The role of environmental justice in socio-economic rights litigation

Abstract

In this dissertation I argue that the notion of environmental justice is recognised by section 24 of the Constitution, forms part of our law, and could play a role in South African socio-economic rights litigation as a transformative tool. I assert that because environmental justice recognises the intrinsic links between the distribution of basic resources and the environments in which poor people continue to find themselves in post 1994 South Africa, it has the ability to enhance and strengthen the enforcement of socio-economic rights. Environmental justice can do so by, among other things, focussing the court‟s mind on questions of justice and equity in the context of previous unjust environmental decision-making. In chapter 1, I explore the origins of environmental justice as a conceptual framework and as a movement that first emerged in the United States, and was subsequently embraced in the early post-apartheid era in response to immense environmental injustices experienced by South Africa‟s poor black majority as a result of apartheid. I discuss how many of these injustices not only „linger on‟ in post 1994 South Africa, but have also arguably become more entrenched, representing a failure on the part of the hopeful environmental justice movement of the early post-apartheid era. I highlight some of the reasons for this failure, which include the fragmented nature of the environmental justice movement, changes in government policy in relation to environmental issues, and the inadequate implementation of environmental laws intended to ensure public participation. In spite of these set backs, I argue in chapter 2 that there remains room for environmental justice to play a role in transformative constitutionalism. I then demonstrate that, despite environmental justice having been incorporated into our law, it has failed to capture the imagination of lawyers engaged in socio-economic rights litigation. Sustainable development and human rights discourses have thus far been the dominant voices in socio-economic rights litigation, at the expense of environmental justice, and its transformative potential. In chapter 3, I analyse Mazibuko v City of Johannesburg, which concerned the right to free basic water under section 27 of the Constitution. In my analysis of Mazibuko, I align myself with those who criticise the court‟s approach as anti-transformative. I do so by demonstrating that the court ii „technicised‟, „personalised‟, „proceduralised‟ and so, „depoliticised‟ the applicants‟ challenge to the government‟s policy. In this way, the court endorsed the „commodification‟ of water, and a „neo-liberal paradigm‟ towards access to basic water. I point to how linking environmental justice to the right to access to basic water could have encouraged the court to adopt a more redistributive and transformative approach. Finally, in chapter 4, I conclude by considering the future role of environmental justice in socio-economic rights litigation to enhance the ability of the environmental right to challenge poverty and effect transformation in the lives of poor people in South Africa.