Apathy is a terrible thing. It disempowers good people and creates space in which bad people can do terrible things. Just look at what is happening at our universities where the lie that is the so called peaceful protests and the apathetic response of many vice chancellors and their management teams is destroying the future of our children and grandchildren.
But it need not be like that. One must not underestimate the power of ordinary people saying “No, I will not stand back and watch what I care about being destroyed; I will stop you”. As the saying goes “The only thing necessary for the triumph of evil is for good men to do nothing” is countered by the truth that good people can move mountains when they put their minds to it.
The trout fight is a marvellous example of this.
Good people have for some thirty years countered the rising tide of invasion ecology driven eco neo fascism by simply saying no. The story of that fight is a very interesting one that will find its way into a book one day. It is in some ways a vignette (admittedly of the leafy suburbs variety) of the broader canvass that is South Africa’s journey to nationhood.
Thus, we see trout being brought to South Africa, not as some have suggested as a colonial fish but rather as an economic enabler that encourages tourism and increases property values. The success of those early ventures which coincidentally underpinned the formation of many of the provincial conservation agencies led to concerted efforts after the Second World War to boost recreational fishing especially for white South Africans.
Into this mix arrives grand apartheid with its embedded notions of racial superiority and the idea of homelands. Paradoxically, though grand apartheid was justified by invoking ideas of racial superiority based on the pseudoscience that is scientific racism, it was also driven by the fear that black people, if left unhindered, would out-compete white people, especially poor whites.
One should not underestimate the important role played by fear in the development of grand apartheid or the realisation that the fear was misplaced in its destruction.
Grand apartheid is an important part of the story of trout because of the impact it had on environmental thinking in this country. And no, it is not just because some scientists and environmental officials were also Afrikaner nationalists who saw trout as “engelse vis”.
The story is much more nuanced than that. So please forgive me while a depart from the main theme of my narrative and take some time to unpack the development of what scientists call invasion ecology but which could equally be called environmental nationalism or as one African post doc researcher described it to me, green apartheid.
The uncomfortable truth is that the link between modern day environmentalism and racism is a close one, sometimes so close that it is hard not to make comparisons.
It is not just that Ernst Haeckel who is the founder of modern ecology was a racist who believed that so called woolly headed races as being less evolved specimens of Homo sapiens than their Caucasian counterparts.
Fear is also an important part of the mix.
One cannot, for example, ignore the importance of fear about a coming apocalypse to much of modern day environmental thinking. One also cannot ignore this fear tends to encourage likeminded people to flock together which in turn encourages extreme cases of them and us thinking.
Ernest Haeckel’s writings were foundational to Nazi party ideology. Hitler’s vision of a German master race and the need for lebensraum was driven by the idea that Germany could not sustain its increasing population and must accordingly take more land while weeding out lesser humans to protect the future of the master race. Ernest Haeckel’s writings were material in to the development of this thinking which led ultimately to the death of tens of millions of people through war famine and genocide.
Hitler may be dead. The idea of race as being anything more than a matter of appearance may also be thoroughly discredited, but one would be a fool to think that ideas of racial superiority do not still occupy mainstream thinking, even in the most technologically advanced countries. It would also be a mistake to think that notions of a superior right to existence no longer exist in science.
The fact is that a great deal of environmental thinking is based on the idea that some species have a superior right to existence over other species. This in turn arises out of the fear that humans are alien to nature and are in fact in the process of destroying nature.
This idea is foundational to the development and existence of the environmental science that we today call invasion ecology.
The idea that species that occur naturally in an area have a superior right to existence over species that were introduced by humans was first mooted by Charles Elton after the Second World War and during the early stages of the Cold War. It is perhaps not surprising therefore that his was a fearful apocalyptic vision of alien species building bridgeheads from which they would invade the natural balance that existed before.
His writings did not find favour at first. Despite concerns about “reds under every bed” and the possibility of nuclear annihilation, not to mention the general hardship that existed after the World War 2, mainstream environmental thinking was less apocalyptic, less anti human and more focused at finding ways of developing human health and wellbeing sustainably. However, Elton’s fearful siege mentality did find fertile grounds in the minds of South African environmental scientists who were quick to champion his cause.
It should come as no surprise that invasion ecology attracted South African scientists back in the 1960’s and 1970’s. This was the time when South Africa was implementing the apartheid driven homeland policy. The idea of everything having its proper place where it rightfully belonged was very much in vogue back then as was the belief that much of South Africa was not in fact populated by Africans when the white man arrived and was thus defensibly “free for the taking”.
You could say invasion biology was tailor made for the South African mind-set. So, it was that while Charles Elton may have given birth to invasion ecology, the child was raised through its formative years in Apartheid South Africa. Indeed, the ground rules that manage invasion ecology thinking around the world were largely written by South African scientists working in the 1970’s and early 80’s.
What is more surprising is that having established a bridgehead in South Africa, it quickly gained ground in in the United States, the United Kingdom, Canada, Australia and New Zealand. I was told very recently by a visiting European academic that it is also beginning to gain ground in Europe.
