Private prosecution in the securing of a sustainable future
30 April 2019
Environmental rights are protected in the Bill of Rights of the South African Constitution. Whilst all the protected rights and freedoms have the common thread of “protection for all”, only section 24 of the Constitution (right to a healthy environment) includes the caveat “for the benefit of present and future generations”. No other right or freedom covers future generations so explicitly or expressly (although it can be inferred that they are catered for regardless). The writers of the Bill of Rights were mindful of the importance of a sustainable planet, to allow for an inhabitable earth for those yet to come.
While the above is true, one must juxtapose the above provision with section 24(b)(iii) of the Constitution, which attempts to marry sustainable development with (justifiable) economic and social development. As a country with an unacceptably high unemployment rate and massive inequality, the economics have clearly (and to a certain extent, understandably) overtaken the sustainability agenda. This, via the introduction of, among others, multinationals who trade in biologically hazardous (and essential) materials, like petroleum.
The government has failed to both effectively and sustainably balance these interests, as well as hold these conglomerates accountable, as was shown in the recent ruling of the Pretoria High Court in Uzani Environmental Advocacy CC v BP Southern Africa.
Briefly, the facts are that in the early 2000s, BP Southern Africa (BP) undertook to build and upgrade petrol stations in Gauteng. These activities, according to the Environmental Conservation Act (ECA), require prior authorisation from the Minister of Environmental Affairs and Tourism (the Minister) after the consideration of the requester’s environmental impact assessment reports (EIAs). This process is required because any activity involving petroleum is environmentally hazardous, as petroleum is a heavy pollutant. BP did not conduct the prerequisite EIAs and in continuing with the aforementioned activities, contravened provisions in the ECA, as well as the National Environmental Management Act (NEMA).