60 Trill Road
31st May 2021
To the Standing Committee on Premier and Constitutional Matters
Western Cape Provincial Parliament
Wale St Cape Town
1. The Observatory Civic Association wishes to make the following comments as input to the Western Cape parliamentary discussion on the abolition of the Environmental Commissioner from the Western Cape Constitution as requested by the Western Cape Government. Our comments are based on experience of engaging environmental decision-making, the views of our members regarding this matter, and our reading of the presentation made to the Provincial Parliament as in DEADP-Enviro-Commisisoner-25032021-SC-PCMv2s.pdf.
2. We note that South Africa faces an unprecedented threat from many different environmental stressors, particularly from Climate Change. We are also parties to numerous international agreements whereby we have committed to many different strategies to protect the environment and to meet goals related to Sustainable Development. It is therefore puzzling why the Western Cape government would even think of abolishing the position of Environmental Commissioner at this point. On the contrary, we believe that the W Cape government should welcome the appointment of such a commission with additional powers to ensure good environmental governance and public access to an independent authority in this regard.
3. A number of motivations have been presented in a Provincial document circulated with the call for comments. The document is titled DEADP-Enviro-Commisisoner-25032021-SC-PCMv2s.pdf. Although we are not sure of the status of this document, we respond to the arguments in this document on the basis that we understand this is the current position of DEADP on this matter.DCAS Award Winner, 2018 for Most Active Conservation Body; NPO number: 174 – 174 NPO 60 Trill Road, Observatory, 7925; phone 082 731 0830 2 4. It is unclear on what basis the Provincial Government believes that duplication exists with respect to the functions of an Environmental Commissioner, not whether the 2009 Farlam Opinion is germane to deciding on whether duplication exists. What appears to be the case was that the Farlam opinion was relevant to whether the Province should proceed with amending the Constitution and/or when it should do so.
5. Secondly, there is a fundamental flaw in the provisions of the Western Cape constitution which appears to set up environmental conservation as being distinct from sustainable development as in section 71(2) which frame the need to “balance the goals of environmental conservation and sustainable development.” a. Nothing could be further from current best practice or the globally recognised provision that Sustainable Development must include environmental conservation, economic development and social benefits in a balanced way – all three legs constitution Sustainable Development. There is no contradiction between Sustainable Development and Environmental Conservation and therefore no need to balance the two. There is no dispute about that in global political and environmental policy forums. b. What the provision in the Western Cape constitution appears to conflate is the concept of economic development with Sustainable Development. These are clearly not the same. While economic development may need to be balanced with the goals of environmental conservation (and social well-being), these are all components of what constitutes Sustainable Development and equally important.
6. The fact that the Commissioner is independent (section 71.3) is absolutely critical to Environmental Governance and is a principle of law contained in our Constitution – that bodies to which a citizen or community member might appeal should not be the line manager or senior to a decision-maker. A politically elected minister should not be the final arbiter of such matters. So, an independent Commissioner for the Environment must play an important role in terms of our democrative governance of environmental decision-making.
7. The role of investigating complaints must be a role for an independent agent and cannot be a role for a party or institution or agency against which the complaint is made.
8. The claim is made that there is “an overlap and duplication of roles and functions provided for in national and provincial legislation.” No evidence is presented as to how the legislation results in overlap involving the role and function of a Commissioner. That there may be overlap in legislative provisions in South Africa regarding the environment is unfortunate but unless the provisions indicate roles earmarked for the Environmental Commissioner, then such a claim is a red herring.
9. It is puzzling that it is asserted that the following structure duplicate the responsibilities of an Environmental Commissioner:
a. While the National Environmental Management Act, 1998 provides for the establishment of fora or advisory committees, these are bodies that do not have any ability to investigate or DCAS Award Winner, 2018 for Most Active Conservation Body; NPO number: 174 – 174 NPO 60 Trill Road, Observatory, 7925; phone 082 731 0830 3 hold government accountable. As such, they are toothless. Thus, it is incorrect to adduce that this is a function ‘already catered for.’
b. Similarly, while the National Environmental Management: Waste Act, 2008 provides for the appointment of a Provincial/National Waste Management Officer to coordinate waste management matters, this is not a role that an Environmental Commissioner would or should play. It is a line function of a government department. An Environmental Commissioner would hold such a person accountable to deliver on their mandate. Thus, it is incorrect to adduce that this is a function ‘already catered for.’ The fact that the Act also provides for the establishment of a Waste Management Bureau seems totally irrelevant.
