Judicial Approach to the Application of Section 24(b)(i) of the Constitution on the Duty to Prevent Pollution through ‘Other measures’ in South Africa A

Abstract

Pollution is one of the world’s triple planetary crises. In South Africa, it is no less of a challenge as it continues to disproportionately harm vulnerable populations and pose a threat to their right to quality air, water, and an adequate standard of living. Section 24(b)(i) of the Constitution of South Africa provides that the state must prevent pollution through ‘reasonable legislation’ and ‘other measures’. The state has put in place several reasonable legislation to address pollution, which has been a subject of interpretation in several cases. These include the National Environmental Management Act (NEMA) and the National Environmental Management: Air Quality Act (NEMAQA). Yet, legal scholarship is limited on what the phrase ‘other measures’ means in the context of Section 24(b)(i) of the Constitution of South Africa. Courts are vested with interpretive functions and are not neutral concerning theories of interpretation. However, a judicial interpretation has not been placed on this phrase, which signifies that its meaning remains in limbo in the context of environmental pollution. Employing a doctrinal legal research methodology, this study” engages with the challenge of pollution and how key theories of judicial interpretation may assist with applying the phrase ‘other measures’ to address pollution in South Africa.