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[2015] ZASCA 177
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Minister of Water and Environmental Affairs v Kloof Conservancy (106/2015) [2015] ZASCA 177; [2016] 1 All SA 676 (SCA) (27 November 2015)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
106/2015
Reportable
In the matter
between:
MINISTER OF WATER
AND ENVIRONMENTAL AFFAIRS
APPELLANT
and
KLOOF
CONSERVANCY
RESPONDENT
Neutral
citation:
Minister
of Water and Environmental Affairs v Kloof Conservancy
(106/2015)
[2015] ZASCA 177
(27 November 2015)
Bench:
Ponnan, Mhlantla, Saldulker and Dambuza
JJA and Van Der Merwe AJA
Heard:
20 November 2015
Delivered:
27
November 2015
Summary
:
Environmental law – National
Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) –
failure on the part of
the Minister to publish a national list of
alien and invasive species (AIS) and regulations within the time
required by s 70(1)
(a)
of
(NEMBA) – Minister published the requisite AIS list and
regulations even though overdue – high court issuing orders
imposing a general obligation upon the Minister to oversee that all
organs of State comply with the NEMBA – having regard
to
principles of legality, separation of powers and co-operative
government, it was not competent for the high court to make such
declaratory orders.
ORDER
On appeal from
:
KwaZulu-Natal Local Division of the
High Court, Durban (Vahed J, sitting as court of first instance):
The
appeal succeeds and paragraphs c. and d. of the order of the court
below are set aside.
JUDGMENT
Ponnan JA
(Mhlantla, Saldulker and Dambuza JJA and Van Der Merwe AJA
concurring):
[1] Section 24 of our
Constitution provides:
‘
24
Environment
Everyone
has the right-
(a)
to
an environment that is not harmful to their health or well-being; and
(b)
to
have the environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures
that-
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.’
The National
Environmental Management Act 107 of 1998 (NEMA) was enacted with a
view to protecting the environmental rights guaranteed
under s 24 of
the Constitution. Section 2 of NEMA embodies a set of guiding
principles by which the State is required to act in
relation to
environmental management. The National Management: Biodiversity Act
10 of 2004 (NEMBA) is one of a suite of environmental
management Acts
to which the principles embodied in NEMA are applicable. The
objectives of NEMBA (s 2) are: within the framework
of NEMA to, inter
alia, provide for the management and conservation of biological
diversity within the Republic and of the components
of such
biological diversity (s 2
(a)
(i));
to give effect to ratified international agreements relating to
biodiversity which are binding on the Republic (s 2
(b)
);
to provide for co-operative governance in biodiversity management and
conservation (s 2
(c)
);
and to provide for a South African National Biodiversity Institute to
assist in achieving the objectives of NEMBA (ss 10-12).
[2] The commencement
date of NEMBA was 1 September 2004.
[1]
In terms of s 70(1)
(a)
,
the appellant, the Minister of Water and Environment Affairs
(Minister), was required, within 24 months of that date, to publish,
by notice in the
Gazette
,
a national list of what is commonly referred to as alien and invasive
species (AIS). The list had to thus be published by 31 August
2006.
[3] Section 1 of NEMBA
defines ‘invasive species’ as:
‘
any
species whose establishment and spread outside of its natural
distribution range –
(a)
threaten
ecosystems, habitats or other species or have demonstrable potential
to threaten ecosystems, habitats or other species;
and
(b)
may result in
economic or environmental harm or harm to human health.’
Whereas
it defines ‘alien species’ as:
‘
(a)
a
species that is not an indigenous species; or
(b)
an
indigenous species translocated or intended to be translocated to a
place outside its natural distribution range in nature, but
not an
indigenous species that has extended its natural distribution range
by natural means of migration or dispersal without human
intervention;’
Section 71(1) and (2)
of NEMBA restricts activities involving certain AIS, by requiring a
person wishing to carry out such activity
involving AIS to obtain a
permit for that purpose. This type of AIS is determined by reference
to the list contemplated in s 70(1)
(a)
.
Section 71(3) empowers the Minister by notice in the
Gazette
to exempt a person from the requirement to obtain a permit ordinarily
required under s 71(1) and (2) subject to such conditions
as the
Minister specifies in the notice. Section 71A empowers the Minister
through notice in the
Gazette
to prohibit specific specimen of AIS for which no permit may be
issued for carrying out a restricted activity, subject to such
conditions as the Minister may specify in the notice. Section 75
requires the control and eradication of certain other AIS to be
conducted in an appropriate manner. The list also determines which
AIS must be controlled or eradicated. The workability of Chapter
5
accordingly depends on the publication of the list.
[4] Section 97(1)
(c)
of NEMBA empowers the Minister to make regulations, inter alia, for:
facilitating or implementing the enforcement of ss 65,67 or
71 (s
97(1)
(c)
(iii));
prescribing compulsory conditions for any permits (s 97(1)
(c)
(iv));
assessing the risks and potential impacts on biodiversity of
restricted activities involving listed AIS (s 97(1)
(c)
(v));
controlling and eradicating listed AIS (s 97(1)
(c)
(vi))
and co-ordinating and implementing programmes for the prevention,
control or eradication of AIS (s 97(1)
(c)
(vii)).
