SUSTAINABLE DEVELOPMENT: AN EXPOSÉ
LISA ARTHUR
Fourth Year LLB Student, School of Law, University of
the Witwatersrand
I INTRODUCTION
As it is a relatively new legal concept,1 much
thought and effort has been expended into defining what
the concept of sustainable development means and the
problems related to its application.2 This paper seeks to
summarise the various understandings of the concept
held by the courts, legislature and government and how
these various bodies have applied the concept. This
paper will show that although the legal understanding of
the concept is sophisticated and nuanced, the complete
lack of legal guidelines on practical application to
complex problems renders its application biased at best
or a crude estimate at worst.
II WHAT IS SUSTAINABLE DEVELOPMENT? –
MODELS OF UNDERSTANDING
1
Its first expression was in the 1972 Stockholm Declaration on the
Human Environment.
2
J Verschuuren ‘Sustainable development and the nature of
environmental legal principles’ (2006) 9 PER/PELJ 2.
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This concept first developed in international law before
being transposed into South African law.3 Though the
status of this concept is disputed in international law,4 a
consistent understanding of it has been given judicial
approval by the South African courts.5 Among the
earliest expressions is that of the Brundtland report
which defines sustainable development as ‘development
that meets the needs of the present without
compromising the ability of future generations to meet
their own needs’. 6
The Brundtland Report urged nations to merge
environmental and economic considerations when
making decisions;7 a key concept that has been given
3
For a detailed history on the international evolution see Dire Tladi
Sustainable Development in International Law: An Analysis of Key
Enviro-Economic Instruments (2007) 96 ; Fuel Retailers Association
of Southern Africa v Director-General Environmental
Management, Department of Agriculture, Conservation and
Environment, Mpumalanga Province & Others 2007 (6) SA 4 (CC)
paras 46 – 56 (‘Fuel Retailers’).
4
Gabcíkovo-Nagymaros Project (Hungary/Slovakia) 37 162 (1998)
200 para 140. In a Separate Opinion, Vice-President Weeramantry
held that the concept of sustainable development is part of
international customary law. See Separate Opinion para 207.
5
See below under ‘Application of Sustainable Development’.
6
Report of the World Commission on Environment and
Development: Our Common Future (‘the Brundtland Report’)
available at http://www.un-documents.net/our-commonfuture.pdf, accessed on 2 September 2014. Chapter 1 para 42;
Sands Principles of International Environmental Law 2 ed (2003)
252.
7
The Brundtland Report ibid paras 72-80.
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judicial approval in cases8 prior to the landmark case of
Fuel Retailers.9 Later, the Brundtland definition was
expanded to include the consideration of social factors.10
It is this understanding of the need to give equal weight
to economic development, social development and
environmental protection that developed the ‘three pillar
model’.11 According to the Constitutional Court (‘the
Court’) in Fuel Retailers, the three pillar model approach
gives effect to the most important principle of
integration.12 According to this principle, all three
considerations must be given effect to. As these pillars
are interdependent and mutually reinforcing,13 any
conflict between the pillars must be reconciled and a
compromise must be reached.14 Further, this principle
seeks to merge environmental protection and economic
development, where previously these concepts were
8
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation,
Environment and Land Affairs 2004 (5) SA 124 (W) at 140E-151H
(‘BP Southern Africa’); MEC for Agriculture, Conservation,
Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006
(5) SA 483 (SCA) para 15 (‘Sasol Oil’).
9
Supra note 3.
10
ILA New Delhi Declaration of Principles of International Law
Relating to Sustainable Development, 2 April 2002 Principle 7; See
also Tladi op cit note 3 at 36.
11
LJ Kotze ‘The Constitutional Court’s contribution to sustainable
development in South Africa’ (2003) 6 PER/PELJ 81 at 86.
12
Fuel Retailers supra note 3 para 53.
13
Jacqueline Church ‘Sustainable development and the culture of
uBuntu’ 2012 De Jure 511 at 513; General Assembly (2005), 2005
World Summit Outcome, A/RES/60/1 para 48.
14
Jennifer A. Elliott An Introduction to Sustainable Development 4
ed (2012) 20.