My original impression was that this was largely driven by fear of an environment apocalypse but given the recent Brexit vote, the rising tide of anti-immigrant feelings in Europe and the election of Trump as president of the United States, I wonder if we are not looking at something more visceral.
With the benefit of hindsight, it should not come as a surprise that South African environmental officials and scientists turned publicly against trout in the 1980s.
But it did come as a huge surprise.
The relationship between trout anglers and environmental authorities had been downright cosy up until then. As I mentioned earlier, many provincial conservation authorities grew out of the need to propagate and protect trout. Grand apartheid was a means to protect trout from poaching by Africans not to eradicate them.
The sudden ascendancy of the idea of trout as a dangerous invading alien was an incomprehensible betrayal. It was akin in many ways to waking up one morning after many years of marriage to discover that your wife is trying to poison you!
Emotions are conflicted at times like these and thinking becomes confused. There is a tendency to deny the obvious, to say that this cannot be. Perception and societal norms were very different back in 1986 to what they are now.
I was a 26-year-old articled clerk back in 1986 when the trout wars started. Though I was not fishing much at the time, I did count myself as a trout angler. I was also very much part of the apathetic mass of trout anglers who thought that this could never happen.
My confidence was based upon the fact that I knew the leadership cadre of what was then the Natal Parks Board. Many of them were avid trout anglers. In fact, many now play key roles in defending trout! It was inconceivable that this massive well of support would be lost.
It also has to be said that the country was in a death spiral at the time and that we did not have a legal system based on the idea that people had rights. Remember we did not have rights back then. Such rights that existed reposed in things like property and race and rather than people. Parliament reigned supreme.
So, opportunities to defend trout on a national basis were limited. It must be remembered that South Africa was isolated and unloved back then. The urge for affirmation was a powerful one. South African invasion ecologists were not only being recognised abroad, they were hailed as the pathfinders of a new science. The science was also popular amongst white South Africans who having being rejected internationally were looking for ways to connect to Africa. Indigenous gardening and nature conservation was a way of doing this.
The nationalist government strongly supported these initiatives. Thus, the only way to defend trout was to try and persuade those in power that getting rid of trout was a very bad idea. I was not inclined to persuade the government of the time about anything, my view being that they were racists, killers and thieves who should be locked up. On the other hand, I did not like communist thinking either, so finding balance in an unbalanced world bereft of any anchors of human decency was not easy. It was a difficult time. It was a time when it was easy to be apathetic.
Thankfully there were some trout anglers who did take up the cudgels and who were prepared take on the Herculean task of persuading a morally bankrupt government to do the right thing. So FOSAF (The Federation of Southern African Fly Fishers) was born.
For a while FOSAF did great things. But the trouble with engagement is that one has to compromise with the thinking of those you are dealing with. This is not a bad thing in itself. As Churchill said “jaw jaw is always better than war war”. But it is equally true that one should use a long spoon to sup with the devil.
Getting that balance right has not been easy.
On the one hand FOSAF can be justifiably proud of the major role it has played in developing fly fishing for yellowfish. This is directly as a result of FOSAF trying to find common ground with environmental authorities.
On the other hand trying to find common ground with environmental and conservation authorities has resulted in FOSAF becoming disconnected with its angling base. Engagement resulted in a perception at least of FOSAF taking on the colouring of the very thing it was created to oppose. I see the intervention of Ilan Lax as a timely counter to this internal destruction of the organisation and the future of trout. Ilan is a human rights lawyer and was part of what we now call “the struggle”.
Ilan’s influence in putting the trout story is as a space that can be defended, cannot be underestimated.
The truth is that recreational fishing is in a bad space at the moment with many anglers assuming as of a right privileges that were in truth won by ignoring the rights of others often on the basis of race. Ilan confronted the trout leadership nearly two decades ago with what were at the time unpleasant truths and they were decent enough to acknowledge the truth in what he was saying and start taking steps to address this.
He introduced rights based approach into FOSAF’s thinking and with Bill Bainbridge and Jake Alletson crafted a set of principles which would guide FOSAF’s thinking and actions. This gave rise to FOSAF’s policy document and position paper on trout.
One can with the benefit of hindsight find a lot wrong with the FOSAF trout position paper but the FOSAF policy document is a remarkable document of which FOSAF can justifiably be proud.
But FOSAF had a problem. Its whole ethos was built on positive engagement with environmental authorities. This was appropriate but only if the environmental authorities were acting lawfully. As our university vice chancellors are learning to our cost, strategies based upon positive engagement only work when both parties agree to abide by the rules. They fail when this is not the case. And let’s face it FOSAF and the cause of trout anglers was failing a few years ago.
My contribution to defending trout was to point out that the environmental authorities were acting unlawfully and to persuade FOSAF and others to engage with environmental authorities on the unlawfulness of their actions. I had the tremendous advantage in all of this of being a newcomer both to the oxymoron we call environmental law and the trout fight. This gave me a fresh perspective that had been lost in the hurly burly of trying to engage with environmental authorities.
