In 2024, the ELA’s Student Conference invited students to submit blogs about their cutting-edge environmental law research. We are proud to celebrate the winning submissions!
Spatial and environmental justice in South Africa from a ‘right to the city’ perspective
Michaela O’Donoghue LLB, LLM (in progress)
Cities in the Global South, including Sub-Saharan Africa, are faced with interrelated developmental problems of increasing severity. These include: homelessness, unemployment, the rise and growth of slums (informal settlements), crime and violence, inequality, extreme weather events and widespread structural poverty. In South Africa, specifically, the intensity of these problems is exacerbated by spatial injustice. The latter is largely the protracted consequence of apartheid-era spatial planning policies and the slow pace of spatial transformation across the country. This blog considers the persistent challenges which South African cities face, particularly spatial and environmental injustice, and whether pursuing the ‘right to the city’ concept could be a possible solution. Spatial justice is a response to structural exclusions experienced in the urban areas of South Africa, and the pursuit of spatial transformation. Spatial justice is linked to environmental justice.
The environmental and spatial (in)justice connection
The environmental justice movement gained traction in the United States of America in the 1980s. Hazardous waste facilities and other undesirable land uses were generally placed in the vicinity of poor and marginalised minority communities. These communities were made up predominantly of black people. The term ‘environmental racism’ was coined, with the environmental justice movement being a driving force against it. Notably, environmental justice is not only concerned with race, but also class, gender, socio-economic status, and other indicators of identity. Through its development, advocates for environmental justice identified four legs to it. The first is distributive justice which was identified through the unequal exposure to environmental risks and limited access to adequate service delivery and other benefits that people accrue from the environment. The second is procedural (administrative) injustice experienced because of the exclusion from environmental decision-making and the lack of recognition of the equal moral worth of all people, giving rise to that exclusion. The third is corrective injustice caused by the lack of environmental legislation being enforced. The fourth is social injustice, as environmental degradation cannot be separated from deeper underlying societal problems such as financial inequalities and racism linked to a failure to recognise the equal moral worth of all members of society.
South Africa has a long history of spatial and environmental injustice. An exclusionary form of land use management in South Africa was introduced upon the Dutch’s arrival to the Cape in 1652, when colonial powers implemented their system of land use management into indigenous communities’ existent systems. This Roman-Dutch system was largely based on the false premise that the land (then) resided on by indigenous peoples was res nullius (i.e. owned by nobody). The Roman-Dutch land registrations system and administration was largely maintained throughout the changes in control between the Dutch and British. Over time, local planning approaches proved to be incompatible with the needs of the communities upon which they were imposed. This was mostly because these planning approaches were based on Western designs and development trajectories and were ill-suited for indigenous peoples’ ways of living. With large-scale housing development systems gaining traction in the early 20th Century, its regulation necessitated oversight. Racist, classist, and prejudicial spatial planning practices ensued, deepening spatial injustice. These included white neighbourhoods being afforded significantly more access to services and infrastructure, than those inhabited by black people, which were also more densely populated. Spatial injustice worsened during apartheid with the enforcement of the Group Areas Act 41 of 1950. Today, the long-term effects of these racist urban planning agendas remain entrenched, with areas such as Mitchell’s Plain and District Six in Cape Town being two prominent examples.
Over time, cities and towns in South Africa have developed and grown in ways that further these unjust designs. For example, in the typical pattern of environmental racism, industrial areas and factories are generally situated on the outskirts of cities and are often far-removed from residential areas previously designated for white people (which remain largely occupied by white people post-apartheid). These same residential areas are placed close to city centres and shopping malls, with distance from areas of high industrial activity. Meanwhile, these same industrial areas and factories are generally situated adjacent to under-resourced areas that were designated for black people during apartheid (which remain largely occupied by black people post-apartheid). This spatial injustice is further influenced by large-scale migration of persons from rural to urban areas which began during the so-called Industrial Revolution, referred to as ‘urbanisation’. It is estimated that by 2050, 68 per cent of the global population will live in cities, which is a marked increase from 2021 where 56 per cent of the global population lived in cities. The Parliamentary Monitoring Group indicates that 63 per cent of people in South Africa live in urban areas, with this statistic set to rise to 80 percent by 2050.
A right to the city frame
With increased urbanisation in mind, coupled with the spatial history of South Africa and persistent legally relevant challenges, the ‘right to the city frame’ offers transformative possibilities moving forward. As alluded to earlier, despite all explicitly racist legislative measures having formally been abolished in 1991, the long-term effects of the spatial inequalities created are still widely observed today. They are connected to environmental injustice.
The World Inequality Database and other reports reveal that South Africa has the greatest gap between the most wealthy, and the most poor. Nearly two thirds of South Africa’s population live in poverty (62,7 per cent), with issues such as electricity shortages, a lack of job opportunities, and high levels of crime exacerbating the situation. Those living within the poverty line, or close to it, are unable to participate in and benefit from city life. They lack access to social interactions experienced in and associated with living in a community where spatial and environmental injustice are not daily challenges. Realising the ‘right to the city’ concept in the South African context may assist in alleviating some of the effects of these challenges.
The concept of the right to the city was first developed by the French Marxist philosopher and sociologist, Henri Lefebvre. Lefebvre saw the right to the city as an idea in which those who use the city control it for themselves, and for their own needs. Lefebvre encouraged a perception of space which is not absolute and confined, and an understanding of social life which is more attentive to the intricacies of social interactions. He went against the economistic viewpoint of the city as being a hub for capitalistic endeavours and saw it as a place where the complexities of human life could be understood together.