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distinct and separate.15 This relationship is often
represented by the following diagram: 16
Figure 1: Three
Development
Pillar
Model
of
Sustainable
In addition to these two main approaches there are two
other approaches which the South African courts have
not favoured. The first is the four pillar approach in
which the fourth pillar is that of culture:17
15
Supra note 8 para 144.
LA Feris ‘The role of good environmental governance in the
sustainable development of South Africa’ (2010) 13 PER/ PELJ 73 at
85.
17
Church op cit note 13 at 522.
16
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Sustainable Development
Social
Culture
Figure 2: Four
Development
Pillar
Environmental
Model
for
Economic
Sustainable
Again, under this approach all four pillars have to be
reconciled and considered in any decision.18 The
inclusion of culture is arguably an important pillar as
solutions fashioned for a particular country, to operate in
a certain political, economic and social climate, may not
be suitable for transplantation into another country.19
18
AA Du Plessis & C Rautenbach ‘Legal perspectives on the role of
culture in sustainable development’ (2010) 13 PER/PELJ 27 at 38.
19
Church op cit note 13 at 523.
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Alternatively, another approach is that of the two pillars
supported by a foundation approach:
Figure 3: Two Pillars Supported by a Foundation
Model
of Sustainable
Development
Figure 3: Two Pillars
Supported
by a Foundation
Model
According to this approach, the environment is the
source of all economic and social stability and must
therefore be protected first and foremost.20 Some judicial
support is given to this approach by the Court in Fuel
Retailers, in which it observed that social and economic
goals ‘cannot subsist on a deteriorating environmental
base’.21 However, in application the Court emphasised
that all three pillars of sustainable development should
20
21
Feris op cit note 16 at 84.
Fuel Retailers supra note 3 para 44.
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be considered and, as such, environmental considerations
are not always paramount and may have to be
compromised when applied alongside economic or social
considerations.22 As far back as 2008, and in its
Sustainable Development National Strategy and Action
Plan 200823, the government has indirectly supported
this model by referring to ‘non-negotiable ecological
thresholds’.24 This document has further recognised that
GDP-focused growth indicators do not reflect the
sustainability of that growth;25 this indicates that
government realises that pure economic considerations
do not trump all other considerations.
Governmental understanding is exhibited in the National
Framework for Sustainable Development26 in which the
concept is understood as the embedding of the economic
system, socio-political system and ecosystem within
each other, being held together by the governance
22
Fuel Retailers supra note 3 para 45
Available at
https://www.environment.gov.za/sites/default/files/docs/2008nati
onalframeworkfor_sustainabledevelopment.pdf, accessed on 2
September 2014.
24
Ibid at 14.
25
Ibid at 30.
26
Available at
https://www.environment.gov.za/?q=content/documents/strategic
_docs/national_framework_sustainable_development, accessed on
2 September 2014.
23
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system within a legitimate regulatory framework.27 In
the document the model is shown as below:
Figure 4: National Framework for Sustainable
Development Model of Sustainable Development
The governmental understanding, at least on paper,
accords substantially with the three pillar model
espoused in Fuel Retailers. In the jurisprudence,
government has also demonstrated its understanding by
considering socio-economics in a series of cases dealing
27
National Framework for Sustainable Development op cit note 26
at 15.
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with the environmental authorisation of fuel stations.28
Thus it seems that government has the same
understanding of the concept as the courts.
As seen above, there is a bewildering array of
sustainable development models. Some commentators
have shied away from defining sustainable development,
preferring to detail the various components of the
concept rather than extrapolating a pithy description.29
These components have become known as principles of
sustainable development.
III
PRINCIPLES
OF
SUSTAINABLE
DEVELOPMENT – SOUTH AFRICAN LAW
Section 24 of the Constitution30 contains the right to the
environment and has repeatedly been recognised as the
source of all environmental legislation.31 Explicit
reference to sustainable development is made in section
24(b)(iii) in which the government is required to take
legislative as well as other measures to secure
ecologically sustainable development and use of natural
resources. Beyond this, however, the Constitution does
not define what sustainable development is or how it is
to be applied.
28
Supra note 8.
Sands op cit note 6 at 266.