c. Similarly, it is true that the National Environmental Management: Air Quality, 2004 provides for the appointment of Provincial/National Air Quality Officer to coordinate air quality management matters. Again, this this is not a role that an Environmental Commissioner would or should play. It is a line function of a government department and requires someone with technical skills in the field of Air Quality. An Environmental Commissioner would hold such a person accountable to deliver on their mandate. Thus, it is incorrect to adduce that this is a function ‘already catered for.’ The fact that the Act also provides for the establishment of a National Air Quality Advisory Committee to advise the Minister on any air quality related matters seems totally tendentious to the matter at hand.
d. Similarly, while it is true that the National Environmental Management: Integrated Coastal Management Act, 2008, provides for the appointment of national and provincial Coastal Management Committees to promote integrated coastal management and effective cooperative governance, this is not a role that an Environmental Commissioner would or should play. It is puzzling why the Provincial Government could even imagine that promoting cooperative governance is a role for an Environmental Commissioner. It is an intergovernmental responsibility for which government officials should take responsibility. An Environmental Commissioner would hold such a committee accountable to deliver on their mandate.
e. Similarly, while the National Environmental Management: Biodiversity Act, 2004 provides for the appointment of the South African Biodiversity Institute (SANBI) to monitor and report on biodiversity matters and to act as an advisory and consultative body on matters relating to biodiversity and national botanical gardens, this this is not a role that an Environmental Commissioner would or should play. It is a technical function of persons with specific skills in biodiversity. An Environmental Commissioner would hold such a structure accountable to deliver on their mandate. Thus, it is incorrect to adduce that this is a function ‘already catered for.’
f. Similarly, while the National Environmental Management: Protected Areas Act, 2003 provides for the assignment of the management of a national park/provincial nature reserves to management authorities (e.g. SANParks and CapeNature) and assigning the management of a marine protected area to a national organ of state, it is entirely unclear why this should be confused with the role of an Environmental Commissioner. What is described is a management responsibility for a particular aspect of conservation. This has absolutely nothing to do with oversight and investigation of complaints. Thus, it is incorrect to adduce that this is a function ‘already catered for.’DCAS Award Winner, 2018 for Most Active Conservation Body; NPO number: 174 – 174 NPO 60 Trill Road, Observatory, 7925; phone 082 731 0830 4
g. Similarly, the National Water Act, 1998 does provides for the establishment of Water Catchment Management Agencies, Water User Associations and a Water Tribunal. Such structures require persons of particular skills sets and certainly the Water Catchment Management Agencies are directly involved in the management of water matters, so cannot remotely be said to be already performing function of an EC. It is unclear how a Water User Association might be confused with an Environmental Commissioner. And lastly, it would be expected that the EC would hold the Water Tribunal to account should it not be fulfilling its mandate. It is therefore incorrect to adduce that this is a function ‘already catered for.’
h. While it is true that the Spatial Planning and Land Use Management Act, 2013 provides for the establishment of Municipal Tribunals, it is entirely unclear how this would already be performing functions assigned to an EC. An MPT makes development decisions, which members of the public should be entitled to expect are made fairly and with good judgement. That is exactly what an EC should do – hold an MPT to account. Since an MPT cannot hold itself to account, it is incorrect to adduce that this is a function ‘already catered for.’
10. These 8 instances of law appear to be completely inappropriate in adducing any evidence that there are entities already perform functions earmarked for the EC. In fact, it is hard to avoid the perception that the list of laws was scanned in order to find some elements to claim as evidence for duplication where there is patently none. One wonder why this is the case.
11. As for the role of the Provincial Minister who must monitor provincial land use planning and the impact of these decisions, it is unclear how this is a duplication of an independent monitoring Commissioner. The Minister has a conflict of interest in considering the decision made by his or her department and cannot be expected to provide impartial oversight over matters in which his or her own ministry has already taken a position. a. There are already a number of cases in the Western Cape where Environmental Authorisations are being challenged by communities where the Minister has taken a decision which communities believe are incorrect. The Minister cannot therefore act as the impartial body which communities can approach for independent oversight. At the moment, that function is now left to litigation and a number of communities have had to resort to such litigation as a result. Had an Environmental Commissioner been in place to receive complaints, this may have obviated the expensive and somewhat frustrating business of using the courts to find solutions to development problems. For that reason, the Western Cape government should ideally welcome the establishment of such a commissioner.
