Greening the judiciary
AbstractMuch of South Africa’s environmental law is relatively new. Most of South
Africa’s judges received their formal legal educations before promulgation of the major part of our environmental law and almost certainly before
environmental law was taught at universities. In recent years, there have been increasing instances of cases involving environmental matters coming to the courts. How are judges performing in these cases? It would appear that the judges’ performance is rather 'chequered' in environmental cases, which suggests that the judiciary needs to become more attuned to environmental law. I call this process, for purposes of this note, ‘greening the judiciary’. What I mean by this is not that judges must decide all environmental cases in a way that favours the environment, but that they must correctly consider, interpret and apply the relevant environmental law, and give environmental considerations appropriate deliberation. This note aims to identify, in admittedly somewhat general terms, the current state of environmental decision-making by judges and to suggest what needs to happen for such decisions to be improved.
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