Thus, I was able to ask what should have been the obvious question - that is how on earth government can be promoting oppressive permit-based systems aimed at enforcing pejorative notions of alienness under a constitution that celebrates the rights of a nation united in its diversity?
It is incredible when you think about it that environmental thinking based around invasion ecology thinking forged in South Africa at the height of grand apartheid could survive into the constitutional era. But it has not only survived, it has flourished. I identified this fact and its inherent incompatibility with the Constitution as the underbelly of environmental law and policy making in South Africa.
Now it has to be said that raising constitutional arguments in present day South Africa, especially on matters dear to what is a largely white and largely privileged trout fishing elite is easier said than done. While it is encouraging that South Africans generally support the Constitution it is also true that many South African’s including those in our educated elites, haven’t a clue what the Constitution stands for or how to defend their rights under the Constitution. The idea of citizenship is still a novel one.
I hope our future will follow a path that will allow us to recognise the heroic role played by our post-apartheid Chief Justices and their brother and sister judges on the Constitutional Court. If we have a future founded on equality, human dignity and celebration diversity it will be due in no small measure to their wisdom and foresight.
I mention this because for once in my life I got lucky. Not only was a selling an idea at the same time as the Constitutional court started elaborating on them, I was also selling those ideas to a community of trout anglers who had already been sensitised to what it means to have rights. Ilan lax was already there and he while not in complete agreement with everything I was saying, he quickly got the point and was prepared to throw his weight in behind it.
There are many champions of the trout cause (too many to mention in this article) but Ilan Lax stands out for me as one of the greatest of the greats.
So, I was planting a seed in prepared ground when I asked the question; if the environmental right is a human right and the environment is defined in terms of human health and wellbeing, how can alien species be bad and how is it that trout and many other species can be declared invasive?
Ilan was thus able to shift FOSAF’s strategy from one of trying to find common ground with environmental authorities to my idea attacking the legality of what environmental authorities are doing. We hit them hard, developing and refining this argument with help from the trout fishing community and lo and behold what seemed to be the impregnable walls of Jericho began to crumble and fall.
This is because it turns out we were not fighting alone. Happily, most South Africans are decent people even most of those working within government. It turns out all you have to do to bring about change is to uncompromisingly plug away at doing the right thing. You do not have to be powerful or rich or even that clever. If you do the right thing the rich and powerful and clever who also want to see the right thing being done will find you.
Victims also have a habit of finding one another, especially in this modern world of easy communication. The truth is that the trout fishing community is not the only victim of the unlawful constitutionally misaligned environmental extremism we are experiencing in South Africa today. Many other sectors are similar afflicted and like us they are beginning to fight back.
That is the nub of it. We are now living in an age and in a country where you cannot be apathetic. You cannot expect politicians to look after your interest, especially if you are not prepared to do so yourself. You need to actively fight for your rights and that means fighting for the rights of others. Dignity and decency are the catchwords that underscore successful efforts in this regard. They are the foundation of what FOSAF has been trying to do for decades.
You must not give in.
The trout fishing community has not given in.
The rest as they say is history. Trout were not declared invasive back in October 2014 when 559 other species suffered that fate. Happily, it does not look like this will happen any time soon. This does not mean that the fight is over. Far from it. Invasion ecology thinking is a hardy invader that has captured the hearts and minds of our environmental authorities. They are still trying to do bad by trout.
The fight against trout is an absurd one at so many levels. No other country in the world is trying to do to trout what South Africa’s environmental authorities are attempting. The whole plan to control and eradicate alien invasive species is a mad cap scheme that is reminiscent of the kind of grandiose insanity that characterised grand apartheid. It is simply unworkable and unaffordable.
It is also unscientific. Trout are a significant contributor to eco systems services. The thousands of hectares that are husbanded in South Africa to sustain trout create nurturing habitats for other species that would not fare as well if that land was turned over to commercial agriculture. Sensitive river systems that would otherwise be left to degrade beyond the public eye are championed and sometimes rehabilitated through the efforts of trout anglers.
Much of the so-called research upon which invasion ecologist rely to discriminate against trout is opinion rather than fact based. What passes for fact is very thin on the ground and on closer scrutiny generally proves to be inconclusive. The truth is that invasion ecologists shamefully talk up the threats posed by trout. Their campaign is more of propaganda war than the serious and objective pursuit of science.
Then there is the law. Environmental authorities and invasion ecologists justify their actions saying they are science-based. But scientific opinion and indeed any expert opinion has no standing in law unless the opinion speaks in a rational way to proven facts. But scientists who campaign against trout seldom deal in the world of proven fact. Theirs is a community of likeminded opinions.
