Sustainable development and the South African Constitution: implications for built environment legislation

Sustainable development and the South African Constitution: implications for built environment legislation

Jeremy Gibberd

7.1 Introduction

South Africa faces a range of social, economic and environmental challenges. HIV/Aids has resulted in life expectancy dropping from 67 years in 1998, to approximately 47 years and unemployment is estimated to be 27 per cent (2009 figures). South Africa also has one of the highest CO2 emissions per GDP in the world and in 2002 carbon emissions per capita in South Africa were 8.4 tonnes/capita – higher than Western European averages of 7.9 tonnes/capita (Sustainable Energy Africa, 2006).

Global warming will make South Africa’s social, economic and environmental problems worse. The National Climate Change Response Policy developed by South Africa’s Department of Environment and Tourism outlines the following impacts of climate change on Africa (Department of Environment and Tourism, 2009):

•  Agricultural production and food security in many African countries are likely to be severely compromised by climate change and variability. Projected yields in some countries may be reduced by as much as 50 per cent by 2020 and as much as 100 per cent by 2100. Small-scale farmers will be most severely affected.

•  Existing water stresses will be aggravated. About 25 per cent of Africa’s population (about 200 million people) currently experience high water stress. This is projected to increase to 75–250 million by 2020 and 350–600 million by 2050.

•  Changes in ecosystems are already being detected and the proportion of arid and semi-arid lands in Africa is likely to increase by 5–8 per cent by 2080. It is projected that between 25 and 40 per cent of mammal species in national parks in sub-Saharan Africa will become endangered.

•  Projected sea-level rises will have implications for human health and the physical vulnerability of coastal cities. The cost of adaptation to sea level rise could amount to 5–10 per cent of gross domestic product.

•  Human health will be negatively affected by climate change and vulnerability and incidences of malaria, dengue fever, meningitis and cholera may increase.

The scale and breadth of the challenges facing South Africa mean that it is imperative to have legislation that will address these environmental, social and economic problems. It is therefore argued that the South African Constitution and building-related legislation must provide an appropriate legal framework to ensure that sustainable development is effectively integrated into buildings and construction.

7.2 The South African Constitution

The South African Constitution was developed in 1996. As the supreme law of South Africa it may not be superseded, and government and other parties may not violate provisions within this (South African Constitutional Court 2009). It contains a Bill of Rights that enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom. The Bill has sections covering equality, human dignity, privacy, freedom of religious belief and opinion, environment, property, housing, healthcare, food, water and social security, children, education, language and culture. Through a section on equality, the Bill requires that all people have full and equal enjoyment of these rights and freedoms:

Everyone is equal before the law and has the right to equal protection and benefit of the law.

Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.1

Rights in the Bill are, however, subject to limitations. These are outlined in Section 36 of the Bill:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

a.  the nature of the right;

b.  the importance of the purpose of the limitation;

c.  the nature and extent of the limitation;

d.  the relation between the limitation and its purpose; and

e.  less restrictive means to achieve the purpose.2

The role and responsibility of government is also outlined in the Bill. This specifically requires government to achieve the rights outlined in the Bill:

The state must respect, protect, promote and fulfil the rights in the Bill of Rights.3

Environmental rights in the Bill of Rights include the right to an environment that supports health and well-being. It also requires legislation to be developed to ensure that the environment is protected, and that development is both sustainable and justifiable:

7.2.1 Implications of Section 24 of the Constitution for the built environment

There is a range of implications for the built environment of Section 24 from the Bill of Rights, outlined above. This requires some interpretation and for the following questions to be answered:

•  What is defined as an environment?

•  How is health and well-being defined?

•  What does ecologically sustainable development mean?

•  What is meant by justifiable economic and social development?

7.3 The environment

There is no comprehensive international treaty on human rights and environment that can be used to understand how the environment should be defined in the Bill of Rights (South African Human Rights Commission, 1996a). The 1972 Stockholm Declaration on the Human Environment adopted by the UN Conference on the Human Environment, however, begins to define rights and obligations of man in regard to the environment:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well being, and he bears the solemn responsibility to protect and improve the environment for present and future5

The African Charter on Human and People’s Rights adopted by heads of states of the Organisation for African Unity in 1981 also sets out how the environment should be interpreted in an African context:

Section 24 of the Bill of Rights from the South African Constitution indicates that the environment can be defined both as a natural and man-made environment. De Waal suggests that this definition includes ‘man made objects and cultural and historical heritage’ (De Waal et al., 1999). Feris argues therefore that in interpreting Section 24, traditional rights, needs and values and the dignity of indigenous people should be taken into account (South African Human Rights Commission, 1996b).

7.3.1 Implications for the built environment

Therefore, the following implications of the South African Constitution can be inferred for the built environment:

•  The built environment should create environments favourable for the development of people.

•  Built environments should take into account the traditional rights, needs and values of indigenous peoples.

7.4 Health and well-being

The World Health Organization (WHO) defines health in the following way:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.7

Given this broad definition it is clear that environments conducive to health and well-being are likely to be described in different ways by different people and socio-economic groups. Wealthy people may wish to protect the environment in order to avoid mental or aesthetic discomfort. Poor rural people, on the other hand, would want to protect the environment because they rely on this for clean water and food. (South African Human Rights Commission, 1996c).

7.4.1 Implications for the built environment

Therefore, the following implications of the South African Constitution can be inferred for the built environment:

7.5 Ecologically sustainable development

Principles from the Rio Declaration on the Environment and Development can be used to define sustainable development. The principles below from the Declaration indicate that development must be equitable and that environmental protection must be integrated into development:

7.5.1 Implications for the built environment

The following implications of the definition for sustainable development outlined above for the built environment can be inferred:

•  Development of the built environment should ensure that developmental and environmental needs of present and future generations are achieved in an equitable way.

•  Conservation and protection of the environment should be integrated into any built environment development process.

7.6 Justifiable economic and social development

The meaning of ‘justifiable economic and social development’ found in Section 24 of the Bill of Rights can be interpreted through reference to other sections of the Bill of Rights. These sections include rights to housing, healthcare, food, water and social security and education:

26. Housing

Everyone has the right to have access to adequate housing.9

27. Health care, food, water and social security

Everyone has the right to have access to

a.  health care services, including reproductive health care;10

29. Education

Everyone has the right