In 2025, the ELA’s Student Conference invited students to submit blogs about their novel research in pursuit of justifiable limits on development. We celebrate the best submissions.
Edited by Melanie Jean Murcott and Christian Herselman
No City Can Afford to Waste: Managing Food Waste to Protect our Urban Future
By Ledile Sekwakwa, PhD candidate, North-West University
South African urban environments face increasing socio-ecological pressures. From overflowing landfills to deteriorating air quality, our cities are at a breaking point. While socio-economic progress hinges on development, it must be pursued within ecologically justifiable limits. Food waste management is a critical, yet often overlooked, area where these limits can be applied more rigorously.
Despite widespread food insecurity, South Africa generates an estimated 10 million tons of food waste annually. A significant portion of this waste is generated in urban areas through supermarkets, food processors, restaurants, and households. Poorly managed waste ends up in landfills, producing methane, a greenhouse gas that exacerbates existing ecological pressure in urban environments and is generally regarded as more damaging to the climate system than carbon dioxide. Landfilled food waste also contributes to air and water pollution, places pressure on waste infrastructure and consumes land that could otherwise be utilised for housing, green spaces, or other sustainable development priorities.
The Hidden Cost of Urban Development
Often, urban development is framed in terms of expanding infrastructure, economic opportunity, and improved quality of life. Yet this framing overlooks the impacts of urbanisation, including food waste. Indeed, if development continues without regard for ecological sustainability, it can deepen inequality, degrade the environment, and burden municipalities with waste volumes that overwhelm existing waste management systems. The real costs of urban sprawl, including food waste, arising from unchecked consumerism, and inefficient supply chains are not just economic — they are socio-ecological.
Municipalities, as frontline custodians of the environment, have a constitutional and legislative duty to protect urban ecological systems and the health and well-being of those who live in their jurisdiction. Section 24 of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to an environment that is not harmful to health or well-being. Refuse removal, refuse dumps and solid waste disposal form part of the functional areas of municipalities in terms of Schedule 5B of the Constitution. Moreover, municipalities are tasked under the National Environmental Management Act 107 of 1998 (NEMA), National Environmental Management: Waste Act 59 of 2008 (Waste Act), and the National Waste Management Strategy (2020) (NWMS) with promoting waste minimisation, recycling, and environmentally sound waste disposal.
Food Waste: A Municipal Mandate
While food waste management may appear to be the responsibility of private producers or households, municipalities have significant legal and policy levers at their disposal:
- Integrated Waste Management Plans (IWMPs): Municipalities must develop and implement IWMPs in line with the Waste Act. These plans should include specific strategies for organic and food waste.
- By-laws and Zoning: Through waste-related by-laws and zoning regulations, municipalities can influence where and how food is distributed, stored, and discarded.
- Public Participation: Municipalities have a duty to educate and engage residents on sustainable waste practices. Behavioural change is key to reducing household and commercial food waste.
- Infrastructure Investment: Municipal budgets must begin to reflect the urgency of investing in composting facilities, anaerobic digesters, and food redistribution hubs.
A Call for Justifiable Limits
By taking more decisive regulatory action on food waste, municipalities can begin to limit, and eventually reverse, some of the socio-ecological degradation caused by rapid urbanisation. The implementation of justifiable limits is not anti-development but pro-sustainability. They help ensure that development does not occur at the expense of the most vulnerable communities, who often live closest to waste sites and suffer the worst consequences of environmental harm.
In the context of food waste, justifiable limits on development may take several concrete forms:
- Limiting urban expansion, which physically lengthens food supply chains and results in increased food spoilage.
- Imposing stricter environmental conditions on permits for new shopping centres, restaurants, and food warehouses to promote sustainable supply chains.
- Restricting the use of land for landfilling organic waste when that land could serve more ecological or social functions.
- And crucially, recognising that waste is not a by-product of development — it is a design flaw.
Towards a Just Urban Ecology
Food waste management is a climate justice issue, an urban governance issue, and a moral issue. South African municipalities must begin to see themselves not only as service providers, but as environmental stewards. The waste generated by our urban environments is both a symptom and a cause of socio-ecological imbalance. Managing it effectively is essential for building resilient, just, and healthy cities.
By aligning development with environmental limits, we can move closer to fulfilling the constitutional promise of a healthy environment for all. And in tackling food waste, municipalities have a powerful entry point to begin reshaping the future of our cities, one that honours both people and the planet.
