The intention of this dissertation is not to embark on a discussion on the desirability of a property clause, nor to undertake a full analysis of the property and environmental clauses as they appear in both the interim and working draft constitutions. Instead it is my intention to analyze the inherent conflict that exists between property rights, specifically ownership, and environmental conservation. This will be assessed against the backdrop of the common law, case law and in the light of both the interim and working draft constitutions. Due to the fact that the terms "deprived" and "expropriate", as used in both constitutions, broadly correspond to the concepts of police powers and eminent domain, and since measures taken in the name of environmental conservation are invariably carried out under the auspices of the States police power, it is necessary to :- (a) assess the "deprivation"-"expropriation" conflict and emphasise the ambiguity that can arise in interpreting and differentiating between the two terms; (b) draw a distinction between police power deprivations and expropriatory deprivations. Foreign jurisdictions have experienced grave problems in drawing this distinction, which has been further exacerbated by the concept of inverse condemnation. U.S takings jurisprudence is analyzed to elicit the resultant chaos which will emerge if the courts do not come up with an adequate solution. A possible solution is offered which will provide the courts with an analytical framework within which to work; and (c) assess, although to a lesser extent, the courts ability to review Parliamentary enactments and administrative action. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1996.

South Africa's protected areas are at the forefront of the county's efforts to conserve it's unique flora and fauna. The setting aside of these vast tracts of land has been the main thrust of Western conservation efforts for over two centuries. Despite the significant financial and human resources allocated to the protection of these natural areas, the extinction of many plant and animal species continues to occur on a daily basis. This study sets out to explore one of the crucial weaknesses of traditional protected areas management - the failure to incorporate and empower the people with the greatest knowledge and need of the natural resources in their areas - the local indigenous communities. In the past, the legislative focus was aimed at the total exclusion of these communities from protected areas. In South Africa, these 'preservationist' laws have been bitterly flavoured by the apartheid ideology, resulting in widespread environmental inequity and injustice for those societies targeted by racist and discriminatory policies. The thesis traces the history of the national parks concept, from its preservationist origin in the late nineteenth century United States, to modern day national parks that operate in terms of joint-management agreements in Australia and South Africa. It also exposes the detrimental effect that the establishment of national parks has inflicted on local indigenous communities around the globe. The experiences of Zimbabwe, Namibia, Canada and Australia are of particular relevance and value to South Africa in this respect. An overview and assessment of the current legal regime governing protected areas in South Africa reveals that further legislative transformation is required in order to integrate human development and wildlife conservation ideals. In particular, greater emphasis is needed to ensure the participation of local indigenous communities in the management natural resources in and around national parks. A failure to meet this objective may seriously undermine the future well-being of all of South Africa's inhabitants. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 2002.

In this study, an analysis of laws pertaining to environmental protection in the mining in Tanzania is done. The study develops understanding of various environmental laws and institutions for the purposes of setting context and clarity for the subsequent chapters. The major discussion evolves around environmental protection offered in Tanzania mining and investment laws. In understanding this, a detailed discussion of coverage of environmental issues in the Tanzania Mining Act, 5 of 1998 and the Tanzania National Investment Act, 26 of 1997 is made. After this discussion, the recommendations are given. Despite Tanzania mining, especially large-scale mining being one of the main growing industries in Tanzania, it is concluded that environmental management in mining has been hindered by inadequate legal protection, lack of coordination, insufficient funding and expertise. As a result there has been uncontrolled extraction of minerals and the use of unsafe mining methods and severe environmental damage and appalling living conditions in the mining communities. The challenge associated with the mining sector today in Tanzania is ensuring sustainability and integrating environmental and social concerns into mineral development programmes. Sustainable mining development requires balancing the protection of the flora and fauna and the natural environment with the need for social and economic development. To address the environmental problems associated with mining, the Government's policy is to reduce or eliminate the adverse environmental effects of mining, improve health and safety conditions in mining areas, and address social issues affecting local communities. EIA is recommended as one of the major tools for achieving these solutions and has been discussed. / Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2005.

