Minister of Forestry, Fisheries and the Environment and Others v Badenhorst N.O. and Others (1004/2023) [2025] ZASCA 68 (28 May 2025)

Case Note

Minister of Forestry, Fisheries and the Environment & Others v Badenhorst N.O. & Others (1004/2023) [2025] ZASCA 68 (28 May 2025)

This judgment comes from the Supreme Court of Appeal of South Africa and addresses significant administrative law issues arising from environmental authorisation proceedings. The case number is 1004/2023 and was delivered on 28 May 2025.

The appeal involves multiple appellants and respondents, centring on whether the decisions taken by the Chief Director regarding the environmental authorisations for wind energy facilities were proper under the Promotion of Administrative Justice Act and the National Environmental Management Act.

Reportability

This case is reportable due to its critical examination of administrative processes and the requirement to exhaust internal remedies before seeking judicial review under PAJA. It is significant because it clarifies what constitutes ‘exceptional circumstances’ when an exemption is sought under section 7(2)(c) of PAJA. The judgment provides an important precedent for interpreting the conditions under which environmental authorisations become final and enforceable.

The decision also sheds light on the interplay between regulatory compliance and judicial oversight in environmental management. It raises important issues about the adequacy of submissions and the regulatory interpretation of the Environmental Impact Assessment Regulations that affect large-scale renewable energy projects. Finally, it reinforces the necessity of adhering to both statutory and procedural requirements in administrative decision-making.

Cases Cited

There are no abbreviated references provided in the judgment text; however, the judgment cites key case law in full citation format where relevant principles of administrative law and environmental management are discussed. Specific case names with full citations are not enumerated in the provided extract.

Legislation Cited

The relevant legislation referenced includes:
• National Environmental Management Act 107 of 1998 (NEMA)
• Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Environmental Impact Assessment Regulations, 2014

These legislative instruments form the statutory basis for the environmental authorisation process addressed in this matter.

Rules of Court Cited

The judgment does not specify any separate rules of court with explicit citation apart from the general application of administrative law principles and judicial procedures inherent in review proceedings.

HEADNOTE

Summary

The case concerns an appeal against the decisions of the Chief Director regarding the environmental authorisations granted to several wind energy developers. The appellants challenged the procedural and substantive aspects of the authorisations, particularly in relation to the adequacy of assessments and the requirement to exhaust internal remedies before resorting to judicial review. The court critically examined whether the decisions complied with the statutory framework established under NEMA and PAJA.

In its deliberations, the court dissected the application of the “exceptional circumstances” test under PAJA and explored the meaning of substantial compliance in the context of environmental permit procedures. Furthermore, the judgment delved into the relationship between the revised environmental assessments and the conditional nature of final authorisation. The reasoning highlights the need for a cautious yet purposive interpretation of environmental regulations when public and affected parties are involved.

Ultimately, the Supreme Court of Appeal upheld the appeal with the effect of setting aside the previous order of the Eastern Cape Division of the High Court. It emphasized that any deviation from established statutory processes in granting environmental authorisations must be firmly scrutinised in light of procedural fairness and administrative justice.

Key Issues

The judgment addresses several key legal issues including:
• Whether the Chief Director properly complied with the statutory requirements set out in NEMA when granting environmental authorisations.
• The extent to which internal remedies needed to be exhausted prior to seeking judicial review under PAJA.
• The interpretation of "exceptional circumstances" as it applies to administrative decisions in the environmental context.

These issues necessitated a detailed exploration of the procedural steps required for environmental authorisation and the appropriate judicial deference to agency decisions.

Held

The court held that the Chief Director’s actions in granting the authorisations were subject to detailed judicial review. It found that while there was substantial compliance with regulatory requirements, the decision-making process was critically flawed due to the failure to exhaust all internal appeals in a timely manner. Consequently, the appeal was upheld, and the order from the High Court was set aside and replaced with a dismissal of the application.

The holding reaffirms the principle that strict adherence to procedural requirements is essential in the granting of environmental permits. It underscores the balance that must be struck between administrative discretion and procedural fairness. Lastly, the court determined that the decision-making process did not fully conform to the statutory demands for comprehensive internal review.

THE FACTS

The facts of this case involve the application for Environmental Authorisations by the Highlands companies for three proposed wind energy facilities in the Eastern Cape. The project, known as the Highlands Project, involved extensive environmental impact assessments that were submitted initially in 2018 and subsequently amended following additional assessments. The Chief Director, acting under the National Environmental Management Act, was responsible for reviewing these applications and issuing conditional approvals.

