Moving the Brown Agenda Forward: From Corporate Environmental Governance to Government Governance at the Local Level

The \u27brown agenda\u27 is part and parcel of the contemporary environmental law discourse and refers inter alia to the reduction of threats to health and human well-being that arise from poor sanitation, overpopulation, insufficient water provision, air and water pollution and inadequate waste management. Brown issues are understood to impact on humans at a local scale / at the local level and often impact the poor and low-income groups. Despite the fact that the brown agenda falls within the purview of the protection afforded by international, regional and domestic environmental law, a number of judgments of the courts between 2009 and 2012[1] has shown that in South Africa, environmental law still remains largely unexplored in communities\u27 efforts to judicially protect brown (agenda) interests. Curiously, in cases involving poor sanitation, inadequate access to water of good quality, and access to adequate housing and electricity, the affected parties to date, relied in most instances on non-environmental rights and law. This is notwithstanding the fact that South Africa has a very strong environmental law framework embedded in a widely construed enforceable constitutional environmental right (section 24 of the Constitution of the Republic of South Africa, 1996). In South Africa, local government is together with national and provincial authorities co-responsible for realising the constitutional environmental right of people. It is furthermore constitutionally mandated to provide services in a sustainable manner and to promote a safe and healthy environment (chapter 7 of the Constitution). A very firm constitutional and statutory basis is laid for local environmental governance, generally. As is the case in many other countries, the brown agenda falls within the constitutional mandate and scope of regulatory powers of local government that comprises of 284 municipalities. In fact, at the heart of local environmental governance lies the realisation of brown agenda objectives. In spite of the relevant constitutional and environmental law provisions and the brown agenda mandate of local government, municipalities have battled in recent years to optimise local environmental governance across South Africa. It is widely acknowledged that at present, local governance (including local environmental governance) is in \u27deep distress\u27. A whole range of political, governance, resource related and other socio-economic complexities is to be blamed. This status quo demands that existing local environmental governance approaches, tools and decision-making institutions be thoroughly revisited. Against the background of the above, the proposed paper critically evaluates and discusses the recent extension and adaptation of corporate governance approaches, tools and institutions to fit public sector governance, including local (government) governance in South Africa. The paper specifically questions to what extent the implementation of the objectives and mandates of local government contained in the King Report on Governance for South Africa (2009) and the King Code of Governance Principles (2009) (together referred to as King III) is a viable way of improving local environmental governance and more specifically, of seeing by means of governance measures, to the protection of life-supporting brown agenda interests of local communities. [1] These judgments include, amongst others: Mazibuko v The City of Johannesburg 2010 (3) BCLR 239 (CC); Joseph v City of Johannesburg 2010 (4) SA (CC); Nokotyana v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC) and Ntombentsha Beja v Premier of the Western Cape [2011] ZAWCHC 97