Melanie Murcott
University of Cape Town, Public Law, Faculty Member
- International Environmental Law, Environmental Policy and Governance, Environmental Law, Constitutional Law, Human Rights, Ecofeminism, and 9 moreEnvironmental Justice, Human Rights/Transitional Justice, Energy Law, Climate Justice, Global Environmental Constitutionalism, Administrative Law, Comparative administrative law, Social Justice, and Feminism and Social Justiceedit
- Melanie Jean Murcott is an Associate Professor in the Department of Public Law at the University of Cape Town's Insti... moreMelanie Jean Murcott is an Associate Professor in the Department of Public Law at the University of Cape Town's Institute of Marine and Environmental Law. The focus of her research is on how environmental law can advance social, environmental, climate, and interspecies justice as interconnected concerns. She is the author of 'Transformative Environmental Constitutionalism' (Brill, 2022).edit
What's in a name? That which we call a rose By any other name would smell as sweet… William Shakespeare Romeo and Juliet, Act II Scene II 1
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In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims... more
In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims of politically motivated crimes had first to be afforded a hearing before the President could exercise his power to pardon prisoners who had been found guilty of committing these crimes, and who had not sought amnesty from the Truth and Reconciliation Commission (‘TRC’). The effect of Albutt is that the principle of legality is now capable of imposing procedural-fairness standards on the exercise of public power where it would be irrational not to do so, regardless of whether the exercise of such power amounts to administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’). Surprisingly, the Constitutional Court held that it was ‘not necessary’ to determine whether the exercise of the President’s pardoning power am...
Under the current constitutional dispensation the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive.1 It does so through... more
Under the current constitutional dispensation the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive.1 It does so through judicial review. In judicial review proceedings, courts must follow a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This is what is demanded by the separationof-powers doctrine: courts ought not to invoke legal norms formalistically or arbitrarily when reviewing public power.2 In determining where on the continuum of constitutional accountability an exercise of public power should lie, we argue that subsidiarity theory plays a valuable role – particularly in the context of administrative law, where several sources of law compete with one another for application. At one end of the continuum lie the most...
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This article draws on my LLM dissertation of the same title (University of Pretoria, 2014) available at http://repository.up.ac.za/handle/2263/41187.
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South Africa’s rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of... more
South Africa’s rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of the legal responses was to introduce a moratorium on local trade of rhino horn. However, in 2015 the High Court set aside the moratorium. Subsequent appeals against the High Court’s decision to the Supreme Court of Appeal and the Constitutional Court were dismissed without a hearing. The anthropocentric approach to the protection of biodiversity under South African environmental law is reflected upon in this article. It is argued that the High Court adopted an unapologetic and uncritical anthropocentric approach to the issues before it. A legal theory of transformative environmental constitutionalism is proposed as a means to infuse litigation about global environmental problems with substantive environmental considerations, such as precaution, prev...
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In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims... more
In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims of politically motivated crimes had first to be afforded a hearing before the President could exercise his power to pardon prisoners who had been found guilty of committing these crimes, and who had not sought amnesty from the Truth and Reconciliation Commission ('TRC'). The effect of Albutt is that the principle of legality is now capable of imposing procedural-fairness standards on the exercise of public power where it would be irrational not to do so, regardless of whether the exercise of such power amounts to administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). Surprisingly, the Constitutional Court held that it was 'not necessary' to determine whether the exercise of the Presid...
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Meat production is a human activity driven by meat consumption, a human behaviour normalised in today's society. Human activity stems from particular psychological patterns (manifesting as human behaviour). It is argued that through... more
Meat production is a human activity driven by meat consumption, a human behaviour normalised in today's society. Human activity stems from particular psychological patterns (manifesting as human behaviour). It is argued that through regulating the human behaviour of meat consumption the environmentally harmful impacts of the human activity of meat production can potentially be mitigated. In particular, adopting an environmental rights perspective and a social ecological ethic, this article proposes the introduction of a meat tax in South Africa as an innovative means of regulating the human behaviour of meat consumption. In Section 1 we introduce our arguments and discuss the social, ecological, ethical and environmental rights perspective from which we make them. Next, in Section 2 we discuss some of the most significant environmental harms caused by meat production and thus, indirectly, meat consumption. Then, in Section 3 we critically evaluate the command-and-control regulat...
