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[2011] ZAGPPHC 141
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Goede Wellington Boerdery (Pty) Ltd v Makhanya NO and Another (56628/2010) [2011] ZAGPPHC 141 (19 August 2011)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER:
56628/2010
DATE:19/08/2011
In
the matter between:
GOEDE
WELLINGTON BOERDERY (PTY)
LTD
..................................
Applicant
and
ATWELL
SIBUSISO MAKHANYA N.O.
…...............................
First
Respondent
THE
MINISTER OF WATER AND
ENVIROMENTAL
AFFAIRS
................................................
Second
Respondent
J U D G M E N T
GOODEY
AJ:
[1]
INTRODUCTION:
This
application concerns the interpretation and application of the
National Water Act 36 of 1998 (“the Act”).
In
essence
the Applicant is seeking an order in terms of
sections 6
and
8
of
the
Promotion of Administrative Justice Act 3 of 2000
reviewing and
setting aside the decision taken on 5 May 2010 by the First
Respondent, dismissing the Applicant’s appeal
against the
refusal by the Chief Director: Water Use in the Department of Water
Affairs and Forestry of the Applicant’s
application for a
licence to use water from the Berg River.
The
notice of motion reads as follows:
“
1.
An order in terms of
sections
6
and
8
of the
Promotion of Administrative Justice Act 3 of
2000
reviewing and setting aside the decision taken on 5 May
2010 by the First Respondent, in his capacity as an additional
member of the Water Tribunal, dismissing the Applicant’s
appeal against the refusal on 11 April 2008 by the
Chief
Director: Water Use in the Department of Water Affairs and
Forestry of the Applicant’s application for
a licence to
use water from the Berg River to which ECPA Boerdery (Pty) Ltd
is currently entitled;
2.
An order substituting for the
decision of the First Respondent described in paragraph 1 above
the following decision:
“
1.
The
appeal by Goede Wellington Boerdery (Pty) Ltd against the
refusal on 11 April 2008 by the Chief Director: Water
Use in
the Department of Water Affairs and Forestry of the
Applicant’s application for a licence to use water
from
the Berg River to which ECPA Boerdery (Pty) Ltd is currently
entitled, is upheld.
2.
The
said licence is granted to Goede Wellington Boerdery (Pty)
Ltd.”;
3.
In the alternative to
paragraph 2
,
an order referring the appeal described in paragraph 1 above
back to the Water Tribunal for reconsideration;
4.
In
the alternative to paragraphs 1, 2 and 3
:
4.1
an
order extending to the date of service or issuing of this
application, whichever is the later, the period of
21 days in
section 149(2)
of the
National Water Act 36 of 1998
;
4.2
an order that this
application be deemed to be an appeal in terms of section 149
of the Act against the decision
taken on 5 May 2010 by the
First Respondent described in paragraph 1 above on the ground
that the First Respondent
erred and misdirected himself and
did not comply with section 27(1) of the Act, read with Item
6(3) of Schedule
6 thereto, by determining the appeal with
reference solely to the factor in section 27(1)(b) of the Act
and evidence
in relation to that factor,
alternatively
with inadequate regard to the other factors in section 27(1)
of the Act and the evidence in relation to those factors;
4.3
an
order that the appeal described in paragraph 4.2 above be
heard and determined together with the application
for the
relief described in paragraphs 1 and above; and
4.4
an
order upholding the appeal described in paragraph 4.2 above
and substituting for the decision of the First Respondent
described in paragraph 1 above the following decision:
“
1.
The
appeal by Goede Wellington Boerdery (Pty) Ltd against the
refusal on 11 April 2008 by the Chief Director: Water
Use in
the Department of Water Affairs and Forestry of the
Applicant’s application for a licence to use water
from
the Berg River to which ECPA Boerdery (Pty) Ltd is currently
entitled, is upheld.
2.
The
said licence is granted to Goede Wellington Boerdery (Pty)
Ltd.”
5.
An
order directing the First Respondent to pay the Applicant’s
costs, including the costs of two counsel,
alternatively
and in the event of the Second Respondent opposing this
application, an order directing the Respondents to pay
the
Applicant’s costs, including the costs of two counsel,
jointly and severally, the one paying the other
to be
absolved; and
6.
An
order granting the Applicant such further and/or alternative
relief as this Honourable Court may deem fit.”
[2]
IS
A JUDICIAL REVIEW POSSIBLE?
