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[2015] ZAGPJHC 341
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Black Eagles Project Roodekrans v Netrac Investments 72 (Pty) Ltd and Another (16256/15) [2015] ZAGPJHC 341 (2 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 16256/15
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
2 December 2015
In
the matter between
THE
BLACK EAGLES PROJECT
ROODEKRANS
APPLICANT
And
NETRAC
INVESTMENTS 72 (PTY)
LTD
1
st
RESPONDENT
GAUTENG
LOCAL
GOVERNMENT
2
nd
RESPONDENT
J
U D G M E N T
VICTOR
J
:
[1]
The issue for determination in this matter is whether the terrain of
the Black Eagles habitation along the Walter Sesulu Botanical
Gardens
Ridge Gauteng should be protected by an interim interdict pending the
finalization of review proceedings.
[2]
The applicant is non-profit organisation established to educate and
inform the public about a pair of Black Eagles that reside
in the
Walter Sisulu Botanical Garden and to ensure their conservation as
well as their habitat. The first respondent is a private
company with
limited liability that owns the land described in Annexure GD2
(“Sugarbush Residential Estate). The second respondent
is also
a private company with limited liability and is responsible for
developing the land that is owned by the first respondent,
known as
the Sugarbush Development.
[3]
The applicant seeks a final interdict, alternatively an interim
interdict to restrain the first respondent from commencing or
continuing with any and all activities that includes but not limited
to developing and/or construction of any buildings, walls,
similar
structures, electrical or plumbing infrastructures and the digging of
foundations on portion of the land described in annexure
X which
consists of some 54 properties all within the Sugar Bush Estate
Extension 2 Reserve.
[4]
Further relief is sought that the first respondent be interdicted and
restrained from transferring and/or alienating any of
the properties
described in annexure X.
[5]
The facts leading up to this application are of importance in
determining whether I should grant the relief sought. On 14 September
2004 the second respondent, then owner of these erven, submitted an
application in terms of s 22 of the Environmental Conservation
Act 73
of 1989 (ECA) to change the zoning of the land earmarked for the
Sugar Bush development from agricultural to residential
so as to
enable it to construct the Sugar Bush development over five phases.
S
22 provides as follows:
‘
(1)
No person shall undertake an activity identified in terms of section
21 (1) or cause such an activity to be undertaken except
by virtue of
a written authorization issued by the Minister or by a competent
authority or a local authority or an officer, which
competent
authority, local authority or officer shall be designated by the
Minister by notice in the Gazette.
(2)
The authorization referred to in subsection (1) shall only be issued
after consideration of reports concerning the impact of
the proposed
activity and of alternative proposed activities on the environment,
which shall be compiled and submitted by such
persons and in such
manner as may be prescribed.
(3)
The Minister or the competent authority, or a local authority or
officer referred to in subsection (1), may at his or its discretion
refuse or grant the authorization for the proposed activity or an
alternative proposed activity on such conditions, if any, as
he or it
may deem necessary.
(4)
If a condition imposed in terms of subsection (3) is not being
complied with, the Minister, any competent authority or any local
authority or officer may withdraw the authorization in respect of
which such condition was imposed, after at least 30 days' written
notice was given to the person concerned.’
[6]
On 12 January 2006 the head of department granted partial
authorization for phases 1, 2 but not for erven 14 to 35 which is
the
remainder of phase 2 and also not for phases 3 to 5. The second
respondent appealed this decision and the appeal was dismissed.
[7]
The dismissal of the appeal letter dated 12 January 2006 states as
follows: In reaching its decision in respect of the application,
the
department has taken into account the following information for
consideration and that information included: the plan
of study
for the scoping that was already submitted on 14 September 2004, the
internal comments of the directorate of agriculture
dated 2 August
2005, the internal comments of the directorate of conservation dated
20 January 2005, the departmental information
based upon and
including the Gauteng agricultural potential atlas for Gauteng
information, layers and buffer zones, Gauteng
conservation plan
version 2 and Gauteng open space project GOSP 3. Further
considerations contained in this authorization that
there was
compliance with the applicable departmental provincial and national
legislation together with policies and guidelines
and this included
the National Environmental Management Act 107 of 1998 (NEMA) as well
as the ECA, the
Development Facilitation Act 67 of 1995
and Gauteng
Ridges Policy of 2001. Only limited authorization was granted and
there were nine specific conditions.
