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[2013] ZASCA 80
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Magaliesberg Protection Association v MEC: Department of Agriculture, Conservation, Environment and Rural Development, North West Provincial Government and Others (563/12) [2013] ZASCA 80; [2013] 3 All SA 416 (SCA) (30 May 2013)
Links to summary
29
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 563/12
Reportable
In
the matter between:
MAGALIESBERG
PROTECTION ASSOCIATION
.....................................
Appellant
And
MEC:
DEPARTMENT OF AGRICULTURE,
CONSERVATION,
ENVIRONMENT AND RURAL
DEVELOPMENT
NORTH WEST PROVINCIAL
GOVERNMENT
..............................................................................
First
Respondent
CHIEF
DIRECTOR: ENVIRONMENTAL
COMPLIANCE,
DEPARTMENT OF
AGRICULTURE,
CONSERVATION,
ENVIRONMENT
AND RURAL DEVELOPMENT,
NORTH
WEST PROVINCIAL GOVERNMENT
.........................
Second
Respondent
KGASWANE
COUNTRY LODGE (PTY) LTD
..............................
Third
Respondent
Neutral Citation:
Magaliesberg Protection Association v MEC of griculture &
others
(563/2012)
[2013] ZASCA 80(30 May 2013)
Coram:
NAVSA, MAYA
& TSHIQI JJA, PLASKET & SWAIN AJJA
Heard:
13 May 2013
Delivered:
30 May
2013
Summary: Application
for ex post facto environmental authorisation in terms of s 24G(1) of
National Environmental Management Act 107 of 1998
– factors to
be considered – impact on environment – mitigation
measures, public participation process –
environmental
management programme – failure to consider Environmental
Management Framework – in circumstances of case
inconsequential
– no costs order against conservation group acting in the
public interest.
_____________________________________________________________
ORDER
______________________________________________________________
On appeal from
:
North West High Court, Mafikeng (Leeuw JP sitting as court of first
instance).
The following order is
made:
(1) The appeal is
dismissed, save to the extent reflected in the substituted order set
out in 3 below.
(2) Each party is to bear
its own costs.
(3) The order of the
court below is set aside and substituted as follows:
The application is
dismissed and each party is ordered to pay its own costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (MAYA &
TSHIQI JJA, PLASKET & SWAIN AJJA concurring):
[1] This appeal is
directed against a judgment of the North West High Court Mafikeng,
(Leeuw JP), which refused with costs an application
by the appellant,
the Magaliesberg Protection Association (MPA), to review and set
aside a decision of the first respondent’s
predecessor. The
decision in question was one dismissing an internal appeal against an
earlier decision by the second respondent
to grant environmental
authorization ex post facto, to the third respondent, Kgaswane
Country Lodge (Pty) Ltd (Kgaswane) to construct
an hotel and
conference centre.
[2] The first respondent
is the Member of the Executive Council: Department of Agriculture,
Conservation, Environment and Rural
Development, North West
Provincial Government (the MEC). The second respondent is the Chief
Director (the Chief Director) in that
department. The appeal is
before us with the leave of this Court. The detailed background is
set out hereafter.
[3] The MPA is a
voluntary association established in 1975, brought into being, as its
name suggests, with the objective of fostering
and encouraging the
conservation and protection of the Magaliesberg mountain range, a
well-known conservation area. It is common
cause that over the years
the MPA, in its conservation efforts, had interacted with government
authorities. It also appears that
it had made a contribution to the
enactment of presently applicable environmental legislation. In
addition the MPA is also actively
involved, with others, in an
initiative to have the Greater Magaliesberg Region declared a
Biosphere Reserve by the United Nations
Educational, Scientific and
Cultural Organisation (UNESCO).
[4] During July 2008,
members of the MPA, whilst in an airplane flying across the
Magaliesberg mountain range within the Magaliesberg
Protected
Environment, just to the west of where the R24 road crosses the
Magaliesberg at Olifantsnek, noticed a huge development
nearing
completion. This was Kgaswane’s hotel and conference centre. At
an early stage of the litigation between the parties
the extent of
the development was a major issue. More specifically, the MPA had
unsuccessfully sought an interdict to prevent further
construction
work from being done. That question has been rendered academic as the
interdict was refused, resulting in the completion
of at least one
phase of the intended final development. Presently the development is
in the form of a Country Lodge comprising
47 en-suite units; a
conference block; a reception and office block; as well as a
restaurant and massage parlour.
[5] The MPA’s
members were alarmed that such a massive development was taking place
within an ecologically sensitive area
and leapt into action. They
contacted officials in the Chief Director’s office, who in turn
informed them that they too had
only recently become aware of the
development and were in the process of investigating the matter, with
a view to taking action
against the developer as the necessary
statutory environmental authorization had not been obtained.
[6] In November 2008, the
Chairperson of the MPA addressed a letter to the MEC’s
predecessor expressing the applicant’s
concern at what it
considered to be a violation of the area. It took the view that the
development threatened the environment and
the initiative to have the
Greater Magaliesberg Region declared a biosphere under the UNESCO
Charter. From a very early stage and
for a continuing period
thereafter, including in submissions before us, the MPA was concerned
that, if the development were to
remain extant it would open the
floodgates to a spate of developments in the area.
[7] During December 2008
the MPA, through a sister organization, the Mountain Club of South
Africa, became aware that a consulting
firm, Lesekha Consulting
(Lesekha), an environmental assessment practitioner appointed by
Kgaswane, was requesting comments from
affected and interested
parties regarding an application by the latter for ex post facto
authorization, as contemplated in s 24G
of the National Environmental
Management Act 107 of 1998 (NEMA). Kgaswane has stated consistently
that when it applied for building
approval it was unaware that it
required environmental authorisation and that its attention was not
drawn to that requirement by
the Rustenburg Municipality. I will in
due course deal with the applicable statutory provisions.