The effective discharge of the prescripts in ss 71 and 75 requires
detailed regulations. Section 76 sets out the manner
in which the
implementation of these powers and obligations is to be carried out
by the numerous organs of State which are engaged.
It seeks to
integrate the powers and obligations which exist under the various
statutes which affect AIS. Accordingly: (a) the
management authority
of a protected area under the
National Environmental Management:
Protected Areas Act 57 of 2003
must prepare a management plan that
incorporates a strategy for controlling and eradicating AIS (
s
76(1))
; (b) all organs of State in all
spheres of government must prepare a plan for monitoring, controlling
and eradicating AIS, as part
of their environmental management plans
in terms of
s 11
of NEMA (
s 76(2)
(a)
)
;
(c) all municipalities must incorporate their AIS monitoring, control
and eradication plans into their integrated development
plans (IDPs)
under the Local Government: Municipal Systems Act 32 of 2000 (Systems
Act) and the regulations under that Act (
s
76(2)
(b)
)
.
NEMBA thus forms part of a complex latticework of legislation. It
overlaps with and has to be integrated with the processes envisaged
under related legislation.
[5] The Minister
published a series of draft lists for public comment,
[2]
but did not publish or bring into operation a final list and
regulations. The respondent, the Kloof Conservancy (Kloof),
[3]
asserting that the Minister had failed to timeously fulfil her
obligations under NEMBA and the Constitution, applied to the
KwaZulu-Natal
Local Division, Durban (high court), for an order
compelling the Minister to do so, and for related relief. Kloof
launched two
substantive applications. In the first, launched on 3
December 2012, it sought extensive relief including a structural
interdict.
The relief was cut back substantially in Kloof’s
replying affidavit to focus on the Minister’s duty to publish a
list
and make regulations. In the second, launched on 11 October
2013, it sought the review and setting aside of the interim AIS lists
and regulations that had been published in July 2013. A draft
consolidated order, prepared by Kloof, set out the relief which it
ultimately sought. It read:
‘
1.
The following regulations and species lists published by the
[Minister] on 19
th
July 2013 are declared to be unlawful and unconstitutional, and are
reviewed and set aside:
1.1.
the
Alien and Invasive Species Regulations under Government Notice R506
dated 19
th
July 2013;
1.2.
the
Exempted Alien Species List under Government Notice R509 dated 19
th
July 2013;
1.3.
the
National List of Invasive Species under Government Notice R507 dated
19
th
July 2013;
2.
the [Minister]’s failure to publish by 31
st
August
2006 a national list of invasive species in terms of Section 70(1)
(a)
of the [NEMBA], in respect of which chapter 5 of NEMBA must be
applied nationally, is declared unlawful and unconstitutional;
3.
the [Minister] is ordered to publish on or before 30
th
June 2014, by notice in the
Gazette
, a national list of
invasive species referred to in Section 70(1)(A) of NEMBA, in respect
of which list chapter 5 of NEMBA must
be applied nationally;
4.
the [Minister]’s failure to make and publish, in terms of
NEMBA, Regulations
appropriate and necessary to ensure the full and
proper implementation of chapter 5 of NEMBA, is declared unlawful and
unconstitutional;
5.
the [Minister] is ordered to make and publish in terms of NEMBA, on
or before
30
th
June 2014, Regulations appropriate and
necessary to ensure the full and proper implementation of chapter 5
of NEMBA;
6.
the First [the Government of the Republic of South Africa], Second
[ie the Minister],
Fifth [Provincial Government of KwaZulu-Natal] and
Sixth Respondents [MEC for Agriculture, Environmental Affairs and
Rural Development,
Province of KwaZulu-Natal] are ordered to do all
such things and take all such steps as are necessary, and as are
within their
authority under the law, to ensure that all organs of
State in every sphere of Government:
6.1.
comply with their duties under Section 76(2) and (4) of NEMBA to
prepare invasive species monitoring,
control and eradication plans
for land under their control, as part of their environmental plans in
accordance with s 11 of the
[NEMA], within a period of six months
from the date of this Order;
6.2.
comply with and implement properly and fully their invasive species
monitoring, control and eradication
plans under Section 76 of NEMBA;
7.
the Second Respondent is directed to appoint and mandate by 30
th
June 2014 sufficient numbers of Environmental Management Inspectors
in relation to Invasive Alien Species in the province of
KwaZulu-Natal
to ensure compliance with the Government’s duties
in relation to IAS under section 24 of the Constitution and chapter 5
of
NEMBA;
8.
the First, Second, Third [the Minister of Agriculture, Forestry and
Fisheries],
Fifth and Sixth Respondents are ordered to pay the costs
of the main application jointly and severally, the one paying the
others
to be absolved, on the scale as between attorney and own
client, including the costs occasioned by the employment of two
Counsel;
9.
the [Minister] is ordered to pay the costs of the review application,
such costs
to include the costs occasioned by the employment of two
Counsel;
10.
an Order in terms of Section 32(3)
(a)
of the [NEMA], that the
Respondents are ordered to pay the costs on the scale as between
attorney and own client of any person
or persons entitled to practice
as advocate or attorney in the Republic of South Africa who provided
free legal assistance or representation
to the Applicant in the
preparation for or conduct of the proceedings, as follows:
10.1.
the main application, the First, Second, Third, Fifth and Sixth
Respondents, jointly and severally, the
one paying the others to be
absolved;
10.2.
the review application, the [Minister].’