It should come as no surprise therefor that the outcome of this driven attempt to make laws results in laws that are inherently unlawful, often making environmental authorities the real law breakers rather than the those they accuse of breaking the law. The truth is that what environmental authorities seek to do is often massively misaligned with the Constitution, its values and indeed the rule of law.
This is becoming increasingly apparent as more and more people start challenging environmental authorities in our courts.
This is not a good thing. Authorities who act in contempt of the law will inevitably undermine the law. As we are seeing more and more that leaves anarchy and what is an oppressive application of State power as the only regulators of our day to day health and wellbeing. Any university student will tell you that this is a horrible way to live.
It is also true that racism is on the increase internationally. This is despite science proving that there is no such thing as race and that appearances can indeed be deceiving. The idea of species evolving from a primitive state to an advanced one is not a universal truth. Evolution is pretty chaotic in truth and natural selection or survival of the fittest is not its be all and end all.
Sadly, despite a lot of real science that points the other way, invasion ecology thinking of the kind practised by our environment authorities is a beneficiary of this rising tide of anti-alien sentiment built on hierarchical notions of superiority and an inherent right to belong. The idea that people have rights is increasingly under attack. Indeed, the idea that people are aliens and as such do not have rights, lies at the heart of this thinking.
South Africa and South Africans should not be praise singers of this dark and dirty past. The reality is that racism is bad for civilisation but it is particularly bad for Africa. Our future as a country, as a continent and the future of human civilisation requires us to go another way.
It depends on us doing the right thing.
Why are so very few fly fishers members of FOSAF? Do the right thing - Join FOSAF
Letter to Environmental Affairs
BY E MAIL
TO: The Honourable Minister of Environmental Affairs: Ms Bomo Edna Molewa
c/o This email address is being protected from spambots. You need JavaScript enabled to view it.
COPY TO: The parties listed in Annexure “B” to this letter
11 October 2017
Dear Minister
Re: The widespread failure to properly publish draft laws for comment as required in terms of sections 99 and 100 of the National Environmental Management Biodiversity Act, 2004.
Information supplied to me by your department that is tabulated in Annexure “A” to this letter reveals that the requirements set out in sections 99[1] and 100[2] of the National Environmental Management Biodiversity Act, 2004 or NEMBA has not been properly followed in respect to any of the laws to which these sections apply. This means that it is more likely than not that these laws are all unlawful. Yes it is probable that just over ten years of law making under NEMBA fails because you and your predecessors failed to ensure that due process was followed in the making of these laws.
It is reasonable to assume, given the wholesale failure of your department to apply the law properly in relation to NEMBA, that laws passed in terms of the other National environmental management legislation (NEM Acts[3]) will also be similarly affected. If this is true then the environmental legislation and governance at a national level is compromised.
You are under a positive duty to investigate and take steps to remedy this.
The purpose of this letter three fold:
- I ask that you acknowledge that the situation described in Annexure A and in this letter indeed means that the affected measures implemented in terms of NEMBA are unlawful; on account of a failure to follow the legally required process.
- I ask that you take immediate steps to remedy this situation such steps to include inter alia:
- An immediate halt on the promulgation of any affected draft laws that have not been promulgated.
- An immediate halt on the further implementation of affected laws until a properly sanctioned remediation process can be developed and approved.
- I ask that you investigate if there are similar instances in the case of the other NEM Acts and if so likewise acknowledge this and take immediate steps to remedy the situation.
Sections 99 and 100 of NEMBA require that you as Minister to publish a notice in the Gazette and in a newspaper calling for representations within 30 days of the date of publication in the Gazette. The notice must also contain sufficient information to enable the public to make meaningful representations.
This is not a mere formality. Considerable prejudice and harm results from a failure to comply with these sections. This is because these sections underpin the constitutionally important right all South Africans have to participate in government, not just through the ballot box, but also by making representations on proposed laws before the legislature and government exercises their law making powers.
The Constitutional Court has equated this right to participate in law making through the exercise of the right to be consulted as important as the right to vote.[4] The prejudice that flows from a failure to comply with these requirements has a profoundly adverse effect on the integrity of human rights, democracy, good governance and the rule of law.
This passage from the Doctor’s For Life Case is worth repeating.
“[108] Thus the Constitutional Assembly, in framing our Constitution, was not content only with the right to vote as an expression of the right to political participation. It opted for a more expansive role of the public in the conduct of public affairs by placing a higher value on public participation in the law-making process. As Ms. N Mokonyane, a Gauteng member of the NCOP, has recently noted:
“Our struggle against apartheid was necessitated not just by our hatred of the apartheid system, and the suffering and the injustice it inflicted on the people of our country; it was also inspired by our vision of a democratic alternative as opposed to a system based on an institutionalised racialism and exploitation.
Our struggle was inspired in particular by our vision of a nonracial and democratic South Africa in which the people shall govern.
A key aspect of our vision of democracy was obviously the right to vote. The idea that every citizen, regardless of their race, colour or creed, was entitled to stand for elections and to vote in them. But our vision of democracy also went beyond simply voting every five years.
