scholarly journals Land Restitution through the Lens of Environmental Law: Some Comments on the South African Vista

2017 ◽  
Vol 9 (1) ◽  
pp. 1
Author(s):  
A Du Plessis
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Land Reform ◽  
Environmental Governance ◽  
Environmental Law ◽  
Legal Framework ◽  
Planning Law ◽  
Environmental Media ◽  
State Of The Environment ◽  
Land Restitution

Land reform in South Africa and the realisation of the section 25 property clause of the Constitution of South Africa, 1996 (hereafter the Constitution) is seen as an integral step in the democratisation process as well as in the social and economic empowerment of previously marginalised groups. For many, the true test for political transformation will be whether land needs (including protection of and care for the environment) are addressed effectively and in a sustainable manner. In recent years, however, government’s addressing of land needs has become a highly controversial issue, especially where land that vests in private owners is claimed back because of its status as ancestral land.   Land reform may strongly impact on the environment and sustainable development as protected in section 24 of the Constitution since it involves vast hectares of land, other environmental media and people. Restitution of land processes in terms of section 25(7), as one of the components of land reform, often does not take key provisions contained in environmental and planning law into account. In many instances, for example, government’s restitution projects do not make sufficient provision for harmonisation with environmental principles contained in environmental law and no or limited systems exist whereby to inform and assist land restitution beneficiaries on compliance with environmental and planning law obligations in post settlement development endeavours. These limitations could, inter alia, be linked with the fragmentation of the environmental governance regime and a lack of role clarification. It may furthermore result in significant conflict between sections 24 and 25(7) of the Constitution as overarching framework legislation, and between developmental objectives contained in sectoral-specific subordinate legislation.The restitution of land is, amongst other policies, regulated by section 25(7) of the Constitution and the Restitution of Land Rights Act 22 of 1994 whilst section 24 of the Constitution and the National Environmental Management Act 107 of 1998 aim at protection of the environment, the prevention of pollution, the promotion of conservation, and secured ecologically sustainable development. The conditions following land restitution settlement, including the current state of the environment on land that has been restituted, provide an interesting and factual source of reference for critical analysis of environmental policy implementation in land restitution processes and post-settlement endeavours. It further allows for a critical view on the effective or futile realisation of sustainable development in national and provincial governments’ efforts to finalise claim-driven restitution of land. In order to limit the scope of this article, land restitution policy, progress with the national land restitution programme and some post-settlement accounts will be critically analysed and assessed in the light of obligations and initiatives for environmental governance derived from the legal framework concerned. A land restitution case is briefly discussed with subsequent comments and suggestions for the way forward. 

The Engagement of Beneficiaries in Farm Governance of Restituted Land through the Communal Property Association Model: The Ideal Versus the Reality of Beneficiary Farms in South Africa

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Mokoko Piet Sebola ◽  
Malemela Angelinah Mamabolo
Keyword(s):  
South Africa ◽  
South African ◽  
Land Reform ◽  
Farm Management ◽  
The South ◽  
African Government ◽  
Communal Property ◽  
Farm Ownership ◽  
Land Restitution ◽  
Communal Property Associations

The purpose of this article is to evaluate the engagement of farm beneficiaries in South Africa in the governance of restituted farms through communal property associations. The South African government has already spent millions of rands on land restitution to correct the imbalance of the past with regard to farm ownership by the African communities. Various methods of farm management to benefit the African society have been proposed, however, with little recorded success. This article argues that the South African post-apartheid government was so overwhelmed by political victory in 1994 that they introduced ambitious land reform policies that were based on ideal thinking rather than on a pragmatic approach to the South African situation. We used qualitative research methods to argue that the engagement of farm beneficiaries in farm management and governance through communal property associations is failing dismally. We conclude that a revisit of the communal property associations model is required in order to strengthen the position of beneficiaries and promote access to land by African communities for future benefit.

The Land Question in South Africa: 1913 and Beyond

2017 ◽  
Author(s):  
Cherryl Walker
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Local Development ◽  
Legal Framework ◽  
Transition To Democracy ◽  
Agrarian Change ◽  
Political Resistance ◽  
History Of ◽  
Land Question ◽  
White Hegemony