[6] On 12 February
2014 the Minister published a draft AIS List and Regulations for
public comment. These drafts were placed before
the high court.
Accompanying the drafts, and also before the court, was a media
statement issued by the Minister on 17 February
2014. It drew the
attention of the public to the drafts, and invited comments within 30
days. The Minister made clear her intention
to put a final list and
regulations into effect. The application was heard on 25 April 2014.
On 1 August 2014, and after judgment
had been reserved in the matter,
but before its delivery, the Minister published the Alien Invasive
Species Lists
[4]
(the 2014 AIS List) and the Alien and Invasive Species
Regulations.
[5]
This was brought to the attention of the high court.
[7] The regulations
stipulate timeframes for the implementation of chapter 5 of NEMBA.
Regulation 8, which is of particular relevance,
provides:
‘
(1)
The Minister must –
(a)
within one year of the date on which these regulations come into
effect, develop guidelines
for the development of Invasive Species
Monitoring, Control and Eradication Plans for listed invasive species
as contemplated in
section 76 of the Act;
(b)
publish the guidelines contemplated in paragraph (a) on the
Department’s website;
and
(c)
review, at least every five years, the guidelines contemplated in
paragraph (a).
(2)
The Management authorities of protected areas and organs of state in
all spheres of
government must –
(a)
prepare their Invasive Species Monitoring, Control and Eradication
Plans contemplated
in section 76 of the Act based on priorities
identified through the guidelines referred to in subregulation (1);
and
(b)
submit those plans to the Minister and to the Institute within one
year of the publication
of the guidelines contemplated in
subregulation (1).
(3)
The Invasive Species Monitoring, Control and Eradication Plans
referred to in subregulation
(2) must be reviewed every 5 years by
those organs of state and management authorities responsible for such
plans.’
[8] The 2014 AIS List
and Regulations detail the various AIS in accordance with chapter 5
of NEMBA. These are: (a) AIS that must
be combatted or eradicated
(category 1a);
[6]
(b) AIS that must be controlled (ie have their spread contained until
a Management Plan has been implemented) (category 1b);
[7]
(c) AIS for which a permit is required in order to carry out a
restricted activity, subject to any prescribed conditions (category
2); and (d) AIS for which an exemption from the requirement to obtain
a permit applies or which are prohibited and in respect of
which no
permit may be issued (category 3).
[9] The primary relief
sought by Kloof had been to require the Minister to publish the list
and regulations. By the time the high
court delivered its judgment
the Minister had taken those steps. The high court (per Vahed J)
delivered its judgment on 22 October
2014. It noted that the 2014 AIS
List and Regulations ‘impact dramatically upon the relief
sought in that the nub of the
relief sought has apparently been
rendered moot’. That is so because in publishing the 2014 AIS
List and Regulations, the
Minister had discharged her duty in terms
of s 70(1)
(a)
and her power in terms of s 97(1)
(c)
- it
was the Minister’s prior failure in that regard which was the
thrust of Kloof’s complaint. In addition those publications
superseded and repealed the 2013 AIS
List
an
d Regulations, which were the subject-matter of the review.
That notwithstanding, the high court proceeded to issue the following
order:
‘
a.
The [Minister]’s failure to publish by 31 August 2006 a
national list of invasive
species in terms of Section 70(1)
(a)
of
the [NEMBA], in respect of which chapter 5 of NEMBA must be applied
nationally, is declared unlawful and unconstitutional;
b.
The [Minister]’s failure, by 31
st
August 2006, to
make and publish, in terms of NEMBA, Regulations appropriate and
necessary to ensure the full and proper implementation
of chapter 5
of NEMBA, is declared unlawful and unconstitutional;
c.
The First, Second [Minister], Fifth and Sixth Respondents are ordered
to do all
such things and take all such steps as are necessary, and
as are within their authority under the law, to ensure that all
organs
of State in every sphere of Government:
i.
Comply with their duties under Section 76(2) and (4) of NEMBA to
prepare
invasive species monitoring, control and eradication plans
for land under their control, as part of their environmental plans in
accordance with s 11 of the [NEMA], within a period of six months
from the date of this Order.
ii.
Comply with and implement properly and fully their invasive species
monitoring,
control and eradication plans under section 76 of NEMBA;
d.
The [Minister] is directed to appoint and mandate, within six months
of the date
of this Order, sufficient numbers of Environmental
Management Inspectors in relation to Invasive Alien Species in the
province
of KwaZulu-Natal to ensure compliance with the Government’s
duties in relation to AIS under section 24 of the Constitution
and
chapter 5 of NEMBA.
e.
The First, Second [Minister], Third, Fifth and Sixth Respondents are
ordered
to pay the costs of the main application jointly and
severally, the one paying the others to be absolved, on the scale as
between
attorney and own client, including the costs occasioned by
the employment of two Counsel;
f.
The [Minister] is ordered to pay the costs of the review application,
such
costs to include the costs occasioned by the employment of two
Counsel;
g.
In terms of Section 32(3)
(a)
of the [NEMA], that the
Respondents are ordered to pay the costs on the scale as between
attorney and own client of any person or
persons entitled to practice
as advocate or attorney in the Republic of South Africa who provided
free legal assistance or representation
to the Applicant in the
preparation for or conduct of the proceedings, as follows:
i.
the main application, the First, Second [Minister], Third, Fifth and
Sixth
Respondents, jointly and severally, the one paying the others
to be absolved;
ii.
the review application, the [Minister].’