[8]
The second respondent was not satisfied with that outcome and on 10
May 2006 it submitted a further application in terms of
s 28
A of the
ECA for exemption from obtaining authorization for the remainder of
phase 2 and phases 3 to 5. On 28 August 2006 the HOD
decided to grant
the second respondent exemption from complying with the regulations
issued in terms of the ECA as published in
government notice 1183.
The exemption was granted to the second respondent to conclude the
Sugar Bush development on the
basis that it would not have
substantial detrimental impact on the environment and alternatively
that the potential detrimental
impact could be mitigated in some way
and therefore upheld the principles contained in
s 2
of NEMA. Soon
thereafter on 26 September 2006 the applicant lodged an appeal
against the HOD exemption decision and on 8 November
2006 against the
MEC for agricultural conservation and environment. The
appeal was dismissed.
Statutory
Framework
[9]
It is important to consider the statutory framework within which all
these aspects are to be determined. In terms of NEMA, reliance
was
placed on
s 2
[1]
which provides that all organs of state must take into account the
appropriate and relevant considerations including the state’s
responsibility to respect, protect, promote and fulfil the social and
economic rights in chapter 2 of the Constitution and to take
into
account the categories of persons disadvantaged by unfair
discrimination. It bears mention that this is an upmarket
development.
It does not fall into the category of low cost housing
so the question person disadvantaged. In fact it is the opposite. The
principles
also provide that there must be a general framework for
this management. It also provides that there must be guidelines to
which
any organ of state must exercise its function and the provision
for sustainable development requires consideration in terms of
sub-section 4 of s2 of all the relevant factors including the
disturbance of eco systems and the loss of biological diversity and
all these must be prevented or minimised and remediated.
[10]
S 2 (4) (a) (vii) of NEMA provides that a risk adverse and cautious
approach is to be applied which takes into account the
limits of
current knowledge about the consequences of decisions and actions.
[11]
In terms of s 24 of NEMA, another important aspect of the statutory
framework in which this particular case must be determined
provides
that in order to give effect to general objectives of integrated
environmental management laid down in chapter 5, the
potential
consequences for impact on the environment must be considered,
investigated, assessed and reported to the competent authority
or to
the Minister responsible as the case may be. S 24 (1) of NEMA
provides that every applicant must comply with the requirements
prescribed in the NEMA. It lists the public consultation procedure,
the environmental management programme and prescribes the reports.
S
23 of NEMA also provides that the general objective of integrated
environmental management must support the principles set out
in s 2
and must identify, predict and evaluate the actual and potential
impact on the environment or cultural heritage risks and
consequences
and such activities must be minimised. S 23 also provides for proper
public participation an aspect which the applicant
contends that
there was no such proper participation.
[12]
S 21 of the ECA provides that there has to be an identification
of activities which will probably have a detrimental
effect on the
environment. These activities include land use and transformation,
resource removal, which includes natural living
resources and also
resource renewal. S 22 of the ECA prohibits the undertaking of
certain identified activities and in particular
provides that no
person shall undertake an activity identified in terms of s 21 and
that would include of course, the land use
and the transformation
thereof or cause any such activity to be undertaken except by virtue
of a written authorization issued by
the Minister.
[13]
The central issue for determination really revolves around the
exemption that was granted to the second respondent in terms
of s 28
(a) of the ECA. S 28 (a) provides that exemption to persons, local
authorities and government institutions may take place
under certain
conditions. Sub-section 1 of section 28 (a) provides that
any person, local authority or government institution
may, in
writing, apply to the minister or a competent authority as the case
may be, with the furnishing of reasons, for exemption
from the
application of any provision of any regulation notice or direction
which has been promulgated or issued in terms of this
act.
[14]
It is important to focus on what exactly is exempted. It
is not any other competing environmental statute or the
provisions of
sections 22 of the ECA but solely the exemption in relation to a
regulation, notice or direction that has been promulgated
or issued
in terms of this act.
[15]
The applicant contends that the exemption granted was granted on an
irregular basis. The third and fourth respondents did not
properly
apply their minds to exactly what was to be exempted. What happened
then was that once that exemption had been granted
the second
respondent sold the erven to the first respondent and the first
respondent continued with the construction. Based on
the dicta in
Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others
2010 (1) SA 333
(SCA), the activity even if unlawful can continue. So
based on that principle the activity continued.
[16]
On 24 March 2015 it came to the applicant’s knowledge that the
remainder of phase 2 was being developed. A wall was constructed.
