section 22(8)(b) of the National Prosecuting Authority Act, 109 the National Director of Public Prosecutions (NDPP) may authorise any local authority to conduct prosecutions in respect of statutory offences as well as municipal by-laws. However, municipalities derive their authority to conduct prosecutions from the Municipal Systems Act. Section 112 of the Act determines that an authorised municipal staff member has powers to institute criminal proceedings in matters relating to infringements of any municipal by-law, policy and regulation. These provisions empower municipalities to establish and introduce municipal courts to rationalise court jurisdictions, particularly the prosecution of municipal by-laws and traffic offences and service delivery. 110 The aim of rationalising municipal courts was to enhance access to justice in local communities, streamline the prosecutorial process concerning municipal matters, and consolidate cooperative governance between the DoJ & CD and the NPA. 111 In recent years many municipalities have shown a great interest in establishing and introducing municipal courts in their jurisdictions. In a break with the past, local government went through an initial process of transformation in the post-constitutional era. Chapter 7 of the Constitution is dedicated to local government. Now municipalities have a wide range of powers and functions to effectively administer the executive functions outlined in s 156 (1)  may effectively and successfully prosecute any offender who fails to comply with any provision or regulation in the Act.
Municipal courts also have jurisdiction in matters connected with the particular provisions enshrined in the Criminal Procedure Act (hereafter CPA). 123 For example, where a municipal court intends to prosecute an accused for non-compliance with or the infringement of a by-law, it may issue a summons in order to secure the attendance of the accused successfully. 124 The issued summons must contain the complete charge and information specifying the place, date and time for appearance at the municipal court. 125 Subsequently, if the accused fails to appear, a municipal court may issue a warrant of arrest to secure his or her attendance. For this reason, a municipal court may impose a fine not exceeding R300 or sentence the accused to imprisonment for a period not exceeding three months if there are compelling and aggravating circumstances. 126

Establishment of municipal courts and appointment of judicial officers
Every municipality requires collaboration with the DoJ & CD and NDPP to establish a municipal court successfully. 127 This collaboration initially requires a municipality to provide a detailed motivation for establishing a municipal court as an additional and specialist magistrate's court in the judicial system. 128 When a municipality intends to establish a municipal court, the municipal manager 129 must firstly consult with the DoJ & CD, the NDPP and the area court manager regarding the need for a municipal court. 130 During this process, the municipal manager must submit a proposed comprehensive business plan together with a detailed prior establishment investigative report which outlines the mission and vision of 123 Criminal Procedure Act 51 of 1977 (hereafter CPA). A municipal court is a district magistrate's court and is operational in terms of the CPA and the Magistrates' Courts Act.

124
Section 54 of the CPA. However, an accused may elect to admit guilt and pay a fine in terms of s 57 of the CPA. 125 Section 54(1) of the CPA. In a similar manner, a municipal court may issue a written notice to the accused in terms of s 56 (1)  the municipal court. 131 Also, the costs associated with the establishment, functioning and challenges encountered, alternative plans, and the municipality's budget must be included in the report. 132 The reason for requiring the presentation of a business plan in the initial phase is to scrutinise whether the proposed plan is linked to an approved municipal budget and the municipality's IDP. 133 The municipal manager and the relevant municipal legal department must describe to the DoJ & CD and the NPA the advantages of establishing a municipal court and the disadvantages of not doing so. 134 The aims of the establishment must reflect what a municipal court as an additional district magistrate's court would seek to achieve. 135 In most instances, the aims of establishing the municipal court should be to primarily ensure the implementation and enforcement of all municipal by-laws in conjunction with effective prosecution should infringements arise as a matter of noncompliance. 136 Also, a municipal court must seek to impose appropriate fines or penalties and sentences in imprisonment cases, provide access to fair and speedy justice services for all, and ease the roll of the existing magistrates' courts. 137 Thirdly, a municipality must consider the following factors in an attempt to establish a municipal court: the number of all municipal-related cases requiring prosecution, the number of court days allocated to these cases in an ordinary magistrate's court, and statistics and data showing the cases reported and the success rates. 138  Section 1 of the Local Government: Municipal Finance Management Act 56 of 2003 (hereafter MFMA). The approved budget refers to an annual budget that is adopted and approved in terms of s 16 of the MFMA. The recent report issued by the Auditor-General seems to indicate that municipalities have run out of funds. This could hamper the establishment of municipal courts, which is a risk to realising EJ. AGSA 2019 https://www.agsa.co.za/Reporting/MFMAReports/2017-2018MFMA.aspx. successfully allocate sufficient time to prosecute specific offences and to trace all exceptional cases on the roll in order to avoid double jeopardy. 139 A municipality should also consider cases withdrawn and the reasons that precipitated the withdrawal, the warrants of arrest issued (including outstanding warrants, cases allowed after the execution of warrants per day).