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South Africa is reportedly the highest emitter of greenhouse gases (GHGs) on the African continent. It is also one of the most unequal countries in the world, as millions live in conditions of poverty. As such, the country faces... more
South Africa is reportedly the highest emitter of greenhouse gases (GHGs) on the African continent. It is also one of the most unequal countries in the world, as millions live in conditions of poverty. As such, the country faces significant climate change mitigation and adaptation challenges with grave social, environmental and climate justice implications. Activists for social, environmental and climate justice might therefore be encouraged by emerging climate law and governance measures. At least three significant developments occurred in 2021: the publication of an updated Nationally Determined Contribution (NDC), the introduction of the Climate Change Bill, 2018 in Parliament, and positive action by the Presidential Climate Commission (PCC) established in December 2020. These developments are discussed in the first part of this paper. The second part of this paper engages with climate litigation in the South African courts in 2021 that exposes a sharp contrast between policy and practice. I briefly discuss what is known as the ongoing #deadlyair and #cancelcoal litigation. I then turn to consider, a judgment handed down on 28 December 2021 which prevented Shell Exploration and Production South Africa BV (Shell), a subsidiary of Royal Dutch Shell PLC, from engaging in seismic surveys to determine whether there may be hydrocarbon reserves below the sea floor in South Africa’s Wild Coast: Sustaining The Wild Coast NPC v Minister of Mineral Resources and Energy (The Wild Coast judgment). I argue that litigation in 2021 suggests that the government is intent on cementing South Africa’s reliance on fossil fuel driven energy without due regard to the social, environmental and climate injustices caused thereby and despite emerging climate law and governance.
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Meat production is a human activity driven by meat consumption, a human behaviour normalised in today's society. Human activity stems from particular psychological patterns (manifesting as human behaviour). It is argued that through... more
Meat production is a human activity driven by meat consumption, a human behaviour normalised in today's society. Human activity stems from particular psychological patterns (manifesting as human behaviour). It is argued that through regulating the human behaviour of meat consumption the environmentally harmful impacts of the human activity of meat production can potentially be mitigated. In particular, adopting an environmental rights perspective and a social ecological ethic, this article proposes the introduction of a meat tax in South Africa as an innovative means of regulating the human behaviour of meat consumption.
In Section 1 we introduce our arguments and discuss the social, ecological, ethical and environmental rights perspective from which we make them. Next, in Section 2 we discuss some of the most significant environmental harms caused by meat production and thus, indirectly, meat consumption. Then, in Section 3 we critically evaluate the command-and-control regulatory measures that currently regulate the human activity of meat production and seek in no meaningful way to regulate the psychological patterns associated with that human activity, the human behaviour of meat consumption. Lastly, in Section 4 we propose a meat tax, a type of market-based mechanism, as a regulatory measure which we argue could serve to influence human behaviour in order to reduce meat consumption and give better effect to the environmental right.
In Section 1 we introduce our arguments and discuss the social, ecological, ethical and environmental rights perspective from which we make them. Next, in Section 2 we discuss some of the most significant environmental harms caused by meat production and thus, indirectly, meat consumption. Then, in Section 3 we critically evaluate the command-and-control regulatory measures that currently regulate the human activity of meat production and seek in no meaningful way to regulate the psychological patterns associated with that human activity, the human behaviour of meat consumption. Lastly, in Section 4 we propose a meat tax, a type of market-based mechanism, as a regulatory measure which we argue could serve to influence human behaviour in order to reduce meat consumption and give better effect to the environmental right.
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South Africa's rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of... more
South Africa's rhino population is under threat of extinction due to poaching for purposes of illegal international trade of rhino horn. The South African government has thus far been unable to regulate rhino poaching effectively. One of the legal responses was to introduce a moratorium on local trade of rhino horn. However, in 2015 the High Court set aside the moratorium. Subsequent appeals against the High Court's decision to the Supreme Court of Appeal and the Constitutional Court were dismissed without a hearing. The anthropocentric approach to the protection of biodiversity under South African environmental law is reflected upon in this article. It is argued that the High Court adopted an unapologetic and uncritical anthropocentric approach to the issues before it. A legal theory of transformative environmental constitutionalism is proposed as a means to infuse litigation about global environmental problems with substantive environmental considerations, such as precaution, prevention and equity. These principles could facilitate a more ecocentric orientation towards the application of environmental laws.
