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[2012] ZAECPEHC 61
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Sharwood NO and Others v Transnet Ltd t/a National Ports Authority of South frica and Others (1038/2011) [2012] ZAECPEHC 61 (6 September 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
In the matter between:
Case No: 1038/2011
CLIVE ARTHUR SHARWOOD
N.O.
.......................................................
First
Applicant
RICHARD ANTHONY COOK
N.O.
.....................................................
Second
Applicant
IAN FORESTER GRAY N.O.
..................................................................
Third
Applicant
NORBERT THEODOR
WILHELM KLAGES N.O.
...............................
Fourth
Applicant
MARK HYLTON MARSHALL
N.O.
.........................................................
Fifth
Applicant
ALEXANDER IAN MITCHELL
N.O.
.......................................................
Sixth
Applicant
ECKART HERMANN
SCHUMANN N.O.
..........................................
Seventh
Applicant
ELIZABETH ANN RUTH
SHARWOOD N.O.
.........................................
Eight
Applicant
and
TRANSNET LIMITED t/a
THE NATIONAL PORTS AUTHORITY
OF SOUTH AFRICA
............................................................................
First
Respondent
COEGA DEVELOPMENT
CORPORATION .
.................................
Second
Respondent
MINISTER OF WATER AND
ENVIRONMENTAL AFFAIRS
.............
Third
Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
ENVIRONMENTAL AFFAIRS
.........................................................
Fourth
Respondent
Coram:
Chetty, J
Heard:
2 August 2012
Delivered:
6 September
2012
Summary:
Environment
–
Construction of Port of Ngqura – Record of
decision - Interpretation – Whether obligations imposed on
respondents –
Satisfied – No additional obligations
imposed on respondents – Application dismissed
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Chetty, J
[1] The proposed
construction of the Port of Ngqura on the eastern approach to Port
Elizabeth was identified by the third respondent,
the
Minister of Environmental Affairs,
(the
Minister) as an activity which could potentially have a detrimental
effect on the environment and a notice to that effect was
duly
published in the Government Gazette pursuant to the provisions of
section 21 of the
Environment
Conservation Act
1
(the Act). Section 22 of
the Act prohibited the undertaking of any such identified activity,
to wit, the construction
of the port,
except
by virtue of a written authorisation to that effect issued by the
Minister or his designees. On 23 November 2001 the Minister
granted
permission for the construction and operation of the Port of Ngqura,
subject to certain
conditions. The authorisation issued was recorded in a document
styled,
“
Record
of decision in terms of section 22(3) of the Environment Conservation
Act, 1989 with regard to the undertaking of the activity
described
below as required by Government Notice R. 1183 of 5 September 1997”
.
It commenced with a
synopsis of the activity,
which
it described as,
-
“
The
project entails the construction of a deep-water port on the mouth of
the Coega River estuary by the Coega Development Corporation
(CDC)
and the National Port Authority of South Africa (NPA). The harbour
will have two breakwaters, with the main breakwater extending
more
than two kilometres into the sea, while the lee breakwater will be
approximately 1km long.
Five berths will be
constructed initially, with two berths each being allocated to the
container terminal and dry bulk materials
facility and one to a bulk
liquid materials facility. The main construction activity associated
with the building of the marine
infrastructure is the dredging of the
approach channel and turning basin; construction of the quay walls
and breakwaters; land
excavation to create the area for the container
terminal and transport corridor and the resulting transport of
material to the
east headland deposition site; and the building of a
sand bypass scheme.
The main land based
activities involve the development of infrastructure and service
facilities for the future Industrial Development
Zone (IDZ) tenants
and port users. This will involve preparing sites, transport routes,
water and electricity services, wastes
sites and telecommunications.
The landside development is envisaged to encompass a custom secure
logistic park, an e-commerce park,
areas designated for port related
activities and allied industries, mixed-used corridor and electronic
and technical clusters.”
[2] It will be gleaned
from the aforegoing précis that the proponents of the activity
were identified as the second and first
respondents, (in that order)
and a clear distinction is drawn between the port development and the
land based activities. The document
then names the consultants and
records the decision made by the Minister as follows –
“
DECISION
Authorisation is
granted in terms of Section 22 (3) of the Environment Conservation
Act, 1989 (Act No. 73 of 1989) to construct
and operate the Port of
Ngqura. This authorisation is granted subject to the conditions
outlined below.”