[8] It appears that the
application for authorization had been submitted to the department by
Lesekha as far back as July 2008.
An environmental assessment report
compiled by Lesekha was submitted to the department in October 2008.
The MPA wrote to Lesekha
insisting that the only way forward was that
the development be demolished and the environment restored.
[9] In January 2009 the
MPA wrote to the Rustenburg Local Municipality, which apparently had
approved the building plans, registering
its objection to the
development.
[10] During March 2009,
after receiving no response from any of the authorities it had sought
to engage, the MPA was sent a letter
by Kgaswane, advising that its
application for ex post facto authorization had been granted on 9
March 2009. Approximately two
months later and after receiving a copy
of the environmental assessment report compiled on Lesekha’s
behalf, the MPA lodged
an appeal against the Chief Director’s
decision to grant the ex post facto authorization. The appeal was
based on the following
grounds:
‘
[T]he
second respondent’s decision was issued pursuant to a flawed
public participation process in that the applicant, as
a key
interested and affected party, was not notified or consulted during
the rectification application process;
[T]he report submitted by Lesekha
Consulting in support of the rectification application was
inadequate in that insufficient detail
and information was provided
to enable the second respondent to make an informed decision as to
the impact of the development
on the MPE;
[T]he mitigation measures proposed in
the report compiled by Lesekha consulting were not site specific but
generic in nature and
wholly inadequate.
[T]he area in which the development
had taken place is a protected area by virtue of its status as the
MPE for the purposes of
the
National Environmental Management:
Protected Areas Act 57 of 2003
and authorization of the development
is contrary to the environmental integrity and strategic plans for
this area; and
[T]here were numerous instances of
inaccurate and contradictory statements made in the report which
render the information contained
therein unreliable and misleading
and as a result any decision made on the basis of the information
provided was necessarily
ill informed.’
[11] On 5 February 2010,
the MPA received the MEC’s decision dated 19 January 2010, in
terms of which its appeal was dismissed.
The following was stated by
the MEC in respect of each of the grounds of appeal in the sequence
in which they appear in the preceding
paragraph:
‘
After
perusal of the contents of the project file I am satisfied that the
public participation process followed in this matter
was in line
with the procedure to be followed and stipulated in GNR 28753 of 21
April 2006.
I am of the opinion that the
information submitted to the department was sufficient for the
decision maker (Mr Moremi) to conclude
that the activity may be
rectified based on the information at hand.
I am satisfied that the mitigation
measures contained in the report and Environmental Management Plan
is adequate.
It is acknowledged that the MPE is
regarded as a protected environment as contemplated in
section 28(7)
of the NEMPAA. It should also however be noted that the legislation
does not prohibit development in the MPE
in toto,
but that
permission must be granted for development to take place. The
required permission was obtained through the application
for
rectification in terms of
section 24G
of the NEMA. The decision
maker in granting the said authorization in terms of
section 24G
of
the NEMA, stated that the development is seen and is acknowledged to
be in line with the spirit of eco-tourism within the
MPE. This would
have been different if the development was an industrial or mining
development. I therefore agree with Mr Moremi
that the development
is in line with eco-tourism in this area and that the authorization
for this development was done in the
light thereof.
I am of the opinion that there was no
bias or irrelevant considerations taken into account when the
decision maker came to the
conclusion to allow the development to
take place. I am further convinced that, as indicated above, the
development can be seen
in the light and spirit of eco-tourism in
this area and that the impacts on the environment can be managed in
a sustainable way.’
[12] In conclusion the
MEC stated:
‘
After
assessing all the information placed before me, I am of the opinion
that the objectives of integrated environmental management,
the
principles set out in
section 2
of the NEMA as well as the ideal of
sustainable development have been adequately addressed by the
Respondents. I am furthermore
convinced that, provided the proposed
mitigation and management of impacts as contained in the
Environmental Management Plan are
adhered to, this development will
be well managed in the spirit of eco-tourism in the area.’
[13] Subsequent to the
appeal decision by the MEC, the extent to which the development was
nearing completion was still an issue
between the MPA and Kgaswane.
In the court below, as stated above, the MPA had initially sought an
interim interdict to prevent
Kgaswane from continuing construction
activities, pending the finalization of a review application. The
North West High Court refused
to grant the interdict. The MPA
persisted in seeking to set aside the MEC’s decision to dismiss
the appeal brought by it
and to overturn the decision to grant ex
post facto authorization. Importantly, and in line with the MPA’s
consistent attitude,
it also sought an order demolishing the Country
Lodge, accompanied by an order to rehabilitate the affected
environment to the
state it was in prior to the commencement of
construction activities.
[14] The court below
dealt with submissions on behalf of the MPA that the MEC ought to
have taken into account an Environmental
Management Framework (the
EMF), a policy document compiled by the department in conjunction
with interested parties, as well as
the Rustenburg Spatial
Development Framework, a document that informs sustainable
development within the Rustenburg Municipality.
[15] After considering
applicable legislation and related regulations the court below took
the view that at the time the Chief Director
had made his decision
the EMF had not yet come into operation and that although it had come
into existence by the time of the internal
appeal, it was not
incumbent on the MEC to consider it because it had not yet come into
force at the time that the primary decision
was made.