Societies in Transkei, particularly those along the coast, are confronted to varying degrees by the problem and prospects of having to be removed from the areas which they have occupied for decades, sometimes from time immemorial, to make space for government schemes intended for the conservation of the environment and its resources, as determined by various conservation legislation (Chapters 3 and 4). These people have to be settled in new areas which lack the natural resources which they enjoyed in their old areas and on which they depended for their survival and their traditional style of life. What exacerbates the situation is that these removals are not accompanied by development programmes to compensate the people for their loss. Furthermore, the establishment of these conservation areas does not offer any incentives for them to appreciated and see the benefit of conservation (Chapters 5 and 6). Furthermore, although some of the conservation legislation anticipates that there should be consultations with, and participation by, the local people before the conservation programmes are implemented in order for them to present their opinions, it does not seem that the government officials charged with the control and administration of the legislation comply with this requirement. The result is that these conservation programmes are met with resistance from the local people, resulting in the government failing to attain the objectives of the legislation. This study will briefly deal with the history and development of conservation legislation in Transkei from the Colonial era (Chapter 2), and examine the provisions of the applicable conservation legislation during the self-government of Transkei including its independence up to its reincorporation into South Africa during April 1994. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1995.

This dissertation examines the regulatory measures/legislation governing the road transportation of hazardous waste in South Africa, the United States, Australia and Britain. The document compares the legislation/regulatory measures that exist in South Africa to those that exist in the United States, Australia and Britain. In so doing the document highlights the shortcomings that presently exist in the legislation/regulatory measures governing the road transportation of hazardous waste in South Africa as well as the shortcomings that exist in the legislation/regulatory measures governing the road transportation of hazardous waste in the United States, Australia and Britain and which must therefore be avoided. The document concludes by suggesting improvements which can and ought to be made to the South African law governing the road transportation of hazardous waste. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1998.

Environmental Impact Assessment (EIA) has become common as the world realise that the environment has to be managed well for sustenance of life on the planet. As the EIA has now become a sine qua non in the management of the environment, the issue is how to ensure that it is best employed to achieve the desired results. There are various approaches that countries have used in their EIA processes, but it appears that the most efficient application emanates from having a legal basis for its use. The two countries which are subjects of this study, Lesotho and South Africa, have been chosen primarily because of their geographic proximity to each other, which factor often exposes them to similar environmental experiences. Their response to such environmental challenges then becomes important. This study concentrates on statutory enactments in terms of the EIA processes by the two countries. Their EIA regimes are compared and contrasted. This is done against the background of what is considered the best international EIA practice. It is revealed that the two countries are not at par in their use of and experience with the EIA process. While Lesotho is encouraged to enrich its new practise from South African experiences with the EIA, South Africa too has some way to go towards the best EIA practice. / Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2011.

Marine resources, in particular the fishing industry, continue to play a major role in sustaining South Africa’s economy and social development and contribute to employment and security of the local community. Historically, the allocation of fishing rights was conferred upon predominantly white-owned commercial companies by the South African apartheid government. However, with the advent of democracy in 1994, the government had the responsibility to draft a fisheries policy that would aim to redress historical imbalances and this resulted in the introduction of the Marine Living Resources Act 18 of 1998. This dissertation aims critically to analyse whether this statute has been successful in remedying the issue of unequal fishing rights amongst commercial, subsistence, recreational and artisanal fishers. In undertaking this, an evaluation of the several policies that are attached to this statute will be presented and comments will be made in relation to the constitutional and political aspects of this subject. Allied to this, there will be a consideration of how international law influences the introduction of statutes relating to marine living resources. The main approach for this dissertation has been a literature review which included the use of both electronic databases and books available in libraries. The research shows that in spite of the enactment of the Marine Living Resources Act of 1998, artisanal fishers or small-scale fisheries continue to face discrimination and large commercial fisheries continue to dominate the industry. A Small-Scale Fisheries Policy was adopted in June 2012 to remedy the situation but there is currently no implementation plan in place. The major issue however is that the Act itself does not provide a definition for small-scale fishing and it would therefore have to be amended, in order to accommodate this category. / Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2012.

The growth of industrialization has increased waste pollution, especially water pollution. Industries and individuals produce pollutants that are discharged into waters. Uncontrolled water pollution results in health hazards to human beings, animals and other living things. Thus there is a need to impose water pollution control measures which can reduce pollution to an extent where very little pollutants are discharged into waters. Many states have enacted statutes for controlling water pollution, as they believe this is the best way to impose measures to achieve the safety of waters. Legislations impose measures, such as a permit and its conditions, that must be respected to discharge pollutant or trade effluent into waters, otherwise the discharger becomes a polluter and liable to criminal sanctions. Statutes create offences and penalties for water polluters. They provide fines or imprisonment, or both, and severely punish a subsequent offender. In most countries, a continuing offence is criminalised. Corporations, as well as corporate officers, are punished for the offence of polluting waters or other environmental crimes. This is because environmental law does not allow corporate officers to hide behind the legal structure of the corporation. Some measures such as remediation or clean-up orders are implemented before a prosecution is engaged, in order to ensure the protection of the environment. Environmental audit or service orders emphasise the protection of the environment and may prevent future pollution of waters. Environmental service orders rectify one of the criticisms of fine or imprisonment, in that they fail to restore the environment to its previous condition. Most environmental crimes are caused not by a deliberate intention or negligence, but by poor or ineffective management systems. As a result, environmental audit orders may be used to detect and correct an inappropriate management system. Environmental law should be a user-friendly and prosecution must be used as a last resort. This dissertation examines offences and penalties for water pollution in South Africa, the United Kingdom, the United States of America and Australia and offers a comparative analysis and recommendations for South Africa. These countries have been selected not only because they are developed and tend to have best laws, but they are also located in different continents. The examination and analysis of how they provide offences and penalties for water pollution gives a chance to South Africa to find recommendations on how it may improve its legislation and maintain its water quality. / Thesis (LL.M)-University of KwaZulu-Natal, Pietermaritzburg, 2008

