Does the South African water resources management regulatory governance framework achieve its constitutional responsibilities in regard to Section 24 of the Constitution of the Republic of South Africa, Act 108 of 1996?
Date
2016
Authors
Braid, Samantha Germaine
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Abstract
Section 24 of the Constitution of the Republic of South Africa, Act 108 of 1996 provides the environmental right in the Bill of Rights, and states that:
Everyone has the right –
(a) To an environment that is not harmful to their health or well-being; and
(b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
i) Prevent pollution and ecological degradation;
ii) Promote conservation; and
iii) Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
This right places a duty on the State to implement reasonable legislative and other measures in order to protect the environment, to ensure that it (the environment) is not harmful to our health and wellbeing. Should the state not implement, or not implement adequately or sufficiently, a regulatory framework (including legislation and other measures), then the right of having the environment protected may be jeopardised. Therefore there is an onus on the State to monitor, regulate and enforce compliance of those activities that are likely to cause serious damage or ecological degradation of the environment which includes water resources. Similarly, the State needs to ensure appropriate rehabilitation of degraded environments, so as to not infringe on the environmental right.
The aim of this research is to determine whether the South African water resources management regulatory governance framework is achieving its constitutional responsibilities in respect of Section 24 of the Constitution of the Republic of South Africa, Act 108 of 1996. If it is not, then identify how to make enforcement-driven rehabilitation of water resources more effective to achieving this constitutional responsibility.
Firstly the research set outs and defines the theoretical foundations of the research, including the environmental right, integrated water resources management, riverine functions versus river health, good governance and the role of enforcement-driven rehabilitation. The research then outlines and discusses the formal regulatory framework in terms of compliance and enforcement with regard to watercourses. A critical evaluation of this regulatory framework identifies some key gaps in the framework including the lack of provision for rehabilitation of environmental degradation at a legislative, institutional and operational level. The evaluation also identifies the lack of qualitative monitoring and reporting of environmental health; coupled with the lack of a formal policy review. This results in there being no measure of achievement of the regulatory framework and its policies, measures and mechanisms. The compliance and enforcement operational process is outlined and challenges illustrated through a case study of the Bryanston Bicycle Park. The related operational challenges are identified and discussed.
The thesis found that the regulatory framework, although generally appropriate, despite lacking provisions for rehabilitation of environmental degradation, was limited by its implementation. Challenges in implementation of the framework range from capacity and capability constraints, to anthropocentric based resource management, and fragmentation of legislation and institutional mandates, amongst others. One of the key findings from the evaluation and review is that enforcement-driven rehabilitation is currently not effective in contributing towards the achievement of Section 24 of the Constitution. This can be attributed to the lack of guidance in the legislation, as well as the poor ability of officials to identify the extent of ecological impacts and/or effects of contravening activities on the surrounding environment. In an effort to remedy this, the research conducted a comparative review of existing river assessment methodologies and their suitability for application in the enforcement screening process and to guide enforcement-driven rehabilitation. While these methodologies contained some applicable sections, they were not applicable in their entirety to the context of enforcement-driven rehabilitation in South Africa. The research therefore develops tools to assist officials in their day to day functions. These tools include:
i. The Legislation Search Tool provides a searchable database of all the applicable environmental legislation to rivers. The database enables an enforcement official to search by specific section of legislation or by search word. The search highlights all the relevant adjacent legislation and institutions responsible for the overlapping or adjacent sections of legislation.
ii. The Site Inspection Checklist provides a uniform record of site inspection and site characterisation that can be understood by “laypersons”, and across institutions and officials. The indicators to be described on the site inspection form guide the officials to specifically observe particular aspects of the site, and resultant impacts. The checklist was developed through applied science and research of existing assessment methodologies applied to the enforcement context. The indicators are answered by selecting the appropriate description from a list of prescribed descriptions. The information from the Site Inspection Checklist are captured into the Dashboard Tool.
iii. The Dashboard Tool, based on the descriptions selected to describe the site, assigns values to the selected description measure in order to calculate using a fuzzy synthetic evaluation process to produce an illustrative indication of the potential impacts that the activities on the site are having on the potential of the site to provide ideal riverine functions. The Dashboard does not provide a quantitative assessment but rather flags to the enforcement official to request specialist studies, and which functions and impacts should be investigated further in detailed technical assessments and addressed in the rehabilitation plan. The Site Inspection Checklist and Dashboard Tool were tested amongst various enforcement and other officials, and updated and adjusted through an iterative process. The key case studies are presented and discussed. The research closes with concluding remarks on the findings, discussions and outcomes of the research.
The research contributes to the body of knowledge in the framework for review of the knowledge. In the absence of a formal policy review of the regulatory framework, the research conducted a critical evaluation of the regulatory framework for water resources management, in terms of its contribution towards the achievement of Section 24 of the Constitution, the environmental right. With the identified failure of the regulatory framework to contribute effectively towards the environmental right, the research developed key tools to guide and support enforcement officials, in order to improve the effectiveness of enforcement-driven rehabilitation and contribute more effectively towards achievement of the environmental right.