South Africa has both a progressive Constitution that guarantees environmental rights and a suite of comprehensive environmental legislation that makes extensive provision for public participation in environmental policy and decision-making. South African civil society – through non-government organisations (NGOs), community-based organisations (CBOs) and members of the public – plays a crucial role in holding both government and industry to their obligations under environmental legislation through their participation in environmental decisions and advocacy, reporting of non-compliance and, occasionally, through legal challenges.
Despite this, civil society’s ability to hold government and industry to account is being hampered by increasingly complex environmental legislation and procedures, coupled with limited access to funding and legal advice. This particularly adversely affects historically disadvantaged communities and the organisations that represent them. At the same time, civil society has become very concerned about the rate of environmental degradation and the increasingly unsustainable use of natural resources – particularly freshwater – a particular concern against the backdrop of the pressing need for climate change mitigation and adaptation. This downward trend can be ascribed to development pressure on infrastructure and natural resources, coupled with limited government capacity to implement and enforce environmental legislation, particularly at provincial and local level.
The inability to realise environmental rights in South Africa has potentially disastrous consequences for the environment, the health and well-being of the citizens of South and southern Africa, and the country’s security.
General problems to be addressed by the project include:
- Inappropriate environmental decision-making, leading to unsustainable and inappropriate use of natural resources: Over time, environmental decision-making processes in South Africa have become complex and lengthy processes with a multitude of legal requirements and rules. Most of the parties affected by these decision-making processes have a limited understanding of their rights to public participation in the process, and usually do not have access to the appropriate legal and scientific expertise, leading to procedural and substantive flaws in environmental decision-making occurring without consequence. This in turn, leads to decisions by authorities that do not promote sustainable development or the sustainable use of natural resources.
- Limited exercise of environmental rights, leading to unsustainable and inappropriate use of natural resources: Few, if any, civil society organisations (CSOs) or communities are able to act to protect their environmental rights in any meaningful way, which means that and decisions and environmental harm are not addressed or prevented. Although the primary reason for this is lack of resources, a lack of information plays a major role: in many instances, environmental rights can be asserted with minimum cost, or with assistance from organisations who provide free legal representation.
- Lack of legal knowledge and resources, and lack of access to information: Both the problems described above are caused directly by a lack of information on environmental laws and remedies available to CSOs, communities and members of the public. Lack of information, coupled with frustration with inappropriate environmental decisions or lack of enforcement action, disempower and discourage citizens from engaging with and challenging both violators and environmental authorities.
Some of the specific and urgent environmental problems identified by stakeholders include:
- the impacts of unsustainable mining on water resources and water quality and threatened ecosystems, particularly coal mining in Mpumalanga and gold mining on the West Rand, and the threat posed by the significant environmental damage caused by unsustainable mining to affected communities’ health and well-being, livelihoods and prospects of accessing natural resources;
- intense development pressure on environmentally sensitive areas, such as the Eastern Cape coastal zone;
- generally inadequate enforcement response of authorities to violations of environmental laws; and
- structural obstacles to access to information that affect environmental governance;
- attempts to deter and threaten civil society participation in environmental governance, including actual and threatened civil litigation against environmental activists and civil society organisations.
In January 2009, a number of organisations, led by the Wildlife and Environment Society of South Africa (WESSA) and supported by key partners in the legal, conservation and environmental justice sectors, obtained seed funding from the Table Mountain Fund of the World Wildlife Foundation (WWF) to commence preparation for the establishment of a new, independent institution intended to provide legal support to NGOs and CBOs in the environmental and environmental justice sectors. In February 2009, a series of stakeholder workshops was held across the country, and support obtained from a wide range of CSOs for the establishment of such a new institution. In April 2009, a Framework Document was published after consultation with these stakeholders, and an Implementation and Business Plan was thereafter published in July 2009.
Through this process, the new institution became known as the Centre for Environmental Rights.
During pre-establishment consultation, stakeholders were asked to rank potential functions of the new institution by way of a questionnaire. Stakeholders ranked these functions as follows:
- Acting as repository of environmental legal information
- Supporting NGOs and CBOs in initiating litigation
- Maintaining networks of civil society partners and professional associations
- Training and awareness-raising around environmental law and processes
- Acting as attorney of record for NGOs and CBOs in litigation
- Providing general environmental legal advice
- Supporting and assisting with effective reporting of non-compliance
- Promoting a policy position through advocacy
- Supporting and assisting with participation in licensing processes
- Commenting on legal aspects of draft policies and legislation
- Litigating in its own name to set environmental law precedents (including as friend of the court)
- Conducting environmental legal research and analysis
This ranking of functions by stakeholders has guided the planning for the Centre and its programmes of work.
 See, for example, “Ageing infrastructure a ‘severe crisis’, says Cesa president”, Engineering News 9 June 2009, available at http://www.engineeringnews.co.za/article/ageing-infrastructure-a-severe-national-crisis-says-cesa-president-2009-06-09. Also see “Despite strong water law, a crisis looms – lawyers warn”, Engineering News 14 April 2009, available at http://www.engineeringnews.co.za/article/despite-strong-water-law-a-crisis-looms-lawyers-warn-2009-04-14.
 www.wwf.org.za and www.tmf.org.za