[8]
[10] The appeal by
the Minister, which is directed only against orders c. and d., is
with the leave of the high court. The preambular
part of order c. now
requires the Minister to do all such things and take all such steps
as are necessary, and as are within her
authority under the law, to
ensure that all organs of State in every sphere of Government,
discharge the duties and carry out the
functions set out in c. (i)
and (ii). Such an order appears to misconceive the powers and
responsibilities of a national
Minister under our constitutional
system of co-operative government. It seems to be based on the
erroneous premise that our system
of government is hierarchical, with
national government having the power to supervise the performance of
all organs of State in
every sphere of government, and compel them to
comply with their duties.
The Constitution
establishes government at three levels.
The
principle of co-operative government is based on the proposition that
the Constitution devolves legislative and executive powers
among
three distinctive spheres of government, as defined in section 40 of
the Constitution.
[9]
Each sphere of government has autonomous powers and responsibilities,
and must exercise them within the parameters of its defined
space.
[10]
In doing so, the different spheres of government must also work
together to ensure that government as a whole meets its
constitutional
responsibilities.
[11]
Thus, Nugent JA observed in
Johannesburg
Municipality v Gauteng Development Tribunal & others
2010
(2) SA 554
(SCA) para 14, that:
‘
The
structure of government authority under the present constitutional
dispensation departs markedly from that which existed under
the
previous constitutional regime. Under the previous regime all public
power vested in Parliament and devolved upon the lower
tiers of
government by parliamentary legislation. Under
the
present regime, however, certain powers of government are conferred
directly upon the lower tiers by the Constitution.
To the extent
that that has occurred the lower tiers exercise original
constitutional powers and no other body or person may be
vested with
those powers.’
[11] In exceptional
circumstances, the national sphere of government may intervene in a
provincial sphere;
[12]
a provincial sphere of government may intervene in
a local sphere;
[13]
and the national sphere may interfere in a local
sphere where the provincial sphere has failed to do so.
[14]
In
Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal & others
2010
(6) SA 182
(CC) para 44, the Constitutional Court explained:
‘
The
scope of intervention by one sphere in the affairs of another is
highly circumscribed. The national and provincial spheres are
permitted by ss 100 and 139 of the Constitution to undertake
interventions to assume control over the affairs of another sphere
or
to perform the functions of another sphere under certain well-defined
circumstances, the details of which are set out below.
Suffice it now
to say that the national and provincial spheres are not entitled to
usurp the functions of the municipal sphere,
except in exceptional
circumstances, but then only temporarily and in compliance with
strict procedures. . . .’
Ordinarily, no
interventions are permitted outside the scope of ss 100 and 139 of
the Constitution, and neither of those sections
permits an
intervention by the national government in the affairs of a
municipality with regard to compliance with NEMBA. Insofar
as the
high court order obliges the Minister to ensure that all organs of
State in every sphere of government comply with their
duties under s
76 of NEMBA, it in effect requires a form of intervention which is
inconsistent with the structure of our Constitution.
It incorrectly
assumes that the national government has a supervisory and ultimately
a directory role in respect of the other spheres.
The high court
order thus impinges (rather than upholds) the principle of
co-operative government.
[12] In terms of the
high court order, the Minister must ensure that every municipality
and other organ of State ‘fully’
complies with its
obligations. From the bar we were told that there are 278
municipalities spread across and in excess of 24 000
public
entities and organs of State. It must follow that so as to avoid the
risk of liability for contempt of court, the Minister
will have to
monitor closely those bodies to ensure that they comply with their
NEMBA obligations. In that regard, what the order
appears to require
is for the Minister is to ensure that they have a plan, with which
she must – on an on-going basis –
ensure that they
comply. For that she may well need to deploy an army of inspectors
around the country. If she does discover any
non-compliance, she will
have to do ‘all such things and take all such steps as are
necessary’ to ensure that they
do indeed comply. Precisely what
that entails is not clear. In the case of a municipality, by way of
example, the obligatory steps
could possibly include: (a) trying to
persuade the municipality to comply – it being unclear whether
she does in fact have
the power to compel it to do so; (b) trying to
persuade the province to try, in turn, to persuade the municipality
to do so; (c)
trying to persuade the provincial government to
intervene under s 139 of the Constitution; (d) declaring an
inter-governmental
dispute under the Intergovernmental Relations
Framework Act 13 of 2005; and, perhaps as a last resort, (e)
instituting litigation
against the municipality to compel it to
comply with its obligations. This, self-evidently, is not the role of
a national Minister
under our system of co-operative government.
National government is not intended to function as a supervisor and
enforcer of other
spheres of government. But, if the Minister does
not take these steps in every part of the country, on an on-going
basis, she is
at risk of being held to be in contempt of court.
[13] There was some
suggestion that all that the order requires of the Minister is to do
that which is within her authority under
the law; and therefore it
does not conflict with the constitutional principle of co-operative
government. But, that raises pointedly
the purpose of ordering the
Minister to carry out these far-reaching tasks in respect of every
organ of State in every sphere of
government, where it is clear that
her powers particularly in that respect are not untrammelled. It
seems to me that it would simply
be impossible for the Minister to
know what the source of her legal powers are to take the various
steps ordered by the court.