[16] The court below had
regard to contentions on behalf of the MPA that there had been a
failure by Kgaswane to consult with it
as an interested party and
that it did not have any or adequate opportunity to address the Chief
Director or the MEC before a decision
was reached. The High Court
concluded that the evidence showed the contrary.
[17] In respect of the
submissions by the MPA that the decision to grant ex post facto
authorisation was not rationally connected
to the information
presented before the MEC,
1
the court below concluded
that the Chief Director and the MEC had taken into account factors
relevant to the environment as well
as mitigation and monitoring
measures to reduce adverse impacts. The court below ultimately
decided this point against the MPA.
[18] In awarding costs
against the MPA the court below took into account that despite its
unsuccessful application for and interdict
to prevent Kgaswane from
continuing with construction activities, it nevertheless persisted
with a review application. The court
below reasoned that it did so
despite its principal deponent acknowledging the difficulty of
persuading a court to demolish such
a substantial development. The
court was thus disinclined to not award a costs order against the
MPA, despite its protestations
that it had legitimately attempted to
assert its constitutional right to have the environment protected for
the benefit of present
and future generations.
2
[19] Before us it was
submitted that the MEC’s decision ought to have been declared
invalid on the basis that he had:
(a) failed to consider
the EMF for the MPE and other relevant planning documents;
(b) relied on a flawed
Environmental Impact Assessment report;
(c) disregarded a flawed
public participation process during the Environmental Impact
Assessment process;
(d) failed to consider
remedies consequent upon the finding of invalidity, namely to set the
decision aside and to order the demolition
of the Lodge; and
(e) that he was biased,
alternatively the MPA had a reasonable apprehension that he was
biased.
It was submitted that all
these factors ought to have been recognised by the MEC, and that his
decision was flawed because he failed
to do so.
[20] I shall, in due
course, deal with each of these grounds. It is necessary at the
outset to have regard to the conservation history
of the Magaliesberg
and the applicable statutory framework. In 1965, in response to
increasing intrusion by developers, the then
Department of Planning
and the Environment recommended the establishment of a nature reserve
encompassing the Magalilesberg. On
12 August 1977 an area comprising
approximately 30 000 hectares in the Magaliesberg was declared a
natural area in terms of
the Physical Planning Act 88 of 1967. The
immediate effect was that no one could, in the absence of a permit,
use the land for
any purpose other than what it was being used for
before the proclamation. In October 1986, in terms of the Environment
Conservation
Act 100 of 1982, the minister of environmental affairs
and tourism issued directions which prohibited the building of
structures
and the subdivision of land within the area without the
consent of the Administrator of the then Transvaal.
[21] On 4 May 1994 the
Administrator published two notices in terms of the Environment
Conservation Act 73 of 1989.
3
The first declared the
area a ‘protected natural environment’ and the second
identified a number of activities that
could not be undertaken in the
area except by virtue of a written approval from the Administrator or
the Chief Director: Nature
and Environment Conservation within the
Department of Environmental Affairs.
[22] When the National
Environmental Management: Protected Areas Act 57 of 2003 (the NEMPAA)
came into being on 1 November 2004
the status of the Magaliesberg
Protected Environment (MPE) was preserved in terms of s 28(7) which
provides:
‘
An area
which was a protected environment immediately before this section
took effect must for purposes of this section be regarded
as having
been declared as such in terms of this section.’
[23] Section 12 of the
NEMPAA states as follows:
‘
A protected
area which immediately before this section took effect was reserved
or protected in terms of Provincial legislation
for any purpose for
which an area could in terms of this Act be declared as a nature
reserve or a protected environment, must be
regarded to be a nature
reserve or protected environment for the purpose of this Act.’
[24] The MPE is therefore
a protected environment for the purposes of the NEMPAA and is deemed
to be declared as such in terms of
s 28(7). This had the effect that
the restriction on the activities listed in the Administrator’s
notice mentioned earlier
remain in force. Such activities may not be
undertaken, except by virtue of written approval acquired on
application from the MEC
of the Province.
[25] Section 24(1) of the
NEMA provides:
‘
In order to
give effect to the general objectives of integrated environmental
management laid down in this Chapter, the potential
consequences for
or impacts on the environment of listed activities or specified
activities must be considered, investigated, assessed
and reported on
to the competent authority or the Minister of Minerals and Energy, as
the case may be, except in respect of those
activities that may
commence without having to obtain an environmental authorisation in
terms of this Act.’
4
[26] Section 24(2)
(a)
states:
‘
(2) The
Minister, or an MEC with the concurrence of the Minister, may
identify –
activities which may not commence
without environmental authorisation from the competent authority.’
[27] In s 24F(1) the
following is stated:
‘
(1)
Notwithstanding any other Act, no person may –
commence an activity listed or
specified in terms of section 24(2)
(a)
or
(b)
unless
the competent authority or the Minister of Minerals and Energy, as
the case may be, has granted an environmental authorisation
for the
activity; or
commence and continue an activity
listed in terms of section 24(2)
(d)
unless it is done in
terms of an applicable norm or standard.’
[28] The Environmental
Impact Assessment Regulations (the EIA regulations), published in
terms of s 24(5) read with s 44 of NEMA
provide for the listed
activities in terms of Government Notice R385, R386 and R387.
5
Listed activity 1(d)
requires environmental authorisation for the construction of
facilities or infrastructure, including associated
structures or
infrastructure, for resorts, lodges, hotels or other tourism and
hospitality facilities in a protected area contemplated
in the
NEMPAA.
[29] The EIA regulations
were designed to regulate procedures and criteria as contemplated in
chapter 5 of the Act
6
‘
for the
submission, processing, consideration and decision of applications
for environmental authorisation of activities and for
matters
pertaining thereto’.