[2] I shall henceforth
refer to this document as the original ROD. It then enumerated a raft
of conditions, both general and specific,
subject to which the
authorisation had been granted, listed the key factors which
influenced the decision to issue the authorisation,
provided for an
appeal and the mechanism for its invocation.
[3] The applicant, the
South African Marine Rehabilitation and Education Trust,
Samrec
,
duly invoked the appeal machinery provided by the original ROD and
articulated its grievance, at what it contended was an offensive
specific condition, to wit, 2.12 which read –
“
The
CDC and NPA, together with all other stakeholders whose operations
are likely to impact negatively on the marine life of Algoa
Bay, must
cooperate with the establishment of the seabird and marine mammal
rehabilitation centre before construction commences.”
as follows –
“
Samrec
appeals against this condition in its present form as it does not
place any obligation on any of the mentioned parties to
any specific
undertakings or commitments; and without any such commitments, the
establishment of the rehabilitation centre may
never come to
fruition. The NPA is the major party responsible for the control of
shipping in South African waters, including Algoa
Bay and the major
beneficiary of the establishment of the port. Samrec therefore
requests that the above-mentioned condition be
amended to impose an
obligation on the NPA and the CDC to provide sufficient finance for
the establishment of the centre and to
fund the ongoing running costs
of such centre.”
and invited the Minister
to substitute the aforegoing specific condition 2.12 – with a
condition which it proposed should
read -
“
The
NPA and CDC, as major stakeholders, in conjunction with other
stakeholders whose operations are likely to impact negatively
on the
marine life of Algoa Bay, should provide the majority of the funding
for the infrastructure for an appropriately sized and
equipped
seabird and marine mammal rehabilitation centre before construction
commences as well as the running costs of such centre
thereafter.”
[4]
Samrec’s
appeal had limited success. Its proposed amendment to specific
condition 2.12 in the terms sought was effectively rejected. In its
stead emerged specific condition 2.8 in a revised ROD dated 27 May
2002 which provided –
“
The
NPA, together with all other stakeholders whose operations are likely
to impact negatively on the marine life of Algoa Bay,
must submit a
strategic plan indicating their commitment towards financially and
logistically facilitating the establishment of
the seabird and marine
mammal rehabilitation centre before operation of the port commences.”
[5] The contrast between
the original and revised ROD not only as regards the description of
the activity,
but
moreover,
between
various of its specific conditions, in particular, specific condition
2.8 and its predecessor, specific condition 2.12,
is
pronounced. The synopsis of the activity in the revised ROD omits all
reference to the second respondent. It now only identifies
the first
respondent as the entity involved in the construction. Specific
condition 2.8 likewise omits all reference to the second
respondent.
The only obligation
imposed upon the first respondent and other stakeholders,
who are specifically
identified as those
“
whose
operations are likely to impact negatively on the marine life of
Algoa Bay”
,
is for the aforementioned
entities to submit a strategic plan to the Minister indicating their
commitment towards financially and
logistically facilitating the
establishment of the seabird and marine mammal rehabilitation centre
before the operation of the
port commences.
Caedit
questio
.
[6] The only other
specific condition in the revised ROD relevant to these proceedings
and relied upon by the applicants, conjunctively
with the
aforementioned specific condition 2.8, is specific condition 2.48
which provides -
“
All
mitigation measures stipulated in Chapters 5, 7 and 9 of the
environmental impact report become part of this record of decision.
Non-compliance with those becomes non-compliance with this record of
decision.”
[7] With that prelude, I
turn to a consideration of the issues which fall for determination.
The main form of the relief sought
is formulated in paragraph 1 of
the notice of motion as –
“
1.