Beyond the Present: Balancing Environmental Rights for Future Generations with Socio-Economic Development Today
By Benni Mudau, PhD candidate, University of the Witwatersrand
Facing mounting environmental challenges, climate change, biodiversity loss, and pollution, South Africa finds itself at a constitutional crossroads. The question is no longer whether development is necessary, but rather what kind of development is justifiable in a time of ecological crisis. This blog post explores how the Constitution of the Republic of South Africa, 1996 (the Constitution), particularly section 24(b), can be interpreted to protect the rights of future generations while still addressing the urgent socio-economic needs of the present.
A Constitutional Duty to the Future
Section 24(b) of the Constitution places a positive obligation on the state to protect the environment “for the benefit of present and future generations”. This provision is not merely aspirational; it is a legally binding obligation to intergenerational equity, a principle that demands fairness between those living today and those who will inherit the consequences of our decisions. Yet, constitutional interpretation and implementation have largely focused on the immediate interests of current generations, especially in the context of socio-economic development. While this focus is understandable in a country grappling with inequality and poverty, it risks overlooking the long-term environmental degradation that may compromise the rights and well-being of future generations.
Development Today, Consequences Tomorrow
A common counterargument is that future generations will benefit from today’s development, infrastructure, education, healthcare, and economic growth — true to some extent. However, not all development is inherently beneficial in the long term. Development that pollutes ecosystems, exhausts natural resources, or worsens climate change may leave future generations with fewer environmental, economic, and developmental options and greater burdens. This is where section 36(1) of the Constitution, the general limitation clause, becomes relevant. It allows for the limitation of rights if such limitation is reasonable and justifiable in an open and democratic society. Could this clause be used to limit certain forms of present-day development to safeguard environmental rights for future generations? This blog argues that it can, and should, when the long-term consequences of development threaten the constitutional promise of sustainability.
Who Speaks for the Unborn?
One of the most pressing legal questions is whether the rights of future generations are justiciable, that is, whether they can be enforced in court. Since future generations cannot represent themselves, their interests must be advocated for by others. Fortunately, section 38 of the Constitution provides for broad legal standing, allowing individuals and groups to litigate in the public interest. This opens the door for environmental activists, civil society organisations, and legal practitioners to act as guardians of future generations’ rights, including on behalf of future generations.
Toward a Future-Oriented Constitutional Democracy
To truly honour the spirit of Section 24(b), South Africa must adopt a future-oriented constitutional approach. This means interpreting the Constitution not only by considering present-day realities but also by preserving environmental integrity for generations to come.
Such an approach would require:
- Strengthening environmental legislation, including the National Environmental Management Act 107 of 1998, to better reflect intergenerational concerns.
- Reforming the Environmental Impact Assessment process to include cumulative and long-term impacts.
- Integrating Indigenous Knowledge Systems into environmental governance to enrich and diversify our understanding of sustainability.
- Ensuring meaningful public participation, especially from local communities, in development planning and environmental decision-making.
Conclusion: A Call for Constitutional Courage
The rights of future generations are not theoretical; they are embedded in our Constitution and demand active protection. As South Africa navigates the complexities of development in a time of ecological crisis, we must ask ourselves: “Are we building a future that is just, sustainable, and inclusive?” Balancing environmental rights with socio-economic development is not easy, but it is necessary. It requires constitutional courage, legal innovation, and a commitment to justice beyond the present.
Critical Minerals, Climate Action, and Justice: Can South Africa Get the Balance Right?
By Gosego Gift Mooko, LLM Environmental Law Candidate, University of the Western Cape
South Africa’s land and seabed are rich in minerals, ranging from traditional minerals (such as gold, diamonds and coal) to minerals needed for the just energy transition (including manganese, vanadium, lithium, rare earth elements and platinum group metals (PGMs)). Since industrialisation, following the colonial discovery of gold in the Witwatersrand Basin in 1886, mining has shaped South Africa’s economy, infrastructure and urbanisation, making the country a key player in the global markets. South Africa is once more positioning itself as a strategic player in the global critical mineral value chain, through sectors such as renewable energy technologies, including for wind turbines, solar panels, green hydrogen, and electric vehicles. According to the Department of Mineral and Petroleum Resources’ (DMPR) 2024 statistics, South Africa’s ore reserves are valued at more than 2.5 trillion US dollars, with 16 commodities ranked in the top ten internationally.
However, mineral extraction is an inherently invasive and destructive process, contributing to environmental harm, climate impacts, and socio-economic disruptions. Mining activities result in ecological degradation with adverse consequences for human health and well-being, including through habit loss, improper waste disposal, and contamination of land and water resources, with cascading effects on surrounding ecosystems and communities. This is true even where mineral extraction is aimed at green development objectives, such as mitigating climate change.