30
Constitution of the Republic of South Africa, 1996.
31
HA Strydom and ND King Fuggle and Rabie’s Environmental
Management in South Africa 2 ed (2009) 198.
29
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The National Environmental Management Act32
(‘NEMA’) is the legislation which gives effect to section
24 of the Constitution and forms the framework
legislation for all environmental matters.33 In the
preamble to NEMA and under section 1, the three pillar
model is given support by requiring the ‘integration of
social, economic and environmental factors into
planning, implementation and decision-making so as to
ensure that development serves present and future
generations' (emphasis added). This definition, in
combination with section 4, contains several principles
such as intergenerational equity,34 intragenerational
equity,35 sustainable use of natural resources36 and the
precautionary principle.37 Thus it is clear from NEMA
that the concept involves more than a mere balancing of
three considerations; rather, in addition to this balancing,
a host of other considerations must also be given effect
32
107 of 1998.
Strydom & King op cit note 31; Other legislation echoes
sustainable development; See the Marine Living Resources Act 18
of 1998 s2, National Water Act 36 of 1998 preamble, Mineral and
Petroleum Resources Development Act 28 of 2002 s1.
34
Van der Linde and Basson ‘Environment’ in Woolman et al (eds)
Constitutional Law of South Africa 2 ed (2009) 50-17 – 50-18.
35
Loretta Feris ‘Constitutional environmental rights: An underutilised resource’ (2008) 24 SAJHR 29 at 41.
36
Sands op cit note 6 at 253.
37
NEMA supra note 32 s4(a)(vii); See also Jane Holder & Maria Lee
Environmental Protection, Law and Policy 2 ed (2007) 9-33.
33
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to.38 In international jurisprudence, several other
principles are included under the concept.39 These
include the precautionary principle,40 the polluter pays
principle41, the principle of access to environmental
justice42 and information43 and the principle of public
participation44. However, if all these principles were to
be included under sustainable development, almost the
entire text of NEMA could be included in this
discussion. Therefore, this paper limits itself to the
principles which have the most mainstream support.
The first principle of intergenerational equity rests on the
understanding that natural resources are finite and must
be protected for future generations to enjoy and
38
This is seen by s4(a) which requires the ‘consideration of all
relevant factors’, including the principles listed.
39
Sands op cit note 6 at 253; The New Delhi Declaration
differentiates between general and specific principles; See TracyLynn Field ‘Sustainable development versus environmentalism:
Competing paradigms for the South African EIA regime’ (2006) 123
SALJ 409 at 412.
40
Jacqueline Peel The Precautionary Principle in Practice:
Environmental Decision-making and Scientific Uncertainty (2005)
15.
41
Tladi op cit note 3 at 14; See also Sands op cit note 6 at 228.
42
Rajendra Ramlogan Sustainable Development: Towards a Judicial
Interpretation (2011) 277.
43
Ibid; This forms the subject of South African litigation in Trustees,
Biowatch Trust v Registrar: Genetic Resources, and Others 2005 (4)
SA 111(T).
44
Ibid.
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exploit.45 This principle has support from section 24 of
the Constitution which requires that the environment
must be protected ‘for the benefit of present and future
generations’. As such, the present generation has a right
to use and enjoy natural resources, yet it also has an
obligation to sustain the natural resource base and to
consider the long term effects of its activities on the
ability of future generations to sustain themselves.46 This
understanding was elucidated in Fuel Retailers in which
it was recognised that development must not cease but
must be regulated to ensure continued survival of future
generations.47
Connected to this principle is the principle of
intragenerational equity which requires that both the
environmental costs and benefits of exploitation of
resources must be shared equitably among the
population.48 In particular, the needs of the poor and
vulnerable must be protected and fulfilled.49 This
principle seeks to reduce poverty and ensure that all
45
Patricia W. Birnie and Alan E. Boyle International Law and the
Environment 2 ed (2002) 89.
46
Werner Scholtz ‘Common heritage: saving the environment for
humankind or exploiting resources in the name of ecoimperialism?’ (2008) 41 CILSA 273 at 289.
47
Fuel Retailers supra note 3 para 58.