It is declared that the first and second respondents have failed to
comply with paragraphs 2.8 and 2.48 of the Revised Record
of
Decision, issued by the Minister of Environmental Affairs and Tourism
on 27 may 2002 [“the RoD dated 27 May 2002”],
in that
they have failed to provide the majority of the infrastructure and
funding for:
1.1 The establishment
of an appropriately sized and equipped centre [“the Centre”]
as contemplated in paragraph 2.8
of the RoD dated 27 May 2002, read
with chapter 7, “Impact 5” page 133 of the subsequent
environmental impact report
that preceded the said RoD, and described
in the report by the Comet Corporation, styled “
Study for
the National Port Authority to facilitate the development of a
seabird and marine animal centre”
[“the Report”];
and
1.2 The operating costs
consequent upon the day to day operation of the Centre.”
[8] It will be gleaned
from the aforegoing that the suggested non-compliance with specific
conditions 2.8 and 2.48 is premised entirely
upon the alleged failure
to provide the infrastructure and finances contended for. As
adumbrated hereinbefore, neither condition
2.8 nor 2.48, invested the
first or second respondents with the obligation to provide the
finances contended for. The relief sought
conflates the obligations
imposed upon the first and second respondents in the original ROD and
the revised ROD. Furthermore, the
relief foreshadowed in paragraph
1.2 of the notice of motion, viz, the operating costs consequent upon
the day to day operation
of the centre is derived exclusively from
the recommendations proposed in the Comet report which I shall allude
to in due course.
Whilst certain of these recommendations were
incorporated into the subsequent environmental impact report, the
subsequent EIR,
the funding for the day to day operation of the
centre was neither considered nor adverted to therein. What the
applicants seek
to do is to infuse these recommendations into the
subsequent EIR to enable it to contend that specific condition 2.8
read with
2.48 imposes such an obligation upon the first and second
respondents. It clearly does not.
The case against
the second respondent
[9] The relief sought
against the second respondent is entirely misplaced. Paragraph 2.8 of
the revised ROD places no obligation
whatsoever upon the second
respondent. In fact it explicitly omits all reference to the second
respondent. There is furthermore
no suggestion in the applicants’
papers that the second respondent’s operations are likely to
impact negatively on
the marine life of Algoa Bay.
[10] The uncontroverted
evidence by the second respondent’s executive manager for
operations, Mr
Themba Koza
(
Koza
), is that the second
respondent’s activities were governed by a separate ROD and not
the revised ROD, which as stated, omits
all reference to the second
respondent. It is evident from his affidavit that the focus of the
second respondent’s ROD was
the impact that its activities may
have upon the environment on the land side of the port. Neither does
condition 2.48 read with
impact 5 of Chapter 7 of the EIR impose the
obligation contended for on the second respondent. The reformulated
condition 2.8 which
specifically omits all reference to the second
respondent indicates, quite unequivocally, the Minister’s
rejection of the
recommendations proposed in the subsequent EIR.
The case against
the first respondent
[11] Nor, to my mind,
does paragraph 2.8 impose the obligation contended for upon the first
respondent. The only obligation imposed
upon the first respondent by
the revised ROD is the submission of the contemplated strategic plan
to the Minister. It is not in
issue that a strategic plan was in fact
developed and submitted to the Minister. Whatever misgivings the
applicants harbour concerning
the efficacy of the strategic plan
cannot detract from the fact that a strategic plan was formulated and
submitted to the Minister.
[12] It is common cause
that the consultants, who undertook and conducted the environmental
impact assessments and who produced
a number of EIRs, initiated a
public participation process. The applicants and a host of other role
players were invited to a workshop
for the purpose of developing the
strategic plan envisaged in specific condition 2.8. The workshop was
duly held on 27 November
2002 and the minutes record that a strategic
plan was discussed and proposals made. An action plan was agreed upon
and recorded
in the minutes as –
“
Action
Plan
Appoint a suitably
qualified and experienced person/s to assess and quantify seabird
and marine mammal rehabilitation needs for
the region.
Appoint a suitably
qualified and experienced person/s to conduct a thorough comparative
analysis of present and proposed facilities,
resources and capacity
dealing with seabird and marine mammal rehabilitation.
Finalise and endorse a
comprehensive strategic plan for the establishment of a seabird and
marine mammal rehabilitation centre.”
[13] The person duly
appointed in conformity with the aforementioned action plan was a Ms
Estelle
van der Merwe
of
the Comet Corporation. Comet was commissioned by the first respondent
to conduct the study contemplated in the action plan and,
in due course,
after a public
participation process, produced a thorough and wide ranging report,
the Comet report. She prefaced the report with
a foreword styled,
“
Executive
Summary”
as
follows -
“
Executive
Summary
The National Ports
Authority has commenced with the construction of a deep-water harbour
at the mouth of the Ngqura River in Algoa
Bay for completion in June
2005.
