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2023
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[2023] ZAGPPHC 213
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Minister of Environmental Affairs v Trustees for the time being of the Groundwork Trust and Another [2023] ZAGPPHC 213; 39724/2019 (20 March 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 39724/2019
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
Applicant
and
THE TRUSTEES FOR
THE TIME BEING OF THE GROUNDWORK TRUST
First
Respondent
VUKANI
ENVIRONMENTAL JUSTICE ALLIANCE MOVEMENT IN ACTION
Second
Respondent
This judgment is issued
by the Judge whose name is reflected herein and is submitted
electronically to the parties/their legal representatives
by email.
The judgment is further uploaded to the electronic file of this
matter on CaseLines by the Judge or her Secretary. The
date of this
judgment is deemed to be 20 March
2023.
JUDGMENT
COLLIS J
1.This is an application
for leave to appeal against the judgment and order made on 18
March 2022.
2. The application is
premised on the grounds as listed in the Application for Leave to
Appeal dated 08 April 2022. The said application
albeit that same was
filed last year already, was only brought to the attention of the
Court towards the end of the year. This
is regrettable and points to
challenges experienced within the administration.
3. In anticipation of the
hearing of the application for leave to appeal, the parties were
requested to file short heads of argument.
They both acceded to this
request so directed by the Court.
LEGAL PRINCIPLES
4.
Section 17 of the Superior Court’s Act provides as follows:
[1]
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a) (i) the appeal
would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) the decision
sought to appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties.”
5. In
casu
the
applicant relies on both grounds of appeal mentioned in
section
17(1)(a)
of the
Superior Courts Act 10 of 2013
, namely, that the
appeal would have reasonable prospects of success and that there are
compelling reasons justifying the appeal.
6. The crisp issue on
appeal is a question of law, namely, the proper interpretation of
section 20 of the National Environmental
Management: Air Quality Act
39 of 2004 ("
the AQA
"), specifically whether the
regulation-making power in section 20 of the AQA vested the Applicant
with a discretion to prescribe
regulations or imposed a duty on her
to do so.
7. The
clarification
of
this
interpretation
is further of considerable wider importance as
there are
several
statutes
within
the
suit
of
environmental
legislation
which
contain regulation-making powers similar to those
contained in section 20 of the AQA,
and
many other statutes to similar effect.
8. The First and Second
Respondents agreed with the Applicant that, subject to the requisite
leave being given by this Court, that
leave to appeal to the Supreme
Court of Appeal should be granted.
9. As to the test to be
applied by a court in considering an application for leave to appeal,
Bertelsmann J in The Mont Chevaux
Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC) at para 6 stated the following:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word “would” in the new statute indicates
a measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.’
10.
‘In order to succeed, therefore, the appellant must convince
this Court on proper grounds that he has prospects of success
on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established
than that
there is a mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorized as
hopeless. There
must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success on appeal.’
[2]
11.
In Fair-Trade Independent Tobacco Association v President of the
Republic of South Africa and Another
[3]
the
Full Court of this Division observed that:
“
As
such, in considering the application for leave to appeal it is
crucial for this Court to remain cognizant of the higher threshold
that needs to be met before leave to appeal may be granted.
There must exist more than just a mere possibility that another
court, the SCA in this instance, will, not might, find differently on
both facts and law. It is against this background that
we
consider the most pivotal grounds of appeal.”
12. Having read the
papers and having carefully heard counsel I come to the conclusion
that there is no reasonable prospect that
another court would come to
a different conclusion on the order of the court in terms of
section
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
.
13. There however exists
compelling reasons justifying why the appeal should be heard in terms
of section 17(1)(a)(ii) of the Superior
Courts Act 10 of 2013. This
is due to the novelty and importance of the constitutional issues
raised in this matter and the broader
public interest.
ORDER:
14. Consequently, the
following order is made:
14.1. Leave to appeal is
granted to the Supreme Court of Appeal in terms of
section 17(6)
of
the
Superior Courts Act.
14.2. The
leave granted
is confined to paragraphs 241.2 to 241.5 of the order of the
court
a quo.
14.3. The costs of the
application for leave to appeal to be costs in the appeal.
COLLIS J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Counsel
for Applicant
:
Adv. J RUST SC
Instructed
By
:
OFFICE OF THE STATE
ATTORNEYS PRETORIA
Counsel
Respondents
:
Adv. S. BUDLENDER SC,
Adv
C.
McCONNACHIE
Adv. C TABATA
Instructed
by
:
CENTRE FOR
ENVIRONMENTAL RIGHTSCAPE TOWN
Date
of hearing:
13 March 2023
Date
of Judgment:
20
March 2023
[1]
Act
10 of 2013
[2]
S
v Smith
2012 (1) SACR 567
(SCA) at para 7.
[3]
Case
no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].