48
Dire Tladi ‘Intragenerational equity: A new name for
international environmental justice’ (2003) 9 Fundamina: A Journal
of Legal History 197 at 198; On an international scale this principle
also encapsulates equity between nations.
49
Feris op cit note 35 at 40.
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people receive the same basic level of resources needed
to realise basic human rights.50
Sustainable use requires that the integrity of a resource
be maintained in such a manner that it may continue to
be used in the future.51 NEMA therefore requires that
‘the development, use and exploitation of renewable resources
and the ecosystems of which they are part, do not exceed the
level beyond which their integrity is jeopardised’.52
The precautionary principle requires that activities which
might lead to significant, serious or irreversible harm
must be prevented even if there is a lack of full scientific
certainty as to the existence and severity of the risk.53
This is encapsulated in NEMA which requires a riskaverse and cautious approach to be applied, which takes
into account the limits of current knowledge about the
consequences of decisions and actions.54
However, even though these principles form part of
sustainable development, the overriding principle has
been identified as the principle of integration.55 This
50
Feris op cit note 35 at 40.
Michael Faure & Willemien Du Plessis The Balancing of Interests
in Environmental Law in Africa (2011) xxii.
52
Supra note 32 s2(4)(a)(vi).
53
Ramlogan op cit note 42 at 68.
54
The full scope of this principle is beyond this paper; See Holder &
Lee op cit note 37.
55
Fuel Retailers supra note 3 para 53; M Barnard ‘The role of
international sustainable development law principles in enabling
51
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principle has been defined as the integration of
environmental considerations into economic and social
planning and implementation, and conversely, the
integration of socio-economic considerations into
environmental planning and implementation.56
Although lip service is given to the totality of principles,
in practice only the principle of integration and the three
pillar model have been directly applied to a given
problem in case law.
IV
APPLICATION
DEVELOPMENT
OF
SUSTAINABLE
The Constitution and the preamble to NEMA set the goal
of sustainable development and give principles which a
decision maker must consider when attempting to reach
that goal.57 However, applying these principles is
extremely difficult.
Cases which dealt with the refusal to grant
environmental authorisation for building a fuel station
effective renewable energy policy – A South African Perspective’
(2012) 15 PER/PELJ 207 at 220.
56
Ian Roy Sampson Incorrect application and interpretation of
socio-economic factors in environmental impact assessments in
South African law (LLM dissertation, University of Pretoria, 2010)
34.
57
LJ Kotze ‘The Constitutional Court’s contribution to sustainable
development in South Africa’ (2003) 6 PER/PELJ 81 at 87.
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proceeded on the following basis:58 1) Define applicable
laws and principles; 2) Identify that the law required the
integration of environmental, social and economic
(‘SEE’) factors; 3) Determine if the environmental
authority was authorised to apply SEE factors; and 4)
Determine if the authority applied SEE factors.
At no point in this process did a court determine if the
principles of inter/intra generational equity, sustainable
use or the precautionary principle could be considered or
applied as authority.59 As such, the courts consider, at a
purely superficial level, whether the principle of
integration is applied. The courts also did not go into any
discussion on how the SEE factors are to be reconciled
besides conducting a general balancing exercise.60 Such
a general exercise renders the complex balancing of
factors (which should have equal weighting) susceptible
to abdication to political will, whim or personal bias.61
Due to the separation of powers, a court will only order a
58
Fuel Retailers supra note 3; BP Southern Africa; Sasol Oil supra
note 8.
59
Fuel Retailers supra note 3 para 81. The court merely mentioned
it as a principle and did not remark on its potential impact on the
authorities’ decision, with regard to the potential for
contamination of the aquifer.
60
Ibid para 93; BP Southern Africa supra note 8 at 144H - 145A.
61
Hangklip/Kleinmond Federation of Ratepayers Associations v
Minister for Environmental Planning and Economic Development:
Western Cape and Others (4009/2008) [2009] ZAWCHC 151
(unreported) para 143 (‘Hangklip/Kleinmond’).
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review if a decision is manifestly unreasonable.62
Therefore a decision that reflects a political choice, but
which is justified on reasonable policy grounds, will not
be reviewed even if the decision fails to exhibit an equal
compromise between the three pillars.