As part of the
conditions of the Revised Record of Decision, “
The NPA,
together with all other stakeholders whose operations are likely to
impact negatively on the marine life of Algoa Bay,
must submit a
strategic plan indicating their commitment towards financially and
logistically facilitating the establishment of
the seabird and marine
mammal rehabilitation centre before operation of the port commences”
This study will provide
further information to facilitate the development of a Seabird and
Marine Animal Rehabilitation Centre (SMARC)
in Algoa Bay.
The need for the SMARC
to be established before the operation of the port commences is
clear. The need to implement an Interim Management
Plan is a matter
of extreme urgency as the construction of the port has commenced.
The cost for the
establishment and daily operation of the SMARC could be financed by
means of a shipping levy in the long term.
In the short term, the
establishment of the SMARC need to be funded by the NPA and other
stakeholders whose operations are likely
to impact negatively on the
marine life of Algoa Bay.
The Estimated Total
Associated Costing for the Establishment of SMARC is R8, 150,00 with
and Estimated Associated Costing per annum
for the Daily Operations
at R1, 589,00.
Provisions also needs
to be made for Contingency Planning and bridging finance in the event
of an oil spill.”
[14]
Consequent to the public
participation process, the consultants, in fulfilment of its mandate,
produced and presented a report styled,
“
Seabird
and Marine Animal Rehabilitation Centre: Public Participation
Report”
,
dated 8 July 2003 to the first respondent. They concluded the report,
under the rubric
“
Conclusion
and Way
Forward”
by stating -
“
The
public participation process for the development of this Strategic
Plan has been a comprehensive process with key stakeholders
providing
valuable input at the various stages of the process.
A key development
during this process has been the funding granted to SAMREC for the
establishment of a Seabird Rehabilitation and
Education Centre. It is
anticipated that this will give impetus to the establishment of a
centre in the area. It should however
be noted that while SAMREC has
been able to access this funding it is not anticipated that this will
cover the full costs of the
establishment of such a centre nor does
it cover operational equipment and annual overheads.
The final workshop
agreed that SAMREC would continue to spearhead the proposal for the
development of a Seabird and Marine Animal
Rehabilitation Centre. In
addition, it was agreed that a consultative forum would be
established wherein organisations would be
able to meet and share
information on seabird and marine animal rehabilitation. It was
proposed that NPA should consider facilitating
ongoing information
sharing of the consultative forum.
The feedback from the
consultation process is that it has been a valuable exercise and it
was recommended that a platform be maintained
whereby role players
can share information and obtain feedback on the progress of seabird
and marine animal rehabilitation in the
region.
Of immediate concern is
the apparent lack of an emergency contingency plan during
construction of the port. A working group was
identified through this
process and this needs to be maintained until realisation of the
plan.
It is also important to
note that the main focus of the Strategic Plan is on the daily
rehabilitation of seabirds and marine animals
and the establishment
of such a centre. Through the assessment and consultative process it
has been identified that a daily rehabilitation
centre will not act
as a catastrophic event facility. There is a definite need to provide
a facility in the case of a catastrophic
event such as a major oil
spill. The report by Comet does identify this need but this process
needs attention and must be taken
forward.”
[15] The strategic plan
encapsulated in the public participation report forwarded by the
first respondent to the Minister elicited
the applicants’ ire.
Aggrieved at what it considered to be a fundamentally flawed
strategic plan,
Samrec
requested the latter to furnish it with
the reasons for concluding that the first respondent had complied
with the prescripts of
paragraph 2.8 of the revised ROD. In reply the
Minister,
inter ali
a, advised
Samrec
that –
“
After
careful consideration of the information at hand the department is of
the opinion that Transnet has complied with the condition
of the ROD.
The strategic plan was drafted and adopted by stakeholders during a
workshop at Bayworld in Port Elizabeth on 23 June
2003. In addition
Transnet contributed R1 million to the SA Marine Mammal
Rehabilitation and Education Centre (SAMREC) towards
the
establishment of the rehabilitation centre.