We were also inspired by the idea of a participatory democracy as well as a system in which the people of our country would on an on-going basis participate in and have a say in every aspect of the lives in workplaces, communities, streets and schools.”
[109] This is reflected in the very nature of our constitutional democracy.”
Annexure “A” reveals your failure and that of your predecessors to either publish the requisite notice in a newspaper at all or to do so timeously. Publication in a newspaper is important as this passage from the judgement in the Rhino Horn Moratorium Case confirms:
[19] “‘In at least one newspaper,’ must be guided by the members of the public likely to be affected by the exercise of the power. Seen in the light of the diversity of the South African population and the historical background and many languages, to allow proper public participation and to submit meaningful representations or objections, especially in the present case, where the moratorium has substantial consequences, one would have expected the Minister to be more proactive and go beyond the minimum requirement. That, however, did not happen, and worse, there has not been compliance with the minimum requirement by notice of the proposed moratorium ‘in at least one national newspaper’.”
Annexure “A” contains many instances where your department is unable to show that there was any publication in a newspaper at all. Ms. Garlipp[5], who corresponded with me on behalf of your department regarding these matters, tries to put a brave face on this by alleging that your department cannot locate the advertisement. I don’t know what the point of this is. Perhaps the argument will be made that the public must assume that the notice was properly advertised if it cannot be located. But that would be an incorrect assumption. You and your Department bear the onus of showing that due process was complied with. If you cannot do this then one must assume that this did not happen.
This also seems to be the reasonable conclusion to draw in the circumstances. It is not, after all, as if this has not happened before. Notice of the Draft 2014 Alien Species Lists and Regulations was not published in a newspaper until I asked at a meeting of stakeholders in Pretoria if this had been done. The initial response of officials in your department was that this was unnecessary which is a more likely explanation as to why your department cannot produce a record of the any publication in a newspaper pertaining to the 2007 and 2009 draft alien and invasive species lists and regulations than them being “unable to locate the notice”. This is not the only case where the requisite notice was not published in a newspaper.
You and your Department tried to appeal the judgement in the Rhino Horn Moratorium Case all the way to the Constitutional Court. You were unsuccessful at every turn. The legal position remains as it has always been, a failure to publish a notice in a newspaper as required in terms of sections 99 and 100 of NEMBA makes that law unlawful and as such it must be set aside as void ab initio.
The unanimous judgement of the court in the Rhino Horn Moratorium Case is expressed in these terms:
“[36] Inasmuch as the Minister wishes to find substantial compliance in the Gazette and in the publications referred to above, and other publications referred to during oral argument, all did not meet the peremptory requirements in sections 99 and 100. To find substantial compliance in the circumstances of the present case, would render the provisions of sections 99 and 100 of no use and will serve to undermine and infringe everyone’s constitutional right enshrined in section 24 of the Constitution. The decision to impose a moratorium is consequently ought to be reviewed and set aside.”
Annexure “A” reveals a great many laws that fail on this ground. These include impactful laws such as the Threatened or Protected Species or TOPS Regulations, and the CITES Regulations as well as important management tools such as the Biodiversity Management Framework[6] and management plans pertaining to rhino, lions and cycads.
The purpose of publishing notices in a newspaper is to notify members of the public of their right to make representations on measures you intend taking in terms of NEMBA. The 30 day period is what the legislature considered reasonably necessary to do this. It is regarded by our courts as a minimum period. You will recall that your department sought to justify its failure to publish a notice inviting comments on the draft of the Rhino Horn Moratorium on the basis that this had been spoken about in newspapers. It is as the court found at paragraph 33.5 of that judgement:
“The requirement in terms of section 100 is that members of the public must be given at least 30 days within which to make representations or to submit objections. That did not happen and therefore just like with other publications, it was complete non-compliance with the provisions of sections 99 and 100.”
Ms. Garlipp acknowledged this is a minimum period in a letter to me dated 24 April 2014 when she wrote the “section does not require that the newspaper notice and the Gazette notice be published simultaneously but merely that it invites comments to be submitted within 30 days of the Gazette notice being published (this is a minimum period).”
And of course this must be so for anything else would render this provision of no use which “will serve to undermine and infringe everyone’s constitutional right enshrined in section 24 of the Constitution.”
Ms. Garlipp, pointed, in her more recent correspondence with me regarding this non publication issue, to sections 97(4) of NEMBA which she says operates so that non-substantial amendments to regulations need not go through the process prescribed in sections 99 and 100. She also referred me to section 47A(2) of the National Environmental Management Act, 1998 or NEMA which says that noncompliance may to be condoned where this is not material and does not cause prejudice.[7]
This is correct but the issue of what is material or prejudicial or procedurally unfair must of course be addressed from a human rights based perspective rather than that of the convenience of officials.
