Communities sometimes hold private property rights in or adjacent to a protected
area. Section 25 of the Constitution of the Republic of South Africa of 1996 (the
Constitution) protects a person's private property in that the state may not unfairly
deprive or expropriate such private property. The interest in the environment are
protected by section 24 of the Constitution which entails that every person has the
right to an environment that is not harmful to one's health or well-being and also that
the environment has to be preserved for present and future generations.
National parks are the most valuable natural resource in terms of nature
conservation that South Africa has, as these parks harvest natural resources to be
preserved for present and future generations. The question that arises is which
restrictions are placed on owners in respect of nature conservation, and what the
constitutionality of such restrictions is. The answer this question is somewhat difficult
as both the right to property and the right to a safe and clean environment are both
fundamental rights in the Constitution, and these rights deserve protection.
That being said, it is important to understand that no right in the Bill of Rights is an
absolute right and all rights are subject to limitations. Such limitations should adhere
to the requirements set out in section 36 of the Constitution. A limitation of any
constitutional right will be accepted if it is proportional. Section 36(1) of the
Constitution amounts to a general proportionality test to ensure that any right
contained in the Bill of Rights is only limited by a law of general application and if
such limitation is reasonable and justifiable.
The National Environmental Management Act 107 of 1998 (NEMA) as well as the
National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA) can
be seen as laws of general application. NEMPA especially implies that private
property holders may be deprived of their property, if it is situated in or adjacent to a
protected area in order to conserve the environment, and this will also not be
arbitrary as the private property holders are still allowed to reside on the land in
question. NEMA as well as NEMPA makes provision that property may be
expropriated for environmental purposes subject to compensation and the provisions
of the Expropriation Act 63 of 1975. Limitation of property rights in order to protect
and conserve the environment can thus not be seen as unconstitutional or unfair. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2015
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/15631 |
| Date | January 2015 |
| Creators | Van der Merwe, Marga |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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