The
question which arises is whether or not reviewing and setting aside
the decision taken on 5 May 2010 by the First Respondent,
in his
capacity as an additional member of the Water Tribunal, dismissing
the Applicant’s appeal against the refusal
on 11 April 2008
by the Chief Director: Water Use in the Department of Water Affairs
and Forestry of the Applicant’s
application for a licence are
possible?
It
is common cause that the “ACT” does not provide for any
review procedure. The “ACT” is
silent
in this regard.
The
further question which arises is whether such procedure should not
be allowed in appropriate cases, especially where the
First
Respondent (
in
casu):
2.3.1
Does
not oppose
the application:
2.3.1.1 The
First Respondent says
inter
alia
the following in paragraphs 3 and 9 of his affidavit:
Paragraph
3 thereof:
“
The
Applicant has brought a review, alternatively an appeal against the
decision of the Water Tribunal wherein I was sitting in
my capacity
as a member of the Water Tribunal. In addition to the relief
explained herein, the Applicant seeks a cost order against
me in my
official capacity for presumably the judgment that was granted
against the Applicant by myself.
It
is this cost order that is being opposed”.
(My
emphasis)
Paragraph
9 thereof:
“
I
have consulted with the other members of the Tribunal on this
application. In general, the Tribunal does not oppose this
application,
save for the costs order. We are of the view that the
appeals of reviews properly made in terms of the applicable
legislations
or rules should be ventilated in this Court. We will
therefore
not
oppose
such applications, appeals or reviews. We will therefore
abide
the decision of this Court.
The
only
issue that is being opposed is the cost order
sought against me, alternatively, against the Tribunal”.
(My
emphasis)
AND
2.3.1.2
Concedes
(as counsel on behalf for the First Respondent did during argument)
that there might have been incompetency on the part of the
First
Respondent but the First Respondent (Tribunal) should not be blamed
as it has
“no
legal expert on board”.
The
Second Respondent in essence argues that since the “ACT”
is silent as to a review procedure, it should not be
allowed.
Fact
of the matter is:
2.5.1 In
terms of section 33 of the Constitution, everyone has the right to
reasonable and procedurally fair administrative action.
Section 33 of
the Constitution reads as follows:
“33.
Just
administrative action
–
Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.
Everyone
whose rights have been adversely affected by administrative action
has the right to be given to be written reasons.
National
legislation must be enacted to give effect to these rights, and must
–
provide
for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
impose
a duty on the state to give effect to the rights in subsections (1)
and (2); and
promote
an efficient administration.”
2.5.2 Ostensibly
the Second Respondent has complied with section 33(3)(a) by creating
an independent tribunal being the First Respondent,
the rulings of
which a
High
Court
will not easily interfere with.
BUT
(a) If
the Tribunal (First Respondent) clearly interpreted the law
incorrectly;
and
(b) concedes
of having been incompetent;
and
(c) in
effect concedes not being an expert body for not having a legal
expert on board;
THEN
The
High Court can and should interfere.
SEE:
(a) Paragraaf
2.3.2 above;
(b)
Bato
Star Fishing (Pty) Ltd v Minister of Envionmental Affairs and Tourism
and Others 2004(4) SA 490 (CC)
The
headnote
inter
alia
reads as follows:
“
Constitutional law -
Separation of powers - Whether judiciary infringing on powers of
Executive - Decision of agencies -
D
Court to
recognise proper constitutional role of Executive by
treating
decisions of administrative agencies with
E
appropriate
respect
- To be
careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branches of Government - To
give due
weight to findings of fact and policy decisions made by those with
special expertise and experience in particular field
- Extent of such
weight to depend on character of decision itself as well as on
identity of
F
decision-maker
- Court to respect decisions by persons with specific expertise which
require equilibrium to be struck between range
of competing interests
or considerations - To respect route selected to achieve goal - This
not meaning that where decision one
which would not reasonably result
in achievement of goal, or which was not reasonably supported on
facts or not reasonable in light
of reasons given for it, Court might
not review that decision -
Court
not to rubber-stamp unreasonable
G
decision
simply because of complexity of decision or identity of
decision-maker
.”
Constitutional law - Review - Of administrative action - Allocations
of in terms of
Marine Living Resources Act 18 of 1998
-
Promotion of
Administrative Justice Act 3 of 2000
applicable - As PAJA
H
gives effect to
s 33
of Constitution of the Republic of South Africa Act 108 of 1996,
matters relating to interpretation and application of PAJA
constitutional
matters - Applicant not relying on PAJA in notice of
motion or founding affidavit - SCA and High Court erring in not
considering
claims made by applicant in context of PAJA - Permissible
to refer thereto only in argument, but it must be clear from facts
alleged
that section relevant
I
and operative -
Power of Court to intervene in decisions of Executive discussed.”