The department is aware
that Transnet has extended an invitation to the relevant role players
to approach it directly should this
be required in future and hopes
that the strategic plan adopted on 23 June 2003 will be implemented.”
[16] The Minister’s
response failed to placate
Samrec
.
Mortified thereby,
it
sought succour in the
Promotion
of Administrative Justice Act
2
,
demanded reasons for the
decision and implored the Minister to review her decision. The
Minister’s designated official responded
as follows –
“
REQUEST
FOR DETAILED REASONS FOR A DECISION REGARDING TRANSNET NATIONAL PORTS
AUTHORITY COMPLIANCE WITH THE RECORD OF DECISION FOR
THE CONSTRUCTION
AND OPERATION OF THE PORT OF NGQURA
The Department hereby
acknowledges receipt of your letter dated 28 November 2008 regarding
the abovementioned matter.
In terms of the
Promotion of Administrative Justice Act, Act 3 of 2000, you have
requested the department to furnish you with reasons
for the decision
taken by the department regarding compliance with the record of
decision (ROD) dated 27 May 2002, as stated in
the letter to Transnet
National Ports Authority, dated 16 September 2008 of which a copy was
supplied to you.
Condition 2.8 in the
ROD states that:
The NPA, together with
all other stakeholders whose operations are likely to impact
negatively on the marine life of Algoa Bay,
must
submit
a
strategic plan indicating their commitment towards financially and
logistically facilitating the establishment of the seabird
and marine
mammal rehabilitation centre before operation of the port commences.
The report drafted by
the consultants appointed in 2003 by Transnet dated 8 July 2003,
containing inter alia the “strategic
plan” in Chapter 3
and adopted by the stakeholders at the workshop of 23 June 2003 were
submitted to the department as required
by the condition of the ROD.
The department is accordingly of the view that the condition has been
complied with. The report indicated
on page 14: “The final
workshop agreed that SAMREC would continue to spearhead the proposal
for the development of a Seabird
and Marine Animal Rehabilitation
Centre (SMARC)”.
The department
therefore proposes that SAMREC, as the driver of the process,
approach all the identified stakeholders and engage
with them on the
process of establishment of the centre. Please ensure that the
Directorate: Marine and Costal Management is consulted
as part of
this process, to ensure that there is no duplication of contingency
planning and response strategies.”
[17] The Minister was
however not the only entity to which
Samrec
voiced its
dissatisfaction concerning the strategic plan. It likewise
communicated its grievance with the Environmental Monitoring
Committee’s (the EMC) then Environmental Control Officer
3
(ECO) and forwarded to
both,
its
version of what it contended was the strategic plan envisaged in
specific condition 2.8, to wit the recommendations in the Comet
report contained in the executive summary reproduced in paragraph
[13] hereinbefore.
[18] Although counsel for
the applicants in his opening address emphasized that he was neither
seeking a review of what he referred
to as a decade old decision nor
challenging the revised ROD but was merely seeking to enforce
compliance by the respondents with
specific conditions 2.8 and 2.48,
it is clear,
both from a reading of
the founding affidavit and the correspondence emanating from
Samrec
addressed to the first
respondent and the Minister, that the relief sought in paragraph 2 of
the notice of motion relates specifically
to what it contends was the
adoption of a flawed strategic plan.
The
fact remains that the Minister duly considered it and found it to be
compliant with the prescripts of specific condition 2.8.