Municipal courts for improved access to the justice system in cases of environmental injustice
South African local communities are legally entitled to EJ, and they also have legal standing and the right to access judicial recourse in the event of environmental harm. The question that remains to be answered is how municipal courts per se can enhance EJ at the local level, where municipalities fail to deliver services or address pollution in a fair and equal manner. In order to arrive at a finding on this matter, it is essential first to outline the requirements for a municipal court to be able to function in the local "environmental" space.
Firstly, in an endeavour to achieve EJ in local communities, municipalities (together with the national and provincial spheres) have a legal duty to protect the environment and the health and well-being of the community. 140 The Constitution also explicitly provides that municipalities must promote a safe and healthy environment for the community. 141 A key to protecting and promoting a safe and healthy environment for the community is arguably applying and enforcing relevant municipal by-laws. 142 This is because many municipal by-laws regulate activities that are concomitant with working and residing in an environment free from health risks, which is one of the critical pillars of EJ. For this reason, municipalities could fulfil their constitutional environmental duties and strengthen the EJ principle in South African local communities through establishing a visible judicial institution (a municipal court) that is dedicated to the handling and prosecution of non-compliance with (environmentally relevant and service delivery-related) by-laws.
Secondly, municipal courts are designed to adequately facilitate access to justice (being the courts closest to the community) in instances where 139 Cox 2005 https://www.iol.co.za/news/south-africa/joburg-municipal-court-fails-totake-up-slack-251108. Double jeopardy refers to a procedural defence that prevents an accused person from being prosecuted again on the same offence. Merriam Webster 2021 https://www.merriam-webster.com/dictionary/double%20jeopardy. 140 Sections 7(2) and 40 (1)  Municipal matters are often unnecessarily withdrawn from the court rolls due to administrative deficiencies, poor law enforcement, or a lack of departmental integration and partnerships with other stakeholders such as the South African Police Service (SAPS), AARTO and traffic departments. Furthermore, there is a gap between adherence and enforcement which creates backlogs both in the judicial system and in municipalities, as well as delays in the prosecution of contraventions of by-laws. 146 Environmental by-laws typically deal with air pollution and noise control, streettrading, waste management, water services, outdoor advertising and public health, among other matters. 147 Section 2(1) of NEMA significantly provides that the Act applies throughout the country and binds all actions that have adverse effect on the environment. expedite the turn-around time in EJ cases. In a similar vein, the decisions of these courts could also serve as a deterrent to those who might engage in acts that do not comply with the environmental by-laws. 149 The next step is to determine (in the event of municipal courts being established and having environmental authority) how such courts should go about providing remedial judicial. Firstly, a municipal court 150 has to protect the constitutional rights by upholding the law and resolving disputes impartially. 151 This duty reflects the ruling in the Fuel Retailers case that courts have a potential role to play in protecting and promoting the rights in the Bill of Rights, particularly in section 24, in the purview of sustainable development. 152 For this reason, the specialist powers and functioning of municipal courts are critical to the pursuit of EJ and environmental protection and sustainability. 153 This is because these courts must uphold the law in practice, interpret the law to resolve disputes impartially, and contribute to law-making by coming to sound and reasonable judgements that could strengthen EJ in local communities. 154 Secondly, in the municipal context and service delivery, municipal courts would exercise their adjudicative (specialist) powers and functions generally to protect and promote rights concerning the distribution of services and ensure that municipalities respect and fulfil these rights. 155 Through their specialist powers and functions in promoting a healthy environment, municipal courts can contribute to the broader advancement and protection of EJ in local South African communities. According to section 152(1)(d) of the Constitution, municipalities are constitutionally mandated to promote a safe and healthy environment for residents. A key element in promoting a 149 Ngqakamba 2018 https://www.news24.com/news24/SouthAfrica/News/tavernowner-sentenced-to-2-years-in-jail-for-noise-pollution-in-neighbourhood-20180810. safe and healthy environment is law enforcement through courts and agencies.
