Louis Kotzé is Research Professor at the Faculty of Law, North-West University, South Africa and Senior Professorial Fellow in Earth System Law at the University of Lincoln, UK. His research focuses on environmental constitutionalism, law and the Anthropocene, Earth system governance, and Earth system law. Phone: +27182991568 Address: Louis Kotzé North-West University Potchefstroom Campus Private Bag X6001 Potchefstroom 2520 South Africa
Environmental regulation in South Africa relies significantly on the "command and control" approa... more Environmental regulation in South Africa relies significantly on the "command and control" approach which employs environmental authorisations as the primary regulatory mechanisms. The National Water Act 36 of 1998 currently provides for an alternative regulatory mechanism (economic) in the form of the Waste Discharge Charge System (WDCS) which is to be implemented during the course of 2007. The WDCS is based on the polluter-and user-pays principles which are both economic principles aimed at internalising external costs of pollution. The main aim of the WDCS is to attach a cost to the impact caused by waste discharge with the intention of reducing the damaging effects of waste on water resources. This article investigates the WDCS by making some preliminary remarks on the rationale, nature, design, and aims of the system as it is established in the broader South African environmental and water law framework.
In this article we explore the extent to which the South African mining industry can contribute t... more In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own, to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans.
In South Africa there is a general perception among industries that environmental regulation, and... more In South Africa there is a general perception among industries that environmental regulation, and specifically environmental laws, have severe cost implications and may negatively affect the international competitiveness of such industries. These claims are supported by empirical evidence which suggests that several industrialists perceive environmental legislation in South Africa to be either absent, unclear and/or costly to comply with. This article investigates these claims with the view to determining whether the concerns of industry are justifiable from an economic, legal and governance perspective. It also investigates the extent to which legislation either may be improved or alternative measures may be applied in order to address the concerns of industry.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Current perspectives in South Africa emphasise that the country is in dire need of development, w... more Current perspectives in South Africa emphasise that the country is in dire need of development, with specific reference to land and infrastructural development. Some of the main aims of development are arguably the provision of employment, alleviation of poverty and the enhancement of the quality of peoples' lives and well-being. However, whilst developers are currently given the mandate and legislative support to conduct development, there exist a number of inhibiting circumstances in the development process. Most notable of these deterring circumstances, is the fact that unreasonably lengthened development approval practices by the relevant environmental authority, involved within the environmental impact management and impact assessment process, results in time and money constraints for the developer. This unreasonable delay negatively impacts on the promotion of fast-tracked development endeavours, which are essential to address short and medium term challenges forwarded by a generally impoverished society. By focussing on the legislative provisions pertaining to timeframes in the development approval process, this paper investigates the above contentious issue of relevance both to the effect that it may have on the efficiency of the development process and the judicial implications that it may hold for environmental authorities involved within the environmental management process. Specific emphasis is placed on the question as to what extent the fundamental right to just administrative action may possibly influence the actions of the relevant environmental authority in the environmental management context, with regard to its position vis-à-vis the developer. Reference is also made to the issue of time frames in the environmental impact assessment process and the concept of unreasonable delay. Public servants are, as their very name implies, there to serve the public: not to sit inert and mobile, doing little apart from drawing their salaries and pensions. 1
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Sustainable development arguably relates to not only the sustainable use and exploitation of natu... more Sustainable development arguably relates to not only the sustainable use and exploitation of natural resources, but also to the enhancement of the quality of peoples' lives through inter alia constitutional governance. An enormous responsibility is placed on South African courts when having to balance the predominant responsibilities of the South African constitutional state. Sustainable development is therefore pertinent to the South African constitutional experiment. A careful consideration will have to be given by the Constitutional Court in order to establish an interpretative framework to guide both the executive and legislative authority in their quest to further both socioeconomic development and environmental conservation on a road towards sustainability. This consideration should be conducted in an intellectually honest manner, recognising that, because of the lack of answers at present, future constitutional development may provide solutions to current pressing problems such as poverty alleviation and the conservation of natural resources.
This article argues that because of environmental law's usual focus on the fragmentation of inter... more This article argues that because of environmental law's usual focus on the fragmentation of international environmental law and international environmental governance, we have been missing out on an opportunity to consider fragmentation as a much broader globalised phenomenon in the context of global environmental regulation. The result is that we have been seeing half-truths about fragmentation which have desensitised us to appreciating the disaggregated characteristics of global environmental law and governance as the most recent contemporary forms of environmental regulation. The hypothesis is that international environmental law and governance is only a part of the global regulatory response and that the fragmentation of environmental law and governance must be viewed through the global lens in order to allow a more nuanced and ultimately more realistic reappraisal of fragmentation and its consequences for global environmental regulation. The article suggests that once the parochial blindfold of 'the international' is removed, it would be possible to explore the new world of 'the global,' where the consequences of fragmentation in the context of global environmental regulation are arguably less severe than many fear.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
This article argues that because of environmental law's usual focus on the fragmentation of inter... more This article argues that because of environmental law's usual focus on the fragmentation of international environmental law and international environmental governance, we have been missing out on an opportunity to consider fragmentation as a much broader globalised phenomenon in the context of global environmental regulation. The result is that we have been seeing half-truths about fragmentation which have desensitised us to appreciating the disaggregated characteristics of global environmental law and governance as the most recent contemporary forms of environmental regulation. The hypothesis is that international environmental law and governance is only a part of the global regulatory response and that the fragmentation of environmental law and governance must be viewed through the global lens in order to allow a more nuanced and ultimately more realistic reappraisal of fragmentation and its consequences for global environmental regulation. The article suggests that once the parochial blindfold of 'the international' is removed, it would be possible to explore the new world of 'the global,' where the consequences of fragmentation in the context of global environmental regulation are arguably less severe than many fear.