(My emphasis)
Paragraphs
[24] and [25] read
inter
alia
as follows:
“
[24] Section 6 of PAJA
identifies the circumstances in which the review of administrative
action may take place. PAJA itself provides
a definition of
'administrative action' in s 1, but the scope of that definition does
not concern us in this case as it is, quite
rightly, F common cause
that the decision of the Chief Director at issue constitutes
administrative action as contemplated by PAJA.
Section 6 provides
that:
'(1)
Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action. G
(2)
A court or tribunal has the power to judicially review an
administrative action if -
(a)
the
administrator who took it -
(i) was
not authorised to do so by the empowering provision;
(ii) acted
under a delegation of power which was not authorised by the
empowering provision; or
H
(iii) was
biased or reasonably suspected of bias.
(b)
a
mandatory and material procedure or condition A prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(e)
the
action was taken -
(i) for
a reason not authorised by the empowering provision;
B
(ii) for
an ulterior purpose or motive;
(iii) because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv) because
of the unauthorised or unwarranted dictates of another person or
body;
(v) in
bad faith; or
C
(vi) arbitrarily
or capriciously;
(f)
the
action itself -
(i) contravenes
a law or is not authorised by the empowering provision; or
(ii) is
not rationally connected to -
(aa)
the
purpose for which it was taken;
(bb)
the
purpose of the empowering provision;
(cc)
the
information before the administrator; or
(dd)
the
reasons given for it by the administrator; D
(g)
the
action concerned consists of a failure to take a decision;
(h)
the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance
of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised
the power or E performed the function;
or
(i)
the
action is otherwise unconstitutional or unlawful.
(3)
If any person relies on the ground of review referred to in ss
(2)
(g)
,
he or she may in respect of a failure to take a decision, where -
(a)
(i) an
administrator has a duty to take a decision;
F
(ii) there
is no law that prescribes a period within which the administrator is
required to take that decision;
and
(iii) the
administrator has failed to take that decision,
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision on the ground that there has
been unreasonable
delay in taking the decision; or G
(b)
(i) an
administrator has a duty to take a decision;
(ii) a
law prescribes a period within which the administrator is required to
take that decision; and
(iii) the
administrator has failed to take that decision before the expiration
of that period,
H
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision within that period on the ground
that the
administrator has a duty to take the decision notwithstanding the
expiration of that period.”
[25]
The
provisions of s 6 divulge a clear purpose to codify the grounds of
judicial review of administrative action as defined in PAJA.
I The cause of action for the judicial review of administrative
action now ordinarily arises from PAJA, not from the common law
as in
the past. And the authority of PAJA to ground such causes of action
rests squarely on the Constitution. It is not necessary
to consider
here causes of action for judicial review of administrative action
that do not fall within the scope J of PAJA. As
PAJA gives effect to
s 33 of the Constitution, matters relating to the interpretation and
application of A PAJA will of course
be constitutional matters.”
(My
emphasis)
Paragraph
[46]
inter
alia
reads as follows:
“
[46] In the SCA
Schutz
JA held that this
was a case which calls for judicial deference [2003(6) SA 40 SCA]. In
explaining deference, he cited with approval Professor
Hoexter's
account as follows: E
'(A)
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit
the expertise of those 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 F which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to
tolerate corruption and maladministration.
It
ought to be shaped not by an unwillingness to scrutinise
administrative action, but by a careful weighing up of the need for
-
and the consequences of - judicial intervention.
Above all, it ought to be shaped by a conscious determination not to
usurp the functions of administrative agencies; G not to cross
over
from review to appeal. C Hoexter ‘The Future of Judicial Review
in South African Administrative Law
(2000) 117 SALJ 484
at 501-2”
(My
emphasis)
(c) The
headnote of
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others 2004(7) BCLR 687 (CC)
“
Administrative
justice – review – grounds – entrenchment of the
constitutional right to administrative justice
– relationship
between the common law grounds and constitutional grounds –
under new constitutional order control of
public power always a
constitutional matter – only one system of law regulating
administrative action grounded in the Constitution
– courts’
power to review administrative action no longer flowing directly from
the common law but from the
Promotion of Administrative Justice Act 3
of 2000
and the Constitution – common law informing the
provisions of the
Promotion of Administrative Justice Act and
the
Constitution, and deriving its force from the latter – extent
to which the common law remaining relevant to administrative
review
to be developed on a case-by-case basis as courts interpret and apply
the provisions of the
Promotion of Administrative Justice Act and
the
Constitution.”