Moreover, interrogating the suggestion
appears to lead one to the conclusion that the order is
indeterminate, open ended and irredeemably
vague. For, it seems
impossible for the Minister to know with any measure of confidence
what she is obliged by the order of court
to do. Here, the court
offers the Minister no guidance as to when to she is required to step
in.
Litigants who are required to comply
with court orders, at the risk otherwise of being in contempt if they
do not, must know with
clarity what is required of them (
Minister
of Home Affairs v Scalabrini Centre & others
2013 (6) SA 421
(SCA) para 77).
Courts
are entitled to operate on the assumption that government will comply
with orders of court (
Minister of Home
Affairs v Somali Association of South Africa
2015
(3) SA 545
(SCA) para 27). But, in order to do that, it has to know
where its obligations start and end. It does seem to me to be
difficult
in the extreme for the Minister to know with any measure of
confidence precisely what steps she is required to take to comply
with
the order of the high court.
[14] An order or
decision of a court binds all those to whom, and all organs of State
to which, it applies.
[15]
All laws must be written in a clear and accessible manner.
[16]
Impermissibly vague provisions violate the rule of law, which is a
founding principle of our Constitution.
[17]
Orders of court must comply with this standard. In
Mazibuko
NO v Sisulu NO & others
2013 (6) SA
249
(CC), which concerned
the right of a
Member of Parliament to move a motion of no confidence in the
President, the Constitutional Court, in its consideration
of a
similarly worded prayer to paragraph c. of the order of the high
court, stated (in para 24) that:
‘
the
prayer in the applicant’s notice of motion that the Speaker
personally take whatever steps are necessary to vindicate
the
applicant’s constitutional right, is so open-ended and vague as
to render the relief incompetent.’
As the preambular
part of order c. governs the whole of that order and determines the
Minister’s obligations under it, it
may well be that, without
more, order c. falls in its entirety, to be set aside. But, in
addition, the remainder of that order
can also hardly withstand
scrutiny.
[15] The order of the
high court creates unjustified disharmony with the statutory scheme
under NEMBA. The 2014 AIS Lists and Regulations
are presumptively
valid. They have never been the subject of any legal challenge.
Accordingly, they remain operative and binding.
Regulation 8
prescribes time periods for the achievement of certain steps to give
effect to chapter 5 of NEMBA. Regulation 8(1)
provides that the
Minister must develop guidelines for the development of AIS plans, as
contemplated in s 76 of NEMBA, within one
year from the coming into
effect of the 2014 AIS Regulations. Regulation 8(2) provides that the
management authorities and organs
of State in all spheres of
government must, in turn, prepare their AIS plans and submit them to
the Minister and to the
South African
National Biodiversity Institute, established in terms of s 10 of
NEMBA
, within one year of the publication
of the guidelines.
[18]
As acknowledged by Kloof, the Minister has wide discretionary powers
to implement NEMBA, including through the promulgation of
regulations. In promulgating the 2014 regulations, the Minister
exercised that discretion. It has not been contended that she did
not
exercise it properly. The high court emphasised that it had ‘not
given any consideration to the content of the August
2014
publications’. In its order the high court imposed a timeframe
of six months on the Minister and other respondents
[19]
to prepare their AIS plans. As a consequence of its failure to
consider the substantive and procedural obligations created by the
2014 Regulations, and in particular the timeframe stipulated in
Regulation 8, the high court imposed a shorter time period for
compliance with s 76. Since the 2014 AIS Lists and Regulations remain
valid, the effect of the high court’s order c. (i)
is to create
two different time periods for discharging the same obligations under
the same statute.
[16] As I have
pointed out various other statutes interlink with NEMBA, forming a
carefully configured legislative latticework.
The timeframes for
completion of the relevant plans under each of the those statutes are
as follows: The Protected Areas Act
stipulates that management
authorities must submit a management plan for a protected area to the
Minister or MEC for approval within
one year of the assignment.
[20]
This accords with the time period in Regulation 8(2) of the 2014
regulations. NEMA stipulates that all national departments exercising
functions that may affect the environment and every province must
prepare an environmental implementation plan at least every five
years.
[21]
Section 11 of NEMA is incorporated by reference in s 76 of NEMBA.
Regulation 8(2) of the 2014 regulations thus imposes a
more stringent
time period of one year on these organs of State. NEMA stipulates
that the Minister may by notice in the
Gazette
extend the submission of any environmental implementation or
management plan, but by no more than a period of one year. The
Systems
Act stipulates that municipalities must review their IDPs on
an annual basis.
[22]
Since s 76(2)
(b)
of
NEMBA requires municipalities to incorporate their AIS plans into
their IDPs, the detailed process for amending their IDPs must
be
followed.
[23]
The envisaged time frame of one year for preparing AIS plans under
Regulation 8(2) among municipalities is already stringent. The
high
court’s truncation by half of the one year time period
contemplated in Regulation 8, thus conflicts with the one year
time
frame envisaged in s 39(2) of the Protected Areas Act and it imposes
an obligation on all organs of State in all spheres of
government to
comply with their duties under s 76 of NEMA in a much shorter period
of time. There can be little doubt that the
high court did not intend
this. After all, it did not consider at all the implications of these
related statutes. It must follow
that the high court erred in
imposing a time limit which was different from (and more stringent)
to those imposed by Regulation
8 and the other applicable
legislation, without even having regard to those time limits. Thus in
the absence of a direct and successful
challenge to the published
list and regulations, which are legally binding, it was not
permissible for the high court to ignore
their content when making
its order.
