Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*

Authors

DOI:

https://doi.org/10.17159/1727-3781/2024/v27i0a16044

Keywords:

Environmental rights, local government, municipality, structural interdict, supervisory order

Abstract

The environmental right, as provided in section 24 of the Constitution of the Republic of South Africa, 1996 (Constitution), read with section 7(2), places a positive duty upon all three government spheres to realise this right. This duty thus also befalls every municipality in the country. From time to time this right is adjudicated in the context of municipal governance. This note is premised on the judgment handed down in the case South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021). In this case the court found the Msunduzi Local Municipality to have breached section 24 of the Constitution and related legislative provisions. In addition to the declaratory order granted against the Msunduzi Local Municipality, the court further ordered a structural interdict as a way to enforce compliance on the part of the Municipality. Against this backdrop this paper examines the use of a structural interdict as a remedy to achieve judicial enforcement when municipalities breach constitutional and statutory environmental law. The meaning and relevance of the structural interdict in relation to local government are discussed with reference to the South African judiciary's historical application of structural relief in some of the most prominent socio-economic rights cases.

Downloads

Download data is not yet available.

Author Biography

  • Ledile Sekwakwa, North-West University

    LLM Researcher, South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University.

References

Bibliography

Literature

Budlender G unknown ''The Role of Courts in Achieving the Transformative Potential of Socio-Economic Rights'' ESR Review 9-10

Buell S.W 2008 ''The Upside of Overbreadth'' New York University Law Review 1491-1564

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 I and de Waal J The Bill of Rights Handbook (Juta and Company Cape Town 2014)

Davis D unknown ''Socio-Economic Rights in South Africa'' ESR Review 3-6

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

Du Plessis A Fulfilment of South Africa's Constitutional Environmental Right in the Local Government Sphere (LLD-thesis North-West University 2008)

Du Plessis and Nel "An Introduction'' in du Plessis (eds) Environmental Law and Local Government in South Africa (Juta and Company Cape Town 2021) 1-40

Erasmus GJ An Analysis of Section 24G of the National Environmental Management Act (2011) https://static.pmg.org.za/docs/120828

analysis0.pdf accessed 30 January 2023

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

Fuo ON 2013 "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" Murdoch University Law Review 21-37

Hausaman D 2012 ''When and Why the South African Government Disobeys Constitutional Court Orders'' Stanford Journal of Internal Law 437-456

Humby T 2014 "Localising Environmental Governance: The Sueur Case" PER 1660 – 1689

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

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

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

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 and Company Cape Town 2018) 1 – 55

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 and Company Cape Town 2018) 125 -207

South African Human Rights Commission 5th Economic and Social Rights Report (2004) available at https://www.sahrc.org.za/home/21/files/

Economic%20and%20Social%20Rights%20Reports.pdf accessed 1 February 2023

Swanepoel P The potential of structural interdicts to constitute effective relief in socio-economic rights cases (LLD-Thesis Stellenbosch University 2017)

Thakur C 2018 https;//hsf.org.za/publications/hsf-briefs/structural-interdicts-an-effective-means-of-ensuring-political-accountability accessed on 30 September 2022

Twani NB Municipal Legal Accountability for Environmental Damage in the Context of Environmental Rule of Law: A Jurisprudential Appraisal (LLM-thesis North-West University 2022)

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

Internet sources

CDH 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 on 30 January 2023

CER 2021 South African Human Rights Commission v Msunduzi Local Municipality & Others http://www.saflii.org.za/za/cases/

ZAKZPHC/2021/35.HTML accessed on 30 November 2022

Constitutional Law of South Africa 2018 Chapter 9 https://constitutionallawofsouthafrica.co.za/wp-content/upload/2018/10/Chap09.pdf accessed on 30 November 2022

Werner and de Waal 2022 Deadly Air Case How the High Court Confirmed the Right to a Healthy Environment https://www,cliffedekkerhofmeyr.com/en/news/publications/2022/practice/dispute-resolution-and-environmental-alert-21-april-The-Deadly-Air-case-How-the-High-Court-confirmed-the-right-to-a-healthy-environment.html accessed on 30 January 2023

Case law

Allpay Consolidated Investment Holdings (pty) LTD and Others v Chief Executive Officer of South African Social Security Agency and Others (NO 2) (2014) ZACC 12

Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8

Featherbrooke Homeowners Association NPC V City of Mogale Local Municipality and Others (11282/2020)

Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6

Minister of Health and Others v Treatment Action Campaign and Others (NO 2) 2002 (5) SA 721 (CC)

Pheko and Others v Ekhuruleni Metropolitan Municipality and Others (NO 30) [2016] ZACC 20

S V Zuba 2004 (4) BCLR 410 (E)

South African Human Rights Commission v Msunduzi Local Municipality and Others (8407/2020P) [2021] ZAKZZPHC 35

Trustees for the Time being of Groundwork Trust v Vukani Environmental Justice Alliance Movement in Action and Others (39724/2019) [2022] ZAGPPHC 208

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: Air Quality Act 39 of 2004

National Environmental Management: Waste Act 59 of 2005

National Environmental Management: Waste Amendment Act 26 of 2014

National Water Act 36 of 1998

Published

20-09-2024

Issue

Section

SARChi CLES Series on Cities, Law and Environmental Sustainability

How to Cite

Sekwakwa, L. (2024). Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*. Potchefstroom Electronic Law Journal, 27, (Published on 20 September 2024) pp 1-22. https://doi.org/10.17159/1727-3781/2024/v27i0a16044

Similar Articles

21-30 of 1160

You may also start an advanced similarity search for this article.