The process began with the drafting of Basic Assessment Reports and Environmental Management Programmes, which were later supplemented by additional specialist assessments due to initial inadequacies in the submissions. Public participation played a significant role, as various affected parties provided comments and suggestions during several rounds of consultation, which ultimately influenced the revisions of the assessments.

Further inquiries, including additional avifauna and ecological assessments, led to changes in the proposed turbine layouts and the number of installations. Despite addressing many of the raised concerns and updating the submissions, internal appeal mechanisms were not fully exhausted before the affected parties initiated judicial review proceedings. This procedural gap became a central point of contention in the appeal.

THE ISSUES

The legal questions the court had to decide revolved around whether the Chief Director acted within the bounds prescribed by NEMA and the EIA Regulations when granting the environmental authorisations. A key issue was whether the requirement to exhaust internal remedies before filing for judicial review was properly observed. In addition, the court needed to interpret the meaning of "exceptional circumstances" under section 7(2)(c) of PAJA and determine its applicability in this context.

Another significant issue was the extent to which revised environmental assessments and subsequent changes to the project layout impacted the finality of the environmental authorisations. The court was tasked with deciding if partial compliance and conditional approvals fell within acceptable statutory margins. Finally, the accommodation of public participation comments and the subsequent changes that followed formed a critical part of the legal debate regarding administrative fairness.

These intertwined issues required the court to carefully balance the interests of renewable energy development with the need for rigorous adherence to environmental protection standards and procedural safeguards.

ANALYSIS

The court’s reasoning centered on applying a purposive interpretation to the relevant legislative provisions. In analyzing whether the internal review steps were fully adhered to, the court placed significant weight on the principle that administrative decisions must follow a clear and methodical process as mandated by PAJA. It was determined that any bypass of internal remedies could not be justified by claims of procedural urgency or the need to implement renewable energy projects.

Accordingly, the court examined the sequence of events and the communications exchanged between the Highlands companies and the regulatory authorities. Emphasis was placed on the sequential submissions, the subsequent amendments to the environmental reports, and the procedural suspension and reopening of the environmental authorisation applications. The analysis highlighted that while substantial compliance with the regulatory framework could be deemed sufficient in some aspects, the complete exhaustion of internal remedies was an imperative prerequisite for judicial intervention.

Furthermore, the court underscored that its role was to ensure that the actions of the administrative authorities were not only legally compliant but also procedurally fair. The decision was therefore underpinned by an evaluation of both the statutory requirements and the need to protect the legitimacy of the environmental authorisation process. This rigorous examination ultimately led to setting aside the previous order and confirming the necessity of strict adherence to internal review processes.

REMEDY

The remedy provided by the Supreme Court of Appeal was to uphold the appeal against the High Court’s judgment and set aside its order. The court substituted the previous order with a directive that the application for environmental authorisation review be dismissed, without any order as to costs. This remedy reflects the court’s stance that any procedural evasion regarding internal appeals cannot be condoned even in the context of significant environmental and energy development matters.

The order serves as a corrective measure, reinforcing that administrative decisions must remain subject to complete and fair internal recourse before progressing to judicial review. By dismissing the application outright, the court aims to maintain the integrity of the statutory processes that govern environmental approvals.

In effect, the remedy ensures that future applications adhere strictly to the prescribed administrative and review protocols. It sends a clear message regarding the judicial emphasis on procedural exactitude in cases involving environmental permissions and public participation requirements.

LEGAL PRINCIPLES

The judgment reinforces several key legal principles. First, the necessity of exhausting internal administrative remedies prior to seeking judicial review is paramount under PAJA. Procedural fairness and the rigorous compliance with statutory requirements are critical to the legitimacy of administrative decisions.

Second, the principle of substantial compliance is highlighted in situations where environmental authorisations are conditional and subject to adjustments. The court clarified that while some deviations from strict compliance may be tolerated if they do not compromise the overall integrity of the process, any breach in the mandatory procedural sequence will render the decision susceptible to review.

Finally, the case establishes that regulatory authorities must interpret statutory provisions in a purposive manner, ensuring that environmental and public interests are balanced with developmental imperatives. The emphasis on proper internal appeal mechanisms and full compliance with environmental assessment processes will influence future adjudications in similar contexts.