[19] The ECO and the
fourth respondent were the administrative functionaries vested by
statute with the power to consider whether
or not the relevant
conditions had been complied with. It is they and not the court who
are best equipped to conclude whether or
not the strategic plan
submitted,
was
compliant. The legal principles hereanent were expounded,
with reference to earlier
authority,
by
Heher J.A, in
Gauteng
Gambling Board v Silverstar Development Ltd and Others
4
as follows –
[28]
The power of a court on review to substitute or vary administrative
action or correct a defect arising from such action depends
upon a
determination that a case is 'exceptional': s 8(1)
(c)
(ii)
(aa)
of
the
Promotion of Administrative Justice Act 3 of 2000
. Since the
normal rule of common law is that an administrative organ on which a
power is conferred is the appropriate entity to
exercise that power,
a case is exceptional when, upon a proper consideration of all the
relevant facts, a court is persuaded that
a decision to exercise a
power should not be left to the designated functionary. How that
conclusion is to be reached is not statutorily
ordained and will
depend on established principles informed by the constitutional
imperative that administrative action must be
lawful, reasonable and
procedurally fair. Hefer AP said in
Commissioner,
Competition Commission v General Council of the Bar of South Africa
and Others
2002
(6) SA 606 (SCA)
:
'[14]
. . . (T)he remark in
Johannesburg
City Council v Administrator, Transvaal, and Another
1969
(2) SA 72 (T)
at
76D – E that ''the Court is slow to assume a discretion which
has by statute been entrusted to another tribunal or functionary''
does not tell the whole story. For, in order to give full effect to
the right which everyone has to lawful, reasonable and procedurally
fair administrative action, considerations of fairness also enter the
picture. There will accordingly be no remittal to the administrative
authority in cases where such a step will operate procedurally
unfairly to both parties. As Holmes AJA observed in
Livestock
and Meat Industries Control Board v Garda
1961
(1) SA 342 (A)
at
349G
''.
. . the Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and . . . although
the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides''.
[See
also
Erf
One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council
(Johannesburg Administration) and Another
1999
(1) SA 104 (SCA)
at
109F - G.]
[15]
I do not accept a submission for the respondents to the effect that
the Court
a
quo
was in as good a position as the Commission to grant or refuse
exemption and that, for this reason alone, the matter
was
rightly not remitted. Admittedly Baxter
Administrative
Law
at 682 - 4 lists a case where the Court is in as good a position to
make the decision as the administrator among those in which
it will
be justified in correcting the decision by substituting its own.
However, the author also says at 684:
''The
mere fact that a court considers itself as qualified to take the
decision as the administrator does not of itself justify
usurping
that administrator's powers . . .; sometimes, however, fairness
to the applicant may demand that the Court should
take such a view.''
This,
in my view, states the position accurately. All that can be said is
that considerations of fairness may in a given case require
the court
to make the decision itself provided it is able to do so.'
[29]
An administrative functionary that is vested by statute with the
power to consider and approve or reject an application is
generally
best equipped by the variety of its composition, by experience, and
its access to sources of relevant information and
expertise to make
the right decision. The court typically has none of these advantages
and is required to recognise its own limitations.
See
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty)
Ltd;
Minister of Environmental Affairs and Tourism and Others v Bato Star
Fishing (Pty) Ltd
2003
(6) SA 407
(SCA)
at
paras [47] - [50], and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
2004
(4) SA 490 (CC)
[2004] ZACC 15
;
(2004
(7) BCLR 687)
at paras [46] - [49]. That is why remittal is almost
always the prudent and proper course.”
I am unpersuaded that
considerations of fairness require this court’s substitution of
the functionary’s decision.
Does Clause 2.48
obligate the first and second respondents to act as contended for by
the applicants?
[20] The argument
advanced on behalf of the applicants that,
conjunctively with
specific condition 2.8, specific condition 2.48 of the revised ROD
obligated the first and second respondents
“
to
provide the majority of the infrastructure and funding”
for
the establishment of the marine rehabilitation centre is based
entirely upon the recommendation contained in the subsequent
EIR
where the consultants proposed that –
“
The
CDC and PAD, as major stakeholders, in conjunction with other
concerned organisations,
should
provide the majority of the infrastructure and funding
for an appropriately
sized and equipped centre
.”
(my emphasis). In the appeal noted against the original ROD the
applicants sought its substitution by a clause formulated
as -
“
The
NPA and CDC, as major stakeholders, in conjunction with other
stakeholders whose operations are likely to impact negatively
on the
marine life of Algoa Bay, should provide the majority of the funding
for the infrastructure for an appropriately sized and
equipped
seabird and marine mammal rehabilitation centre before construction
commences as well as the running costs of such centre
thereafter.”
A comparison between the
aforesaid proposal and the recommendations advocated by the
consultants and the Comet report establishes
that
Samrec
merely adopted the latter’s recommendation which it sought to
be incorporated into the specific conditions governing the
authorisation granted to the first respondent. What it in effect now
seeks to do is to import into the wording of specific condition
2.48,
a recommendation specifically rejected by the Minister in the
reformulated specific condition 2.8.