[17] Turning to order
d.: Sections 31B, 31BA and 31C of NEMA govern the designation of EMIs
by inter alia the Minister, the Minister
responsible for the
Department of Water Affairs and the MEC responsible for environmental
affairs in each of the provinces respectively.
Section 31D of NEMA
provides for the mandating of EMIs by the relevant Ministers and
MECs. It places on each of them the responsibility
to mandate EMIs in
respect of those functions in relation to which he or she bears a
duty under NEMBA. Paragraph d of the high
court’s order
destroys this distribution of responsibility, and places it
exclusively on the Minister. This is not competent
because: first,
paragraph d creates an impermissible inconsistency with the statutory
scheme of responsibility; second, the order
places a responsibility
on the Minister which does not exist under the statute and third, it
violates the principle of co-operative
government by appropriating
functions of the Minister responsible for the Department of Water
Affairs and the relevant MEC, and
assigning them to the Minister.
[18] In any event,
there was material evidence about the current number of Environmental
Management Inspectors (EMIs), and anticipated
appointments, before
the high court. As at 23 February 2013, the KZN Nature Conservation
Services had a total of 310 EMIs and the
Provincial Department 37. By
30 July 2013 the KZN Provincial Department had increased its number
of EMIs to 51, whilst 17 candidates
were awaiting the results of
their examinations, since having undergone training in 2013. In the
MEC’s estimation, if all
trainees passed their examinations,
only 11 EMIs would reasonably be required for KZN. Also as at 30 July
2013, in the Working
for Water Programme, 34 officials were being
trained to become EMIs, and a further 35 were scheduled for training
in the final
quarter of 2013. The high court made no mention of the
number of EMIs currently qualified or about to qualify in KZN. It
made no
finding on whether the current and projected numbers were
sufficient. In the absence of such a finding, it could hardly have
been
open to the high court to make order d.
[24]
The evidence before the high court was that there are ‘no
clearly definable criteria [for] determining what constitutes a
sufficient number of EMIs’. The result is that the reference in
the order to ‘sufficient numbers’ of EMIs is
impermissibly vague. The Minister is subject to the potential threat
of contempt proceedings, where there are no objectively definable
criteria for determining the extent of the obligation that she has
been ordered to perform. Accordingly, the court erred in imposing
this duty upon the Minister, in circumstances where she is not the
only authority with the power, duty and resources to appoint
and
mandate EMIs. What is more, is that the court made the order without
any finding on whether the current or projected numbers
were
sufficient and without having regard to what other organs of state
would or should do to appoint and mandate EMIs.
[19] Moreover, the
ordering of public resources is pre-eminently a matter that falls
within the competence and remit of the executive
arm of
government.
[25]
That calls for the exercise of circumspection and care as to the
potential trenching on the separation of powers when a court
formulates an order that implicates public resources. The Minister
sought to explain the difficulties in attempting to control,
much
less eliminate, AIS. It was pointed out that a cost-benefit analysis
has to be undertaken. This entails the weighing up of
the marginal
benefits against the marginal costs of undertaking a particular
project. The inherent complexities of AIS make their
impact difficult
to quantify, and render the exercise highly technical. Such an
analysis must perforce inform the decision as to
how many EMIs should
be appointed. That is quintessentially a matter of policy,
implicating multiple factors and considerations
of a technical
nature, and the on-going exercise of judgment in the light of all of
the available information. Those are matters
best left to the
executive arm of government. Courts should not impermissibly assume a
function that falls within the domain of
the Executive, unless the
reasons for doing so are compelling and mandated by the
Constitution.
[26]
Indeed, Kloof itself stated that it does not desire that the judicial
arm of the State intrude into the province of the Executive.
However,
Kloof’s asserted position is inconsistent with the order sought
and ultimately granted.
[20] In arriving at its
conclusion that orders c. and d. were necessary, the high court
stated:
‘
In
the circumstances, given the history of the matter, and
notwithstanding the fact that the regulations and lists have now been
published, [Kloof] is entitled to the order it seeks that the
[Minister and] first, . . . , fifth and sixth respondents take such
steps as they are authorised in law to take to ensure that organs of
State comply with their duties under s 76 of NEMBA within
a period of
six months of the Order’.
The high court found
that the conduct of the various State parties did not reflect any
sense of urgency, and that the Minister had
not acted reasonably or
in good faith. These considerations, however, related directly and
exclusively to the Minister’s
failure to publish the list and
regulations during the time period prescribed by s 70(1)
(a)
of NEMBA. That failure had been cured
by the publication of the 2014 Lists and Regulations. Those
considerations did not, and could
not, have had any bearing on the
Minister’s anticipated future conduct. There was no evidence
before the high court to suggest
that, having published the 2014 AIS
List and Regulations, the Minister would not thereafter discharge her
obligations. The Minister
suggests – and the high court
accepted - that despite her failure to publish the lists and
regulations timeously, she and
her Department do take the issue of
AIS very seriously. She points out that: (a) the Working for Water
programme, which focuses
on the management of AIS, is the largest
conservation programme in Africa, with a Medium Term Expenditure
Framework budget of over
R4 billion; and (b) South Africa has the
largest budget of any country in the world relative to Gross National
Product for the
management of AIS. The high court’s approach
thus amounted to this: You have failed in the discharge of obligation
A, the
court is thus entitled, without more, to assume that, before
it even fully ripens into an obligation as such, you will likewise
fail in the future to discharge obligation B and, what is more, in
anticipation of such failure, an order directing you to perform
obligation B prospectively is warranted.
