Suchergebnisse

Three recent judgments of the Supreme Court of Canada signal a departure from the broad and generous manner in which the Court has previously interpreted and applied section 24(1) of the Charter. In each of R. v. Bjelland, Canada (Prime Minister) v. Khadr and R. v. Nasogaluak, the Supreme Court agreed with the trial judge's finding of a breach of Charter rights but overturned the trial judge's choice of remedy under section 24(1) in order to grant a more limited remedy in its place. In doing so, the Court shifted the analytical focus away from the promotion of remedial efficacy and toward the minimization of the burdens imposed by the remedy on government. This article reviews each of these judgments and examines the extent to which they are consistent with previous section 24(1) jurisprudence and the purpose of the Charter's broadest remedial provision.

The issue addressed in this paper is whether we have effective remedies for breach of Charter protected rights and freedoms, as well as clear jurisdictional guidelines for granting such remedies. The relationship between the judiciary and the other branches of government provides the context for exploring the jurisprudence on remedies and jurisdiction. The cases that establish the foundational principles regarding the interpretation of section 24(1) and section 52(1), and the relationship between these provisions, are examined. The guidelines for granting section 52(1) remedies and for identifying the decision makers that have jurisdiction to do so are explored, as are the guidelines and jurisdiction for granting remedies under section 24(1). The the sis of this paper is that while there have been substantial developments in this area, we do not yet have a cohesive set of principles that will ensure that a person whose Charter rights have been infringed will be granted a just and appropriate remedy in an expeditious manner. There are gaps in the law, particularly for statutory courts and administrative tribunals that have the duty to abide by and apply the Constitution, but not the authority to grant a remedy that will do justice to a claimant. The courts cannot provide a complete solution since the legislatures have exclusive authority to assign the jurisdiction of the courts and tribunals. However, the courts can point out the problem and urge the legislatures to take up the issue in a manner that respects the division of powers among the branches of government.

The article critically examines the South African Constitutional Court (ZACC) case law and doctrine on section 24 (right to an environment) of the Constitution of South Africa. It argues that the right has been left normatively impoverished, and especially the interaction and relationship with the cornerstone statute, the National Environmental Management Act (NEMA) remains unclear. This issue centres specifically around three core issues. First, it has not been settled whether section 24 encompasses an individual right and an additional positive obligation, or constitutes a composite right. Second, the individual right contained in section 24 requires further definition and clarification. Key terms have not been given distinctive constitutional contours, and it remains uncertain to what extent legislative instruments such as NEMA are legitimately filling these gaps. Finally, it is unclear how the principle of constitutional subsidiarity applies to section 24 of the Constitution. Even assuming that the principle applies in essentially the same way as to other constitutional provisions, one cannot reasonably determine whether ordinary legislation reflects and gives effect to a constitutional right, if one has no clear notion of the latter's content.

This paper offers a conceptual analysis of ecologically sustainable development in contrast to sustainable development. The analysis focuses on ecologically sustainable development as encapsulated in section 24(b)(iii) of the Constitution of the Republic of South Africa, 1996. The paper argues that ecologically sustainable development denotes preserving earth's ecological systems. The paper further argues that ecologically sustainable development, as contained in section 24(b)(iii) of the Constitution, requires a shift from the ambiguous concept of sustainable development to ecologically sustainable development. The paper highlights the importance of prioritising environmental concerns when considering economic or social development. In essence, the study emphasises that ecologically sustainable development, as embedded in section 24(b)(iii), seeks to sustain the environment and not development activities. The paper concludes that ecologically sustainable development is a vehicle for facilitating the necessary paradigm shift required for better environmental protection as per section 24(b)(iii).

This dissertation uses the example of NEMA and the proposed provincial legislation to explore several constitutional issues and is divided into a number of parts. Part II describes the regulatory system provided for in section 24 of NEMA in more detail. Part III discusses the implementation of section 24 of NEMA, with reference to section 85 and section 125 of the Constitution. The latter two sections determine which sphere of government is responsible for the implementation of national legislation that falls within the functional areas listed in Schedule 4 of the Constitution. A related question is whether the national Minister can allocate all the responsibility for implementation of section 24 of NEMA to the provinces. This is what the draft regulations published by the Minister seeks to achieve. Thus, part III of this dissertation considers the constitutionality of the arrangement set up by the Minister in terms of section 24 of NEMA. Part IV of this dissertation provides some background to the proposed provincial legislation and the duplication that would be caused by its simultaneous operation with section 24 of NEMA in the Province. In light of the potential problem of duplication, part IV considers the application of section 146 of the Constitution, which provides a mechanism for resolving conflicts between national and provincial legislation in a Schedule 4 functional area. In particular, it explores whether 'conflict' - when used in the context of section 146 - includes duplication between national and provincial legislation. The principles of co-operative government set out in Chapter 3 of the Constitution are essential in a system of co-operative federalism. The requirements of consultation and co-operation must be brought to bear on the implementation of national legislation such as NEMA and the avoidance of duplicated regulatory systems. The application of co-operative governance principles in this context is discussed in part V.