The case against
the third and fourth respondents
[21] Although the
Minister of Water and Environmental Affairs and the Director-General:
Department of Environmental Affairs were
cited as the third and
fourth respondents no relief as such was sought against them save in
the event of their opposition to the
application. In the founding
papers however, the deponent lambasted both respondents for
concluding that the first and second respondents
had complied with
the obligations imposed upon them in the revised ROD. Notwithstanding
their non-opposition to the application
however, the third and fourth
respondents filed written submissions wherein the Minister sought
leave to have her views placed
on record. The filing of these written
submissions elicited a notice in terms of Rule 30 of the Uniform
Rules of Court for the
setting aside of the written submissions as an
irregular step and, at the hearing before me, counsel for the
applicants persisted
with the application to have the written
submissions struck out.
[22 ] Mr Beyleveld, on
behalf of the third and fourth respondents, expounded the view that,
given the attitude adopted by the applicants,
it was incumbent upon
the Minister to, at the very least, have her views placed before the
court. Although it is so that the Minister
desisted from filing
papers in opposition to the relief sought, she is nonetheless an
interested party to the litigation and ought,
as a matter of
procedural fairness, to have her views placed before me. Her
predecessor concluded that there had been compliance
with the
prescripts of the revised ROD and to adopt a legalistic approach and
exclude the reasons which influenced that decision
would clearly be
inimical to the interests of justice. I accordingly allowed the
introduction of the written submissions and permitted
counsel for the
third and fourth respondents to address me with the caveat that it be
limited to the reasons which influenced the
decision that the first
respondent had complied with the conditions of the revised ROD.
[23] Extrapolated from
the Minister’s submissions is the recognition that it is her
department which bears the specific responsibility
for environmental
protection and oil spill damages. In fact, as appears from the audit
reports annexed to the applicants’
replying affidavit, the ECO,
Dr
Martin
, despite initial reservations concerning oil spill
contingency plans, commented, by April 2011, that the first
respondent was compliant
vis-a-vis catastrophic oil spills and
commented that –
“
SA’s
National Contingency Plan for the Prevention and Combating of
Pollution from Ships and Offshore Installations”.
NPA primary
responsibility is combating spills within their areas.”
The applicants’
contention that the mitigation measures espoused by the consultants
constitute a specific condition in terms
of clause 2.48 ignores the
fact that at the time the then Minister duly considered the proposals
but rejected them, precisely because
he considered his department to
be responsible for any oil spillage clean up. It follows from the
aforegoing that the applicants
have not made out a case for the
relief sought against the respondents.
[24] Although generally
speaking, costs follow the result, this is not the type of case where
I believe the applicants should be
mulcted with the costs. The
applicants’ sole motive was the protection of the environment
and their efforts, notwithstanding
being based entirely upon a
misinterpretation of the revised ROD and the specific conditions
should not be visited with an adverse
costs order. Fairness dictates
that each party should bear their own costs. In the result the
following order will issue –
The application is
dismissed.
_________________________
D. CHETTY
JUDGE OF THE HIGH
COURT
On behalf of the
Applicants: Adv L.P Dicker instructed by JGS, 173 Cape Road, Mill
Park, port Elizabeth; Ref: Mr A Botha; Tel: (041)
396 9235
On behalf of the 1
st
Respondent: Adv R.G Buchanan S.C instructed by Goldberg & De
Villiers; 13 Bird Street, Central, Port Elizabeth; Ref: C Moodliar;
Tel: (041) 501 9800
On behalf of the 2
nd
Respondent: Adv Bloem instructed by Smith Tabata Incorporated, 260
Cape Road, Newton Park, Port Elizabeth; Ref: Andrew Conroy;
On behalf of the 3
rd
& 4
th
Respondent: Adv A. Beyleveld S.C instructed by
the State Attorney; 29 Western Road, Central, Port Elizabeth; Tel:
(041) 5857921
1
Act
No. 73 of 1989
2
Act
No. 3 of 2000
3
Dr
Bool Smuts
4
2005
(4) SA 67
(SCA)