law was needed. With regard to the latter point, there is a general rule of thumb for
legal compliance that goes—for a just law, 10% of the regulated community will
always comply, 10% will never comply and the remaining 80% will comply if they
believe that the non-compliant 10% will be brought to book. What this means is that
if the regulated community broadly believes that there is a relatively high likelihood
that they will be caught and punished if they break the law, then the vast majority of
the community will comply. However, if the regulated community broadly believes
that there is a relatively low chance that they will be caught and punished then the
vast majority of the community will not comply. Although this rule of thumb may be
an oversimplification of deterrence and compliance promotion, which is a complicated and not well-understood area that also involves, among others, awareness of
the law and ability to comply, it is used here for the sake of argument.
In the current context, the ‘regulated community’ comprises of all South African
land owners and users, and it is probably fair to say that, of the regulated community
that actually know their invasive species management legal obligations, very few are
likely to believe that they will be caught and punished for non-compliance. Hence, it
is highly likely that the level of non-compliance with invasive species law in
South Africa is extremely high and, as a result, invasive species legislation is
unlikely to be having the desired effect or impact. With this, it could also be argued
that very little has changed in the legislative approach since the 1874 Burr Weed
Law that noted that “the Law hitherto in force has failed to check the spread” of the
weed. Thus it appears that enforcement may be an extremely important issue when
dealing with invasive policy and legislation.
With reference to the compliance rule of thumb above, this ‘rule’ only holds true
if the law is regarded as a ‘just law’—law that is fair and reasonable. In a Constitutional democracy like South Africa, ‘unjust law’ can be prone to legal and popular
challenge, making it difficult or impossible to enforce. Given that the majority of the
regulated community are seldom directly or knowingly responsible for introducing
an invasive species onto their land, it is easily argued that they are, in fact, the
‘victims’ of invasive species (Fig. 18.3). Indeed, it would probably be considered
grossly unfair and unreasonable to hold a landowner responsible for polluted
ambient air over her land if the pollution is from, say, a neighbouring factory.
Thus, there could be a case to be made that government may be loath to enforce
‘faultless liability’ where the ‘culprit’ may, in fact, be the ‘victim’ of poor invasive
species management by others.
Furthermore, perhaps the ‘environmental justice principle’ contained in NEMA
also provides a useful test of whether South African biological invasion-related law
is, in fact, ‘just law’. Section 2(4)(c) of NEMA requires that “[e]nvironmental justice
must be pursued so that adverse environmental impacts shall not be distributed in
such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.” With this it may be possible that the few people
who have knowingly or purposefully introduced invasive species are distributing the
adverse environmental impacts of these species to others, including vulnerable and
disadvantaged persons. Despite this, the law requires these ‘innocent’ people to
address these adverse environmental impacts.
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P. Lukey and J. Hall
legal compliance that goes—for a just law, 10% of the regulated community will
always comply, 10% will never comply and the remaining 80% will comply if they
believe that the non-compliant 10% will be brought to book. What this means is that
if the regulated community broadly believes that there is a relatively high likelihood
that they will be caught and punished if they break the law, then the vast majority of
the community will comply. However, if the regulated community broadly believes
that there is a relatively low chance that they will be caught and punished then the
vast majority of the community will not comply. Although this rule of thumb may be
an oversimplification of deterrence and compliance promotion, which is a complicated and not well-understood area that also involves, among others, awareness of
the law and ability to comply, it is used here for the sake of argument.
In the current context, the ‘regulated community’ comprises of all South African
land owners and users, and it is probably fair to say that, of the regulated community
that actually know their invasive species management legal obligations, very few are
likely to believe that they will be caught and punished for non-compliance. Hence, it
is highly likely that the level of non-compliance with invasive species law in
South Africa is extremely high and, as a result, invasive species legislation is
unlikely to be having the desired effect or impact. With this, it could also be argued
that very little has changed in the legislative approach since the 1874 Burr Weed
Law that noted that “the Law hitherto in force has failed to check the spread” of the
weed. Thus it appears that enforcement may be an extremely important issue when
dealing with invasive policy and legislation.
With reference to the compliance rule of thumb above, this ‘rule’ only holds true
if the law is regarded as a ‘just law’—law that is fair and reasonable. In a Constitutional democracy like South Africa, ‘unjust law’ can be prone to legal and popular
challenge, making it difficult or impossible to enforce. Given that the majority of the
regulated community are seldom directly or knowingly responsible for introducing
an invasive species onto their land, it is easily argued that they are, in fact, the
‘victims’ of invasive species (Fig. 18.3). Indeed, it would probably be considered
grossly unfair and unreasonable to hold a landowner responsible for polluted
ambient air over her land if the pollution is from, say, a neighbouring factory.
Thus, there could be a case to be made that government may be loath to enforce
‘faultless liability’ where the ‘culprit’ may, in fact, be the ‘victim’ of poor invasive
species management by others.
Furthermore, perhaps the ‘environmental justice principle’ contained in NEMA
also provides a useful test of whether South African biological invasion-related law
is, in fact, ‘just law’. Section 2(4)(c) of NEMA requires that “[e]nvironmental justice
must be pursued so that adverse environmental impacts shall not be distributed in
such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.” With this it may be possible that the few people
who have knowingly or purposefully introduced invasive species are distributing the
adverse environmental impacts of these species to others, including vulnerable and
disadvantaged persons. Despite this, the law requires these ‘innocent’ people to
address these adverse environmental impacts.
546
P. Lukey and J. Hall