This article offers an analysis of the case of WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others.
THE DECISION
In this matter, World Wildlife Fund (WWF) South Africa alleged that the South African Minister for the Department of Agriculture, Forestry and Fisheries (DAFF) unlawfully set the 2017/18 allowable catch quota for the West Coast Rock Lobster (WCRL) at an unsustainable level. The WWF argued that the DAFF’s quota undermined the long-term survival of the species and threatened the livelihood of the fishers who depend on the survival of the WCRL.
The High Court of South Africa ruled in favour of WWF South Africa. The judgment declared that the decision by DAFF to set the quota for WCRL above the scientifically-recommended level was irrational and conflicted with domestic environmental legislation in South Africa as well as international law.
THE COURT’S SUBSTANTIVE AND PROCEDURAL REASONING
This article will briefly assess a number of doctrines of environmental law invoked by the Court. The Court’s reasoning was primarily substantive, that is to say it centred on essential laws relating to how people behave, as opposed to procedural law which focuses on the administration of law.
The decision focused on the Minister’s failure to take heed of official advice to protect WCRL as well as the Minister’s erroneous conclusion that economic and environmental objectives are mutually exclusive. In fact, both are mutually reinforcing–there can be no economic growth without an environment capable of sustaining and maintaining such growth.
The Court paid particular attention to the precautionary principle of international environmental law. Simply put, the precautionary principle holds that if there is a well-founded suspicion that certain activities may harm the environment, leaders ought to regulate and control such activity immediately rather than wait for incontrovertible evidence of long-term harm.
Preserving biodiverse ecosystems for present and future generations is important, the Court said, referring to the habitat of the West Coast Rock Lobster (WCRL). This directly tied to the Court’s analysis of the public trust doctrine of environmental law. Public trust doctrine says that the environment is held in public trust and must be maintained for the public interest now and for future generations.
The Court acknowledged that the Department of Agriculture, Forestry and Fisheries’ (DAFF) quotas also threatened the environmental rights codified in section 24 of the Constitution of the Republic of South Africa. Instead of applying the text of the Constitution in depth, however, the Court used constitutional principles as a framing device for its discussion of international law.
The Court also briefly addressed procedural issues with the DAFF’s decision-making, stating that the DAFF did not sufficiently engage with the public before setting its quota.
THE BROADER SIGNIFICANCE OF THIS CASE AND TRANSFORMATIVE ENVIRONMENTAL CONSTITUTIONALISM
The broader legal impact of WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others may include the limited advancement of transformative environmental constitutionalism, an important legal concept for environmental management and protection.
Transformative environmental constitutionalism is a legal theory that understands multiple substantive rights and principles can work together to be mutually reinforcing in the pursuit of environmental and social justice. The theory aligns with, in the South African context, the project of transformative constitutionalism, which views the South African Constitution as a “bridge” from the state’s oppressive past to a more egalitarian future. It aims generally to strengthen the protection of fundamental rights and freedoms and to promote substantive equality in South Africa.
The WWF judgment in this context is notable, because it specifically holds that the Minister erroneously believed that socio-economic objectives are in conflict with environmental governance objectives, instead holding that such goals are in fact symbiotic. South African precedent has rarely applied this perspective or so directly invoked transformative environmental constitutionalism. The value of the Court’s reliance on such a progressive theory, though, is limited, as the Court did not unpack these mutually-reinforcing rights further.
The recent WWF case helps to demonstrate that there can be no long-term economic development in South Africa without adequate environmental protection. This intuitive argument is something often ignored by the general public, especially in developing economies such as South Africa where short-term gain is often emphasised over long-term sustainability. Simply put, how can there be economic growth with no environment in which to grow?
The WWF case may only partially pursue transformative environmental constitutionalism as a means to protect the environment and achieve social justice in South Africa, but it is a distinct step forward in environmental justice.
Human Rights Pulse core team member, Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.