7
[30] In the ordinary
course applications would precede the commencement of a development
and any intended development would materialise
only subsequent to the
envisaged environmental authorisation. Section 24G of NEMA applies to
the situation presently under discussion,
namely, where a development
has already commenced or is completed without prior environmental
authorisation. The material parts
of s 24G provide:
‘
(1) On
application by a person who has committed an offence in terms of
section 24F(2)
(a)
the
Minister, Minister of Minerals and Energy or MEC concerned, as the
case may be, may direct the applicant to –
compile a report containing –
an assessment of the nature, extent,
duration and significance of the consequences for or impacts on the
environment of the activity,
including the cumulative effects;
a description of mitigation measures
undertaken or to be undertaken in respect of the consequences for or
impacts on the environment
of the activity;
a description of the public
participation process followed during the course of compiling the
report, including all comments received
from interested and affected
parties and an indication of how issues raised have been addressed;
an environmental management
programme; and
provide such other information or
undertake such further studies as the Minister or MEC, as the case
may be, may deem necessary.
(2) The Minister or MEC concerned must
consider any reports or information submitted in terms of subsection
(1) and thereafter may
–
(a)
direct
the person to cease the activity, either wholly or in part, and to
rehabilitate the environment within such time and subject
to such
conditions as the Minister or MEC may deem necessary; or
(b)
issue
an environmental authorisation to such person subject to such
conditions as the Minister or MEC may deem necessary.’
8
[31] The application by
Kgaswane for ex post facto authorisation falls squarely within the
provisions of s 24G(1). In line with
the requirements of that
provision, Kgaswane compiled a report purportedly addressing what is
set out in 24(G)(1)
(a)
(i)-(iv).
Significantly, that report contained an Ecological Fauna and Flora
Habitat Survey compiled by Reinier Terblanche (Terblanche),
a
botanist with impressive credentials. Counsel representing the MPA
conceded that he could not legitimately criticise the contents
of the
survey, nor its thoroughness and obvious attention to detail. The
conclusion at the end of the report is worth noting in
full:
‘
The general
biodiversity of fauna and flora appears to be moderate to high at the
site. It is unlikely that there have been or will
be a loss of any
fauna species and flora species which are red listed or of particular
high conservation priority if the site were
developed. There will be
a loss of natural vegetation and habitat to the important
Magaliesberg Protected Environment if the site
were to be developed,
especially at the rocky ridges. Fortunately the rocky ridge at the
site and a buffer zone around it, escaped
any developments. It is of
the utmost importance and obligatory that no developments should take
place at the rocky ridges at the
site. These rocky ridges are part of
an important conservation corridor of the Magaliesberg Protected
Environment which at this
stage is only discontinued by tar roads.’
[32] Terblanche’s
recommendation was as follows:
‘
If the
development were approved, any developments or activities during the
constructional phase should strictly not enter further
south within
30m of the rocky ridge. The rocky ridges of the Magaliesberg are
particularly sensitive areas, containing a number
of threatened plant
and animal species and overall very important conservation corridors.
Exotic plant species such as on the
site include
Jacaranda
mimosifolia
(jacaranda),
Pinus
sp.
(pine trees),
Melia
azedarach
(syringa) and
Solanum mauritianum
(bugweed) should be eradicated since
it habitats that could have been suitable for indigenous fauna and
flora. This eradication
will also limit the possible dispersal of
such exotic invasive plant species to other areas where it may lead
to the loss of more
habitats in a sensitive area.’
[33] Also attached to the
report by Lesekha on behalf of Kgaswane, was a specialist landscape
architect’s report on the visual
impact of the development. It
is necessary to record that counsel on behalf of the MPA was unable
to challenge the substance of
the report and its conclusions. Using
established criteria the architect’s report concluded as
follows:
‘
The proposed
project:
Has a moderate negative effect on the
visual quality of the site’s landscape and its immediate
surrounds as it contrasts
moderately with the patterns that define
the landscape –
the visual resource is rated high. The
surrounding hills and ridges that form a backdrop to the project
site will “absorb”
them into the landscape assuming that
the mitigating measures described in section 7.0 are successfully
implemented.
Is partially compatible with land
use, settlement or enclosure patterns –
Tourist activities
exists in the study area
.
The proposed new lodge would not be
considered totally “out of place” or dramatically affect
the existing sense of
place of the study area, which is currently
characterized by tourist, residential and agricultural activities.
Has a
low
change in key views
–
Most nearby public views of the lodge will be blocked by
vegetation and ridge lines. Middle distant to distant views of the
project
from residences associated with the agricultural activities
to the east will not necessarily focus on the lodge as it would be
seen within the context of a broader landscape panorama. The lodge
will also be seen against a natural backdrop and its features
will
therefore not break the horizon line. The result is that the
buildings will tend to be absorbed into the landscape setting.’
[34] The architects also
suggest what mitigation measures should be taken and propose certain
actions. In the letter from the Chief
Director dated 9 March 2009,
advising Kgaswane about the ex post facto authorisation, he states
that the report compiled by Lesekha
and other related correspondence
had been evaluated and verified to determine whether this activity
will have significant negative
impacts on the environment. The
remainder of the letter reads as follows:
‘
The
construction of facilities or infrastructure, including associated
structures or infrastructure for resorts, lodges, hotels
or other
tourism and hospitality facilities in a protected areas which
refers
to
the 47 Ensuite rooms, a conference block, reception, office block, a
restaurant and a massage parlour on portions 21 and 85 of
the farm
Boschfontein 330 JQ, Rustenburg Local Municipality North West
Province.
Permission is not granted for the day
picnic area.