[21]
In these circumstances the following dictum from
Ekurhuleni
Metropolitan Municipality v Dada NO & others
[zRPz]2009
(4) SA 463 (SCA) para 10, seems to me to be apposite:
‘
In his
judgment the judge expressed his disapproval of the level of
inactivity, with regard to the circumstances of the occupiers,
shown
the municipality particularly over the period between the lodging of
the eviction application and the date of the hearing.
He found that
this constituted a failure by the municipality to comply with its
constitutional duties. In the course of reviewing
the law concerning
the court’s role in the enforcement of fundamental rights, such
as the right of access to housing,
he referred to the well-known
decisions in
Government
of the Republic of South Africa & others v Grootboom & others
2001
(1) SA 46
(CC)
(2000 (11) BCLR 1169)
, but expressed the view that the
courts had not gone far enough towards enforcing the rights in s 26
of the Constitution in these
cases. On this basis, it seems, he
apparently decided that the courts should be galvanised into taking a
“robust approach”
to the implementation of the
provisions of the Constitution. This type of approach is probably the
very antithesis of the approach
which this court and the
Constitutional Court have endorsed in a number of recent decisions.
In
Logbro
Properties CC v Bedderson NO & others
2003
(2) SA 460
(SCA) ([2003]
1 All SA 424)
, para 21, Cameron JA
referred, in the context of a necessity for “judicial
deference”, with approval to the following
passage from an
article by Cora Hoexter entitled “The Future of Judicial Review
in South African Administrative Law”
(2000) 117
SALJ
484, at 501-502, which is to the following effect:
“
.
. . the sort of deference we should be aspiring to consists of a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province
of administrative agencies;
to admit the expertise of these agencies in policy-laden or
polycentric issues; to accord their interpretation
of fact and law
due respect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and
the practical and
financial constraints under which they operate. This type
of deference is perfectly consistent with a concern
for
individual rights and a refusal to tolerate maladministration.”’
This passage was also
referred to with approval and the theme taken up by Schutz JA in
Minister of Environmental Affairs and Tourism & others v
Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs
and
Tourism & others v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) ([2003]
2 All SA 616)
paras 52 and 53,
where, after quoting the passage set out above, the learned judge
said:
“
I
agree with what is said by
Hoexter
(op cit
at 185):
‘
The
important thing is that Judges should not use the opportunity of
scrutiny to prefer their own views as to the correctness
of the
decision, and thus obliterate the distinction between review and
appeal.’”’ (Footnotes omitted.)
[22] It is plain that
the learned judge in the high court was exasperated by the Minister’s
desultory approach to the discharge
of her statutorily imposed
obligation. He thus obviously thought that her conduct was deserving
of censure. That was achieved by
the grant of orders a. and b., as
also, by mulcting her with a punitive costs order. Her generally
lackadaisical attitude, however,
did not extend to the matters
covered by orders c. and d. In these circumstances, as Justice
O’Regan observed in her Helen
Suzman Memorial Lecture titled
‘The role of the ConCourt in our democracy’,
[27]
‘
Courts
must accordingly avoid what a respected Indian commentator has termed
the jurisprudence of exasperation: the tendency
to reach
decisions or make statements that are an expression of judges’
exasperation with the state of affairs in the country,
rather than on
the basis of “carefully thought out arguments based on the
law’s possibilities and limits.” .
. . . In South
Africa a jurisprudence of exasperation might result in the
requirements of rationality being unduly tightened or
in courts being
too slow to accept that government’s policies in achieving
social economic rights are reasonable, or in insisting
that
government adopt the court’s own views as to what is an
appropriate government policy.
Such
a result would be damaging, as Pratap Bhanu Mehta has observed.
“Often judicial interventions, unless disciplined by
law and
carefully crafted, produce worse outcomes [than bad government
policy]. In some ways judicial policy-making magnifies rather
than
corrects the deficiencies of executive policy-making. …
Ad
hominem
interventions based on nothing more than confidence in the judges’
good intentions, are no substitute for a policy-making
process.”’
(Footnotes omitted.)
[23] The
Constitutional Court has held in
Rail
Commuters
para 107-108 that:
[28]
‘
It
is quite clear that before it makes a declaratory order a court must
consider all the relevant circumstances. A declaratory order
is a
flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection
and enforcement of our Constitution and its values. Declaratory
orders, of course, may be accompanied by other forms of relief,
such
as mandatory or prohibitory orders, but they may also stand on their
own. In considering whether it is desirable to order
mandatory or
prohibitory relief in addition to the declaratory, a court will
consider all the relevant circumstances.
It
should also be borne in mind that declaratory relief is of particular
value in a constitutional democracy which enables courts
to declare
the law, on the one hand, but leave to the other arms of government,
the Executive and the Legislature, the decision
as to how best the
law, once stated, should be observed.’