2.5.3 In
view thereof that the First Respondent admitted in competence with
the explanation of not having a legal expert on board
(paragraaf
2.3.2 above) it is doubtful that there was compliance with section
33(3)(a). The reasons being:
2.5.3.1 There
is no provision for a review procedure, the Act
is
silent
;
2.5.3.2 The
First Respondent (Tribunal) must, apart from being independent and
impartial, also be an expert or at least competent.
The only
conclusion is that there was no Tribunal at all. The result is that
on this basis alone a review should be allowed;
2.5.4 However,
if I am not correct as to paragraph 2.5.3 above, then, in any event,
the authorities referred to above, clearly allow
a review in
appropriate circumstances;
2.5.5
I
am therefore of the opinion that a review in appropriate
circumstances and especially in this matter should be
allowed.
[3]
THE
PROCEDURE WHICH WAS FOLLOWED / SEQUENCE OF EVENTS:
On
7
March 2006
the
Regional
Director: Western Cape of the Department
recommended
the approval of the licence application, saying the water will be
used more effectively and better on Goede Hoop (Applicant’s
farm).
On
11
April 2008
the
Chief
Director: Water Use in the Department
refused
Goede Wellington’s application on the ground that it
“does
not fulfil the requirements in terms of section 27(1)(b) as it does
not promote the redress of past racial and gender
discrimination.”
(See
annexure “ECM8”, p.110 of the papers).
On
13
August 2008 Goede Wellington
appealed
against the Department’s decision to the Water Tribunal
established by section 146 (“the Tribunal”) [See
annexure “ECM10”, p.113 of the papers].
On
5
May 2010
the
First Respondent
(“Mr
Makhanya”), in his capacity as an additional member of the
Tribunal
dismissed
the appeal by Goede Wellington against the Department’s
decision.
On
1
October 2010 Goede Wellington
applied
for judicial review
of the Tribunal’s decision under
section
6 and 8
of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
[4]
BACKGROUND
(not in dispute):
The
background is as briefly set out hereinafter.
The
Applicant
(“Goede Wellington”) is the owner of the farm Goede
Hoop on the banks of the Berg River in the Western Cape Province.
It is currently entitled to irrigate 102.8 hectares of Goede Hoop
using water from the Berg River. Its entitlement is 5 000
cubic metres per hectare per annum.
ECPABoerdery
(Pty) Ltd
(“ECPABoerdery”),
the owner of a nearby farm, is currently entitled to irrigate 87.3
hectares from the Berg River
on the same basis.
During
July
2005
ECPABoerdery and the Applicant agreed that ECPABoerdery would
surrender to the Applicant its entitlement to irrigate
7
hectares
of
its property, on condition that the Applicant obtained a licence
under the Act to use the water on Goede Hoop. The water
is surplus
to EPCA’s farming requirements following
inter
alia
its changeover from sprinkler irrigation to drip irrigation.
The
Applicant needs the water to irrigate a new citrus orchard aimed at
producing fruit for export.
The
aforesaid agreement was subject to
section
25
of the ACT in that the Applicant had to apply for a licence to use
the water surrendered by ECPABoerdery and the surrender/usage
only
becomes effective upon the licence being granted.
On
25
November 2005
the Applicant applied to what was then the Department of Water
Affairs and Forestry (“the Department”) for a licence
under section 41, to irrigate 7 hectares of its land with the
equivalent part of ECPABoerdery’s entitlement, i.e. for
the
transfer of 7 hectares of ECPABoerdery’s entitlement under
section 25.
In
a nutshell, the application was motivated as follows as per
paragraphs 5.1 to 5.4 of the Applicant’s heads:
“
1.1 The
citrus orchard will be established on undeveloped, good-quality
ground, which would otherwise be underutilised.
1.2 After
the planting of the citrus orchard, additional employees will be
appointed and trained to work year-round and in addition
seasonal
workers will be appointed annually in the early winter (a time when
there is little employment for them) to assist with
the harvest.