Since 1913, the “land question” in South Africa has revolved around the major inequalities in access to and rights over land between the black majority and the white minority of the population, and how these disparities should best be understood and overcome. The roots of this inequality are commonly traced back to the promulgation of the Natives Land Act in June 1913, which provided the legal framework for the subsequent division of the country into a relatively prosperous white heartland and a cluster of increasingly impoverished black reserves on the periphery. Historians have cautioned against according this legislation undue weight within the much longer history of colonization, capitalist penetration, and agrarian change that has shaped modern South Africa. The spatial divide of white core and black periphery has, however, been central to the political economy of 20th-century South Africa. Beginning in the 1950s, the apartheid government attempted to maintain white hegemony, drive an urban–industrial economy, and deflect political resistance by turning these reserves into the ethnic “homelands” of African people. This involved increasingly repressive policies of urban influx control, population relocation, and the tribalization of local administration in the reserves. Since the transition to democracy in 1994, the post-apartheid state has struggled to develop an effective land reform program that can address the crosscutting demands for land redistribution, local development, and representative government that this history has bequeathed. For many analysts, these ongoing challenges mean that “the land question” remains unresolved; for others it means that the question is itself in need of reformulation. In order to review these developments, a three-part periodization is used to organize the discussion: (1) the segregation era (1910–1948), (2) the apartheid era (1948–1990), and (3) the transition to democracy and the post-apartheid era that began in 1990.

scholarly journals Integrating the environment in local strategic planning : Guidelines (Case of Morocco)

2018 ◽  
Vol 37 ◽  
pp. 02008
Author(s):  
Hafsa Benbrahim
Keyword(s):  
Sustainable Development ◽  
Strategic Planning ◽  
Environmental Governance ◽  
Legal Framework ◽  
Integration Process ◽  
Local Authorities ◽  
International Commitments ◽  
Planning Approach ◽  
Territorial Organization

Since 2010, an advanced regionalization project has been initiated by Morocco, which plans to consolidate the processes of decentralization and deconcentration by extending the powers of the regions and other local authorities. This project, institutionalized in the 2011 Constitution, defines the territorial organization of the Kingdom and reinforces decentralization according to a model of advanced regionalization. Through advanced regionalization, Morocco aims at integrated and sustainable development in economic, social, cultural and environmental terms, through the development of the potential and resources of each region. However, in order to honor this commitment of advanced regionalization, local authorities must be assisted in adopting a local strategic planning approach, allowing them to develop territorial plans for sustainable development in accordance with the national legal framework, specifically the Framework law 99-12, and international commitments in terms of environmental protection. This research deals with the issue of environmental governance in relation to the role and duties of local authorities. Thus, the main goal of our study is to present the guidelines to be followed by the local authorities to improve the quality of the environment integration process in the local strategic planning with the aim of putting it in a perspective of sustainable development.

scholarly journals Land Reform for a Landless Chief in South Africa: History and Land Restitution in KwaZulu-Natal

2021 ◽  
pp. 1-25
Author(s):  
Jill E. Kelly
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Political Authority ◽  
African Continent ◽  
Land Claims ◽  
Land Access ◽  
Reform Program ◽  
Kwazulu Natal ◽  
Communal Land ◽  
Land Restitution

Abstract Land claims and contests have been central to the construction of political authority across the African continent. South Africa’s post-apartheid land reform program aims to address historical dispossessions, but the program has experienced numerous obstacles and limits—in terms of pace, communal land access, productivity, and rural class divides. Drawing on archival and newspaper sources, Kelly traces how the descendant of a colonially-appointed, landless chief manipulated a claim into a landed chieftaincy and how both the chief and the competing claimants have deployed histories of landlessness and firstcomer accounts in a manner distinct to the KwaZulu-Natal region as part of the land restitution process.

scholarly journals The Effectiveness of Plea and Sentence Agreements in Environmental Enforcement in South Africa

2019 ◽  
Vol 22 ◽  
pp. 1-41
Author(s):  
Tumai Murombo ◽  
Isaac Munyuki
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Natural Resources ◽  
South African ◽  
Environmental Law ◽  
Sustainable Use ◽  
Due Diligence ◽  
Environmental Enforcement ◽  
Criminal Sanctions ◽  
Institutional Strengthening

A recent development in South African environmental law is the use of plea and sentencing agreements. The main objective of environmental law is to promote the sustainable use of natural resources while preventing pollution and ecological degradation. Grand environmental due diligence processes could achieve sustainable development; the use of criminal sanctions with sentencing agreements could be more effective. This paper answers the question whether the plea and sentencing agreements in reality achieve the objectives of environmental regulation? This study analyses this recent development by looking at selected recent cases in South Africa. The study found that plea and sentence agreements are potentially effective, subject to the effective monitoring of compliance and enforcement against non-compliance with the undertakings made by the accused person. Without institutional strengthening and effective monitoring, the plea and sentence agreement procedure remains ineffective.

scholarly journals The Role of Good Environmental Governance in the Sustainable Development of South Africa

