Environmental Provisions in a New South African Bill of Rights

Abstract

The question of human rights approaches to environmental protection is particularly pertinent in South Africa because its people are currently negotiating a set of constitutional principles which will lay the foundation for a future democratic and representative government in the country. The future direction of South African human rights law and environmental law particularly will be shaped by events in the near future as a new bill of rights is likely to include an environmental clause. The next few months will see the tabling of a set of constitutional principles and a draft bill of rights, the establishment of a transitional executive and elections for a constituent assembly. The latter body will finalize the form and content of a new constitution and bill of rights, drafts of which are currently being negotiated and circulated for comment by the political role players in the negotiating process. In broad constitutional terms, South Africa is departing from the Westminster model of parliamentary sovereignty on which its constitutional structure has been traditionally based and is moving towards the American model of public power being subjected to norms laid down in a bill of rights. The courts exercising their power of review will play a vital role in ensuring the success of the new dispensation. While the new bill of rights will obviously have vertical application, meaning that it will serve as a standard against which future parliamentary statutes will be measured, it is not yet clear whether it will also have horizontal application, whereby alleged contraventions of constitutional norms will be used by private legal persons in disputes between themselves.