Browsing by Author "Kidd, Michael Anthony."

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Almost three years after commencement of the Spatial Planning and Land Use Management Act 16 of 2013: An analysis of challenges to its implementation with relation to planning applications and appeals.
(2018) Maleham, Neil.; Kidd, Michael Anthony.; Ramdhin, Avishkaar.
No abstract available.
An analysis of Nigeria's domestic application of the Convention on Biological Diversity.
(2014) Fatokun, Gbemisola Olumuyiwa.; Kidd, Michael Anthony.
While biodiversity has played a major role in sustaining human existence on earth, the world has witnessed the decline of these biological resources over the last century, with several species of flora and fauna being driven into extinction while others are either endangered or vulnerable. The international community, through the platform of the United Nations, convened the Earth Summit in Rio de Janeiro, Brazil, in 1992 to address the numerous challenges faced by the environment, including biodiversity loss. During the summit, the Convention on Biological Diversity was one of the international instruments opened for signature. The Convention was signed by Nigeria and subsequently ratified in 1994. However, to date, Nigeria has not domesticated the Convention into its laws. In order to determine to what extent the Convention is being implemented in Nigeria, this study examines the activities of the authorities which conform to the strategies incorporated in the articles of the Convention. While the analysis shows that Nigeria has taken some actions which substantially comply with some of the provisions of the Convention, it demonstrates that it has failed to repeat this in relation to other provisions. The findings also show that in instances where there is compliance, for example through the promulgation of policies and establishment of facilities for conservation, fundamental problems such as lack of proper enforcement and poor management culture are still evident. This study makes valuable recommendations for improving Nigeria’s compliance with the objectives of the Convention, by identifying biodiversity conservation activities taking place in other jurisdictions, especially South Africa.
An analysis of South Africa's statutory regime pertinent to the risks of hydraulic fracturing.
(2013) Motala, Ayesha.; Kidd, Michael Anthony.
The production of energy is vital for the survival of mankind –we rely on the supply of energy in all sectors of the economy, ranging from the generation of electricity which ensures the functioning of households and industries, to the manufacturing of petroleum and diesel from fossil fuels. Energy production largely depends on the burning of fossil fuels, such as coal, which contributes significantly to levels of pollution as well as environmental degradation. The supplementation of coal with the usage of natural gas that is located underground is viewed as being a more environmentally sound method of power generation. Hydraulic fracturing (or ‘fracking’) is the process applied in order to extract natural gas from deep below the earth’s surface. However, speculation has arisen regarding the environmental risks and consequences of the fracking procedure which has caused debate about how environmentally safe this method actually is. Subsequently, the need for legislative and regulatory mechanisms is essential in order to establish applicable procedures that govern hydraulic fracturing and to guarantee that fracking occurs in a manner that is not harmful to the environment, with remedies being available if such harm does transpire. The Karoo Basin in South Africa is an area facing the implementation of hydraulic fracturing.Currently, various national legislation exists that may govern fracking and its effects, however no distinct statute is available which specifically applies to hydraulic fracturing in its entirety. This research study will assess the adequacy of South Africa’s current legislative scheme in relation to hydraulic fracturing and its potential polluting effects, while discussing whether the legislative system is suitable in its application or whether it lacks relevance to those ecological ramifications.
A analysis of the Minamata Convention on Mercury and its implications for the regulation of mercury in South Africa.
(2017) Ross, James Connor.; Kidd, Michael Anthony.
An analysis of the South African law relating to involuntary displacement caused by infrastructure development.
(2020) Bhengu, Sicelo Benswick.; Kidd, Michael Anthony.
Abstract available in PDF.
An appraisal of the implementation of the UNCCD in Africa : a case study South Africa, Cameroon, Kenya and Morocco.
(2014) Naeke, Sixtus Mougombe.; Kidd, Michael Anthony.
