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2023
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[2023] ZAGPPHC 487
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Trustees for the time being of the Groundwork Trust and Another v Minister of Environmental Affairs and Others [2023] ZAGPPHC 487; 39724/2019 (20 March 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 39724/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED
DATE:
20 March 2023
SIGNATURE:
In the matter between:
THE TRUSTEES FOR THE TIME
BEING OF
THE GROUNDWORK
TRUST
First Applicant
VUKANI ENVIRONMENTAL
JUSTICE
ALLIANCE MOVEMENT IN
ACTION
Second Applicant
And
THE MINISTER OF
ENVIRONMENTAL AFFAIRS
First Respondent
THE NATIONAL AIR QUALITY
OFFICER
Second Respondent
THE PRESIDENT OF THE
REPUBLIC
OF SOUTH
AFRICA
Third Respondent
MEMBER OF THE EXECUTIVE
COUNCIL FOR
AGRICULTURE AND RURAL
DEVELOPMENT,
GAUTENG
PROVINCE
Fourth Respondent
MEMBER OF THE EXECUTIVE
COUNCIL FOR
AGRICULTURE,
RURAL DEVELOPMENT,
LAND AND ENVIRONMENTAL
AFFAIRS
MPUMALANGA
Fifth Respondent
THE UN SPECIAL RAPPORTEUR
ON HUMAN RIGHTS
AND THE
ENVIRONMENT
Amicus Curiae
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 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.
8.
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.’
9.
‘
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]
10.
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.”
11.
Having read the papers and having carefully
heard counsel I come to the conclusion that there is a 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.
12.
In addition, there also 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:
13.
Consequently, the following order is made:
13.1.
Leave to appeal is granted to the First
Respondent to the Supreme Court of Appeal in terms of
section 17(6)
of the
Superior Courts Act.
13.2.
The
leave granted by agreement, is confined
to paragraphs 241.2 to
241.5 of the order of the
court a quo.
13.3.
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 ATTORNEY PRETORIA
Counsel
Respondents:
Adv.
C McCONNACGIE
Adv.
C TABATA
Instructed
By:
CENTRE
FOR ENVIRONMENTAL RIGHTS
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].