1.3 The
irrigation water will enable the production of high-quality citrus
for the export market, with the concomitant benefits
of advancing
economic growth and earning foreign exchange.
1.4 As
the trees will bear fruit for 30+ years, the socio-economic benefits
of the orchard will be realised for a long period into
the future.”
As
I have pointed out in paragraph [3] above, the Second Respondent
refused the application and the First Respondent dismissed
the
appeal.
[5]
THE
LEGISLATIVE FRAMEWORK:
As
I have indicated above, this is an application in terms of section
41 of the ACT (the granting of the licence being the first
application which was lodged for the Second Respondent to
consider).
Sections
40 and 41 provide for the form and contents of licence application
and the procedures for making and determining licence
applications.
The
considerations that must be taken into account are set out in
section
27
which reads as follows:
“
27 Considerations for
issue of general authorisations and licences:
(1) In issuing a general
authorisation or licence a responsible authority must take into
account all relevant factors,
including
-
(a) existing lawful water uses;
(b) the need to redress the results
of past racial and gender discrimination;
(c) efficient and beneficial use of
water in the public interest;
(d) the socio-economic impact-
(i) of the water use or uses if
authorised; or
(ii) of the failure to authorise
the water use or uses;
(e) any catchment management
strategy applicable to the relevant water resource;
(f) the likely effect of the water
use to be authorised on the water resource and on other water users;
(g) the class and the resource
quality objectives of the water resource;
(h) investments already made and to
be made by the water user in respect of the water use in question;
(i) the strategic importance of the
water use to be authorised;
(j) the quality of water in the
water resource which may be required for the Reserve and for meeting
international obligations;
and
(k) the probable duration of any
undertaking for which a water use is to be authorised.”
(My emphasis)
The
purpose
of the ACT is set out in section 2 which reads as follows:
“
2 Purpose of Act
The purpose of this Act is to
ensure that the nation’s water resources are protected, used,
developed, conserved, managed
and controlled in ways which take into
account
amongst other
factors
-
(a) meeting the basic human needs
of present and future generations;
(b) promoting equitable access to
water;
(c) redressing the results of past
racial and gender discrimination;
(d) promoting the efficient,
sustainable and beneficial use of water in the public interest;
(e) facilitating social and
economic development;
(f) providing for growing demand
for water use;
(g) protecting aquatic and
associated ecosystems and their biological diversity;
(h) reducing and preventing
pollution and degradation of water resources;
(i) meeting international
obligations;
(j) promoting dam safety;
(k) managing floods and droughts,
and for achieving this purpose, to
establish suitable institutions and to ensure that they have
appropriate community, racial and
gender representation.”
(My emphasis)
It
is clear that the
considerations
in
section
27
are designed to give effect as to the
purpose
of the ACT, referred to in
section
2
.
Section
7
of the Act provides that
“[t]he
Minister, the Director-General, an organ of state and a water
management institution must give effect to the national
water
resource strategy when exercising any power or performing any duty
in terms of this Act.”
In
Chapter
3
of the NWRS (National Water Resource Strategy) it is stated that
“[a]ll
licence applications… must be evaluated against the factors
specified in section 27 of the Act. The responsible
authority must
carefully consider
all
of these factors
to determine the extent to which a proposed water use satisfies the
Act’s requirements for equity, sustainability and
efficiency.”
(My
emphasis).
It
should also be pointed out that one of the relevant considerations
is that it should be taken into account the
“social
benefits of the water use, such as the extent to which people
depend
on water use for employment”
(My emphasis).
Section 148(1)(f)
of the Act provides for an appeal to the Tribunal against a
decision of a responsible authority on a water licence application
under
section 41.
Item 6(1) of Schedule 6
of the Act provides that an appeal to the Tribunal must be heard by
one or more members, as the chairperson may determine,
and
item
6(3)
adds that an appeal
takes
“
the
form of a rehearing
”
and that the Tribunal may
receive evidence.
[6]
APPLICANT’S
(GOEDE) COMPLAINTS/SUBMISSIONS:
The
Applicant points out (correctly so to my mind) that section 6(2)(d)
of PAJA provides that a Court may review administrative
action if
it was materially influenced by an error of law.
The
Applicant submits that the tribunal (First Respondent) is guilty of
having committed a
mistaken
interpretation and application of section 27(1) of the Act.
The
Applicant says the following in paragraph 34 and 35 of its heads:
“
1. Goede Wellington contends
that the Tribunal adjudicated the appeal as if the factor provided
for in
section
27(1)(b)
of the Act
is a prerequisite for the granting of a water licence, and that it
accordingly
did not
consider all relevant factors as required by section 27(1) of the
Act
.