This dissertation examines the implementation of the United Nations Convention to Combat Desertification and/ or Drought particularly in Africa, (hereinafter referred to as the UNCCD). It reveals that of the 41 per cent of dry land ecosystems which covers the earth surface, about one third of the world’s population live in dry land areas, and an estimated 325 million people in Africa also live in these areas being faced with problems such as food insecurity, migration, poor sanitation caused primarily by desertification, land degradation and drought. The dissertation presents an evaluation of regional and sub-regional programmes working in partnership with the Convention to meet its objectives in Africa. The dissertation provides a critical analysis of the national action programmes (NAP) of South Africa, Cameroon, Kenya and Morocco selected as the case studies for this research, representing each of the sub-regions of Africa. In so doing, the dissertation seek to provide a better understanding of the effectiveness of the NAP of the case study countries, using the bottom-up approach required by the Convention, and identifies the gaps through comparing the similarities and differences of the approach of the selected case study countries. Finally, through the consideration of the NAP of the case study countries and other African regional partners facilitating the Conventions implementation, it distils some recommendations as the way forward for the UNCCD effective implementation.
An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria.
(2012) Oyende, Kayode Babatunde.; Kidd, Michael Anthony.
This dissertation titled ‘An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria’ examines whether the law governing oil pollution in Nigeria is satisfactory in so far as determining issues of liability and compensation for oil pollution are concerned. The thesis examines a research hypothesis on the determination of the question whether the law adequately caters for victims of oil pollution occurring in the inland, territorial and maritime waters of Nigeria and if not, what are the observable defects and how can these defects be remedied. Not only has there been a considerable environmental degradation in Nigeria occasisoned by oil exploration and exploitation, particularly in the areas around the Niger Delta, but there has been serious socio-economic consequences pertinent to sustainable development of Nigeria as a nation. These impacts and the government’s attempts to tackle the problems have been the focus of this thesis.
Biodiversity conservation on private land : an international perspective and lessons for South Africa.
(2008) Van Niekerk, Catherine Britt.; Kidd, Michael Anthony.
Conservation agreements have been used successfully around the globe for the conservation of biodiversity on private land. In South Africa however, their use to this end has largely been overlooked. Conservation mechanisms in the country have focussed primarily on traditional methods; establishing and managing protected areas identified as having some form of conservation significance. At present only 5.8% of land in South Africa is conserved in statutory protected areas, however government has committed itself to increasing this percentage to 8%. Furthermore, many of the country's biodiversity-rich areas are situated on private land and are currently afforded little or no protection. The cost of purchasing the land is not only financially prohibitive but also socially unacceptable and consequently alternative conservations mechanisms need to be explored. This study provides a comparative analysis of the legislation governing conservation agreements in the United States, Canada, Australia and New Zealand and highlights several common key provisions which have contributed to the success of these agreements. It also provides recommendations on possible changes to the South African legislation to allow for a more effective contribution by private landowners to biodiversity objectives and targets within the country. Although the study establishes that conservation agreements can be accommodated within South Africa's legal system it acknowledges that the success of these agreements is largely dependent on complex interactions between effective policy, supporting institutional arrangements, and attractive incentives. It cautions that if these agreements are to work in South Africa, then careful consideration needs to be given not only to tailor-making the legislation to the South African environment but also to establishing incentives which facilitate "buy-in" from landowners.
The clean development mechanism : a comparison between South Africa and China.
(2012) Murray, Ryan Jeremiah Finbarr.; Ramdhin, Avishkaar.; Kidd, Michael Anthony.
The Clean Development Mechanism (CDM) is the only mechanism available for use by developing nations. It is there for highly important for the inclusion of these developing nations in the climate change regime. A consideration on the early implementation of the CDM in South Africa and China, being two countries with many similarities and differences and vastly different successes, provides important lessons on how to approach the climate change regime. Certain barriers exist purely due to the nature of countries in which the CDM applies as well as other barriers found within the CDM project life cycle and development. Through the comparison these barriers are explored and areas for development within South Africa are noted as well as weakness with the current climate change regime particularly the Kyoto Protocol.
The climate change and freshwaters nexus: possible implications for water treaties on the transboundary tributaries of the Congo River.