This approach
respects the separation of powers. Thus in a case such as this, where
the primary issues raised had become moot, but
the matter nonetheless
raised issues of public importance or constitutional principle, a
declaratory order may well have been warranted,
but the consequential
relief was hardly justified, particularly absent a finding by the
court (still less any evidence) that the
Executive would not observe
the law. It follows that paragraphs c. and d. of the high court’s
order cannot stand.
[24] As to costs: In
the event of the appeal succeeding and in accordance with the
principle articulated in
Biowatch Trust
v Registrar, Genetic Resources & others
2009 (6) SA 232
(CC),
the
Minister commendably did not seek costs.
[25] In the result
the appeal succeeds and paragraphs c. and d. of the order of the
court below are set aside.
_________________
V M Ponnan
Judge of
Appeal
APPEARANCES:
For
Appellant:
G M Budlender SC (with him U K Naidoo)
Instructed
by:
The State
Attorney, KwaZulu-Natal
The State
Attorney, Bloemfontein
For
First Respondent:
M D C Smithers SC (with him A Coutsoudis)
Instructed
by:
Shepstone &
Wylie, Durban
Matsepes,
Bloemfontein
[1]
In terms of GN 700 in GG 26436 (7 June 2004), the
commencement date of the NEMBA is 1 September 2004
unless
otherwise indicated
[Proc No. R47, GG
26887 (8 October 2004)]. While the commencement date for ss 49, 57,
65, 66 and 71 and Chapter 7 is 1 April
2005, and the commencement
date of Chapter 6 and section 105 is 1 January 2006.
[2]
The
first on 17 September 2007, the second on 3
April 2009 and the third on 12 February 2014.
[3]
The Kloof Conservancy is a registered non-profit
organisation also registered as a public benefit organisation
founded in 1993,
it is a member of the Kwazulu-Natal Conservancy
Association. Its mission is to protect the biodiversity, empower the
community
to sustain a better future and to preserve natural
heritage, and its objectives include the eradication of invasive
alien plants,
the protection and rehabilitation of indigenous
ecosystems and the conservation and cultivation of indigenous
plants.
[4]
Published in GN 559 in
GG
37886 (1 August 2014).
[5]
Published in GN R598 in
GG
37885 (1 August 2014).
[6]
Regulation 2(1).
[7]
Regulation 3(1).
[8]
Sub-paragraphs i. and ii. of paragraph g. of the
judgment are incorrectly referred to as paragraphs h. and i. in the
order of
the high court.
[9]
The principles of co-operative government are set
out in s 41 of the Constitution. See
Premier,
Western Cape v President of the Republic of South Africa
[1999] ZACC 2
;
1999 (3) SA 657
(CC) para 50.
[10]
Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal & others
2010
(6) SA 182
(CC) para 43.
[11]
Independent Electoral Commission v Langeberg
Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) para
26.
[12]
Section 100 of the Constitution.
[13]
Section 139 of the Constitution.
[14]
Section 139(7) of the Constitution.
[15]
Section 165(5) of the Constitution.
[16]
Affordable Medicines Trust & others v
Minister of Health & others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 108.
[17]
National Credit Regulator v Opperman &
others
2013 (2) SA 1
(CC) para 46. See
also s 1
(c)
of the Constitution.
[18]
Regulation 8(2) read together with section 76 of
NEMBA.
[19]
Including the First, Fifth and Sixth Respondents
a quo.
[20]
Section 39(2) of the Protected Areas Act.
[21]
Section 11(1) and (2) of NEMA.
[22]
Section 34
(a)
of
the Systems Act.
[23]
Regulation 3 of the Local Government: Municipal
Planning and Performance Management Regulations, 2001 (published
under GN R796
in
GG
22605 (24 August 2001)). The process entails, at least the
following:
·
The introduction of a proposal to
amend by a councillor or committee, including a memorandum.
·
The proposal must be adopted by the
council, which requires prior notice to all members and publication
of the proposed amendment
for public comment at least 21 days in
advance.
·
If the municipality is a district
municipality, it must consult with all local municipalities in its
area and take comments submitted
by local municipalities into
account before taking a final decision.
·
If the municipality is a local
municipality, it must consult the district municipality in whose
area it falls and take comments
submitted by the district
municipality before taking a final decision.
[24]
The limits of judicial decision-making were
exemplified by this court in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 15.
[25]
National Treasury & others v Opposition to
Urban Tolling Alliance & others
2012
(6) SA 223
(CC) para 68.
[26]
National Director of Public Prosecutions and
Others v Freedom Under Law
2014 (4) SA
298
(SCA) para 51.
[27]
Kate O’Regan ‘The role of the ConCourt in our democracy’
the Helen Suzman Memorial Lecture delivered
on 22
November 2011 at Johannesburg, available on the Legal Resources
Centre website at
http://www.lrc.org.za/publications/papers/item/the-role-of-the-concourt-in-our-democracy-by-kate-o-regan-judge-of-the-constitutional-court-1994-2009-helen-suzman-memorial-lecture-johannesburg-november-22-2011
,
accessed on 21 November 2015.
[28]
Rail Commuters Action Group & others v
Transnet Ltd t/a Metrorail & others
[2004] ZACC 20
;
2005
(2) SA 359
(CC).