Rock steady, grassy green
- Ruth Krüger
COLUMN: Reflections on former Constitutional Court Justice Edwin Cameron’s critical jurisprudence and the environment.
On 20 August 2019, Justice Edwin Cameron delivered his last judgment as a judge of the Constitutional Court, and law students everywhere groaned – not in response to the judgement (in which he lambasted government for its failure to assist labour tenants on farms, and made an unprecedented and creative order), but because there will be no more Justice-Cameron-judgments and his fan club is not sure what to do with their time. There has been talk of knitting. Or white-water-rafting. Anything to fill the void.
Landscape of environmental law
I’m making light of it, but the fact is that Justice Cameron has quite a following amongst Wits law students. It’s not surprising. He’s just as well known for his forthright, wide-reaching legal decisions as his unshakable personal strength. As a proudly, openly gay man living with HIV, Justice Cameron has rallied countless South Africans.
And at the symposium hosted by the Wits School of Law in his honour on 4 September 2019, we also learnt of his kindness and thoughtfulness – he memorised the name of practically every participant in the space of a day.
Arguably less well known about Justice Cameron is the importance of his judgments for environmental law – a field in its infancy in this country and globally. South Africa’s Constitutional Court has had scant opportunity to engage with environmental issues, but there are principles in Justice Cameron’s judgments that set up a rock-steady foundation for environmental law. It is just one of the ways in which Justice Cameron has established a valuable legacy.
Empowering local government for sustainability
The first important principle Justice Cameron gave us for environmental law relates to the powers of different spheres of government in planning decisions. In the Habitat Council case, Justice Cameron ruled that municipalities have independent planning competencies, which are not subject to review by the province. This reminds us that some decisions need to be made at the local level, and that this is also a sustainability issue.
Mismatches of scale have very real results in environmental governance. This has been seen for example in the Sahel desert – thought for years to be growing when in fact it was just moving but being studied at too small a scale. Thus, the powers given to levels of government at different spatial scales may have significant environmental consequences. It is important that local government powers remain real powers.
Giving voice to the undermined
The next principle comes from the Liquor Bill case, where part of a Liquor Bill was declared unconstitutional as the provinces had not been consulted sufficiently. Justice Cameron was making a powerful statement about the principle of stakeholder involvement, which is crucial in environmental rights.
For example, Mpumalanga province, pockmarked with mines and coal-fired power-stations, has the highest rate of nitrogen dioxide pollution in the world. An NGO called Centre for Environmental Rights does excellent work with communities there, who are commonly poor, wracked by respiratory disease, and have very little say in decisions that affect them and their environment. For such people, better systems of stakeholder involvement could literally be life-changing.
In both decisions, Justice Cameron built on existing constitutional principles. However, at other times, Justice Cameron has not been afraid to reach outside of the existing legal framework to promote constitutional values. NSPCA v Openshaw is a case in point. Here, the NSPCA [National Council of Societies for the Prevention of Cruelty to Animals] had applied for an interdict to prevent Openshaw from engaging in acts of animal cruelty. Most of the court found that the requirements for an interdict had not been satisfied – but Justice Cameron chimed in. He pointed out that “though animals are capable of experiencing immense suffering, and though humans are capable of inflicting immense cruelty on them, the animals have no voice of their own. Like slaves under Roman law, they are the objects of the law without being its subjects”.
Justice Cameron would have granted the interdict, as Openshaw had contravened the statute, and had not given any assurance that he would not do so again. Justice Cameron’s comments make an important contribution to thinking about animals and the law. He pointed clearly to our responsibility as humans, as well as the strange fact that animals, despite being sentient, have no power within the law.
Greener grass on the legal side
In the judgments, Justice Cameron never failed to show us that law is a tool to achieve just ends – nothing more. Where there is a problem in the law, he never hesitated to say so. His legal decisions have established the rock-steady foundation we law students will need in future. But these principles should not be seen as products of the past – they are alive and will guide us even through new and developing areas of the law, such as environmental law. They are grassy green.
- Ruth Krüger is a sustainability scientist currently studying law at Wits. She holds a Master’s in sustainability science from Lund University, Sweden and an undergraduate degree in environmental science and legal theory from Rhodes University. She has worked at the Centre for Environmental Rights.
- This article first appeared in Curiosity, a research magazine produced by Wits Communications and the Research Office.
- Read more in the ninth issue, themed: #ClimateEmergency how our researchers investigate the impact and implications of global change and climate change on people, places, and politics.