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This chapter on a legal theory of transformative environmental constitutionalism is an attempt at progressive legal scholarship. It seeks to engage with the concerns of pressing social movements responding to environmental degradation in... more
This chapter on a legal theory of transformative environmental constitutionalism is an attempt at progressive legal scholarship. It seeks to engage with the concerns of pressing social movements responding to environmental degradation in South Africa. It does so by introducing the concept of transformative environmental constitutionalism. The aim of the concept is to bridge a juridical and, as a result, practical, divide in legal discourse between environmental considerations on the one hand and social justice considerations on the other. It is trite that under environmental law, the concept of sustainable development, in theory, concerns the integration and balancing of environmental, social and economic considerations in environmental decision-making. That is not the focus of this chapter. Rather, this chapter considers how environmental law can contribute towards radical societal change and the attainment of socio-economic entitlements in an unequal and unjust society. This, change is demanded by South Africa’s project of transformative constitutionalism.
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ABSTRACT In 2011, the UN Guiding Principles on Business and Human Rights (“Guiding Principles”) for the first time established an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked... more
ABSTRACT In 2011, the UN Guiding Principles on Business and Human Rights (“Guiding Principles”) for the first time established an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. These were the product of many years’ research and extensive consultations by UN Special Representative John Ruggie involving government, companies, business associations and civil society around the world. The Guidelines described how states can better manage business and human rights challenges based on the three pillars “Protect, Respect and Remedy” Framework: 1) the state duty to protect human rights, 2) the corporate responsibility to respect human rights, and 3) the need for greater access to remedy for victims of business related abuse. This common paper analyzes the challenges faced as a result of large-scale infrastructure projects, in particular dams. The experiences of five countries are considered – Turkey, Spain, Brazil, India and South Africa – in light of national and international law and the UN Guiding Principles.Dams present particular challenges. They are long-term projects, unlike other businesses. Their impact on local communities is more enduring, ranging from environment to social issues, from national development policies to the resolution of the country’s energy and resource needs, and they have potential human rights impacts, arising from land expropriation, to forced eviction, and to the displacement and resettlement of local communities, and the compensation of victims. But most importantly, they fall beyond John Ruggie’s important UN Guidelines on Business and Human Rights, making this current study especially significant for that reason alone. As we will see, the interests of foreign investors, international treaty obligations, as well as the demands of global institutions such as the World Bank are in addition also further factors that complicate the state’s response – political and legislative – to the challenges raised by dams.The experience of the five countries highlights how legislative, judicial, and executive initiatives have an increasingly important role to play in navigating around these myriad interests. Sections II and III of this paper focus on the legislative experiences of South Africa and Spain, respectively, while section IV explores the various challenges faced by Brazil in the protection of the rights of local population during the two phases of dam development: planning and bidding, and construction and outsourcing. Sections V and VI examine the legislative, political and judicial responses to the issues raised by large scale dam development in Turkey and India.
Prior to KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal (KZN JLC) commentators and the courts were in agreement that "the way has been left open" for the development of the doctrine of substantive legitimate... more
Prior to KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal (KZN JLC) commentators and the courts were in agreement that "the way has been left open" for the development of the doctrine of substantive legitimate expectation in South African law, so that a court could, in the future, afford an expectant party’s substantive legitimate expectation (i.e. the expectation of a particular outcome) substantive – as opposed to mere procedural – protection. In KZN JLC the opportunity arose to develop a doctrine of substantive legitimate expectation, but the Constitutional Court declined to do so. Instead, a new legal mechanism was created to enforce a "unilateral publicly promulgated promise by government to pay". In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KZN JLC. I address the court’s refusal to develop the doctrine, and analyse the creative approach adopted in KZN JLC in respect of the enforcement of a unilateral and publicly promulgated promise by government to pay, from the perspective of whether this creative approach amounted to the invocation of the doctrine by another name. I then consider the implications of KZN JLC for the development of the doctrine of substantive legitimate expectation in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay is "subversive of PAJA and the scheme in s 33 of the Constitution".
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Under the current constitutional dispensation in South Africa the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive branch.... more
Under the current constitutional dispensation in South Africa the judiciary is not only constitutionally authorised, but also constitutionally obliged, to oversee exercises of public power; including the conduct of the executive branch. It does so through judicial review. In judicial review proceedings, courts must follow a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This is what is demanded by the separation-of-powers doctrine: courts ought not to invoke legal norms formalistically or arbitrarily when reviewing public power.
Subsidiarity theory offers a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This article elaborates upon subsidiarity theory in South Africa in the context of the judicial review of exercises of public power, and explains how courts have endorsed it, but also how they have flouted it.
Subsidiarity theory offers a principled and justified approach to choosing the appropriate standards on a possible ‘continuum of constitutional accountability’ against which impugned exercises of public power should be measured. This article elaborates upon subsidiarity theory in South Africa in the context of the judicial review of exercises of public power, and explains how courts have endorsed it, but also how they have flouted it.