12. The suggestion that the Commissioner’s independence and impartiality is taken care of because PAJA provides for review of administrative action is quite extraordinary in its expectation that anyone seeking an independent and impartial review must go to the High Court to do so. Since a High Court review is extremely expensive and complex and beyond the reach of most South Africans, this suggestion is effectively blocking access to an oversight mechanism that would be easier to access. To deny citizen’s access to an Environmental Commissioner is a violation of the DCAS Award Winner, 2018 for Most Active Conservation Body; NPO number: 174 – 174 NPO 60 Trill Road, Observatory, 7925; phone 082 731 0830 5 State’s obligation to promote human rights, since it is effectively walling off redress to mechanism unavailable to most people in South Africa. This is particularly egregious given the ready availability of rates and taxes to fund State defence of its decisions in the courts – a wholly imbalanced relationship.
13. Further, the fact that NEMA and SPLUMA contain relevant principles for governing sustainable development and land use decisions does not, of itself, provide any evidence for a duplication of functions. If the relevant state entities are not meeting the requirements of these laws, then the EC has the key role to hold state entities accountable to these principles. Merely stating that such principles exist does not mean that state officials comply with these principles. Similarly, merely stating the obligations of provincial governments and ministers to comply with NEMA and LUPA does not substitute for oversight to ensure such actions are followed. Hence, an independent commission is needed.
14. The suggestion the Public Protector could, in some way, substitute for an Environmental Commissioner assumes that (a) the Public Protector has the requisite capacity and (b) skills in environmental matters, to perform an oversight role. It should be abundantly clear that the track record of the public protector, on matters to do with state probity over the past few years, has been less than satisfactory. Indeed, the Western Cape government and its political party have been at the forefront of highlighting the inadequacy and lack of independence of the Public Protector’s office. It is therefore implausible to think that the Public Protector might serve the function of an Environmental Commissioner.
15. It is interesting that the NEMA provision under which the MEC or Council may refer an environmental dispute for conciliation or arbitration is presented as a function already performed which an EC is likely to duplicate. Since the NEMA provision is permissive and not mandatory (unlike the case regarding local government dysfunction, where the onus of the MEC is mandatory), it is entirely left to the discretion of the MEC or Municipal Council to refer the matter. If they do not refer the matter, there is no recourse currently other than a high court application. This is again, deeply unfair and an abrogation of state obligations. Having an EC in place would ensure that MEC discretion did not deny a citizen or resident opportunity for redress.
16. Similarly, it is not the case that the Director General will have purview over decisions made at provincial level, so much as the Duty of Care applies in NEMA (S28), the provision by which a national DG could review a provincial decision is limited. It does not obviate the need for a Provincial EC.
17. It is hard to escape the impression that the documents circulated motivating for the removal of the EC are a calculated attempt to roll back an important provision for environmental protection. For example, the statement that acting “in accordance with the principles of cooperative government and intergovernmental relations” is somehow a function that is duplicated is not logical. There is no function in that statement only a description of how the Commissioner should operate. Similarly, the idea that reporting to Parliament is a function DCAS Award Winner, 2018 for Most Active Conservation Body; NPO number: 174 – 174 NPO 60 Trill Road, Observatory, 7925; phone 082 731 0830 6 duplicated by other agencies is completely without logic. All government agencies report, and many report to parliament. That does not mean that the South African Human Rights Commission and the Auditor General, agencies that report to parliament, are by any stretch of the imagination, performing similar functions and therefore there is duplication. This is patently absurd and one wonder why there is so much effort being made to argue that there is duplication of function.
18. The cost argument cannot be considered without considering the costs likely to be saved in preventing litigation. Since these costs are not presented, the provisional costs estimates should be of no relevance to a decision about the EC. 19. The reasons for the conclusion that the EC post should be abolished are therefore faulty:
a) There is no overlap and duplication of roles and functions provided for in national legislation;
b) It is clearly the case that an EC would be able to address governance gaps by providing a level of oversight over public officials and political heads currently absent. As a province that has repeatedly called for accountability of public officials nationally, it is contradictory to deny the same accountability at provincial level.
c) There can be no basis for arguing that the EC will consume scarce state resources when the state uses its resource liberally for litigation purposes, and there is no costs of what the EC might save the province in litigation.
d) The fact that the EC has limited ‘teeth’ is only the case because the Provincial Government has not yet given the EC such powers – which it can do in terms of section 72(2). This is therefore a circuitous argument.
20. We therefore complete reject the notion that the Notion that the Environmental Commissioner position should be abolished in the W Cape Constitution. Rather, given the current context, where Climate Change and other development challenges are increasingly testing the capacity of the state to govern fairly and equitably, it is all the more important that an EC be appointed with suitable powers to effect fair environmental decision-making. Thank you for the opportunity to make input to this important policy decision.
Leslie London Chairperson