Question 1 (19 Marks)
Consider the scenario below and answer the questions that follow:
Johnny owns a large commercial property in the Western Cape in the Stikland area. Johnny has recently agreed to lease the premises to a popular car manufacturer, “StateWagen” which they will use as an assembly plant and warehouse. Currently, StateWagen stores roughly 200 vehicles on the premises. The premises is adjacent to the premises of a company known as “Chems All”. Chems All carries on business as a manufacturer of industrial cleaning supplies.

The manager of StateWagen recently started experiencing a foul smell coming from the Chems All plantation premises, which persisted for weeks. The manager notices that the bodywork of some of the cars reflects strange defects noticeable in the paint. He accordingly reaches out to Johnny for help as he experiences an increase in the number of cars affected by the defects in the paint. Johnny thinks the paint defects are caused by chemical gasses in the air. Johnny agrees that an intervention is needed as he is concerned about the well-being of the occupants of his premises and the financial loss they may suffer due to defects in the cars. He appoints an expert scientific research company, “EnviroAfrica” to assist.

EnviroAfrica subsequently establishes that noxious gases created by Chems All’s plant are being discharged into the atmosphere, causing a foul and offensive odour and the rapid and uncontrollable corrosion of metal structures and equipment. Johnny eventually obtains an order from the Director-General: Environmental Affairs and Tourism to the effect that Chems All must immediately stop the pollution. Although StateWagen is happy with the intervention, they want to know who will be liable for the damage caused to their vehicles. Johny appointed you to advise himself and StateWagen on the forward.

Different sources indicate that there are a number of distinctive environmental law principles. However, there appears to be general agreement on only two of these: The Polluter Pays Principle and The Precautionary Principle.

Advise Johnny and StateWagen what “The Polluter Pays Principle” entails and how it would apply in the circumstances, including its possible outcome. Refer to relevant legislation in your answer. (15 marks)

Provide an understanding of what the “Life Cycle Responsibility” principle entails. Refer to the views of academic writer Henderson in this regard. (4 marks)

Question 2 (15 Marks)
Read the excerpt below and answer the question that follows:
Antimicrobials is a term used to describe a number of agents that kill certain microorganisms, and include antibiotics, antivirals, and other antifungals. These substances are “widely used to prevent and treat infections in humans, aquaculture, livestock, and crop production.” These play a crucial role in fighting life-threatening diseases. However, a recent report by the United Nations Environment Programme (or “UNEP”) illustrates how the effectiveness of Antimicrobials is now in jeopardy. The main reason for this, it is submitted, is quite ironically the threats caused by the very objects that depend on Antimicrobials: humans.

“Increased use and misuse of antimicrobials and other microbial stressors, such as pollution, create favourable conditions for microorganisms to develop resistance both in humans and the environment. Bacteria in water, soil and air for example, can acquire resistance following contact with resistant microorganisms. Human exposure to Antimicrobial resistance (or “AMR”) in the environment can occur through contact with polluted waters, contaminated food, inhalation of fungal spores, and other pathways that contain antimicrobial-resistant microorganisms. Global attention to AMR has mainly been focused on human health and agricultural sectors, but there is growing evidence that the environment plays a key role in the development, transmission and spread of AMR. AMR in mycobacterium tuberculosis, malaria parasites, viruses, and HIV is becoming a reality that could increase human suffering. It could also deal a huge blow to the world economy due to productivity losses, increased healthcare costs and a rise in poverty.”

In a society where pandemics are a growing concern, the health and continued existence of the human race remain at the forefront of science. But what is the importance of the environment in this regard and where should our limits be? Does the environment serve merely to serve the purpose of the continued existence of the human race? How then are we regulated to respect the very limits of mother nature on which we are so dependent?

A number of academic writers have proposed various reasons for the existence of environmental law. According to Rabie, environmental law is aimed at conserving natural sources to ensure that the environment stays useful to human beings, rather than having value in its own right. The above report by the UNEP illustrates why such views should possibly be rejected.

In contrast to the above there is a more empathetic philosophy called the “Deep Ecology Approach”. Fully discuss this philosophy (or approach). Also indicate how the approach could be applied to the problems identified in the excerpt above.