(2019) Malassi, Joseph Longunza.; Kidd, Michael Anthony.
While it is widely predicted that climate change will cause a significant decline of water availability in diverse regions of the planet, it is also established that the same phenomenon will cause frequent and intense floods in many other regions of the globe, including the Congo River basin, in Central Africa. This basin, which houses the second-largest tropical rain forest in the world is under threat of seasonal floods due to climate change. Studies concerning the impact of climate change on the basin’s hydrology have revealed that the phenomenon will cause an increase of approximately 10 to 15 percent of the run-off of the basin, and a rise of about 11 to 17 percent of the Congo River’s discharge, by the year 2050. The Congo River is the main outlet of the Congo basin. It discharges approximately 45,000 cubic metres of waters per second in the Atlantic Ocean, of which one third are the waters from the Congo River’s transboundary tributaries. Eleven to seventeen percent in addition to what already exists suggests a higher likelihood of intense seasonal floods across the Congo River basin. The 1997 United Nations Convention on the non-navigational uses of international watercourses has required water cooperation across river basins in order to jointly adopt the appropriate measures including the laws, to address the predicted impacts of climate change. However, the consulted literature has given very little interest in this matter as far as the Congo River basin is concerned. Furthermore, no previous study has examined the legal implications thereof. This thesis has, therefore, tried to comprehend the implications that these climate change impacts on the hydrology of the Congo River basin will have on the laws that govern the Congo River and its transboundary tributaries. This thesis has at first assessed the legal framework that governs the Congo River and its transboundary tributaries against Cooley & Gleick’s criteria framework, which verifies the integration of the climate change dimension in transboundary water treaties. At a second stage, this thesis has undertaken a comparative analysis of the said regime with the flood management regime that is in place in the Rhine River basin. From the analysis undertaken in this thesis, it has transpired that the legal regime that governs the Congo River and its transboundary tributaries has not adequately integrated the climate change dimension. Furthermore, it is deprived of any flood management provision or mechanism, thus suggesting an alarming vulnerability to floods along the Congo River especially. Inspired by the Rhine flood management regime, and having elucidated the hydro politics at play across the Congo River basin, this thesis has formulated some critical recommendations that aim at equipping the basin with an adequate flood management legal regime.
A comparative analysis of approaches to air pollution control.
(1999) Akinnusi, Abimbola Olabowale.; Kidd, Michael Anthony.
Abstract available in PDF.
A comparative analysis of the adequacy of the current legal and financial security provisions governing closure and rehabilitation of mines with specific reference to South Africa.
(2016) Matola, Amin.; Kidd, Michael Anthony.
Abstract not available.
A comparative study of legislation relating to the establishment and management of wildlife protected areas in South Africa and Tanzania.
(2006) Laltaika, Elifuraha Isaya.; Kidd, Michael Anthony.
In the last two decades, conservation of biodiversity has moved from being a preserve of wildlife enthusiasts into forming a lead agenda in the world conferences. Many Conventions and declarations also came into being within this time frame. In the national level, different jurisdictions have enacted pieces of legislation that are in line with the Conventions. To delineate part of a country's territory as a Protected Area and manage it by a legislative enactment is the most reliable way of conserving the said biodiversity. This is because; well managed, Protected Areas have a proven capacity to preserve diversity of species as well as their respective genetic materials in their natural state. This thesis is an attempt to study laws relating to the establishment and management of Protected Areas in a comparative perspective. South Afiica and Tanzania have been chosen as case studies. The two countries are endowed with abundant biodiversity and have signified their willingness to conserve the said biodiversity by enacting pieces of legislation and by signing various regional and international Conventions. An assessment of the current laws of the two countries reveal that the new constitutional dispensation in South Afiica has enhanced the enactment of (despite some pitfalls) exemplary provisions that are worthy emulating by Tanzania whose many laws are a relic of its colonial past.
The constitutional obligations and authority of provincial organs of state in South Africa to protect the environment through reasonable legislative measures.
(2017) Cronje, Catharina Magdalena.; Kidd, Michael Anthony.