A
third party, Alliance Civil (Pty) Ltd, was attending to the
construction. During the month of April 2015 there was
rapid development. By the end of April the boundary wall was almost
95% completed. If one considers the time line it would appear
that
very little happened from the time that the authorization was granted
on 28 August 2006 until 2015. This aspect needs to be
emphasised when
the question of delay is considered.
Delay
in bringing the review
[17]
The primary issue between the parties was the inordinate delay. The
first and second respondents submit that the question of
delay should
be determined as a separate point. I ruled against that in particular
because the question of delay is a fact sensitive
enquiry. The entire
conspectus of evidence should be considered and having regard to the
fact that this really is an interlocutory
application the court would
not be in a position to non-suit the applicant right at the outset on
the question of delay only.
I considered it prudent to have
regard to the entire case adduced by the applicant.
[18]
In
Geyser v Nedbank Limited
and others, in Re: Nedbank Limited v Geyser
2006
(5) SA 355
at para 9, reference was made to the question of the
assessment of undue delay. Blignaut J set out all the Supreme Court
of Appeal
dicta on the assessment of delay and in addition there are
further cases that require such assessment. In particular, In
Khumalo
and Another v MEC for Education, Kwazulu Natal
2014
(5) SA 595
(CC) at para 49 the Constitutional Court quoted the
Gqwetha
[2]
case where the majority of the Supreme Court of Appeal held that an
assessment of a plea of undue delay involves examining whether
the
delay is unreasonable or undue. This is a factual enquiry
which is a value judgment to be made in the light of
all the
circumstances and if so whether the court’s discretion should
be exercised to overlook the delay and nevertheless
entertain the
application.
[19]
In relation to the first leg of the enquiry, I am of the view only
the court hearing the review application can properly examine
the
question of undue delay. I have already referred to the fact that it
seems that there was almost very little construction activity
from
the time that the permission was granted in 2006 until April of this
year. The delay of course by the applicant is not without
blemish. It
is 8 and a half years, however, one cannot simply clinically examine
the fact of 8 and a half years without looking
at the factual matrix
that took place in those years.
[20]
The case of
Khumalo
goes on to question whether a delay can be
overlooked and of importance is the potential prejudice to the
affected parties and
the possible consequences of setting aside the
impugned decision. That case dealt with the delay by an authority in
the public
sector employment milieu. Ultimately the court found that
features such as whether a just and equitable remedy could be granted
and to consider the question as to whether the court has the power to
grant such a remedy and whether the finding of invalidity
may be
ameliorated by fashioning a particular remedy.
[21]
In addition, in assessing the question of unreasonable delay, one
also has to look at the impugned decision and this requires
analysis.
It is the respondent’s case that some R4 million has already
been spent and this really goes to the question of
the balance of
convenience and the respondents contend that the delay of 8 and a
half years together with the expenditure of R4
million is something
which should militate against the grant of any relief to the
applicant even on an interim basis. The respondents
argued that the
court should apply the principle in the
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA
13
(A)
and
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986 (2) SA 57
(A)
in
order to determine the question of this delay.
[22]
The applicant submitted that a delay cannot be evaluated in vacuum
and must be assessed with reference to the entire conspectus
of
prejudice that may or may not result. Reference was also made to the
case of
Ward v Cape Peninsula Ice Skating Club
1998 (2) SA
487.
The requisites for an interim interdict set out and counsel on
behalf of the respondents asked the court to consider the factual
nature and to find that the applicant had not made out a case.
[23] The court also has to consider
the question of a
prima facie
right, a well grounded
apprehension of irreparable harm if the relief is not granted, the
balance of convenience favouring the grant
of an interim interdict
and there must be no other satisfactory remedy. To these must
be added the fact that the remedy is
a discretionary remedy and that
the court has a wide discretion. Reliance was also placed
on the case of
Beecham Group LTD v B-M Group (Pty) Ltd
1977 (1) SA
50
(T)
where Franklin J followed the approach of Nicholas J in
the
Commissioner of Patents
and made a comparison between
disputes of fact and the question of delay. The question that must
take precedence, according to this
case, is that it is better that a
serious question be tried rather than to bring the legal points going
to the
prima facie
rights into question. However, the
prima
facie
right to determination is a part of our law. The applicant
is correct in submitting that there is a serious question to be tried
and it is on this basis that the court can therefore consider the
legal questions that have been raised. Of course since these
are
interim proceeding the questions of law cannot be determined or be
res iudicata
for the court who ultimately hears the review
application.
