The evolution and development of the principle of free, prior and informed consent in South Africa

Abstract

Abstract This article traces the evolution of the principle of free, prior and informed consent within the South African developmental context. Internationally, free prior and informed consent presupposes that communities have the right to give or withhold consent to proposed development projects on the lands that they own, occupy or otherwise use. Specific to South Africa, research reveals that although the country has not formally adopted the free, prior and informed consent principle within its development system, the spirit of the principle has permeated the development discourse in the country through development policies, legislation and case law. All major development policies in South Africa embody the public participation element, which is a precursor to free, prior and informed consent. Several Acts of parliament specifically require that communities’ consent must be sought and obtained before any development may take place in their territories. This sentiment has recently been augmented by court cases, both at High Court and Constitutional Court levels.