No abstract provided.
The contribution of developing countries in the global effort to tackle climate change: analysis of the transition from the Kyoto protocol to the Paris agreement.
(2016) Malassi, Joseph Longunza.; Kidd, Michael Anthony.
The urgency to reduce current greenhouse gases emissions from both developing and developed country parties to the United Nations Framework Convention on Climate Change to stabilise the global temperature increase to 2 degrees Celsius or well below at the end of the present century has led the international climate change diplomacy to adopt the 2015 Paris Agreement on climate change in replacement to the Kyoto Protocol after it expires in 2020. Although substantially nuanced in its approach, the Paris Agreement represents as a new climate change treaty, a significant regime shift for developing countries, because it puts them under a legally binding obligation to undertake emission mitigation activities, conversely to the Kyoto Protocol which left them free from any obligation. This is because the objective of stabilising the global temperature increase at 2 degrees Celsius as said above requires considerable mitigation efforts from all countries, urged to undertake a transition towards fully decarbonised economies by the half of this century. In order to determine to what extent the greenhouse gases emission reduction regime has for developing country shifted from what it was under the Kyoto Protocol to what it has become under the Paris Agreement, the study focuses on two following questions: (i) What are the differences and the similarities between the greenhouse gases emissions mitigation regime under both treaties, and, (ii) what are the implications of those probable differences or similarities for the developing countries? Whereas at a first glance the analysis shows that there are not much substantial elements of comparison between the two regimes instituted by the two climate change treaties, a closer consideration of the characteristics of the new universal regime under the Paris Agreement has offered pathways for an intensive regime comparison between Kyoto and Paris. Analysis further allowed us throw lights on the implications of the differences and similarities of both regimes for the group of developing countries. The study at last makes valuable recommendations for a successful implementation of the Paris Agreement by Developing countries, especially the poorest among them.
Copenhagen and beyond : a legal analysis of the recent climate change negotiations and decisions and their contributions towards the future international climate change regime.
(2015) Chidarara, Darlington.; Kidd, Michael Anthony.
Climate change has been described as the most complicated problem that the world faces today but the most serious problem that the world faces in the future. The problem of climate change is caused by an increase of greenhouse gases (GHGs) emissions in the atmosphere. During the past 150 years, human activities have led to an exponential growth in GHG emissions. Their heavy concentration in the atmosphere results in an increase in the warming potential of the atmosphere leading to global climate change. This can result in a number of adverse environmental effects. In 1992 in Rio, countries negotiated and joined the United Nations Framework Convention on Climate Change (UNFCCC) which had as its ultimate objective to achieve the stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Negotiations to strengthen the global response to climate change led to the adoption of the Kyoto Protocol in 1997. The Protocol’s first commitment period ran from 2008 to 2012. Since the Kyoto Protocol entered into force, the UNFCCC’s aim became to negotiate what would happen after the protocol’s expiry. However, due to the complexity nature of the climate change problem and the negotiations themselves, the solution finding process has suffered serious lack of progress. This resulted in parties in 2011, deciding to extend the life of Protocol from 2013 to 2020. In continued attempts to negotiate the protocol’s successor, Conference of Parties (COPs) (The COP is the ultimate decision making and supreme body of the UNFCCC authorised to make and implement decisions to promote the implementation of the UNFCCC. It is authorised to adopt new protocols under the UNFCCC and plays a substantial role in the development of new obligations by the parties to the convention) meet annually. In so doing, the COPs contribute to the evolution of the international climate change regime. The aim of this study is to critically evaluate the extent to which the recent annual climate change negotiations (COP 15 to COP 19) have contributed to the legal evolution and shaping of the future climate change regime. The COP outcomes will be analyzed within legal lenses and in an attempt to answer the main research question; three fundamental mitigation related legal questions will be discussed. These three questions are: (i) What approach is likely to be adopted in the future climate change regime between a bottom up and a top down approach? (ii) What is the likely legal form and architecture of the future climate regime? And, (iii) What are the most likely interpretations of the nature and extent of differential treatment between developed and developing states in such an instrument? After such an extensive critical analysis of the COP decisions, a possible prognosis of the structure of the anticipated future climate regime will be given.