Enclosed please find the Environmental
Authorisation and the conditions under which your application is
authorised.
In terms of
section 43
of the
National
Environmental Management Act (Act
No. 107 of 1998) (as amended)
formal appeals relating to this rectification and environmental
authorisation may be lodged to the
Member of the Executive Council,
Department of Agriculture, Conservation and Environment.’
[35] In his affidavit
resisting the application by the MPA the Chief Director said the
following:
‘
I have,
after consideration of legislation, policies, and other prescripts,
and after having applied my mind to the said activity
authorized it
in terms of
section 24(G)
of NEMA.’
[36] It is common cause
that by the time the MEC heard the appeal the MPA had made
representations raising its concerns that ultimately
served before
the court below. In communicating the decision to dismiss the appeal
the MEC stated the following:
‘
In reaching
my decision, I have considered the following information –
the contents of the appeal documents;
the written submissions of:
Ms T Charters from Cameron Cross
Attorneys on behalf of the Appellant;
Mr J Ntemane on behalf of the
Respondent;
the contents of the project file;
the facts established and oral
submissions made during a site visit held on 14 September 2009;
a subsequent meeting held with Prof
Fatti and Mr Ntemane on 11 December 2009;
The
Constitution of the Republic
of South Africa
of 1996;
The
National Environmental
Management Act
of 1998 (as amended);
The
National Environmental
Management: Protected Areas Act
of 2003
;
Administrator’s Notice No 126
of May 1994;
The
Promotion of Administrative
Justice Act
of 2000
.’
As set out in para 11,
the MEC, in dismissing the appeal, dealt with each of the grounds of
objections/representations, and provided
the bases for rejecting
them.
[37] In October 2007 an
Environmental Management Framework (EMF) was finalised, pursuant to
the provisions of
s 24(3)
of NEMA, which provides:
‘
The
Minister, or an MEC with the concurrence of the Minister, may compile
information and maps that specify the attributes of the
environment
in particular geographical areas, including the sensitivity, extent,
interrelationship and significance of such attributes
which must be
taken into account by every competent authority.’
[38]
Section 24O
of NEMA
sets out criteria to be taken into account by competent authorities
when considering applications for environmental authorisation
and
encompasses ‘any information and maps compiled in terms of
section 24(3)
, including any prescribed environmental management
frameworks, to the extent that such information, maps and frameworks
are relevant
to the application’.
9
Regulation 34
of the EIA
sets out what a draft EMF should contain. That regulation is in
accordance with the general structure of NEMA and related
legislation.
[39] The Rustenburg
Spatial Development Framework (RSDF) addresses sustainable
development in the Rustenburg municipal area in which
the Kgaswane
development is located. As to the environment, its objectives are
noted as the following:
‘
Protect
ecologically sensitive natural areas
Create a municipal open space system,
comprising ridges, mountains, rivers and dams
Respect the flood lines of the major
rivers and dams
Enforce the conservation guidelines
for the Magaliesberg Natural Protected Area (MNPA), Kgaswane and
Vaalkop Dam Nature Reserves
Only support urban development that
is in line with the recommendations of the Rustenburg Strategic
Environmental Assessment (SEA).’
[40] Before turning to
deal with the grounds of appeal and the parties’ respective
submissions, it is necessary to pause to
consider s 24 of the
Constitution, the provisions of which are set out earlier in this
judgment. In
Fuel Retailers Association of
Southern Africa v Director-General Environmental Management,
Department of Agriculture, Conservation
and Environment, Mpumalanga
Province and others
2007 (6) SA 4
(CC);
2007
(10) BCLR 1059
(CC) the Constitutional Court stated at para 44:
‘
What is
immediately apparent from s 24 is the explicit recognition of the
obligation to promote justifiable “economic and
social
development”. Economic and social development is essential to
the well-being of human beings. This Court has recognised
that
socio-economic rights that are set out in the Constitution are indeed
vital to the enjoyment of other human rights guaranteed
in the
Constitution. But development cannot subsist upon a deteriorating
environmental base. Unlimited development is detrimental
to the
environment and the destruction of the environment is detrimental to
development. Promotion of development requires the
protection of the
environment. Yet the environment cannot be protected if development
does not pay attention to the costs of environmental
destruction.’
At para 45 the following
appears:
‘
The
Constitution recognises the interrelationship between the environment
and development; indeed it recognises the need for the
protection of
the environment while at the same time it recognises the need for
social and economic development. It contemplates
the integration of
environmental protection and socio-economic development. It envisages
that environmental considerations will
be balanced with
socio-economic considerations through the ideal of sustainable
development. This is apparent from s 24
(b)
(iii)
which provides that the environment will be protected by securing
“ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development”. Sustainable development and sustainable use and
exploitation of natural resources are at the core of the protection
of the environment.’
This case is about the
crossroads between development and the preservation of the
environment.
[41] At the hearing of
the appeal the main ground on which the MPA appeared to rely was the
failure by the Chief Director and the
MEC to have regard to the EMF.
It is common cause that neither the Chief Director nor the MEC had
any regard to the EMF because
they both adopted the position that the
EMF had not come into operation at the time that the Chief Director
had made his decision.
They based this view on the fact that although
it had been finalised by the MEC’s department a year and a half
prior to the
decision by the Chief Director, it had not yet been
published in the Government Gazette of 17 March 2009. It was accepted
by the
parties that an appeal to the MEC was an appeal in the broad
sense in that new evidence could be placed before the MEC which had
not served before the Chief Director. By the time the MEC heard the
appeal, the EMF had been published and was submitted by the
MPA as
part of its representations.
