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[2013] ZAECPEHC 36
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Vermaak and Others v Minister of Environmental Affairs of the Republic of South Africa and Others (224/2013) [2013] ZAECPEHC 36 (19 March 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NUMBER: 224/2013
Date heard: 7 & 8
March 2013
Date delivered: 19 March
2013
In
the matter between
PETRUS
JOHANNES VERMAAK
.........................................................
First
Applicant
ROBERT
C.A. BELL
........................................................................
Second
Applicant
JENNIFER
BELL
.
.................................................................................
Third
Applicant
GEORGE
CHAMBERLAIN
................................................................
Fourth
Applicant
GERHARD
SAAYMAN
.
.........................................................................
Fifth
Applicant
CAREL
SCHEEPERS
..........................................................................
Sixth
Applicant
LERISCHIA
SCHEEPERS
..............................................................
Seventh
Applicant
SHIRLEY
WAGNER-WELSH
...............................................................
Eight
Applicant
JOHAN
C WAGNER
............................................................................
Ninth
Applicant
DEON
P GOUWS
.
..............................................................................
Tenth
Applicant
DEAL
MAKING INVESTMENTS (PTY) LTD
..................................
Eleventh
Applicant
JAN
BURGER PIENAAR
..................................................................
Twelfth
Applicant
DAVID
LISTER
............................................................................
Thirteenth
Applicant
VIRGINIA
LISTER
......................................................................
Fourteenth
Applicant
and
THE
MINISTER OF WATER
AND
ENVIRONMENTAL AFFAIRS OF THE
REPUBLIC
OF SOUTH AFRICA
.
.....................................................
First
Respondent
NELSON
MANDELA BAY MUNICIPALITY .
................................
Second
Respondent
METROWIND
(PTY) LTD
................................................................
Third
Respondent
RUBICEPT
(PTY) LTD
..................................................................
Fourth
Respondent
JACOBUS
OLIVIER N.O.
.................................................................
Fifth
Respondent
DEON
OLIVIER N.O.
.......................................................................
Sixth
Respondent
JUDGMENT
GOOSEN, J.
This is an urgent application brought
by residents of Blue Horizon Bay , a coastal suburb on the western
outskirts of Nelson Mandela
Bay, in which they seek an interdict
restraining the continued construction of a wind energy facility
(hereinafter the Wind Farm)
on agricultural land situated
immediately inland of the suburb. The application was brought on a
semi-urgent basis and was set
down for hearing on the same day as an
application to review and set aside a decision by the first
respondent not to grant the
applicants an extension of time within
which to prosecute appeals in terms of the National Environmental
Management Act, Act
107 of 1998 (NEMA) against the environmental
authorisation granted in respect of the wind farm.
In this application, the interdict is
sought pending the finalisation of the review application
(hereinafter the main application)
and any appeals that may flow
from the granting of such relief. The interdict is also sought
pending the finalisation of appeals
lodged by the applicants, in
terms of section 44 of the Land Use Planning Ordinance, 15 of 1985
(LUPO), against a decision taken
by the second respondent to grant
special consent for the use of the property upon which the wind farm
is being developed.
As indicated, the two applications
were enrolled for hearing on the same day at the instance of the
applicants and for considerations
of convenience.
At the commencement of the matter it
was submitted by Mr Buchanan, on behalf of the second respondent,
supported by Mr Ford, for
the third and fourth respondents, that the
interdict application be argued separately and that in respect
thereof an
in limine
objection relating to the failure by the
applicants to join the MEC for Local Government and Traditional
Affairs, Eastern Cape
(hereinafter the MEC) be argued first. After
hearing submissions by the parties I ruled that the
in limine
point in respect of the non-joinder be argued first. After
hearing full argument on the issue and after considering the
submissions
in respect of the further progress of the application, I
reserved judgement on the question.
On 28 March 2011 the department of
Environmental Affairs approved an environmental authorisation for
the construction and operation
of a wind farm on the farm
Rietfontein, Van Stadens (hereinafter “the property”).
The authorisation permitted the
erection of 10 wind turbines with a
generating capacity of 20 MW. On 13 October 2011 an amended
authorisation was approved permitting
the erection of 9 turbines
with a generating capacity of 27MW.
1
In November 2011 the applicants
lodged notices of intention to appeal against the environmental
authorisation and, in December
2011, the appeals were lodged. In
these appeals condonation
2
for the late filing of the notices of
intention to appeal was sought pursuant to regulation 60 of the
Environmental Impact Assessment
Regulations promulgated in terms of
NEMA.