2017 ◽  
Vol 13 (1) ◽  
pp. 72
Author(s):  
Loretta Feris
Keyword(s):  
South Africa ◽  
Decision Making ◽  
Sustainable Development ◽  
Environmental Governance ◽  
Good Governance ◽  
Public Authorities ◽  
The Sustainable Development ◽  
Environmental Decisions ◽  
Value Choices

This article seeks to analyse good governance decision-making in the environmental context through an understanding and interpretation of the relationship between good environmental governance (evidenced inter alia by decision-making by public authorities) and sustainable development in South Africa.  It critically assesses recent case law in an attempt to understand the way in which our courts are evaluating authorities’ environmental decisions.  In reaching its objectives, this article considers also how environmental decisions are made in the first place and asks the question: what are the value choices underlying government’s decisions and what role does sustainable development play in informing decisions for good environmental governance.

scholarly journals The "Brown" Environmental Agenda and the Constitutional Duties of Local Government in South Africa: A Conceptual Introduction (note)

2016 ◽  
Vol 18 (5) ◽  
pp. 1845
Author(s):  
AA Du Plessis
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Local Government ◽  
Service Delivery ◽  
Urban Development ◽  
Environmental Health ◽  
Environmental Governance ◽  
Municipal Service ◽  
Ecologically Sustainable ◽  
Ecologically Sustainable Development

This note explores the interrelationship between ecologically sustainable development (the green environmental agenda) and pro-poor urban development and environmental health (the brown environmental agenda) in relation to local government in South Africa. The meaning and relevance of the brown agenda versus the green agenda in environmental governance are discussed in general. This discussion subsequently feeds into the argument that South Africa's constitutional environmental right also foresees the advancement of the brown environmental agenda, which has implications for the interpretation and enforcement of local government's service delivery mandate. This link between municipal service delivery and the environmental right further informs understanding of what is required of government to fulfill this right. This paper is thus devoted to an introductory conceptual framing of South Africa's environmental right that goes beyond the green agenda. This impacts on how the constitutional duties of municipalities are interpreted and executed.

scholarly journals The Efficacy of Section 2(4)(l) of the National Environmental Management Act in the Context of Cooperative Environmental Governance

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 162-174
Author(s):  
Bramley Jemain Lemine
Keyword(s):  
South Africa ◽  
Environmental Management ◽  
Sustainable Development ◽  
Environmental Governance ◽  
Document Analysis ◽  
Law Reform ◽  
The Republic ◽  
National Environmental ◽  
Wetlands Management ◽  
The Way

Wetlands are regulated by a plethora of specific environmental management Acts (SEMAs). The mandate of these Acts sits within various environmental affairs departments. Thus, the same resource is regulated and managed by a series of different legislation and environmental administrators. The National Environmental Management Act 107 of 1998 (NEMA) is the national environmental framework Act and stresses in its purpose the need for cooperative environmental governance (CEG) which, arguably, raises no concern for the way wetlands are currently regulated and managed, as long as this is done in a manner that promotes CEG. Section 2 of NEMA sets out a series of sustainable development principles that all organs of state must apply in all matters relating to the environment; “environment” is read throughout to include wetlands. Section 2(4)(l) is dubbed the “co-operative governance principle” and mandates the “intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment”. With this in mind, this note, by way of a document analysis, seeks to ascertain whether legislation and policies and action relating to the wetlands regulation and management are in fact coordinated. The presented findings indicate that coordination is lacking, which consequently adversely affects the management, conservation and protection of wetlands in South Africa. The recommendations aim to bring about law reform to improve coordination that bolsters wetlands management as well as their conservation and protection, while simultaneously promoting the objectives of section 41 of the Constitution of the Republic of South Africa, 1996 (the Constitution).

South Africa

2019 ◽  
pp. 314-333
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
South African ◽  
Local Governments ◽  
Environmental Governance ◽  
Environmental Law ◽  
Bill Of Rights ◽  
Implementation Framework ◽  
Domestic Law ◽  
National Environmental

This chapter examines the environmental law of South Africa. It first considers how powers are allocated with regards to environmental law, taking into account the constitutional and other bases of South African environmental law, the elevated status of international law in South African domestic law, relevant provisions of the Bill of Rights with respect to environmental rights and sustainable development, and distribution of competences among national, provincial, and local governments regarding environmental governance. The chapter goes on to discuss the structure and substance of South Africa’s environmental law, focusing on the National Environmental Management Act (NEMA) and the environmental principles and sectorial laws it contains. It also analyses the implementation framework for environmental law, describing cooperative governance in practice and the role of relevant governmental departments from integration to sectorialization. Finally, it provides an overview of the legal conundrums created by the so-called One Environmental System (OES).

Sign in / Sign up

Export Citation Format

Share Document