The origins of marine salvage law may be traced to a code of Rhodian Sea laws promulgated in 500BC. Presently, while salvage law retains the foundations of this early codification, it has undergone a complete metamorphosis in order to adapt to changing circumstances and new challenges of the 20th and 21st century. Over the past few decades there have been many major oil spills. When they occurred each spill, for different reasons was declared as the most environmentally damaging. In their wake, they leave a trail of death and destruction of the eco-system. As public concern for and awareness of the marine environment increases, governments and salvors face increased pressure to avert wide-scale pollution. In these instances, the stakes are high and the necessity and effectiveness of professional salvage only too clear. This study investigates the role played by the professional salvor and considers how the developments in the law have impacted upon the salvor's role in salvage operations. This work has its genesis with this background in mind. It is essentially a study of the changes and developments in the law of Marine Salvage. The law relating to salvage is dynamic and international in nature. Dynamic in that it needs to adapt to new economic and environmental factors. This study examines and explains how these economic and environmental factors impacted upon and necessitated changes to the law of salvage. It is international, in that salvage operations invariably involve parties from different countries. In some instances of large-scale pollution disasters the physical environment affected may encompass different countries/waters. At times the discussion into the practical aspects of the salvage operations, salvage tugs and the industry as a whole has a tendency to become rather technical. For this I make no apology, for the world of marine salvage has totally fascinated and captured my attention. In the international context the law relating to Salvage may be found in the International Convention on Salvage 1989. Many countries have ratified the convention and have subsequently enacted their own statutes based on the provisions of the Salvage convention. Other countries like South Africa have chosen not to ratify the convention and have formulated their own Statutes relating to the salvage. The salvage laws of the United Kingdom are perhaps mostly widely used. Its popularity may be attributed to London being the salvage arbitration capital of the world as well as the influential use of LOF in salvage operations which stipulates English law as the lex contractus. The United Kingdom has ratified the International Salvage Convention and enacted the Merchant Shipping (Salvage and Pollution) Act 1994 which gave effect to the provisions of the convention. The current statute regulating Salvage is the Merchant Shipping Act of 1995. The principal focus of this work will be English law, as applied in the United Kingdom as well as South African law. Passing reference is also made to the provisions of American law where relevant. / Thesis (LL.M.)-University of Natal, Durban, 2003.

Prior to the commencement of the Convention on Biological Diversity (CBD), genetic resources were considered to be the common heritage of mankind; this principle gave the right to developed countries to obtain and freely use the genetic material of developing countries. Growing concern over the controversial ‘free access’ system and the monopolization of benefits led to the negotiation of an international treaty, the CBD, to regulate access to genetic resources and the sharing of benefits resulting from the utilisation of such resources. The CBD makes some important innovations. It recognizes that the authority to determine access to genetic resources depends on national governments and is subject to national legislation. Thus, the CBD recognizes state sovereignty over genetic resources and institutes the principles of Prior informed Consent (PIC), Mutually Agreed Terms and Benefit-Sharing. However, the CBD and other international instruments relating to genetic resources have not had the desired effect of preventing the misappropriation of genetic resources and associated traditional knowledge (TK). Developing countries suffered and continue to suffer from the piracy of their resources. This state of affairs has led to the recent adoption of the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to The Convention on Biological Diversity,’ (2010 Nagoya Protocol). This dissertation will consider the contribution of the Nagoya Protocol to the existing global and regional instruments concerning the access and benefit sharing of genetic resources. After explaining the gaps in the existing instruments, it will explore whether the Protocol is a miracle solution to the recurrent concern over misappropriation of genetic resources from biologically rich countries, or whether there is still much work to do to sort out this problem. / Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2012.