[24]
The respondent contends that there is a very important contradiction
in the applicant’s case in that the founding affidavit
makes
out the case that the damage to the area would be permanent if the
construction goes ahead whilst in its replying affidavit
it states
that such development has taken place, that notwithstanding such
development the area can still be remediated by e.g.
removing that
enormous boundary wall. The construction has not progressed very far.
[25]
A further aspect which requires determination is whether this right
is a clear right and the prospects of success. It seems
to me that
there may be prospects of success if regard be had to the entire case
made out in the review proceedings. Although
the review
application is not without criticism it seems to me that there may
well be prospects of success. In particular, s 24
of NEMA as well as
s 2 of NEMA provide the statutory framework within which to assess
risk. The said sections also refer to a risk
adverse approach. These
are aspects not properly addressed by the third and fourth
respondents.
Ridge
Regulation guideline
[26]
The respondents criticised the applicants because the reports relied
upon are almost 10 years old and it is for that reason
that they say
the science has progressed and that in any event the review
application would be a needless exercise since the conditions
have
changed and in addition since the report there have been further
developments e.g. the Protea Bush Development which is reflected
on
the township status plan which was handed to the court and reference
was also made to the photographs which demonstrate roads
being
constructed off the Robert Broom Drive. There is also a mashie golf
course and the respondents rely further on the Noord
Heuwel
development which is almost adjacent to the Protea Bush Development
in question. The submission was made based on the averments
in the
review application affidavit that e.g. the Protea Dale development is
well within the ridge area.
[27]
The applicants rely on the Ridge Guidelines which have, since the
grant of the authorization in terms of s 28 (a), been reviewed
and
updated. The last update was April 2006. The applicant
handed in this document after some criticism by the respondent.
The
guideline document is clear in its terms. The area in question
is a class 3 ridge and is defined as ridges of which 35%
or more, but
less than 65% of the surface area has been converted to urban
development, quarries and or alien vegetation. Approximately
9% of
ridges on the Witwatersrand currently fall within class 2, including
the ridge that traverses the Northcliff, Roodepoort
and Krugersdorp
areas. The Guidelines are clear. Ridges must be protected and the
applicant contends that application of this Guideline
was not
applied.
[28]
The respondents contend that this is a mere guideline and not
subordinate legislation and therefore not applicable in this
matter.
The applicant contends that the grant of the authorization was really
a bypassing of s 22 of the ECA and 24 (4) of NEMA
and that the third
and fourth respondents could only have given waivers to the
regulations as I have already indicated and not
to non-compliance,
with s 22 of the ECA. In other words s 22 must still be complied
with.
[29]
The applicant also contends that misleading information was provided
by the respondents and that misleading information is
a justiciable
ground for review in terms of s 6 (2) (e) (3) of PAJA. In particular
the Ridges Guidelines are an aspect which the
third and fourth
respondents did not take into account in granting the waiver. The
point is also made that the second applicant’s
application for
exemption did not include the study or environmental impact study.
Also no study on flora, fauna, mammals and reptiles
was presented as
well as aspects of the cultural historical and open space reports.
Delay
in bringing review proceedings
[30]
The respondents submit that the review application is vexatious and
militates against the granting of interim relief
pendente lite
the
review application. It relies on the case of
Juta and Company
Limited v Legal and Financial Publishing Co Ltd.
1969 (4) SA 443
(C) which requires that review proceedings must be brought without
delay. However, this case must also be interpreted within the
guidelines and ratio of the case of
Khumalo
as set out by the
constitutional court.
[31]
The respondents submit that the review application is vexatious and
militates against the granting of interim relief
pendente lite
the
review application. It relies on the case of
Juta and Company
Limited v Legal and Financial Publishing Co Ltd.
1969 (4) SA 443
(C) which requires that review proceedings must be brought without
delay. However, this case must also be interpreted within the
guidelines and ratio of the case of
Khumalo
as set out by the
Constitutional Court.