The excuse tendered, in Ms. Garlipp’s letter of 6 October 2017, that your department’s inability to deal effectively with its supply chain management issues is not a valid reason for condoning noncompliance with the section. It is devoid of any merit at both a legal and practical level. It is, after all, not difficult to publish a notice in a newspaper on the same day as it appears in the Gazette. People have been doing this successfully for many years. Most national newspapers provide an efficient service that makes this easy and the Government Printer works tirelessly to make publication in the Gazette as easy as possible.
When one talks of materiality and prejudice one is dealing with the legal question of substantial compliance. The Constitutional Court held in the Bergrivier Municipality Case[8] that this enquiry requires a holistic purposive approach that looks at whether the steps taken “are effective when measured against the object of the Legislature, which is ascertained from the language, scope and purpose of the enactment as a whole and the statutory requirement in particular[9]”.
The delays in publication tabulated in Annexure “A” are not immaterial or non-prejudicial. The failure to timeously publish notices in newspapers is not a matter of occasional inadvertence. It is the norm. Annexure “A” reveals that you did not publish the notice timeously in a newspaper at all. There is not one case where this was done. The fact it is the norm speaks to substantial noncompliance of worryingly large proportions that compromises the legitimacy of everything you, your predecessors and your department have done.
Annexure “A” shows that you and your predecessors have routinely, and for at least a decade, treated with contempt the right everyone has to participate in government, to be consulted and to make representations. These important constitutional rights have been reduced to a mere tick box exercise to be implemented in a lackadaisical manner as you and your department see fit. The integrity of human rights including the environmental right has been prejudiced by this failure to comply with Sections 99 and 100 of NEMBA. The rule of law and democracy has been compromised as a result.
This failure to advertise in a newspaper is only part of the problem. It is the tip of the iceberg. Annexure “A” does not address the other problem that arises with many of the measures listed in Annexure “A”, namely that in many cases no information or insufficient information was provided to enable members of the public to consult meaningfully. It is as the court held at paragraph 26 of the judgement in the Rhino Horn Moratorium Case:
“A notice without a background and in the circumstances, without the reasons for the exercise of a power, will not enable members of the public to submit meaningful representations or objections.”
This is not the primary focus of Annexure A or indeed this letter but Ms Garlipp can confirm that your department refused to tell me how various species were identified as invasive in the 2014 draft lists and regulations because it was said this was beyond the its capacity and therefore unreasonable to expect it to do this.[10] It was alleged that it was therefore unreasonable of me to make this request. This of course begs the obvious question of how a government can make a law if it cannot tell the public why it is necessary.
The result of this failure is that representations regarding the 2014 AIS regulations have been largely legalistic.
As it turns out the real reason your department failed to explain what it was doing was that it knowingly applied a definition of invasive that is incompatible with the legal definition set out in NEMBA[11]. In short it abused the process to pursue agenda’s that are incompatible with NEMBA and indeed the Constitution.[12]
The proof of this particular pudding has been in the eating. A recent draft report that was published on these regulations[13] reveals that they are being ignored by government and the public alike.
This is one example of what is a widespread failure to provide the public with sufficient information in order to enable them to make meaningful representations. This failure requires further investigation and also needs to be remedied.
But this letter addresses the much narrower issue of lack of proper publication of draft notices in the requisite newspaper and it is to that failure that I now return.
The legal conclusion one draws by applying the rationale set out in the judgement in the Rhino Horn Moratorium case[14] as well as the principles regarding consultation and public participation that are explained in a number of judgements of the Constitutional Court[15] is that most all of these laws are unlawful and liable to be set aside ab initio as a consequence of the failure to publish a notice calling for comments on the draft in a newspaper at or to do so timeously.
Yet your department refuses to acknowledge the self-evident truth of this situation continuing to maintain, as it does, that other consultation measures adopted by it somehow remove the need to comply with NEMBA and what it has done is somehow substantially complaint.
This conduct can only be described as disgraceful.
The excuses put forward by your department are made even worse by the fact that it is not as if your department was previously unaware of this problem. The public has been complaining about its failure to consult as is legally required for years. I first raised the issue of a failure to properly publish notices with your department in March 2014[16], but your department chose to ignore this and subsequent warnings and has proceeded as if the law does not matter.
This demonstrates that your department does not accept that the environmental right is a human right and has no intention of implementing its constitutional mandate to implement reasonable legislative and other measures necessary to ensure that our environment is not harmful to our health and wellbeing. The court handing down the judgement in the Rhino Horn Moratorium Case was right when it ruled that to “find substantial compliance in the circumstances of the present case, would render the provisions of sections 99 and 100 of no use and will serve to undermine and infringe everyone’s constitutional right enshrined in section 24 of the Constitution.[17]”
Its failure to align its values and thinking with those enshrined in the Constitution means that it cannot explain its real intentions or consult properly as it is obliged to do. Such consultation that does take place is reduced to the kind of tick box set pieces that the public so often complains of. Real consultation is compromised by these failures as is proper compliance with due process.[18]
This not only speaks to a fundamental disconnect between what your department is doing and what our laws and the Constitution say your department must do, it amounts to maladministration and an abuse of power by government. Again I have warned you and your department repeatedly of this only to have these warnings fall on deaf ears.