[42] The EMF is a policy
document and not legislation. It therefore does not require
promulgation in order for it to come into force.
One of the functions
of publication of the policy document in the Government Gazette is
set out in
Foulds v Minister of Home Affairs
and others
1996 (4) SA 137
(W) at 149I-150A:
‘
In the
circumstances of this case, the Board was obliged to disclose to the
applicant adverse information obtained and adverse policy
considerations and to give the applicant an opportunity to respond
thereto. Because of its failure to do so its decision was fatally
flawed.’
In
Tseleng
v Chairman
,
Unemployment Insurance Board and another
1995
(3) SA 162
(T) the following was stated:
‘
[I]f a
statutory body considers that (a policy) consideration is so material
as of itself to determine the fate of an application,
then it should
at the very least afford an applicant the opportunity of dealing with
its difficulty and not keep the policy to
itself . . . To hold
otherwise would be to countenance injustice, since persons who might
otherwise be fully able to justify their
application would be
deprived of the opportunity of doing so.’
10
[43] As best as can be
discerned the argument on behalf of the MPA is as follows: The Chief
Director and the MEC, within whose department
the EMF was finalised
and who bore the statutory obligation to take it into account and
upon whom it rested to bring it to the
attention of the wider public
including the attention of the applicants for environmental
authorisation, can hardly now be heard
to be excused because of their
failure to publish it in the Government Gazette.
[44] As pointed out
earlier, s 24O(1)
(b)
(iv)
of NEMA obliges a competent authority to take an environmental
management report into account when considering an application
for
environmental authorisation. Section 24(4)
(a)
states:
‘
(4)
Procedures for the investigation, assessment and communication of the
potential consequences or impacts of activities on the
environment –
. . . .
(iv) Investigation of the potential
consequences for or impacts on the environment of the activity and
assessment of the significance
of those potential consequences or
impacts; . . .’
[45] The contents of the
EMF in question was debated extensively with counsel for the MPA to
determine what precisely in the report
differed from what is
generally acknowledged to be the ecologically sensitive nature of the
MPE. Such acknowledgement is set out
in the environmental impact
report compiled on behalf of Lesekha. Section 24G(1) of NEMA requires
that a report on the impact of
an activity on the environment be
assessed. That aspect too is addressed in the Lesekha report.
[46] What emerged from
this debate is that counsel was advancing a case foreshadowed in its
founding affidavit, namely, that listed
activities within the MPA
were almost totally prohibited,
11
In submissions before us,
counsel, although disavowing that the MPA was proposing that the
prohibition was absolute, nevertheless
suggested that if
consideration was given to the provisions of the EMF it would almost
always compel the competent authority to
lean against granting
authorisation.
[47] In relation to the
critical content of the EMF on which the MPA relied, counsel on its
behalf relied on a graphic in relation
to the activity in question,
namely the construction of the facility developed by Kgaswane,
alongside which there were multiple
crosses denoting incompatibility
on all relevant levels. For the remainder, counsel could not point to
any other part of the EMF
which differed from the concerns addressed
by the legislation referred to earlier in this judgement and those
expressed in the
documentation that served before the Chief Director
and the MEC. Insofar as the RSDF is concerned, counsel for the MPA
was once
again unable to draw our attention to any part of it which
contained material likely to be different to the concerns addressed
in the Lesekha report. Of course the RSDF notes the sensitivity of
the area which, as stated before, is generally acknowledged.
[48] It follows that,
unless one adopts the position which was eschewed by counsel on
behalf of the MPA, that in assessing an application
for ex post facto
authorisation or, indeed, for pre-commencement authorisation, a
decision-maker is bound to refuse environmental
authorisation, then
one is left with the conclusion that, in the present case, neither
the EMF nor the RSDF added any further relevant
factors for
consideration. Put simply, they were inconsequential. If a competent
authority were to act in the predisposed manner
suggested on behalf
of the MPA, such a decision would no doubt be challengeable on
account of it constituting a rigid adherence
to a fixed policy.
[49] Section 24G(1)
(a),
which
one can reasonably accept ought to be the exception rather than the
norm, sets out the considerations that ought to be addressed
by an
applicant and considered by a competent authority. Counsel on behalf
of the MPA was pointedly requested by this Court to
indicate where in
the affidavits filed in support of its case one could find the basis
on which it could be contended that those
concerns had not been
addressed by either the applicant, or considered by the Chief
Director or the MEC. He was constrained to
concede that the papers
were deficient in that regard.
[50] It is necessary to
record that Terblanche’s report indicates that in the immediate
area in which the development is located
there were no signs of flora
or fauna that could be classified for conservation priority.
Terblanche was concerned about preserving
the integrity of the rocky
ridge near the development and was intent on ensuring that no
encroachment occured within 30 metres.
That concern was addressed in
Terblanche’s recommendations. It must be noted that the
development has not actually encroached
on any part of the rocky
ridge.
[51] It is important to
note that the application to the High Court was directed mainly at
ensuring the demolition of the development.
The same pertains to the
position the MPA adopted before this Court. The MPA feared that a
declaration of invalidity on its own
would be insufficient. It took
the view that allowing the development to remain extant would cause
it to serve as a symbol against
conservation and it would open the
floodgates to extensive intrusions upon the environment. A further
concern was that prospective
developers would build first and seek
authorisation thereafter, presenting municipal and other regulatory
bodies with a fait accompli.
A fundamental problem facing the MPA is
that it bore the onus of proof in satisfying the court below that it
was entitled to an
order for demolition, which it acknowledged was a
far-reaching remedy. As far back as the Corpus Juris Civilis it was
recognised
that he who seeks a remedy must prove the grounds
therefore.