Critical analysis of the independence of environmental assessment practitioners in South Africa.
(2020) Buthelezi, Gugulethu Patricia.; Kidd, Michael Anthony.
Environmental Assessment Practitioners (EAPs) are at the centre of the Environmental Impact Assessment (EIA) process. Their competence and ethics, therefore, are crucial in facilitating the EIA process. This research aims to analyse the extent to which the current South African (SA) EIA regulations ensure EAP independence. The key findings from other professions that place emphasis on independence reveal that factors such as financial interest, prior relations and managerial advisory services, competency, contractual arrangements, close personal relations and government and political influence interfere with independence. In the SA context, the independence of EAPs continues to be debated even after vigorous changes in the EIA regulations. The recent regulation of the EAP profession in SA marks a much-needed intervention. However, it does not guarantee EAP independence while they are still being appointed by the project proponent. Results from Kenya and Botswana do not expressly state in their EIA regulations that they have EAP independence. It appears that international practice places more emphasis on the views and opinions of the affected communities during the public participation process rather than EAP independence. In parallel, Intervenor Funding is adopted to provide financial assistance to the affected communities to encourage their participation during the EIA process in order for the process to be objective. Thus, there is still potential to strengthen EAP independence in SA. In order to achieve the desired outcome of independence, the Competent Authority (CA) must appoint EAPs on behalf of the project proponents rather than allowing EAP-client relationships. Moreover, adoption of the Intervenor Fund concept, where EAPs will be compensated for their services, is a concept that SA should consider.
A critical analysis of the Kyoto protocol's second commitment period.
(2013) Morchio, Juan Manuel Sabio.; Kidd, Michael Anthony.
Over the last four decades, the issue of climate change has drawn a rather great amount of attention in the international environmental law arena. Starting in 1992 with the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), climate change began to be addressed for the first time as an international concern and at an international level. The adoption of the UNFCCC was merely a framework Convention without any actual greenhouse gas emission reduction targets. Nevertheless, in 1997, the Kyoto Protocol to the UNFCCC was adopted and it entered into force in 2005. Such Protocol gave enforcement to the principles and objectives of the parent framework Convention. The Protocol consisted of a first commitment period which began in 2008 and concluded in 2012. Such period imposed obligations on all Parties but only compulsory emission reduction targets on developed countries. The distinction between both worlds was due to the principle of common but differentiated responsibility (CBDR). After the conclusion of the first commitment period, there was large uncertainty regarding the future of the Kyoto Protocol as there was no other legal regime in existence for the post-2012 period. This gave rise to heated debates at various Conferences of the Parties (COP’s). Fortunately, in 2012 at Doha, Qatar an amendment to the Kyoto Protocol was adopted which ultimately created a second commitment period between member Parties and it extended the Protocol from 1 January 2013 until 31 December 2020. This thesis will primarily focus on the Kyoto Protocol’s second commitment period, coupled with the legal issues which have had to be addressed in order to ensure a seamless transition onto the second commitment period. Thereafter, an analysis will be provided regarding the potential efficacy of the second commitment period and whether this will be sufficient to curb global climate change. The author is of the view that by the culmination of this thesis, the reader would have an up-to-date understanding of the current status of the international legal climate change regime. This will enable the reader to comprehend what the member Parties needed to decide in order for a second commitment period to emerge and how it will work. Lastly, the time of writing is as of July 2013.
A critical discussion of the legality of South Africa’s lion bone trade.
(2020) Tigere, James Tendai.; Kidd, Michael Anthony.