The Court in Le Sueur v eThekwini Municipality,156 for example, submitted that it would be implausible to exclude municipalities from legislating concerning environmental matters at the local level particularly for matters in Schedules 4 Part B and 5 Part B of the Constitution. 157 Therefore, municipal courts could have a role in the local pursuit of EJ by explicitly promoting a safe and healthy environment. 158 Ideally, these courts should be situated in one locality (one building). Also, most municipal courts offer more than just the prosecution of non-compliance with by-laws. For example, the accessibility of the courts also leads to the provision of information on by-laws and traffic fines, customer care, responses to inquiries relating to outstanding individual fines, the development of public trust and confidence, and the perception that the court is independent and accountable. 159

Conclusion
EJ and its pursuit are complicated and not easy to box in terms of who is responsible for exactly what and when. This article has aimed to argue that environmental injustices often surface in local areas where municipal services fail, concerning their sustainability and equal provision. The focus was, however, on the potential impact that municipal courts may have in the municipal areas of South Africa as far as pertains to service delivery-related environmental injustices. It is thus possible to reason that municipal courts could play a role in strengthening the relationship between municipal service delivery and improved grass-root level EJ in the country. These courts can also be agents of (environmental) change where local communities are exposed to environmental harm due to a lack of municipal services or the environmentally harmful actions of other community members or local industries. by-laws or laws aimed at EJ. Municipal courts could also improve EJ by advancing the fair and reliable prosecution of non-compliance with environmental by-laws in communities. Achieving fair and reliable prosecutions would require municipal courts to have sufficient time and resources to function optimally. Therefore, dedicated magistrates and prosecutors (and other staff members) would need to be appointed. Also, the number of court days would have to be increased and the standard of law enforcement would have to be improved.
The above finding suggests that advancing the fair and reliable prosecution of non-compliance with environmental by-laws is feasible, firstly, by reason that the DoJ & CD have rationalised municipal courts to enhance access to justice in local communities and have withdrawn municipal matters from the jurisdiction of other courts. This finds support in that access to courts closest to where harm occurs is one of the critical pillars of EJ. Secondly, the nature and jurisdiction of municipal courts allow the prosecution of non-compliance with any by-law, including environmental by-laws. Arguably, prosecuting non-compliance with by-laws in general or environmental by-laws serves as a deterrent and suggests that municipal courts are institutions demonstrably able to advance the fair and reliable prosecution of by-laws in the pursuit of EJ in South Africa.
Bearing in mind the backlogs in the court rolls, the deficiencies that are associated with a lack of quality, the inadequate qualifications and experience of presiding officers and court officials in environmental and local government law in the justice system, municipal courts could thirdly contribute to EJ in South Africa by employing suitable candidates in advancing municipal matters to achieve successful prosecutions. Fourthly, municipal courts could remedy the inefficiencies of the current justice system concerning municipal matters by prioritising these matters and dedicating time and resources to them. Finally, municipal courts could improve the status of EJ and service delivery in local South African communities by prosecuting municipalities for their failure to deliver and to provide and distribute municipal services in a fair and equal manner, as required by the Constitution. This means that well-established and efficient municipal courts would help residents with service delivery and that residents could use these courts to report environmental harm.
Therefore, based on the findings above, some of the overarching recommendations are firstly that municipalities should consider establishing more municipal courts to broaden access to justice (and EJ) and advance the fair and reliable prosecution of by-law offences. In so doing, municipal courts could help address environmental injustice in local communities. Secondly, in criminal and civil proceedings concerning the nexus between EJ and the provision of essential services, there is a need to train municipal prosecutors and magistrates to include references to EJ in charges and sentencing in existing municipal courts and processes by invoking section 2(1)(e) of NEMA. 160 The training and exposure to environmental law and EJ would instil knowledge of and skill in applying the principles pf NEMA alongside other relevant considerations when protecting the environment. Thirdly, invoking the provisions of section 2(1)(e) of NEMA would also optimise the streamlining of the prosecutorial process and the enactment of the Municipal Courts Act. The enactment of the Act could improve the status, powers and functions of municipal courts concerning access to EJ since these courts depend on other specific laws concerned with the judicial processes.
Fourthly, the production of a prosecutorial manual on by-laws (including environmental by-laws) and traffic offences in municipal courts across the country could address enforcement issues between the DoJ & CD, the NPA and municipalities. Fifthly, municipalities need to take advantage of the modernisation and digitalisation of municipal courts to move away from inefficient methods, reduce costs, and improve the status of access to EJ in local communities. Finally, there should be an evaluation of municipal courts every year to track developments and statistics concerning the warrants of arrest issued and the cases outstanding concerning environmental by-laws. These findings and recommendations suggest that further research may be necessary. However, for now it is established that municipal courts can be valuable and that as a judicial institution, they must be embraced and their establishment, actively supported.