Question 3 (25 Marks)
Consider the scenario below and answer the question that follows:
“Dhell” is a large mining company in South Africa. Dhell holds extensive mining rights in several areas, including the Garden Route, in the Western Cape. Dhell, in desperate need to extend its coal mining activities, recently applied for the necessary permits to start mining operations in a small town called “Oyster Bay”, situated on the banks of the Gourits River in the Garden Route. The residents of “Oyster Bay” oppose the development as they believe that the activities come down to the exploitation of the natural resources by Dhell. Accordingly, they appoint a team of environmentalists, “EnvironSafe”, who specialise in conducting preliminary assessments of the possible impacts of mining activities on the environment.

The area Dhell intends to use for the new mining operation includes a wetland called “Rietvlei”. In its current state, Rietvlei filters and purifies two million cubic meters of improved-quality water into the Gourits River. Therefore, a valuable contribution is made by the Rietvlei wetlands. The residents of Oyster Bay believe that the proposed mining operations would destroy the wetland. The residents are also concerned as the proposed mining area is home to about two hundred plant species that grow in the area. Some of these plant species have been identified as having considerable medicinal qualities and are used by the locals for medical reasons. Some of these plants have also been identified as “threatened species”.

In their report, EnvironSafe also indicates that the wetland would never be cable of restoration after the mining activities have been carried out due to the damage that undifferentiated soils would cause. The mining activities would cause sulphuric acid solutions to leak into the Gourits River, contaminating the water. In their report, EnvironSafe also indicates that the existing plants would be destroyed, making way for the mining operation.
The residents of both Oyster Bay and those of the neighbouring town of Goose Bay are extremely concerned about the findings in EnvironSafe’s report. Furthermore, they feel repulsed by the manner in which Dhell will destroy the beautiful landscape. These residents and neighbours feel that Dhell is infringing on their constitutional rights and approach you for advice.

South Africa’s environmental right is contained in Section 24 of the Constitution of South Africa. In your own words, discuss Section 24(a) in terms of which everyone has the right to an environment that is not harmful to ther health and well-being. Also advise the Oyster Bay and Goose Bay residents whether Dhell’s proposed mining activities have infringed this right. Support your arguments by referring to case law, legislation, as well as the views of academic writer Michael Kidd in your prescribed textbook.

Question 4 (11 Marks)
A treaty is a written agreement between states or between states and international organisations, operating within the field of international law. According to Dugard, treaties are broadly divided into three categories. Required:
List and briefly explain these categories. (6 marks)

Briefly discuss the term “jus cogens”. Illustrate your discussion by providing relevant examples of what could be seen as jus cogens. (5 marks)

Question 5 (10 Marks)
Consider the scenario below and answer the question that follows:
Advise the government of India whether they would be able to challenge Scotland’s new legislation based on their GATT membership. Refer to and discuss international case law in your answer.

Question 6 (20 Marks)
Consider the scenario below and answer the question that follows:

Castiel lives in a very rural area in a small town, known as “Stillewaters” in the Free State, as part of a small community. The town is situated on the banks of the Wilgerivier, on which the community is entirely dependent for their water supply. The community grows all vegetables they consume themselves and uses the water from the river to sustain their food supplies and for essential hygiene purposes. The community members have been living in the town since 2010. In 2011, the residents were granted the necessary permission from the Department of Water Affairs to use the Wilgerivier as a primary water source lawfully.

Castiel recently read in the local newspaper that a new water licensing regime is being introduced in the area (as provided for under the new National Water Act 36 of 1998). In terms of this regime, the Department of Water and Sanitation will restrict Castiel and the other residents of Stillewaters in their current water usage. The residents will now be obliged to apply for licenses to continue using the water from the Wilgerivier. The result would be a significant 35% decrease in the volume of water that the residents are currently entitled to. The residents of Stillewaters also learn that only their town is affected by this and that the neighbouring towns may all proceed to use the water from the Wilgerivier without the need for compulsory licenses or other limitations.
Advise Castiel whether the compulsory licensing system would result in the expropriation of their water rights and, accordingly, whether the residents of Stillewaters are entitled to compensation in the circumstances. In your discussion, refer to case law and legislation and, in particular, the impact of the new Act to water rights, and how this would apply to the given scenario. Refer to both legislation and case law in your answer.

Answers to Above Questions on Environmental Law

Answer 1: An analysis of the concept of Polluter Pays Principle indicates that it is an important environmental law principle that looks into the issue of environmental problems and places responsibility on the individual that accounts for such problems. The persons responsible for causing damages to the environment are penalized as per this principle and it can be applied in the given scenario whereby it is evaluated that the actions of Chems All directly affect the environment by causing pollution.

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