On 28 June 2017, the then Minister of Environmental Affairs, Edna Molewa, set a legal quota of 800 lion skeletons (with or without skull) from the captive-bred population, making South Africa the world’s largest legal exporter of lion bones and skeletons. The figure of 800 appears to be based on the average lion bone trade over the previous ten years. In June 2018 the quota was hiked to 1 500, later slashed to 800 in December 2018, in line with the recommendation of the Parliamentary Portfolio Committee on Environmental Affairs that the quota be reconsidered. This dissertation argues that the quotas set in 2017 and 2018 for the export of lion bone skeletons were unlawful and unconstitutional and did not follow due process, as the decision did not comply with the administrative law requirements of legality, reasonableness and fair procedure. Animal welfare is one of the most contentious issues in debates about captive breeding and the trade in lion bones. These debates point to an important gap in animal welfare policies and laws in South Africa, with both the Department of Agriculture, Rural Development and Land Reform and the Department of Environment, Forestry and Fisheries reluctant to assume responsibility. The North Gauteng High Court in 2019 ruled in favour of the National Council of Societies for the Prevention of Cruelty to Animals, also known as the National Council of SPCAs, set aside the 2017 and 2018 quotas for the export of lion bones and declared them unlawful and invalid.
The effectiveness of environmental law in Malawi : an analysis of the principal legal tools for achieving environmental protection with emphasis on the criminal sanction.
(2006) Kalima, Justin Moses.; Kidd, Michael Anthony.
The magnitude of environmental degradation in Malawi suggests that environmental law has not been effective. While inadequate enforcement of the law is certainly a significant cause of ineffectiveness, it is demonstrated that the other cause is the current normative state of the law. Malawi uses three traditional legal tools for achieving environmental protection: the criminal sanction, administrative measures and civil measures. An examination of the current environmental laws reveals that the criminal sanction is the primary tool prescribed in Malawian environmental circles. From a stage when the criminal sanction was used to reconcile the parties to a dispute and to discipline the recalcitrant party, the criminal sanction has evolved to the current stage when its purposes are retributive and utilitarian. It is contended that in the context of environmental protection the most acceptable aspect of retribution is just deserts, especially the notion of proportionality. With regard to utilitarianism, deterrence, prevention and reinforcement may in various degrees be regarded as legitimate purposes of the criminal sanction in environmental law. In the current stage of the criminal sanction its operation is affected greatly by the Bill of Rights in Malawi's Constitution. It is suggested that in dealing with various aspects of the criminal sanction vis-a-vis the Constitution, Malawian courts should lean towards saving them from unconstitutionality in the interest of environmental protection. An analysis of Malawi's environmental statutes shows that some of the criminal offences have not been articulated clearly and others conflict with constitutional provisions in a non-defensible way. The criminal sanction is also shown to have weaknesses. When these weaknesses are weighed against the criminal sanction's strengths, it is clear that the criminal sanction has more weaknesses than strengths. This scenario has led many scholars to conclude that criminal sanctions are not appropriate for crimes of all sorts. They suggest that criminal sanctions should be reserved for serious offences and that other measures should be used for less serious offences. While this suggestion certainly has merit especially in respect of First World and Second World countries, the practical realities in Malawi as a Third World country urge a different - but related - approach. These practical realities relate to the availability of alternatives to the criminal sanction in Malawi. An analysis of the alternatives reveals that most of them are not viable alternatives to the criminal sanction in Malawi at present and so criminal sanctions inevitably remain the primary tool for achieving environmental protection. In these circumstances, it is suggested that certain aspects of the criminal sanction should be attended to in order to improve its performance. In this connection, it is suggested that corporate criminal liability must be reformed in order to make available additional bases upon which corporate offenders may be made answerable for their activities. Sentencing must also be reformed in order to prescribe more effective punishments. Further, the use of strict criminal liability should be discouraged: instead there should be wider use of negligence as the fault element and wider use of the due diligence defence. In addition, vicarious criminal liability may be retained as long as an element of fault on the part of an employer or principal is introduced or the defence of due diligence is made available to the employer or principal. Alternatively, vicarious criminal liability may be abrogated in favour of primary criminal liability. Finally, it is suggested that provision be made for the award of costs after successful prosecution of environmental offenders and for the payment of fines to government departments or public bodies responsible for environmental protection.