Alternative dispute resolution: a mechanism for resolving enviromental disputes in South Africa

Abstract

Environmental disputes are ever present. In view of the nature of and the complexity of environmental disputes apposite and unique alternative dispute resolution mechanisms are indispensable for resolving environmental disputes speedily, proficiently and effectively. Section 34 of the Constitution of the Republic of South Africa, 1996 provides the right to have disputes resolved by means of a public hearing before a court, alternatively, where appropriate, by means of an independent, impartial forum. The National Environmental Management Act 107 of 1998 (NEMA) provides alternative dispute resolution mechanisms. The study identifies the provisions of the NEMA, which provides the Alternative Dispute Resolution (ADR). The study also identifies and examines the ADR provisions from other parts of the environmental legislation. These alternative dispute resolution mechanisms are informal and non-litigious. The ADR has not been utilized in environmental disputes in South Africa, although the NEMA provides it. The study examines the nature and requirements for the ADR mechanisms. The study entails an analysis of how these requirements make the ADR mechanisms appropriate for environmental dispute resolution instead of litigation. Litigation has failed to adequately resolve environmental disputes. The study identifies the disadvantages of using litigation in environmental disputes instead of the ADR. This study analyses the influence of international environmental law on South Africa’s environmental legislative developments. The study further identifies international environmental legal instruments which provide for the ADR. These international environmental legal instruments have conventions and resolutions to which South Africa is a party. The study further examines the specific international legal instruments which have been incorporated into the law of the Republic of South Africa. The study will explore the potential of the ADR in resolving environmental disputes, and also examine the benefits of the ADR when utilised to resolve environmental disputes. Finally, the study makes recommendations and suggestions that aim to encourage the use of the Alternative Dispute Resolution in resolving environmental disputes.