12
[52] Having regard to the
concession made by counsel and referred to at the end of para 49 and
considering further that the in-depth
studies attached to the Lesekha
environmental report remained unchallenged, it is difficult to
conclude that the competent authority
or the MEC did not comply with
their obligations in terms of s 24G(2) of NEMA. The MPA failed to
show, at the most basic level,
that it was entitled the relief
sought. Equally importantly, in considering the remedy of demolition,
the image of wrecking equipment,
bulldozers, earth moving machines
and the like, with concomitant pollution and potential further harm
to the environment cannot
be ignored. Without knowing what the
further devastating effects of acceding to such a remedy may be, it
becomes even more problematic.
This was an issue not addressed at all
by the MPA.
[53] I now turn to deal
with the contention that the Chief Director had followed a flawed
public participation process. The allegation
on behalf of Lesekha
that, prior to the decision of the Chief Director it had dispatched a
letter to the Mountain Club of South
Africa and that it had retained
a registered slip to that effect, cannot effectively be contested. It
is not challenged that a
notice was placed near the development and
that a local newspaper carried such a notice. The complaint by the
MPA about the notice
near the development was that it was not in a
prominent enough position. In respect of the letter allegedly
dispatched to them,
the MPA denied receipt thereof. It is not
insignificant that the MPA acknowledges that it became aware of
Lesekha seeking comment
on the ex post facto authorisation Kgaswane
was seeking through a sister organisation. It is undisputed that
before the MEC the
MPA had a full opportunity to make representations
and indeed did so. Against the background that the appeal before the
MEC was
a wide one enabling a full hearing, the MPA can hardly be
heard to complain that it did not have a full say on the ultimate
decision
to uphold the environmental authorisation. The MPA’s
complaint that other interested parties might not have been aware of
the application for ex post facto environmental authorisation is
vague and unsubstantiated in my view and Kgaswane could hardly
be
expected to respond to it. Kgaswane’s conduct in relation to
engaging interested parties can hardly be described as being
secretive or deceptive. The Chief Director and MEC rightly concluded
that a satisfactory public participation process was followed.
[54] I now turn to the
submission that the mitigation measures proposed in the report
compiled by Lesekha were not site specific
but generic in nature and
wholly inadequate. As set out earlier in this judgment, both the
Terblanche and architect’s reports
were very specific about
mitigation measures. The conditions imposed by the Chief Director
specifically require those measures
to be adopted.
13
[55] The fourth ground
relied on by the MPA, referred to in para 46, approximates the almost
total prohibition stance adopted by
the MPA. The envisaged ex post
facto authorisation referred to in s 24G does not exclude
environmental authorisation in a conservation
area. The question
remains whether, in granting the authorisation, the Chief Director or
the MEC had regard to the factors set
out in s 24G. In my view it is
important to keep at the back of one’s mind the distinction
between pre-building approval
and ex post facto authorisation.
[56] In the first
instance it might be possible to avoid any disturbance of the
environment and proper surveys could be conducted
to determine the
precise impact of intended development. In the second instance one is
regrettably left with an already disturbed
environment which then
requires thought to be given to whether any further degradation might
occur, coupled with how much actual
disturbance of the environment
has already occurred. In pre-building approvals demolition
considerations are not likely to occur.
As stated before, s 24G does
not postulate a total prohibition on building in ecologically
sensitive areas.
[57] A further ground of
attack was that the Lesekha report, which was in general terms and
made reference to the more substantial
and accurate surveys conducted
by the architects and Terblanche, was littered with inaccuracies and
contradictory statements and
was therefore unreliable as a basis upon
which to make the necessary decisions. It is correct that the Lesekha
report is not a
model of elegance, does not make for easy reading and
is in parts confusing. Nonetheless, the conclusions reached are
supported
by the substantial and persuasive reports by Terblanche and
the architects. Those reports in themselves provide sufficient
material
upon which an informed decision could be reached and are
expressly and directly incorporated into the Lesekha report.
[58] Lastly, the MPA
contends that the MEC’s decision ought to have been set aside
because he displayed bias towards the MPA.
This ground of review is
based mainly on the minutes of a meeting held on 11 December 2009
between the MEC, his advisor, Ms Carene
Wessels, Mr Jan Ntemane, a
director of Kgaswane. That part of the minutes on which reliance is
placed is reproduced hereunder:
‘
His view on
the Kgaswane development:
It is a R30 million investment
focusing on tourism.
He cannot be part of a decision where
eco-tourism project of R30 million is just destroyed as this will be
equivalent to murder.
Mr Ntemane’s father probably died without
having millions of money and the history if of such that Mr Ntemane
therefore had
to borrow money to commence with this tourism
development. I cannot destroy him. I also noted that if this
development is to be
destroyed, there will be irreparable damage to
the environment and the environment will then never be the same. It
is also noted
that all the competitors in the MPE are white and there
have been constant interference from them. Mr Ntemane went to the MPA
to
attempt to enquire what they would require but nothing came of it.
The MEC indicated that the MPA should
not come with the approach of no development in the MPE as from the
level of government there
must be attempts to negotiate in the right
spirit to bring people together. He has his own suspicions on why
this matter is so
extremely opposed, but he will raise his concerns
when he meet with the MPA in future. It was indicated that when
people negotiate
in bad spirit it will not take anybody anywhere –
and this is a pity.