The reasonable conclusion to draw from all of this is that your department thinks that it is above the law. What makes this even worse is that it is acting in an unlawful manner in making penal laws that can and have resulted in people being punished and imprisoned in terms of laws that themselves are unlawful and unjust.
The findings and the reasoning of the Constitutional Court not to mention and the Court’s dismay, expressed in the judgement in the in the recent Cash Paymaster Services Case[19] speak appropriately to the situation that pertains here. A government department cannot expect to function if it acts above and beyond the law and should not be allowed to continue doing so. It must not be allowed to treat the rights of the public with contempt.
You need to take urgent steps to remedy this situation. That regrettably is easier said than done. This is because it is difficult to comprehend the magnitude of the wrongdoing that Annexure A reveals. It is simply unprecedented in this country though not completely unheard of in the annals of legal history.
A few years ago all laws passed by the state of Manitoba were declared unconstitutional because they had not been promulgated in French[20]. Temporary relief was granted to enable this to be remedied. This is not unlike the situation in the recent Cash Paymaster Services Case.
But is not just a case of withdrawing laws so that they can be republished properly, though that clearly must be done. The situation in this case is much more complex. This is because one is dealing with the failure to observe important matters of process that go to the heart of just law making. The failure to deal with this appropriately cannot effectively be remedied by something as simple as a translation.
Moreover the problem is not just technical. Your department’s failure to comply with simple matters of due process when making laws speak to much deeper systemic failings of values, thinking and perspective that need to be addressed if this situation is to be remedied.
The truth is that your department is far more likely to see people as being the problem than to care about their rights.
Your department is meant to introduce and implement measures that promote human health and wellbeing but in truth are treating people on the basis they are the mischief that laws need to address rather than the beneficiaries of these laws. This has resulted in an attempt to centralise power under a regime where government acting as custodian of our environmental right increasingly seeks to bring the use and enjoyment of natural resources under state control.
It seems that your department is really trying to extend state control rather than take reasonable legislative and other measures that preserve and protect our right to an environment that is not harmful to our health and wellbeing. It is as if it wants to treat South Africans as its children subject to the custodial rule of a parent.
When government seeks to act in this way, it is as Robert Sobukwe said in 1959 during the opening address of the Pan Africanist Congress[21]. It reduces South Africa to a child nation whose people are treated as the boys and girls of the State. It is the antithesis of what human rights are meant to be.
Taking rights away from people and placing them in the custody of the state does not protect those rights. It replaces them with state power. The exercise of power by the state in circumstances where people do not personally enjoy rights is normally called oppression.
The measures underpinning participatory government which are being ignored by your department are an important countervailing force against the baleful influence of corrupt and oppressive state hegemony.
The practical situation is that laws that have been introduced without following due process are unlawful and should as a general rule be withdrawn. There may be exceptional cases where South Africa’s people will suffer considerable harm if this were to be done and it may be necessary to apply the kind of discretion that our Constitutional Court spoke of in the Local Government Transition Act case in 1995 and the Cash Paymaster Services Case[22]. Fortunately there will not be many exceptions of this nature. This is because there is already a longstanding raft of other laws that can be relied on. It is also because a great deal of what passes for law under NEMBA has failed or is already failing and can thus be officially done away with.
What cannot and must not happen is for your department think that in can find a safe refuge in the rule set out in the judgement in the Oudekraal Case[23] and continue to apply these laws on the basis that they are presumed to be lawful until a court of law sets them aside as unlawful.
That principle was developed to address occasional cases where laws lack legality. The application of the principle in cases where there has been a wholesale failure of due process in law making makes a mockery of the law itself and the rule of law. It will result in increasing noncompliance, contempt for law and ultimately civil insurrection.
As I said at the beginning of this letter, you are under a positive duty to act. You cannot sit back and watch events unfold. You cannot assume that what is unlawful will be deemed to be lawful until a court sets it aside.
Minister you swore an oath upon taking office of faithfulness to the Republic and obedience to the Constitution.
Your department is conducting itself in a manner that is irreconcilable with your oath. You are complicit in this by virtue of the office you hold. You are responsible. It is my heartfelt wish and plea that you take immediate steps to remedy this situation. I am not so naïve, however, to think that this is a given.
It is for this reason that this letter is being and will be distributed widely along with the attached correspondence with your department that give rise to it.
Yours faithfully
sent electronically and therefore unsigned.
Ian Cox
Cox Attorneys
[1] Section 99 -Consultation
(1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance with this section and section 100, the Minister must follow an appropriate consultative process in the circumstances.
(2) The Minister must, in terms of subsection (1)-
(a) consult all Cabinet members whose areas of responsibility may be affected by the exercise of the power;
(b) in accordance with the principles of co-operative governance set out in Chapter 3 of the Constitution, consult the MEC for Environmental Affairs of each province that may be affected by the exercise of the power; and
(c) allow public participation in the process in accordance with section 100.
