Electronic Theses and Dissertations (Masters)

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    Rights of Rivers in South Africa: is transformative adjudication up to the task?
    (University of the Witwatersrand, Johannesburg, 2024) Ansermino, Amanda; Tracy-Lynn Field
    Freshwater is a valuable and scarce natural resource, whose ongoing degradation threatens not only rivers, wetlands and aquifers themselves, but also their surrounding ecosystems, Earth’s essential biodiversity, and the ability of humans and nature to co-exist and thrive. Society’s prevailing value system measures water’s worth to the extent that it benefits people. But this anthropocentric approach is failing to engender behaviour that is necessary to stem catastrophic biodiversity loss and the concomitant threat to human wellbeing. Rights of Nature is emerging as a paradigm rooted in an alternative ethic of respect and justice for all Earth’s subjects. Rights of Rivers is a branch of the Rights of Nature that has been a catalyst in confirming the intrinsic value of thriving riverine ecosystems. Recent river rights cases in developing countries have set the stage for changing legal norms: Courts in Columbia, India and Bangladesh have played a transformative role in pursuing social as well as environmental justice through acknowledging Rights of Rivers and espousing an eco-centric theory of value. In South Africa, the Constitution envisages radical change to a society based on equity and dignity, but but courts have been slow to acknowledge the intersection of environmental, socio-economic and political rights. This paper argues that adjudication must contribute to the transformative constitutional project by adopting a progressive stance: both jurisprudentially, in following a method of value-based, substantive, contextual reasoning; as well as politically, in recognising eco-centric principles of interspecies equity, justice and interdependence. The shortcomings of a narrow judicial perspective are discussed via the Mabola water-use license judgment. The paper offers an alternative judgment, grounded on an interdependent, egalitarian human-nature relationship