The route which Mr Ntemane wanted to
take was to talk to the MPA about this. Part of the site visit was to
assess the surroundings
and the attitudes of parties regarding this
matter. When he came back from the site visit his conclusion was that
the spirit of
the MPA is to destroy relationships and people and not
to build. This will not work. Government cannot take decisions based
on
race of gender. This forms part of the Freedom Charter which
states that SA belongs to all who live in it – black and white.
The ultimate strategic objective is therefor that people should be
united, non-racial, non-sexist to be a prosperous country.’
[59] It was contended
that these minutes demonstrate that the MEC had approached the appeal
with a closed mind and was not open
to persuasion and that it meant
that he was, in fact, biased. In the alternative it was contended
that, as a result of these utterances,
that the MPA had a reasonable
apprehension that the MEC did not bring an impartial mind to bear on
the appeal. According to the
MPA, the suggestion by the MEC was that
the MPA was racist when, in fact, it was motivated solely to protect
the MPE. It was submitted
that the MEC’s attitude as displayed
in the minutes is different to that displayed towards other
recalcitrant developers.
No details in this regard were provided by
the MPA.
[60] In my view, the
minutes by themselves do not prove actual, or reasonably perceived,
bias. The words are, at worst, unfortunate.
The observation that Mr
Ntemane would be destroyed by a demolition order is not irrelevant
nor is it unlikely that the majority
of hotel or guesthouse owners in
the area, who would be his competitors, are from advantaged
backgrounds. As stated above, the
MEC provided substantiated reasons
for his decision. More importantly, the MPA failed to present
evidence to justify the remedy
sought by it.
[61] For all the reasons
set out above the appeal must fail. A remaining aspect is the
question of costs. We should all laud the
efforts of conservationists
such as the MPA. It is beyond dispute that the MPA has a genuine
concern about the environment and
that they generally act to preserve
and protect the environment for the benefit of present and future
generations. They are conservation
conscious and promote ecologically
sustainable development. Section 32 of NEMA provides:
‘
(1) Any
person or group of persons may seek appropriate relief in respect of
any breach or threatened breach of any provision of
this Act,
including a principle contained in Chapter 1, or of any provision of
a specific environmental management Act, or of any
other statutory
provision concerned with the protection of the environment or the use
of natural resources –
in that person’s or group of
person’s own interest;
in the interest of, or on behalf of,
a person who is, for practical reasons, unable to institute such
proceedings;
in the interest of or on behalf of a
group or class of persons whose interests are affected;
in the public interest; and
in the interest of protecting the
environment.’
[62] Section 32(2) of
NEMA gives the court a discretion not to award costs against a person
or group of persons which fails to secure
the relief sought in
respect of any breach or threatened breach of any of the provisions
of NEMA or of any provisions of a specific
environmental act, or any
other statutory provision concerned with the protection of the
environment, if the court is of the opinion
that a person or group of
persons acted reasonably out of a concern for the public interest or
in the interest of protecting the
environment and it made due efforts
to use other means reasonably available for obtaining the relief
sought.
[63] In my view, the
court below was a trifle harsh in criticising the MPA for persisting
in the final relief sought by it. It did
not take into consideration
that the MPA was an organisation which genuinely has the concerns and
objectives set out in para 61
above. Accordingly, it should not have
awarded costs against the MPA. Kgaswane might be aggrieved in having
to pay its own costs
but it should not be forgotten that the
malfeasance that led to all the trouble and the subsequent costly
litigation was of its
own making.
[64] The following order
is made.
(1) The appeal is
dismissed, save to the extent reflected in the substituted order set
out in 3 below.
(2) Each party is to bear
its own costs.
(3) The order of the
court below is set aside and substituted as follows:
The application is
dismissed and each party is ordered to pay its own costs.
____________________
MS NAVSA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: P Lazarus (with him F Southwood)
Instructed by:
Cameron Cross Attorneys, Centurion
Naudes Attorneys, Bloemfontein
FOR FIRST AND
SECOND RESPONDENT: W Mokhari SC (with him H Masilo)
Instructed by:
State Attorney, Mafikeng
State Attorney, Bloemfontein
FOR THIRD RESPONDENT: K Hopkins
Instructed by:
BKM Attorneys, Johannesburg
Hill, McHardy and Herbst, Bloemfontein
1
This
submission was based on
s 6(2)
(f)
(ii)(cc)
of the
Promotion of Administrative Justice Act 3
of 2000
.
2
Section
24
(b)
of
the Constitution states:
‘
Everyone has the right –
. . .
(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.’
3
Notices
126 and 127 of 4 May 1994.
4
The
relevant part of s
23(2) of NEMA provides:
‘
(2) The general objective of
integrated environmental management is to –
. . . .
identify,
predict and evaluate the actual and potential impact on the
environment, socio-economic conditions and cultural heritage,
the
risks and consequences and alternatives and options for mitigation
of activities, with a view to minimising negative impacts,
maximising benefits, and promoting compliance with the principles of
environmental management set out in section 2.’
5
GG
28753 of 21 April 2006 (as amended).
6
This
chapter of the Act deals with integrated environmental management
and contains, inter alia, ss 23 and 24.
7
Section
2 of the EIA regulations.
8
Section
24G(2)(A) provides that a transgressor must pay an administrative
fine not exceeding R1 million to the competent authority.
9
Section
24O(1)
(b)
(v).
10
At
178E-F.
11
In
para 65 of the founding affidavit on behalf of the MPA the following
appears:
‘
Had
the first respondent taken the EMF into account it is clear that
environmental authorization for the Kgaswane Country Lodge
would
inevitably
not
have been granted.’
12
D.
22.3.21. See also
Mobil Oil Southern
Africa (Pty) Ltd v Mechin
1965 (2) SA
706
(A).
13
See
8.2 of the conditions.