2. This was
also
the approach of the Department
when deciding the original licence application. The Department now
denies this in its affidavit. However, its explanation in
its
affidavit of the substance of its reasoning in respect of Goede
Wellington’s application for a licence (and its concomitant
defence of the Tribunal’s decision) makes it clear that it does
indeed regard compliance with
section
27(1)(b)
as a
prerequisite,
and
that it does not balance all the factors listed in section 27(1).”
(My emphasis)
The
further argument of the Applicant is that
the
tribunal failed to consider all relevant considerations and made a
material mistake of fact.
6.4.1 In
this regard reference is made to
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
2006(2) SA 311 (CC) para 530
where
Ngcobo J (as he then was) held as follows:
“The
Pricing Committee and the Minister must apply their mind to all
relevant and material information placed before them.
They must
properly evaluate such information and attach such weight to it as
the degree of its importance requires. They should
not pay
lip-service to this obligation.”
6.4.2 In
paragraphs 47 and 48 the Applicant submit as follows:
“
47. The Tribunal did not
consider ten of the eleven factors listed in section 27(1) of the Act
because it mistakenly thought the
real dispute between the parties
was
“whether or
not the need to redress the results of past racial and gender
discrimination was in favour of the granting of
the licence in
question”.
That mistake was material because the primary dispute between the
parties was whether or not “compliance” with the
factor
listed in section 27(1)(b) of the Act was a prerequisite for the
granting of a licence application (the Department’s
approach),
or whether that factor was, instead, one of eleven to be considered
by the Tribunal (Goede Wellington’s contention).
(My emphasis)
48. By confining its deliberations
to whether the licence application complied with section 27(1)(b) of
the Act, apparently because
the Chief Director had
“advanced
no reason in opposition of the appeal other than the transformation
factors as set out in its letter of decision”
the Tribunal failed to determine the licence application, as it was
required to do, by taking into account all the relevant factors
and
the extensive evidence in relation to those factors, including the
evidence provided by Goede Wellington and in the Regional
Director’s
report.”
The
Applicant further submits that
the
Tribunal failed to comply with a mandatory and material procedure
or condition.
The argument in this regard in essence boils down to the following:
6.5.1
PAJA
(Section 6(2)(b)) provides that a Court may review and set aside in
administrative action on the grounds that
“a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;”
6.5.2
The
decision-maker (including the Tribunal) is required as per section
27(1) of the
ACT
to take into account
“all
relevant factors”
when deciding whether to grant an application for a water licence,
and lists
eleven
such relevant factors which must be considered. That requirement is a
prescribed precondition for the exercise of the discretionary
power.
[See:
Police and Prisons Civil Rights Union and Others v Minister of
Correctional Services and Others (no 1)
2008 (3) SA 91
(E) para 67].
It
is also submitted that
the
Tribunal’s decision was materially influenced by an error of
law.
6.6.1 In
a nutshell, the argument in this regard is that the
TRIBUNAL
believed that all eleven factors to be taken into account as per
section 27(1) of the ACT, were all
embedded
in one overriding consideration, namely that the past racial and
gender discrimination must/should be addressed [Section 27(1)(b)]
and
thereby disregarding the other ten factors referred to in Section
27(1) of the ACT.
6.6.2 The
aforesaid (so the argument goes) is clearly an error of law which
influenced the decision of the Respondents.
The
Applicant further argues that
the
Tribunal failed to apply its mind to the matter properly
.
6.7.1 In
believing that all the factors in Section 27(1) are embedded in
redressing past discrimination [paragraph (6.6) above]
(so the
argument goes) was not only an error of law but also confirmation
that the Respondents had not apply their minds properly
to the
matter.
6.7.2 The
aforesaid is further enhanced by the fact that it appears that
several of the Tribunal’s statements in the appeal
decision
have been copies from an earlier decision by the Tribunal on a
similar appeal.
[7]
FIRST
RESPONDENT’S ARGUMENT:
I
have already pointed to the fact that the First Respondent does not
oppose this application (except the cost order) –
see
paragraph
2.3.1.1 above;
Further
the First Respondent conceded that it may have been incompetent as
it had no legal expert on board – see
paragraph
2.3.1.2 above.