[32]
I have to take into account whether the delay of 8 and a half years
in finalising the review application is such that the applicant
should be non-suited. The cases referred to by the respondents rely
on general commercial matters and no reference was made to
an
environmental law case which would be of any assistance in coming to
the decision that I have. Reference was made by the respondents
to
the case of
Chairman
Standing Committee and Others v JFE Sapela Electronics (Pty) Ltd and
others
2008 (2) SA 638
(SCA) where the Supreme Court of Appeal stated in relation to that
particular matter that the relief after such a long period of
time
precluded the proper investigation of the awards of the tender and
therefore relief was not granted in that case. In the case
of
Mkhwanazi v Minister of
Agriculture & Forestry, KwaZulu
1990
(4) SA 763
(D)
in
appropriate circumstances a court will decline in the exercise of its
discretion to set aside an invalid administrative act.
The timeline
set out in the heads of argument by the first and second respondents
do reveal an alarming delay from 28 August 2006
to date. However, the
first and second respondents are not without blemish when one
considers their contribution to the delay.
[33]
In particular reference is made to the fact that the applicant’s
replying affidavit was delivered one year and two months
after the
delivery of the second respondent’s answering affidavit. If
that were to be considered on its own without the entire
factual
matrix being taken into account that would lead to the ineluctable
conclusion that there was a delay. The criticism is
that since 2010
no steps were taken to enrol the review application. In addition, the
applicant sought an amendment of the notice
of motion on 10 August
2012 and this was taken more than two years after the replying
affidavit. The respondents have omitted to
refer in this timeline to
the fact that the respondents themselves brought interlocutory
applications and that related to an order
seeking security for this
litigation. That application was dismissed.
[34]
A further difficulty has now arisen in that the applicants again seek
to amend the notice of motion and deliver a further supplementary
affidavit and this does mean that this matter again is not ripe for
hearing early in the New Year. The respondents have indicated
that
they will oppose this new amendment and again that this amendment
would in any case fall foul of PAJA in that the new amendment
now
seeks to review the decision of the fourth respondent taken on 28
August 2006 falling completely outside of the stipulated
time limits
of 180 days. When I put to counsel on behalf of the respondents that
they too could have set the review application
down for hearing I was
not given a convincing response in that regard.
[35]
The respondents submit to the court that the prospects of success in
the review application are virtually non-existent. There
is a small
part which may be adjudicated upon but in general every aspect raised
by the applicant in its review application will
fail and therefore it
would simply be a waste of time to grant an interim interdict in
these proceedings. I was also referred to
the case of
MEC for
Environmental Affairs and Development and Development and Planning
Van Clarensen CC
2013 6 SA 235
(SCA). This
involved a matter where the MEC refused an internal appeal and here
again the question of urban development
had already occurred and the
proposed development was taken into account. The question
of the development on the urban
edge of the city was also questioned
and ultimately the development trend in the area was also taken into
account and in this regard
it was submitted that in this matter
particularly having regard to the Protea Dale Development
demonstrates that there has been
ample development in the area since
the decision in 2006 and the applicant would therefore have no
prospect of success.
[36]
Further emphasis was placed on the fact that the fourth respondent
was
functus officio
when it decided to grant the exemption and
that it is submitted that that is also an aspect in the review
proceedings that would
fail. I am therefore faced with wide ranging
conflicting averments in relation to the protection of the
environment, not only for
the feeding grounds of the black eagles but
also for the flora and fauna for the area. However, I indicated
that I would
ask the deputy judge president to appoint a case manager
so that the question of prejudice and delay can be resolved as soon
as
possible.
PRECAUTIONARY
AND PROACTIONARY PRINCIPLES IN ENVIRONEMTNAL LAW.
[37]
Having regard to the provisions of s 2 and 24 of NEMA a risk adverse
approach must be adopted. I have on the one hand the assertions
by
the applicant that the destruction of the environment will be
catastrophic and by the respondents on the other hand that assert
that the court has to balance the interests of human development as
well as nature. The respondents assert that it is not only
the
principles of nature that must trump the needs of human development.
The respondents’ case is that it is in the
interests of human
development that the building proceed in other words a proactionary
approach. This leads to a balancing
in environmental management
the precautionary principle and what is now termed the proactionary
principle. The proactionary principle
really relates to the fact that
there are three inter related imperatives: that progress should not
bind to fear but should proceed
with eyes wide open; that there must
be the protection to innovate and progress while thinking and
planning intelligently for collateral
damaging effects and thirdly
innovation should be encouraged. It should be bold and pro-active. It
should manage innovation for
maximum human benefit but at the same
time this innovation must proceed with objectivity and with balance.
It is clear therefore
that the balance of the precautionary and
proactionary principle must be weighed however it is clear that the
precautionary principles
has been statutorily entrenched.