3
On 28 July 2011 the owner of the
subject property made application to the second respondent for
Special Consent to utilise the
property, which is zoned for
agricultural use, for the purpose of operating a wind farm. Notice
of this application was given
to the residents of Blue Horizon Bay
on or about 15 September 2011. Objections to the application for
special consent were lodged
with the second respondent. On 28 May
2012 the Executive Mayor of the municipality resolved to approve the
special consent usage.
Thereafter, on 25 June 2012, the applicants
lodged appeals with the MEC in terms of section 44 of LUPO. It is on
the strength
of the fact that these appeals are pending before the
MEC that the applicants seek interdictory relief.
It is common cause that the third and
fourth respondents, having obtained the special consent usage and
having obtained the second
respondent’s approval of the site
development plan and building plans, commenced construction of the
facility on or about
18 November 2011. It is also common cause that
the second respondent and the third and fourth respondents
communicated to the
applicants their view that the applicants enjoy
no right of appeal in terms of LUPO. On the strength of this the 2
nd
respondent was not prepared to give any undertaking that it would
seek to prevent the third and fourth respondents from proceeding
with the development pending the finalisation of the appeals
purportedly lodged in terms of section 44 of LUPO. As a consequence,
the applicants commenced this application on substantially truncated
time periods in January 2013 and enrolled the matter for
hearing on
the same day as the main review application.
In its answering affidavit the second
respondent takes the point that no right of appeal exists in terms
of section 44 of LUPO
and that, in the light of the dispute as to
the existence of the right, the failure to join the MEC constitutes
a material non-joinder
which is fatal to the application. This view
is supported by the third and fourth respondents. In addition both
parties challenge
the urgency with which the application was
commenced.
The applicants in turn contend that
insofar as the right of appeal in terms of LUPO has been raised, it
is only necessary for
this court to come to the conclusion that a
prima facie
right has been made out, given that interim
relief only is sought, and for this purpose it is not necessary that
the MEC be joined
as party to the proceedings. On behalf of the
second, third and fourth respondents it was argued that in this
instance it is
necessary to resolve the question of the disputed
right as a question of law. That being so, it was argued, the
determination
of the existence of the right of appeal cannot take
place in the absence of the very appeal body, the MEC, to whom the
applicants
purport to appeal.
[10] Mr van der Linde, on behalf of
the applicants, argued that the decision in respect of the
non-joinder of the MEC would depend
on whether it was necessary to
resolve the dispute as to the existence of the right of appeal at
this interlocutory stage. He argued
that all that would be required
to be determined is whether the applicants had a
prima facie
right even though it is open to doubt. For this purpose it was
sufficient that the applicants had lodged appeals pursuant to LUPO
and that the appeals were being processed by official in the office
of the MEC.
[11] Mr van der Linde was however
constrained to concede, during argument, that the mere lodging of
what purports to be an appeal
in terms of section 44 does not confer
a right of appeal. Nor does the fact that an official in the office
of the MEC is “processing”
the appeals.
He accepted that more is required. The
applicants must establish that a right of appeal exists pursuant to
section 44 of LUPO. In
this sense therefore, argued Mr Buchanan,
there cannot be a “prima facie” appeal. There is either a
right of appeal
or there is not. Whether there is, is purely a
question of law. Since the appeal authority in the person of the MEC,
necessarily
has a direct and substantial interest in the question he
is a necessary party who must be joined.
[12] Mr Buchanan further argued that
in this instance there is, as a matter of fact, no further final
determination of the legal
issue at a subsequent trial or hearing.
Unlike the circumstances in
Beecham Group Ltd v B-M Group (Pty)
Ltd
1977 (1) SA 50
(T), where it was held that “difficult
questions of law” ought to be resolved at trial and not at the
interlocutory
stage, the circumstances of this matter required a
resolution of the “question of law” as a necessary
precondition
to the granting of the relief sought by the applicants.
In this regard he pointed to the terms of the order sought, which was
to
interdict certain activities on the property “pending the
finalisation of the appeals” pending before the MEC. This
court
would therefore need to determine whether there are, as a matter of
law, “appeals” which are pending before the
MEC. Mr
Buchanan pointed to the judgment in
Geyser v Nedbank Ltd : In re
Nedbank Ltd v Geyser
2006 (5) SA 355
(W) where Van Oosten J
expressed the view that disputed legal issues should only be decided
at the interlocutory stage where it
would result in the final
disposal of the matter. The learned judge however, also held that if
the disputed legal question could
be decided at the interlocutory
stage it would be sensible to do so.