[8]
SECOND
RESPONDENT’S ARGUMENT:
The
Second Respondent submits in paragraph 3 of its heads:
“
3. The
quantity of the water transferred is immaterial. The issue here is
that once transferred and authorised in terms of section
41, the
water changes its legal status from existing water use to licence
use. An existing water use has no legal protection because
at any
time the department can subject it to compulsory licensing and it may
be allocated to another user.”
I
do not quite follow the argument in that the water to be
transferred is already
“licenced
use water”
as it is currently under
“
licence
”
of
ECPABoerdery
.
I can only deduct that what is meant is that ECPA is using the
water (to be transferred under licence to the Applicant) under
entitlement
and this would then (in the hands of the Applicant) become usage
under a
licence.
The
Second Respondent further in essence argues that since the “ACT”
is
silent
as to a review procedure, it should not be allowed.
It
also submits the only dispute between the Applicant and the Second
Respondent which the Tribunal was required to decide,
was whether
the Applicant satisfied the provisions of section 27(1)(b) of the
Act.
Lastly,
it persist that no review is possible in terms of
PAJA
.
[9]
DISCUSSION:
I
have already stated (paragraph [2]) above that I am of the opinion
that a review in appropriate circumstances and especially
in this
matter should be allowed (paragraph 2.5.5 above).
I
am convinced that I could not and should not come to any other
conclusion than that the First Respondent mistakenly misinterpreted
Section 27(1) of the ACT and in so doing committed an error of law
which further led to its decision being materially influenced
by
it. In this regard it is clear from the papers that the Tribunal
adjudicated the appeal as if the factor provided for in
Section
274(1)(b)
of the ACT is a prerequisite for the granting of a water licence,
and that it accordingly did not consider all relevant factors
as
required by Section 27(1) of the ACT.
I
also agree with the Applicant that it was also the approach of the
Department when deciding the original licence application.
I
cannot find anything to the contrary, other than that the First
Respondent, in believing that all the factors in Section 27(1)
are
embedded in redressing past discrimination [paragraph (6.6) above]
was not only an error of law but also confirmation that
the
Respondents had not applied their minds properly to the matter.
The
extent to which the First Respondent has applied his mind is also
questionable in view thereof that it appears that several
of the
Tribunal’s statements in the appeal decision have been copies
from an earlier decision by the Tribunal on a similar
appeal.
In
view of the aforesaid, I am of the opinion that the decision taken
on the 5
th
May 2010 should be set aside.
What
now has to be considered is whether I should give an order,
substituting the Tribunal’s decision. In this regard
Section
8(1) of PAJA provides that a Court, in proceedings for judicial
review in terms of section 6(1), may grant any order
that is just
and equitable, including orders setting aside the administrative
action and remitting the matter for reconsideration
by the
administrator [s8(1)(c)(i)] and in
exceptional
cases
substituting
the administrative action [s8(1)(c)(ii)(aa)].
In
casu
there were not serious arguments against substitution from the
Respondents.
The
Applicant, on the other hand, submits as follows in paragraph 71 of
its heads:
“
71 The exceptional
circumstances in this case are the following:
71.1 The primary issue raised by
the appeal to the Tribunal, namely whether or not “compliance”
with the factor listed
in section 27(1)(b) of the Act is a
prerequisite for the granting of a licence application, is a question
of law, which the Court
is at least as well qualified as the Tribunal
to decide.
71.2 If all the prescribed factors
and the evidence in relation to them are taken into account, the only
reasonable decision that
can be reached is that Goede Wellington’s
licence application should be granted. As the Tribunal recorded in
its decision,
the only reasons for opposing the appeal advanced by
the Department were the transformation factors set out in letter of
decision.
It will consequently be a waste of time to send the appeal
back to the Tribunal for reconsideration.
71.3 Further delay will cause
unjustifiable prejudice to Goede Wellington. The trees in the citrus
orchard were planted four and
six years ago and they require the
additional water as soon as possible in order to develop and produce
to their full potential.
71.4 All in all, the decisions of
the Chief Director and the Tribunal in this matter display an
alarming degree of ineptitude, a
lack of appreciation of what is
required and a lack of judgment, rationality and common sense. The
Tribunal in particular has
shown serious incompetence.”
I
find myself in agreement with the aforesaid argument.