The right to the city concept may beneficially contribute to the promotion of spatial and environmental justice in South Africa as it advocates for a more holistic and inclusive understanding of the spaces and environment in which people spend their lives and the natural resources they need to attend to basic needs. The concept has social (in)justice standing central in its formulation, and it is for this reason that the right to the city frame should be explored as a possible tool in combating urban inequalities and its consequences in South Africa. In doing so, an examination must be conducted into how this frame may be used to promote environmental justice as a core objective of South Africa’s environmental framework law, particularly evident in section 24 of the Constitution of the Republic of South Africa, 1996, and section 2(4) of the National Environmental Management Act 107 of 1998.
Exploring delictual liability of South African cities for failure to fulfil their environmental duties
Thato Mphahlele (LLB, LLM in progress)
Following the eradication of the apartheid government and its systems and into the new constitutional dispensation, local government has been afforded several constitutionally guaranteed competencies, powers, and functions. One of the obligations that must be fulfilled is the realisation of the environmental rights guaranteed in section 24 of the Constitution of the Republic of South Africa, 1996. The duty is one of the objectives of local government and it must be achieved within their financial and administrative capacities. This duty must be executed in a way that allows municipalities to be accountable to the local communities. One of the ways in which municipalities can be held accountable is through the courts as stated in section 34 of the Constitution.
Municipalities’ failure to fulfil environmental obligations owed to communities
There has been a great deal of non-compliance and poor execution of environmental obligations by municipalities (see Jegede and Shikwambane 2021). This is apparent from their failures to construct, repair, and maintain public infrastructure, streets, and roads, establish effective storm-water drainage systems, and supervise municipal recreational spaces, to mention a few. These failures of municipalities pose significant threats to the life, health, and well-being of local communities. In cases where the failures result in damage or harm, people’s trajectory of life could be altered, either temporarily or permanently. The harm can fundamentally dictate the manner in which people exist, resulting in deprivation of amenities of life. In some instances, the harm is so detrimental that the person can no longer go to work, changing their standard of living and economic conditions. In other instances, people die. Municipalities need to be held accountable for their failures leading to these dire consequences.
The law of delict and municipalities
The law of delict is an area of law in which municipalities may be held accountable through competent courts for their failures that resulted in harm when executing their environmental obligations. The law of delict has a long history in South Africa and is continually being developed in a manner that promotes the spirit, purport and objects of the Bill of Rights, as required by section 39(2) of the Constitution. The development of the law of delict is apparent in South African courts, including delictual liability cases relating to municipalities (see Botes v Ekhuruleni Metropolitan Municipality (2011/32313) of 22 August 2024; Amoah v King Sabata Dalindyebo Municipality (348/2019) of 15 August 2023; SMS v City of Johannesburg Metropolitan (9165/2017) of 11 February 2022; Skenjana v Buffalo City Metropolitan Municipality (EL 434/2020) of 29 November 2022; Bergrivier Municipality v Rhynardt Van Ryn Beck (1269/2017) of 29 March 2019).
Private law, including the law of delict, is intended to regulate how members of a community relate to each other. In their relations, the members’ individual interests are ‘continually in a state of real or threatened conflict’. Private law’s goals include recognising those individual interests (including environmental interests), determining their limits in relation to each other, as well as balancing the conflicting ones. The law of delict specifically determines legally recognised interests, the circumstances under which they are protected against infringements, and how to restore the balance of interests after infringement. It is also through private law that members of a community who suffer harm can potentially hold municipalities liable for such harm. However, it must be proven that a particular municipality (or employees of that municipality) committed a delict.
In order to establish delictual liability to claim compensation, all the elements (requirements) of a delict must be met. These are: harmful conduct, wrongfulness, fault, causation and damage. The absence of any one of the elements voids delictual action and consequently voids delictual liability. As a result, delictual liability is said to be governed by a generalising approach as it is regulated by these general requirements or principles. If all elements are met, an action may be instituted whereby the wrongdoer (municipality) is obliged to compensate the prejudiced party (community member). Compensation will depend on the legally protected interest that was infringed, which then led to the prejudiced party’s loss. If patrimonial loss has occurred, such as the loss relating to property, the prejudiced party is compensated for the direct exact loss (compensation). This is because patrimonial loss is harm that can be directly translated into monetary value. If non-patrimonial loss or injury to personality has occurred, the prejudiced party is paid a satisfactory sum of money in proportion to the wrong inflicted (satisfaction). This is because this kind of harm is not money equivalent, it can not be directly translated into money hence why satisfaction is the correct form of compensation.
The law of delict informs the minimum standards that must be adhered to by municipalities when executing their environmental obligations. Municipalities’ failures that result in the prejudiced party’s harm can lead to a compensation claim. The prejudiced party must be placed in the position they were in before the harm happened. In adjudicating such delictual disputes, the courts are cautious as they must balance the interests of the prejudiced party as well as the municipality’s interests. The restoration must occur in a manner that does not incapacitate the municipality by making it unable to thereafter prioritise the basic needs of the local community members. The capacity of municipalities, financial or otherwise, as well as limitless liability are important factors as they influence the awarding of delictual damages. These factors should not, however, be seen as a licence given to municipalities to ignore their environmental obligations. They also directly relate to the delictual elements that must be proven. Prejudiced parties are responsible for considering these when seeking to prove a prima facie case, especially when they have a valid cause of action that may entitle them to compensation.