[38]
The precautionary principle was based on when an activity raises
threats of harm to the environment or human health, precautionary
measures should be taken even if some cause and effect relationships
are not fully established scientifically. There was the criticism
that the precautionary principle prohibits new technology and human
activity until the scientific reports are out and holds back
the
human development.
[39]
It is important to emphasise that the precautionary principle does
not require absolute proof that no harm will occur nor does
it
endorse technology or ban cutting edge research. When possible harms
of new technologies are analysed, it is a live question
of fact
between what a proactionary measure is and what must be a
precautionary measure. In other words both proportionary and
precautionary principles share a common goal which is to preserve and
promote human safety and well-being of the environment.
It is not an obsessive pre-occupation with a single value.
[40]
In this matter despite the delay it seems to me that the balance of
convenience would support a precautionary approach.
The risk
adverse approach is one of the statutory requirements in adjudicating
matters of an environmental law nature. At
the same time having
regard to the needs to develop housing in the area the pro-active
aspects must also be determined. At this
stage of the enquiry the
needs of the wealthy owners and the environment have to be assessed.
[41]
In my view all these principles can properly be dealt with in the
review application. In applying the principles and the case
law
referred to as well as the Ridges Guidelines I find that it is
preferable to grant interim relief. The destruction of habitat
for
the sake of building an expensive upper market development is an
aspect that must be fully traversed and analysed irrespective
of
proactionary the development may be.
In
the result I grant an order in the following terms:
1. Pending the outcome of the review
application that is pending in the Gauteng Local Division of the High
Court, with case 6085/2007
referred to as the review application:
1.1 The first respondent is
interdicted and restrained from commencing or continuing with any and
all activities that includes but
are not limited to the developing
and/or construction of any buildings, walls, similar structures,
electrical or plumbing infrastructures
and the digging of foundations
on the portions of land described on annexure “X” to this
notice of motion in any way.
1.2 The first respondent is
interdicted and restrained from transferring and or alienating any of
the properties described in annexure
“X” to this notice
of motion pending the outcome of the review application without first
seeking a variation of the
order by way of a court application.
1.3 Costs are reserved.
1.4 I make an order in terms of the
draft marked “D”.
[1]
2. Principles
(1)
The principles set out in this section apply throughout the Republic
to the actions of all organs of state that may significantly
affect
the environment and-
(a) shall apply
alongside all other appropriate and relevant considerations,
including the State's responsibility to respect,
protect, promote
and fulfil the social and economic rights in Chapter 2 of the
Constitution and in particular the basic needs
of categories of
persons disadvantaged by unfair discrimination;
(b) serve as the general
framework within which environmental management and implementation
plans must be formulated;
(c) serve as guidelines
by reference to which any organ of state must exercise any function
when taking any decision in terms
of this Act or any statutory
provision concerning the protection of the environment;
(d) serve as principles
by reference to which a conciliator appointed under this Act must
make recommendations; and
Development
must be socially, environmentally and economically sustainable.
(4)
(a) Sustainable
development requires the consideration of all relevant factors
including the following:
(i) That the disturbance
of ecosystems and loss of biological diversity are avoided, or,
where they cannot be altogether avoided,
are minimised and remedied;
(ii) that pollution and
degradation of the environment are avoided, or, where they cannot be
altogether avoided, are minimised
and remedied;
(iii) that the
disturbance of landscapes and sites that constitute the nation's
cultural heritage is avoided, or where it cannot
be altogether
avoided, is minimised and remedied;
(iv) that waste is
avoided, or where it cannot be altogether avoided, minimised and
re-used or recycled where possible and otherwise
disposed of in a
responsible manner;
(v) that the use and
exploitation of non-renewable natural resources is responsible and
equitable, and takes into account the
consequences of the depletion
of the resource;
(vi) that the
development, use and exploitation of renewable resources and the
ecosystems of which they are part do not exceed
the level beyond
which their integrity is jeopardised;
(vii) that a risk-averse
and cautious approach is applied, which takes into account the
limits of current knowledge about the
consequences of decisions and
actions; and
(viii) that negative
impacts on the environment and on people's environmental rights be
anticipated and prevented, and where they
cannot be altogether
prevented, are minimised and remedied.
[2]
Gqwetha v Transkei
Development Corporation Ltd and Others
[2005]
ZASCA 51
;
2006 (2) SA 603
(SCA).