Costs
9.11.1 It
is trite law that costs are in my discretion;
9.11.2 The
argument in this regard is ably summarised by the Applicant in
paragraphs 77 and 78 of its heads which read as follows:
“
77. As stated earlier, Mr
Makhanya abides the decision of this Court save that he opposes the
costs order sought against him in
his official capacity. Where a
tribunal has acted in a quasi-judicial capacity, although the general
rule is not to award costs
against it if it has acted bona fide but
incorrectly in purportedly discharging its duty, the Court retains a
discretion on the
issue of costs. For the reasons given above in
relation to the substitution of this Court’s decision for the
decision of
the Tribunal, it is submitted that a costs order against
Mr Makhanya, in his official capacity not his personal capacity,
should
be made. In this regard we point out that as the expenditure
of the Tribunal must be defrayed out of money appropriated for that
purpose by Parliament or from any other source, in terms of section
147(3) of the Act, like the costs order Goede Wellington seeks
against the Minister, the costs order it seeks against Mr Makhanya
will be met by State funds.
78. The Minister opposes the
substantive relief sought, and in addition argues that there is no
basis for a costs order against
her “merely on the basis of
opposition to this application”. However, as explained above,
despite its protestations
to the contrary, the Department has
persisted with its initial view that in order for the licence
application to be granted, Goede
Wellington had to satisfy the
provisions of section 27(1)(b) of the Act. That was the basis of the
original decision and of the
Department’s evidence before the
Tribunal, and that is the basis of the Minister’s opposition to
this application now.
If the grounds of review or appeal are upheld,
Goede Wellington will have been put to the trouble and expense of
instituting the
present High Court proceedings and dealing with the
Department’s opposition. There is no good reason why Goede
Wellington
should not be entitled to recover its costs from the
Department, if it is successful in these proceedings.”
9.11.3 I
also do not lose sight of the following:
9.11.3.1 Expertise
(or at the very least competency) can be expected from an independent
TRIBUNAL
;
9.11.3.2 The
correct interpretation of the law can be expected from such
TRIBUNAL;
9.11.3.3 It
can be expected from such
TRIBUNAL
that it will properly apply its mind to matters it adjudicates on;
9.11.3.4 It
can be expected of such
TRIBUNAL
that if it realises that it needs a legal expert on board that it
would obtain such expertise;
9.11.3.5 The
First Respondent did not comply with any of the aforesaid and over
and above conceded incompetency;
9.11.3.6 The
Second Respondent persists in opposing the application.
9.11.4 In
view of the aforesaid, it would be unjust that costs not be awarded
to the Applicant.
[10]
THEREFORE,
I MAKE THE FOLLOWING ORDER:
The
decision taken on 5 May 2010 by the First Respondent, dismissing the
Applicant’s appeal against the refusal by the Chief
Director:
Water Use in the Department of Water Affairs and Forestry of the
Applicant’s application for a licence to use
water from the
Berg River is reviewed and set aside.
The
said decision is substituted with the following:
“
1.
The
appeal by Goede Wellington Boerdery (Pty) Ltd against the
refusal on 11 April 2008 by the Chief Director: Water
Use in
the Department of Water Affairs and Forestry of the Applicant’s
application for a licence to use water
from the Berg River to
which ECPA Boerdery (Pty) Ltd is currently entitled, is upheld.
2.
The
said licence is granted to Goede Wellington Boerdery (Pty)
Ltd.”
The
Respondents are to pay the Applicant’s costs, including the
costs of two counsel, jointly and severally, the one paying
the
other to be absolved.
_______________
GOODEY
AJ
Date
heard: 06/08/2011
Date
of Judgment: 19/08/2011
1. On
behalf of the Applicant:
1.1
ATTORNEYS
:
WERKMANS ATTORNEYS
C/o MACROBERT INCORPROATED
PRETORIA
1.2
COUNSEL
:
AM Breitenbach SC
Elsa van Huyssteen
Cape Town
2. On
behalf of the First Respondent
2.1
ATTORNEYS
L
MBANJWA INCORPORATED
Pretoria
Tel:
012 322 4660
fax:
012 322 2134
Ref.
l mbanjwa/nn/w8
2.2
COUNSEL
:
MM
MOJAPELO
High
Court Chambers
Pretoria
Tel:
083 340 9924
3. On
behalf of the Second Respondent
3.1
ATTORNEYS
DEPARTMENT
OF WATER AND ENVIRONMENTAL
AFFAIRS
C/O
THE STATE ATTORNEY
Pretoria
3.2
COUNSEL
:
TAN
MAKHUBELE
High
Court Chambers
Pretoria
Tel:
083 340 9924