Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120100005&lang=en vol. 13 num. 5 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Tribute to Elmene Bray</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500002&lng=en&nrm=iso&tlng=en <![CDATA[<b>The Dutch <i>Crisis and Recovery Act</i></b>: <b>economic recovery and legal crisis?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500003&lng=en&nrm=iso&tlng=en In the Netherlands, the 2010 Crisis and Recovery Act aims at speeding up decisionmaking on a wide variety of activities, hoping that after the financial and economic crisis has passed, development projects can immediately be carried out without any delay caused by legal procedures in court or elsewhere. The Act meets great criticism for many reasons: it allegedly curtails citizen's procedural rights because it focuses almost exclusively on environmental standards as "obstructing" standards that need to be removed, and it infringes international and European Union law. In this note, the legal critique on the Act is analysed. The conclusion is that the sense of urgency surrounding the design of legal measures to address the economic crisis enables the legislature to implement innovations and long-time pending amendments to existing legislation. Most issues have however not been fully or properly considered. Many legal questions will arise when implementing the Act, which will retard rather than expedite projects. It is difficult to predict whether the positive effects of the Crisis and Recovery Act would outweigh the negative aspects. Much depends on the manner in which the authorities will actually apply the Act. Should they implement the Act to its full potential, the effect of the Act in sum will be negative. In that case, the Act may help the economy to recover, but it will bring about a crisis in the legal system. It will, in all probability, also not contribute to sustainable development. <![CDATA[<b>Public interest environmental litigation</b>: <b>recent cases raise possible obstacles</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500004&lng=en&nrm=iso&tlng=en Despite the broadening of locus standi in environmental cases by both Section 38 of the Constitution of the Republic of South Africa, 1996, and Section 32 of the National Environmental Management Act 107 of 1998, two recent cases suggest that the preconstitutional approach to locus standi still holds sway in our Courts. Moreover, failure to recognise the environmental right in Section 24 of the Constitution may be an impediment to applicants' ability to bring an interdict application successfully. Correct use of the relevant constitutional provisions ought to obviate such problems, but alternatives are suggested. In the course of the article, it is suggested that the rule in Patz v Greene is no longer relevant and should be consigned to the history books. <![CDATA[<b>How to use voluntary, self-regulatory and alternative environmental compliance tools</b>: <b>some lessons learnt</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500005&lng=en&nrm=iso&tlng=en A number of alternative environmental enforcement tools are available that may be used to enhance the environmental enforcement effort in South Africa. Current debate focuses on which tools work effectively and the reasons for their success. The debate is however dominated by issues concerning policy challenges, such as the adoption of alternative tools and necessary arrangements to ensure these tools contribute to overall environmental enforcement performance. In order to contribute to the debate and stimulate further debate, this article offers a typology of alternative enforcement tool categories, lists the generally argued benefits and disadvantages of both command and control approaches and alternative enforcement tools, offers framework conditions for the successful adoption and use of some of the enforcement tools, and explores empirical and other evidence to determine whether environmental management systems are adequately able to drive sustained and consistent legal compliance. A South African case study is also presented to illustrate the manner in which a combination of alternative enforcement tools may be integrated with command and control tools to ensure consistent and sustained legal compliance. <![CDATA[<b>Misplacing NEMA?</b> <b>A consideration of some problematic aspects of South Africa's new EIA Regulations</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500006&lng=en&nrm=iso&tlng=en In mid-2006, new Regulations governing environmental impact assessment were published in terms of the National Environmental Management Act 107 of 1998. It is argued in this article that the old Regulations under the Environment Conservation Act 73 of 1989, which were replaced, had proved inadequate not because of any inherent deficiency, but because they were never properly implemented and because they were instead subjected to much inaccurate criticism. The article then canvasses the old Regulations and considers criticisms thereof, before canvassing the new Regulations and assessing differences between the old and the new. Various specific concerns and potential shortcomings are raised and considered; and various interpretations are offered of problematic provisions. A prognosis for the success and/or failure of the new Regulations is then put forward in the context of the South African government's present approach to economic growth, environmental protection and the enforcement of environmental legislation. Finally, it is argued that there are danger signs that the new Regulations will be as misunderstood and misapplied as were the old Regulations and that the fundamental principles of the National Environmental Management Act are likely not to be adhered to in the implementation of the new Regulations. <![CDATA[<b>Unpacking the public trust doctrine</b>: <b>a journey into foreign territory</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500007&lng=en&nrm=iso&tlng=en The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence. It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people. <![CDATA[<b>When certainty and legality collide</b>: <b>the efficacy of interdictory relief for the cessation of building works pending review proceedings</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000500008&lng=en&nrm=iso&tlng=en Effective legal redress against unlawful building works or construction activities can be an elusive target. Given the desirability of legal certainty attached to administrative decisions in terms of which building plans are approved, should the practical implications of this principle trump the equally important principle of legality? This article examines the - at times - competing imperatives of certainty and legality in the context of several recent decisions of the Western Cape High Court that related to applications for interdictory relief for the cessation of allegedly unlawful building works. The practical difficulties for an applicant in these circumstances are particularly acute when the relief is sought pending the final determination of an application for judicial review of the impugned administrative decision to grant building plan approval. The article highlights the approach of the Western Cape High Court in three cases to invoking considerations of legality in circumstances where building works had reached an advanced stage and the respondent had effectively achieved what has been described as an "impregnable position". The principal difficulty for an applicant lies in the fact that where interdictory relief is sought against building works that have reached an advanced stage, this potentially renders an eventual successful review application brutum fulmen.