[13] This, Mr Buchanan argued, was one
such instance. The disputed legal question not only could be decided
at this “interlocutory”
stage but it was, given the
nature of the issue and its critical importance to the matter at
hand, one that ought to be decided
since it would result in the final
disposal of the matter. The legal issue however, could not be decided
in the absence of the
joinder of the MEC as the appeal authority
whose jurisdiction the applicants sought to invoke as a basis for the
interdict sought
by them. The question was posed as to what would
happen if this court was persuaded that,
prima facie
, a right
of appeal exists and were persuaded to grant an interdict “pending
the final determination of the appeals”
and the MEC, as the
appeal authority, were to adopt the view that no such appeal lies to
him? These considerations highlight the
problem posed by the failure
to join the MEC in these circumstances.
[14] I agree with the submissions made
by Mr Buchanan, who was supported by Mr Ford. The nature of the
relief sought requires that
the applicants must establish not merely
that they have invoked the provisions of Section 44 of LUPO by
submitting to the MEC what
purports to be an appeal but that, as a
matter of law they are vested with such a right of appeal. The
existence of that right
is in dispute. In this instance the
resolution of that legal dispute is a necessary condition for the
granting of an interdict.
It was argued by Mr van der Linde that the
issue is one that could be resolved by way of interpretation of the
relevant provisions
of LUPO and that there is no basis to join the
MEC who is the political head of the department. Whilst the
interpretation of LUPO
and related regulations no doubt will be
central to the resolution of the legal issue, the argument loses
sight of the fact that
the MEC is the appeal authority, before whom,
on the applicants’ case, appeals are pending. The resolution of
the legal issue
in dispute will necessarily determine whether
appeals
are indeed pending; not in the sense of whether an appeal process is
underway but in the sense of whether what is before the MEC
constitutes an appeal
. In my view the MEC, as the appeal
authority to whom the applicants appeal, clearly has a direct and
substantial interest in the
determination of this dispute.
[15] In
Amalgamated Engineering
Union v Minister of Labour 1949(3) SA 637 (A), at 659
, the
following was said in regard to the approach to be adopted in
instances where it appears that a third party may have a direct
and
substantial interest in the issue before court:
“
The two
cases last mentioned are both instances in which the question of
non-joinder of a third party who was found to have “a
direct
and substantial interest” in the decision of a point before the
Court was taken by the Court
mero
motu
.
In
Collin
v
Toffie
the third party’s interest only became apparent from a legal
contention put forward by counsel for defendant in arguing in
support
of the exception to the declaration as disclosing no cause of action.
In the
Home
Sites
case it was only facts disclosed in the plea, taken in conjunction
with a legal argument based on them by counsel for the Plaintiff,
who
here was the excipient, that showed a third party to have an
interest. In both cases, too, it was the Court of Appeal that
first
raised the question of non-joinder. Yet in both cases, when once the
Court realised that a third party might be affected,
it set aside the
lower Court’s order and referred the case back to that Court to
be dealt with afresh after the third party
had been joined, and it
ordered the
plaintiff
to join him.
Indeed it seems clear to me that the
Court had consistently refrained from dealing with issues in which a
third party may have a
direct and substantial interest without either
having that party joined in the suit or, if the circumstances of the
case admit
of such a course, taking other adequate steps to ensure
that its judgment will not prejudicially affect the party’s
interests.
[16] It follows therefore that a
failure to join the MEC is material and that the point taken by the
second, third and fourth respondents
that this matter cannot be
determined in the absence of the MEC must be upheld.
[17] When asked as to what should
follow from such a finding, the applicants’ counsel, after
taking appropriate instructions,
took the view that the application
as a whole must be postponed in order to enable the applicants to
join the MEC. In that event,
it was submitted, the costs occasioned
by the postponement should be reserved for determination by the court
hearing the interdict
application in due course.
[18] Mr Buchanan, on behalf of the
second respondent, correctly did not oppose the postponement request
but argued that the costs
of such postponement should be paid by the
applicants in the light of the fact that the dispute as to the right
of appeal was pertinently
raised even before the application was
launched.
[19] Mr Ford, however, took a
different view. He argued that there was no basis for the
postponement of the application since such
postponement would be
destructive of the alleged urgency with which the application was
initiated and would necessarily occasion
prejudice to the respondents
who are proceeding with the construction of the wind farm. He argued
that the application, when once
the MEC is joined, would as a matter
of fact have to be considered upon wholly different considerations,
not only of urgency but
also in respect of the progress of the
development which would by then have occurred. For these reasons the
postponement should
not be granted and the application should be
dismissed with costs.
