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2024
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[2024] ZAGPPHC 117
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Groundwork Trust and Another v Minister of Forestry, Fisheries and the Environment and Others (22046/22) [2024] ZAGPPHC 117 (8 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 22046/22
1.
REPORTABLE: NO
2. OF
INTEREST TO OTHER JUDGES: NO
3.
REVISED: YES
DATE: 8 FEBRUARY 2024
In the matter between:
THE
GROUNDWORK TRUST
First Applicant
SOUTH
DURBAN COMMUNITY
Second
Applicant
ENVIRONMENTAL ALLIANCE
And
THE
MINISTER OF FORESTRY, FISHERIES
First
Respondent
AND
THE ENVIRONMENT
CHIEF
DIRECTOR: INTEGRATED
Second Respondent
ENVIRONMENTAL
AUTHORISATIONS
DEPARTMENT OF
FORESTRY, FISHERIES
AND
THE ENVIRONMENT
RICHARDS
BAY GAS POWER 2 (PTY) LTD
Third Respondent
JUDGMENT
CILLIERS
AJ
1.
On the 16
th
of August 2023 this Court dismissed the
Applicants’ application to review and set aside the First
Respondent’s decision
to dismiss Applicants’ appeal
against the Second Respondent’s granting of an amended
environmental authorisation to
Third Respondent.
2.
Applicants now approached this Court in terms of Section 17(1)(a)(i)
and (ii) of the Superior Courts Act to seek leave to appeal the above
order on the basis that Applicants have reasonable prospects
of
success on appeal and/or that there are compelling reasons why the
appeal should be heard.
3.
The compelling reasons relied on in the application for leave
to
appeal is explained on the basis that the order will have a
resounding effect on the future of Constitutional and public interest
litigation conducted by non-government organisations.
4.
The basis for the dismissal of Applicants’ initial application
was the fact that I found that the Applicants delay in approaching
the Court in terms of Section 7 of PAJA was unreasonable.
I
further concluded that I was not persuaded that it was in the
interest of justice that an extension of time should be granted
in
terms of Section 9 of PAJA.
5.
I should mention that, apart from the dismissal of the application
on
the issue relating to the delay, referred to above, I also expressed
reservations relating to the merits of the application
for the
reasons set out in the judgment.
6.
It was common cause between the parties that there was a material
delay between the date when Applicants became aware of the First
Respondent’s dismissal of the internal appeal and the date
that
Applicants approached this Court to review and set aside the First
Respondent’s decision – approximately 8 months.
7.
Counsel on behalf of the Applicants did not advance any new
issue in
the present application for leave to appeal that was not canvassed
during the argument when the main application was heard,
apart from
the submission that there was an agreement between the parties to
extend the time periods provided for in Sections 7
and 9 of PAJA.
8.
Counsel on behalf of the Applicants now submitted, during argument
in
the application for leave to appeal, that there was an agreement
between the parties providing for an extension of time to file
the
review application. This counsel explained to be based on the
fact that the First and/or Second Respondents did not respond
to a
letter requesting extension of time shortly before the time lapsed.
9.
I am of the view that there is no merit in the above submission
for
inter alia
the following reasons:
9.1.
The Applicants did not rely on such alleged agreement in the
application papers.
9.2.
There can be no basis for a finding that there was an agreement
solely on the premise that
there was no response to a request –
more in particular if one has regard to the wording of the relevant
request.
9.3.
The Third Respondent was not included in this correspondence, and I
am of the view that
Third Respondent should have been a party to any
such agreement.
10.
I am of the view that there is no reasonable prospect that another
Court may
find that I erred in finding that Applicants did not
provide a reasonable explanation for the extraordinary delay in
approaching
Court in terms of Section 7 of PAJA.
11.
No argument was advanced to persuade me that it was in the interest
of justice
that an extension of time in terms of Section 9 of PAJA
should be granted. In fact, no facts were alleged in the
application
papers why the interest of justice should dictate such an
extension of time be granted.
12.
Absent such
extension I have no authority to entertain the review application.
[1]
13.
I am also not persuaded that there is any compelling reason to grant
leave to
appeal. I have to emphasise that the judgment in the
main application will not have a resounding effect on future
litigation,
either as alleged or at all.
14.
I am therefore not persuaded that leave to appeal should be granted
to the Applicants.
I therefore dismiss the application.
15.
As far as costs are concerned I will follow the approach in the main
application
and order Applicants to pay the costs of the Third
Respondent relating to the application for leave to appeal. No
order of
costs pertaining to the First and Second Respondent is made.
J G CILLIERS
Acting Judge of the High
Court
Gauteng Division,
Pretoria
Date
of Hearing:
7 FEBRUARY 2024
Judgment
delivered:
8
FEBRUARY 2024
Attorneys
for Applicants:
Centre for
Environmental Rights
E-mail:
gknott@cer.org.za
/
plado@cer.org.za
C/O Gildenhuys Malatji
Inc.
E-mail:
JSmalberger@gminc.co.za
/
GMochadibane@gminc.co.za
Counsel for
Applicants:
Advocate L Zikalala
E-mail:
zikalala@group621.co.za
With
Advocate S Ntloko
E-mail:
yntloko@counsel.co.za
Attorneys for First
and Second Respondents:
Counsel for First and
Second Respondents:
The State Attorney
E-mail:
TChokwe@justice.gov.za
Advocate C Erasmus SC
E-mail:
Mce7@icloud.com
/
mce7@loftusadv.co.za
With
Advocate Vimbi
Mthuthuzeli
E-mail:
advvimbi@gmail.com
Attorneys
for Third Respondents:
Cliffe Dekker Hofmeyr
Inc
E-mail:
Margo-Ann.Werner@cdhlegal.com
/
Jackwell.Feris@cdhlegal.com
C/O Asger Gani
Attorneys
E-mail:
ganiasger@gmail.com
Counsel
for Third Respondent
Advocate A Friedman
E-mail:
friedman@group621.co.za
[1]
Urban
Tolling Alliance v SA National Roads Agency Ltd
[2013] 4 ALL SA 639
(SCA)