Environmental regulation in South Africa relies significantly on the "command and control" approa... more Environmental regulation in South Africa relies significantly on the "command and control" approach which employs environmental authorisations as the primary regulatory mechanisms. The National Water Act 36 of 1998 currently provides for an alternative regulatory mechanism (economic) in the form of the Waste Discharge Charge System (WDCS) which is to be implemented during the course of 2007. The WDCS is based on the polluter-and user-pays principles which are both economic principles aimed at internalising external costs of pollution. The main aim of the WDCS is to attach a cost to the impact caused by waste discharge with the intention of reducing the damaging effects of waste on water resources. This article investigates the WDCS by making some preliminary remarks on the rationale, nature, design, and aims of the system as it is established in the broader South African environmental and water law framework.
In this article we explore the extent to which the South African mining industry can contribute t... more In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own, to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations of corporations. We suggest in the final instance that a practical way for mines to contribute to the realisation of the right of access to water could be through their statutorily prescribed social and labour plans.
In South Africa there is a general perception among industries that environmental regulation, and... more In South Africa there is a general perception among industries that environmental regulation, and specifically environmental laws, have severe cost implications and may negatively affect the international competitiveness of such industries. These claims are supported by empirical evidence which suggests that several industrialists perceive environmental legislation in South Africa to be either absent, unclear and/or costly to comply with. This article investigates these claims with the view to determining whether the concerns of industry are justifiable from an economic, legal and governance perspective. It also investigates the extent to which legislation either may be improved or alternative measures may be applied in order to address the concerns of industry.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Current perspectives in South Africa emphasise that the country is in dire need of development, w... more Current perspectives in South Africa emphasise that the country is in dire need of development, with specific reference to land and infrastructural development. Some of the main aims of development are arguably the provision of employment, alleviation of poverty and the enhancement of the quality of peoples' lives and well-being. However, whilst developers are currently given the mandate and legislative support to conduct development, there exist a number of inhibiting circumstances in the development process. Most notable of these deterring circumstances, is the fact that unreasonably lengthened development approval practices by the relevant environmental authority, involved within the environmental impact management and impact assessment process, results in time and money constraints for the developer. This unreasonable delay negatively impacts on the promotion of fast-tracked development endeavours, which are essential to address short and medium term challenges forwarded by a generally impoverished society. By focussing on the legislative provisions pertaining to timeframes in the development approval process, this paper investigates the above contentious issue of relevance both to the effect that it may have on the efficiency of the development process and the judicial implications that it may hold for environmental authorities involved within the environmental management process. Specific emphasis is placed on the question as to what extent the fundamental right to just administrative action may possibly influence the actions of the relevant environmental authority in the environmental management context, with regard to its position vis-à-vis the developer. Reference is also made to the issue of time frames in the environmental impact assessment process and the concept of unreasonable delay. Public servants are, as their very name implies, there to serve the public: not to sit inert and mobile, doing little apart from drawing their salaries and pensions. 1
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Sustainable development arguably relates to not only the sustainable use and exploitation of natu... more Sustainable development arguably relates to not only the sustainable use and exploitation of natural resources, but also to the enhancement of the quality of peoples' lives through inter alia constitutional governance. An enormous responsibility is placed on South African courts when having to balance the predominant responsibilities of the South African constitutional state. Sustainable development is therefore pertinent to the South African constitutional experiment. A careful consideration will have to be given by the Constitutional Court in order to establish an interpretative framework to guide both the executive and legislative authority in their quest to further both socioeconomic development and environmental conservation on a road towards sustainability. This consideration should be conducted in an intellectually honest manner, recognising that, because of the lack of answers at present, future constitutional development may provide solutions to current pressing problems such as poverty alleviation and the conservation of natural resources.
This article argues that because of environmental law's usual focus on the fragmentation of inter... more This article argues that because of environmental law's usual focus on the fragmentation of international environmental law and international environmental governance, we have been missing out on an opportunity to consider fragmentation as a much broader globalised phenomenon in the context of global environmental regulation. The result is that we have been seeing half-truths about fragmentation which have desensitised us to appreciating the disaggregated characteristics of global environmental law and governance as the most recent contemporary forms of environmental regulation. The hypothesis is that international environmental law and governance is only a part of the global regulatory response and that the fragmentation of environmental law and governance must be viewed through the global lens in order to allow a more nuanced and ultimately more realistic reappraisal of fragmentation and its consequences for global environmental regulation. The article suggests that once the parochial blindfold of 'the international' is removed, it would be possible to explore the new world of 'the global,' where the consequences of fragmentation in the context of global environmental regulation are arguably less severe than many fear.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
This article argues that because of environmental law's usual focus on the fragmentation of inter... more This article argues that because of environmental law's usual focus on the fragmentation of international environmental law and international environmental governance, we have been missing out on an opportunity to consider fragmentation as a much broader globalised phenomenon in the context of global environmental regulation. The result is that we have been seeing half-truths about fragmentation which have desensitised us to appreciating the disaggregated characteristics of global environmental law and governance as the most recent contemporary forms of environmental regulation. The hypothesis is that international environmental law and governance is only a part of the global regulatory response and that the fragmentation of environmental law and governance must be viewed through the global lens in order to allow a more nuanced and ultimately more realistic reappraisal of fragmentation and its consequences for global environmental regulation. The article suggests that once the parochial blindfold of 'the international' is removed, it would be possible to explore the new world of 'the global,' where the consequences of fragmentation in the context of global environmental regulation are arguably less severe than many fear.
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