[20] Mr Ford also argued that a
postponement of the application, which was set down as a matter of
convenience on the same day as
the main application, may give rise to
wholly unsatisfactory consequences, inasmuch as another court may be
called upon to determine,
in respect of the second leg of the
application based on the pending review application, whether that
application enjoys prospects
of success in circumstances where this
court will be seized with determining the review application. This
too, it was suggested,
is a factor which should weigh against the
exercise of the court’s discretion in favour of granting a
postponement.
[21] A postponement would no doubt
substantially impact upon the determination of issues of urgency in
the matter, an issue which
remains alive. The postponement may also
have the consequence that substantially more development would have
occurred by the time
the application is finally determined. These
are, however, matters which the court hearing the interdict
application will be best
placed to consider. They are matters which
no doubt will bear upon the exercise of that court’s
discretion, should it come
to that, whether or not to grant the
relief sought by the applicant.
[22] As to the potentially
unsatisfactory circumstance that another court may be called upon to
consider whether a
prima facie
case has been made out in
respect of the review, at a time when this court will be seized with
deciding the review, the problem
is more illusory than real. If the
main review application has not by that stage been finalised that
fact will no doubt be considered
by the court hearing the interdict.
The status of the review application will no doubt be a factor
relevant to the decision on
the interdict application. It is not
unusual for one court to be called upon to consider whether some form
of interlocutory relief
should be granted pending finalisation of a
matter pending before another court. In my view this is not a reason
not to postpone
the interdict application.
[23] I am accordingly not persuaded
that, in these circumstances, the application should be dismissed at
this stage. The issues
upon which the applicants seek to found their
claim for interdictory relief remain alive. The question regarding
the existence
of a right of appeal in terms of section 44 of LUPO is
one which the applicants are entitled to pursue. Accordingly the
applicants
ought to be afforded an opportunity to do so. Any
prejudice which the respondents may suffer in my view can be
addressed by way
of an appropriate order as to costs. Whether relief
is to be granted in due course is a matter for another court to
decide.
[24] Having come to this conclusion
the only question that remains is that of costs. I am unable to agree
with Mr van der Linde
that the costs should be reserved. The dispute
regarding the existence of the right to appeal was pertinently raised
prior to the
application being launched. It was also clearly set out
in the answering affidavits. The applicants chose, at their own risk,
to
proceed with the application without taking the precaution of
joining the MEC or taking other steps which would have obviated the
need for a postponement of the matter. The court that ultimately
hears the interdict application will be in no better position
to
determine who should pay the costs occasioned by the postponement. No
substantive reason has been advanced on behalf of the
applicants why
they should not be ordered to pay the costs occasioned by the
postponement of the matter to effect a necessary joinder
of the MEC.
[25] I therefore make the following
order:
The Second, Third and Fourth
Respondent’s
in limine
objection to the non-joinder of
the MEC for Local Government and Traditional Affairs, Eastern Cape
is upheld.
The application is postponed
sine
die
to enable the Applicants to take such steps as may be
necessary to join the MEC for Local Government and Traditional
Affairs,
Eastern Cape in this application.
The Applicants are ordered to pay the
wasted costs of the Second, Third and Fourth Respondents occasioned
by the postponement
of the application jointly and severally, the
one paying the other to be absolved, such costs, in the case of the
Third and Fourth
Respondents, to include the costs of two counsel.
G. GOOSEN
JUDGE OF THE HIGH COURT
FOR THE APPLICANTS: MR. H. VAN DER
LINDE SC
INSTRUCTED BY WILKE WEISS INCORPORATED
FOR THE SECOND RESPONDENT: MR. R. G.
BUCHANAN SC
INTRUCTED BY GRAY MOODLIAR ATTORNEYS
FOR THIRD & FOURTH RESPONDENTS:
MR. E. A. S FORD SC AND
MR. J.G RICHARDS
INSTRUCTED BY RUSHMERE NOACH
INCORPORATED
1
It
is not necessary for present purposes to detail the terms and
conditions of the environmental authorisations.
2
It
is important to note that the filing of the notices of intention to
appeal and the appeals are issues which are hotly diputed
in the
main review application. The ambit and effect of this dispute need
not be dealt with in this application, for reasons
which will become
apparent hereunder.
3
The
EIA Regulations were promulgated in GN R543 and came into operation
on 18 June 2010