The Problem with the Normative Content of Section 24 of the Constitution of South Africa

Abstract

ABSTRACTThe article critically examines the South African Constitutional Court (ZACC) case law and doctrine on section 24 (right to an environment) of the Constitution of South Africa. It argues that the right has been left normatively impoverished, and especially the interaction and relationship with the cornerstone statute, the National Environmental Management Act (NEMA) remains unclear. This issue centres specifically around three core issues. First, it has not been settled whether section 24 encompasses an individual right and an additional positive obligation, or constitutes a composite right. Second, the individual right contained in section 24 requires further definition and clarification. Key terms have not been given distinctive constitutional contours, and it remains uncertain to what extent legislative instruments such as NEMA are legitimately filling these gaps. Finally, it is unclear how the principle of constitutional subsidiarity applies to section 24 of the Constitution. Even assuming that the principle applies in essentially the same way as to other constitutional provisions, one cannot reasonably determine whether ordinary legislation reflects and gives effect to a constitutional right, if one has no clear notion of the latter’s content.