Further, it may be impossible to reach a happy
compromise; as in this value-laden judgment, one or two
of the values sometimes override another.63 Academics
have recognised this potential problem and have
suggested that prior to engaging in balancing, a
particular pillar should be consciously pre-weighted.64
This would enable a decision-maker to consider the other
pillars but in situations of conflict choose a decision
which best suits the weighted pillar.65
As shown in Fuel Retailers, there are two different ways
to implement the pillars. The majority favoured
considering each pillar separately and then evaluating
them cumulatively at the end of the decision making
62
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others 2004 (4) SA 490 (CC) paras 48-49.
63
Feris op cit note 16 at 86.
64
Loretta Feris ‘Sustainable development in practice: Fuel Retailers
Association of South Africa v Director-General Environmental
Management, Department of Agriculture, Conservation and
Environment, Mpumalanga Province’ (2008) 1 Constitutional Court
Review 235 at 251.
65
Ibid.
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process.66 The minority favoured the consideration of
economic factors only when the development potentially
threatened the environment, not before.67 It is then only
when development triggers environmental concerns that
the principles of sustainable development in NEMA
should be applied.68 However, yet again, even if a trigger
occurs, the evaluation of sustainable development
requires the balancing of three pillars – the point at
which an economic development may threaten the
environment would merely be a preceding condition.
It has been argued that the balancing process failed in the
decisions of Fuel Retailers and BP Southern Africa. The
argument holds that these cases mask a bias towards an
economically weighted approach, which in these
situations, gives an environmentally friendly outcome as
it resulted in the prevention of an environmentally
degrading activity.69
In other cases, sustainable development has been used as
a guiding principle to uphold legality70 and to determine
whether a review was warranted.71 In these cases, the
66
Feris op cit note 64 at 252; See Fuel Retailers supra note 3 para
90.
67
Fuel Retailers ibid 112-113.
68
Ibid.
69
Feris op cit note 16.
70
Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others
2010 (1) SA 333 (SCA).
71
Foodcorp (Pty) Ltd v Deputy Director General: Department of
Environmental Affairs and Tourism: Branch Marine and Coastal
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principles of sustainable development were never
scrutinised or directly applied.72
V DECISION MAKING MODELS
Executive government uses various tools to implement
sustainable development, namely public participation
mechanisms,73 EIAs74 and internal department
guidelines.75 These are used cumulatively to assess and
balance the pillars.76 However, the use of these tools is
subject to the same criticisms as above. It would be
advisable for decision makers to make use of the wide
Management and Others [2005] 1 All SA 531 (SCA); Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others 2011 (4) SA 113 (CC).
72
However in Space Securitisation (Pty) Ltd v Trans Caledon Tunnel
Authority and Others [2013] 4 All SA 624 (GSJ), the court did apply
the precautionary principle to determine whether it should grant
an interim interdict. In Hangklip/Kleinmond supra note 61, the
court differentiated between SEE factors and extraneous factors.
Only factors that impact the activity can be considered and not
‘extraneous benefits divorced from the impacts of the authorised
activities’ para 66.
73
Hendrik Andries Strydom & N. D. King Environmental
Management in South Africa (2009) 201.
74
Sampson op cit note 56 at 11; T Murombo ‘Beyond public
participation: The disjuncture between South Africa's
environmental impact assessment (EIA) law and sustainable
development’ (2008) 11 PER/PELJ 106 at 107-108.
75
BP Southern Africa supra note 8; See http://cer.org.za/virtuallibrary/policy-documents-white-papers for a list of environmental
policy documents.
76
Murombo op cit note 74 at 114.
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range of complex decision-making models used in the
health sciences and mathematics.
VI CONCLUSION
Legal understanding has fleshed out the components of
sustainable development to a sufficient extent to enable
decision makers to set the parameters of their decisions.
Now, what the law needs to set out is a method of
assessment which moves away from a crude balancing
exercise to a sophisticated and nuanced decision-making
model more suited to the multifaceted problems facing
environmental authorities. In this regard, it would
perhaps be wise from the outset to acknowledge that
decisions in this arena inevitably create winners and
losers.