IT IS likely that a Pietermaritzburg High Court judgment, which found that municipalities had the power to legislate to protect the environment, will end up in the Constitutional Court, a Durban lawyer said on Wednesday.
Judge Shyam Gyanda’s ruling last month brought KwaZulu-Natal’s legislative milieu in line with international law relating to sustainable development.
This included the Rio Principles, which require that the environment be considered at every step during planning phases and integrated into the lowest levels of government, said Cape Town law firm Cullinan & Associates, which represented the City of Cape Town as a friend of the court.
However, the environmental ruling by Judge Gyanda is binding only in KwaZulu-Natal.
Durban attorney Richard Evans said his clients, led by local businessman Rob le Sueur, had applied for leave to appeal to the Supreme Court of Appeal in Bloemfontein.
"It is 99% certain it will land up in the Constitutional Court because if our client wins at Bloemfontein, the municipality will appeal (to the Constitutional Court)," he said.
The Rio Principles refer to a list of 27 principles for sustainable development agreed to at the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, in 1992.
Judge Gyanda ruled that the eThekwini municipality had the power to legislate to protect conservation areas within its jurisdiction, and to legislate for "split zoning" for development and development-free areas.
Mr le Sueur and his associates had argued that in doing this the municipality had acted beyond its powers and that legislation to protect the environment was a national and provincial competence.
The constitution guarantees, in the bill of rights, the right to an environment that is not harmful to health or wellbeing; and to have the environment protected, "for the benefit of present and future generations, through reasonable legislative and other measures".
Judge Gyanda said there was "nothing in the bill of rights itself to suggest that protections ... offered by the constitution were only binding on national and provincial spheres of government. Quite evidently these obligations apply to all three spheres of government."
Mr Evans said his clients were not opposed to protecting the environment, but that the municipality’s split-zoning legislation had declared as conservation areas places with alien trees, tennis courts, horse paddocks and swimming courts on them. These could not be said to be worthy of protection.
He said his clients would have preferred the municipality to have visited their properties before zoning them for environmental protection. Instead, it appeared the zoning was unscientific and arbitrary.
No date had been set for a hearing on leave to appeal.