[2]Section 100- Public participation
(1) The Minister must give notice of the proposed exercise of the power referred to in section 99-
(a) in the Gazette; and
(b) in at least one newspaper distributed nationally, or if the exercise of the power may affect only a specific area, in at least one newspaper distributed in that area.
(2) The notice must-
(a) invite members of the public to submit to the Minister, within 30 days of publication of the notice in the Gazette, written representations on, or objections to, the proposed exercise of the power; and
(b) contain sufficient information to enable members of the public to submit meaningful representations or objections.
(3) The Minister may in appropriate circumstances allow any interested person or community to present oral representations or objections to the Minister or a person delegated by the Minister.
(4) The Minister must give due consideration to all representations or objections received or presented before exercising the power.
[3] National Environmental Management Waste Act, National Environmental Management Air Pollution Act, National Environmental Management Protected Areas Act and the National Environmental Management Integrated Coastal Management Act.
[4] See, for example, paragraph 115 of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; - http://www.saflii.org/za/cases/ZACC/2006/11.html See also paragraphs 87 to 89 of Land Access Movement of South Africa and others v Chairperson of the National Council of Provinces and Others (CCT40/15) [2016] ZACC 22 - http://www.saflii.org/za/cases/ZACC/2016/22.html
[5] Ms Garlipp is Chief Director of Law Reforms and Appeals at the Department of Environmental Affairs.
[6] The review of this framework is now considerably overdue.
[7] Section 47A(2) of NEMA states that: “The failure to take any steps in terms of this Act or a specific environmental management Act as a prerequisite for any decision or action does not invalidate the decision or action if the failure-
(a) is not material;
(b) does not prejudice any person; and
(c) is not procedurally unfair.”
[8] Liebenberg NO and Others v Bergrivier Municipality (CCT 104/12) [2013] ZACC See - http://www.saflii.org/za/cases/ZACC/2013/16.html
[9] Paragraph 25 of the judgement of Mhlantla AJ in Liebenberg NO and Others v Bergrivier Municipality
[10] Ms Garlipp wrote to me on 24 April 2014 saying it “is not economically possible or feasible to expect the Department to publish all the background information and reasoning which gave rise to the draft regulations and this is not the intention of the section.” This was in response to submissions made by Trout SA and FOSAF (that were attached to my e mail to your department of 14 March 2014) objecting to and making representations regarding the Draft 2014 Alien and Invasive Species Regulations that “the Minister must, when republishing the Notices, also make available the fish sanctuary area maps and the reasons for each proposed listing. A failure to do means that the Notices will not contain sufficient information to enable members of the public to submit meaningful representations or objections as is required by section 100(2)(b) of the NEM:BA.
[11] See – A national strategy for dealing with biological invasions in South Africa where invasive species is defined incorrectly as “species that sustain self-replacing populations over several life cycles, produce reproductive offspring, often in very large numbers at considerable distances from the parent and/or site of introduction, and have the potential to spread over long distances” - http://www.durbanflytyers.co.za/Articles/National_Strategy_02_Apr_2014.pdf
[12] Trout SA and FOSAF made this point in representations to the Parliamentary Environmental Portfolio Committee see http://www.durbanflytyers.co.za/Articles/170811_Representations_To_Enviro%20Prtfolio_Comm.pdf
[13] See National Status Report on Biological Invasion in South Africa Draft 1 for comment - https://www.sanbi.org/information/documents?field_documentcategory_value_many_to_one=Reports&keys=invasions
[14] Kruger and Another v Minister of Water and Environmental Affairs and Others (57221/12) [2015] ZAGPPHC 1018 - http://www.saflii.org/za/cases/ZAGPPHC/2015/1018.html
[15] See, for example, paragraph 115 of Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; - http://www.saflii.org/za/cases/ZACC/2006/11.html See also paragraphs 87 to 89 of Land Access Movement of South Africa and others v Chairperson of the National Council of Provinces and Others (CCT40/15) [2016] ZACC 22 - http://www.saflii.org/za/cases/ZACC/2016/22.html
[16] See note 52 supra
[17] Paragraph 36 of the judgement in the Rhino Horn Moratorium Case see note 56 supra.
[18] Section 2(4)(f) of the NEMA principles set out in NEMA (which must be applied to all actions by government in connection with the environment) making and state that the “participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.”
[19] Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 See - http://www.saflii.org/za/cases/ZASCA/2013/29.html
[20] See Re Manitoba Government Employers Association and Government of Manitoba 79 DLR (3d) 1 referred to in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] ZACC 8 See http://www.saflii.org/za/cases/ZACC/1995/8.html
[21] See http://www.sahistory.org.za/archive/robert-sobukwe-inaugural-speech-april-1959
[22] See note 62 supra
[23] Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others (25/08) [2009] ZASCA 85 - http://www.saflii.org/za/cases/ZASCA/2009/85.html