The right to development-in-environment and its ecological and developmental thresholds

Abstract

In Fuel Retailers, the Constitutional Court laid a solid foundation for an integrated understanding of the right to development-in-environment protected by s 24 of the Constitution. However, a robust jurisprudence realising s 24’s transformative potential has failed to blossom. This article provides a theoretical basis for conceptualising s 24 as an integrated, multi-dimensional socio-economic right. However, because s 24 differs from traditional socio-economic rights as a result of a greater potential for internal conflict between negative and positive obligations. Accordingly, the givenness and vulnerability of the environment, the potential for retrogressive measures, and the need to consider future generations, the model of judicial review developed in socio-economic rights jurisprudence is not fit for purpose. In exploring a sui generis model of review, this article argues for the recognition of ecological and developmental thresholds in scoping the normative content of the right. The identification and understanding of such thresholds can draw upon the work being done on planetary and social boundaries which are aimed at defining a ‘just and safe operating space for humanity’.