For instance, the extraction of PGMs used in electric vehicle batteries causes significant environmental and social costs. However, mining groups focusing on PGMs are leading employers, accounting for 40% of employment in the country’s mining sector. And South Africa is in dire need of poverty reduction, which many believe can be achieved through job creation and economic growth, despite evidence to the contrary. Concurrently, South Africa is highly vulnerable to the effects of climate change, already experiencing droughts, floods and other extreme weather events. The question is thus whether it is possible to strike a balance between continued mineral exploitation and addressing the socio-ecological crises people in South Africa already face.
What is “Justifiable” Development?
Section 24(b) of the Constitution of the Republic of South Africa, 1996 calls for “justifiable economic and social development” within the ecological limits of the environment. Existing extraction policies often frame critical minerals as advancing climate action without sufficiently interrogating the justice dimensions of activities associated with their extraction. In recent years, literature has examined environmental governance in two related issues – the interrogation of social and economic impacts of mining on communities and the environments on which they depend, and the just energy transition which entails the fair and inclusive shift from fossil fuels to renewable energy sources. However, there is a gap in analysing the constitutional interpretation of “justifiability”, particularly when extraction is positioned as a climate mitigation measure. Closing this gap is important because even “well-intentioned” extraction will inevitably contribute to the triple planetary crisis (i.e. pollution, biodiversity loss and climate change).
Mining as Climate Action: How to Balance the Scales
The DMPR’s Critical Minerals and Metals Strategy, 2024 outlines the government’s intended shift from exporting raw material to value-added processing. This claims to be a strategic move aimed at job creation and economic development. Additionally, South Africa’s role in the global transition to advanced technologies and sustainable energy could be argued to be a contribution to global climate action. However, the development of critical minerals will not automatically be environmentally or socially “justifiable”. For example, if the extraction pollutes or harms water sources, it infringes the right to water. Or, if communities are displaced without fair compensation, the right to and value of human dignity will be undermined. Further, extraction burdens future generations if it leaves behind polluted land.
In Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others, Ngcobo J aptly highlights that development and environmental protection are inexorably connected. A degraded environment undermines development, whereas unfettered development impairs environmental protection. Accordingly, the legal interpretation of “justifiability” is crucial to constitutionally ensure a balance of economic activities in relation to their social and environmental cost, including where mining purports to be a climate mitigation measure. Human rights must be protected, the environment developed sustainably and equitably, and the interests of the future generations safeguarded.
The Role of Environmental Law
The National Environmental Management Act, South Africa’s framework environmental legislation, establishes principles for environmentally sustainable development and conservation. In turn, the Mineral and Petroleum Resources Development Act governs access to and use of mineral resources. The recently enacted Climate Change Act (CCA), imposes a duty on the state and specific sectors to integrate climate concerns into planning. Once fully operational, the CCA will regulate the just transition and seek to establish a climate-resilient economy. This legislative framework must inform whether mineral extraction framed as climate action complies with the constitutional requirements for environmental protection and socio-economic justice. These laws ought to assist South Africa in balancing sustainable development and pursuing a just energy transition in response to climate change, as required by the Constitution. However, legislative and policy gaps remain. The Integrated Resource Plan (IRP) and other policies, for instance, promote investment in renewable energy but fail to adequately consider the adverse social and environmental impacts of increased mining for critical minerals.
Moving Toward an Integrated Legal Strategy
South Africa requires a legislative and policy approach that acknowledges its place in the global critical minerals’ supply chain whilst acknowledging, and acting on the serious threats posed by the global climate crisis. The approach must safeguard fundamental rights by establishing criteria for what constitutes “justifiable” extraction in the context of the just energy transition. To avoid repeating historic harms, the country must learn from the legacy of gold and coal mining, which left behind abandoned shafts, resulted in acid mine drainage, and destroyed livelihoods, leaving millions with limited access to clean air and water, and arable land. Thus, environmental justice, one of the principles of South Africa’s framework environmental legislation, should be promoted. This can help ensure that the advantages of mining are distributed equitably and that those who are most affected by extraction have a voice in decision-making.
Conclusion
The sustainable energy revolution depends on the extraction of minerals. This poses an economic opportunity locally arising from worldwide demand, and South Africa’s available resources and processing capability. However, the government still has a constitutional obligation to ensure that only socially and economically justifiable development occurs, with reference to the need to secure ecologically sustainable development. South Africa could become more than just a raw material supplier if it can strike this balance. It may serve as an example of how so-called “resource-rich” countries can drive the just energy transition without compromising the human rights of the people of South Africa who depend on a well-functioning environment for their survival. If the government falters, the country could revert to the extractive practices of apartheid and colonisation, now with a “green label”.
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.