Analysis Of Theoretical And Practical Issues Of Environmental Right Clause In South African Constitution

After several decades of apartheid, South Africa promulgated a new SouthAfrican Constitution in1996. The24section of the new Constitution solemnlyprovided the environmental right of every citizen. This section didn’t only take theenvironmental right as fundamental human right, but also stipulated the duty of thecountry generally. Based on this section, a series of environmental laws have beenpromulgated. South Africa has then seen its intact and advanced environmental legalsystem, in which National Environmental Management Act is the fundamental law.In the aspect of legislation, South Africa put great emphasis on the introductionof human environmental concept and environmental law theory. South AfricanConstitution and legislation serve the sustainable development concept as theirprinciple. And based on this anthropocentric environmental concept, it putenvironmental right, life, equality, freedom of expression, social and economic rightsparalleled, with pointing out that there is no hierarchy among these fundamentalhuman rights. Based on environmental right, Constitution and legislation alsoexpress common trust concept,and thus build an complete environmental commoninterest litigation institution.For the implementation of environmental right, Judiciary plays an important role.However, in cases about environmental issues after1996, there is few directlyapplying to environmental right. Courts would avoid to discuss the section, either.This is a huge obstacle to implement environmental right. Because there is nounanimous opinion of environmental right, there is a need for courts to define thescale and nature of environmental right. There emerges several problems from theapplication of the24section, which is a good chance to complete the content of thatsection.The implementation of the24section could be divided into three parts, that islegislation, justice work and environmental administration. As a developing country,the tense between environment protection and economic developing is severe inSouth Africa. And it shows the conflict between environmental right and the others. This is pervasive. South African Constitution treats sustainable development principleas the rule to reconcile the conflict. And it asks for promote the economic and socialdevelopment, at the same time protect the environment.National Environmental Management Act provides a management institution,with which governments work together. The institution would be a great weapon tosolve this contradiction. In the decision of administration departments, this principledemands the integration of environmental concerns and social economic issues. Inspecific cases, the courts may determine which right would be limit. But we must beaware that South African would be inclined to attach more importance to economicthan environment, as we developing countries all do. Given the demand of economicdevelopment, the courts usually take a negative attitude to environmental right. Thisis not only harmful to the environment, and also damage the sustainable economicdevelopment.For South Africa is a mixed jurisdiction country, legislation, convention andprecedents are all formal source of law. We can describe the environmental righttheory in South African Constitution theoretically. And analyze the application ofenvironmental right through analysis of several cases.After all, South African environment right section has theoretical value, but thepractical difficulty hinders its implementation. Legislation, Judiciary andAdministration are all unfamiliar to environmental right, but citizens yearn for theright to come true. Discussion about the theoretical value and practical problems ofthe24section is a way to scan the concept of environmental right, and also recognizethe general problems of implementation of environmental right in developingcountries. And thus it will contribute to the security of our healthy environment.