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[2022] ZAECMKHC 114
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Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 114 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: 3491/2021
In
the matter between:
SUSTAINING THE WILD
COAST NPC
1
st
Applicant
MASHONA WETU
DLAMINI
2
nd
Applicant
DWESA-CWEBE COMMUNAL
PROPERTY
3
rd
Applicant
ASSOCIATION
NTSINDISO
NONGCAVU
4
th
Applicant
SAZISE MAXWELL
PEKAYO
5
th
Applicant
CAMERON
THORPE 6
th
Applicant
ALL RISE ATTORNEYS FOR
CLIMATE AND
7
th
Applicant
THE ENVIRONMENT NPC
NATURAL
JUSTICE
8
th
Applicant
GREENPEACE
ENVIRONMENTAL ORGANIZATION 9
th
Applicant
and
MINISTER OF MINERAL
RESOURCES AND ENERGY 1
st
Respondent
MINISTER OF
ENVIRONMENT, FORESTRY AND
2
nd
Respondent
FISHERIES
SHELL EXPLORATION AND
PRODUCTION
3
rd
Respondent
SOUTH AFRICA B V
IMPACT AFRICA
LIMITED
4
th
Respondent
BG
INTERNATIONAL LIMITED
5
th
Respondent
JUDGMENT
ON APPLICATIONS FOR LEAVE TO APPEAL AND CROSS-APPEAL
MBENENGE JP AND NORMAN
J:
[1]
Before us are several applications instituted by the first, third,
fourth and fifth
respondents
[1]
for leave to appeal against the whole of the judgment of this court
delivered on 01 September 2022. At the same time, the
litigants
who were the applicants
[2]
have
launched applications for leave to cross-appeal against the judgment
in so far as it did not grant the declaratory relief
they sought.
[3]
[2]
Since the delivery of the judgment, a vacancy among the members of
the court has arisen,
[4]
hence
this application is being heard in terms of
section 14(5)
(a)
of the
Superior Courts Act 10 of 2013
[5]
.
[3]
The applications are founded on
section 17
(a)
(i) and (ii) of
the
Superior Courts Act, the
relevant part of which reads:
‘
(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;
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.’
[4]
The principal findings of this court in its judgment are that –
(a)
there was no delay in bringing
the application, hence the court did not even have to enquire
into
whether any delay was condonable;
(b)
the applicants made out a proper case
for being exempted from the obligation to exhaust internal
remedies;
and
(c)
the grant of the impugned exploration right was not preceded by
meaningful consultations,
so much so that the factors that the
applicants would have placed before the Minister to inform the
decision-making process were
not considered.
[5]
Mindful of the fact that it takes a single bad reason to render the
entire decision
reviewable and that the applicants had only to prove
one ground of the review to succeed in assailing the grant of the
exploration
right, the court dealt with other review grounds, albeit
in a truncated fashion.
[6]
The review and setting aside of the decision granting the exploration
right and its
renewals, held the court, has rendered academic the
question whether the applicants are entitled to an order declaring
that Shell
may not commence any exploration activities without
seeking and obtaining an environmental authorisation in terms of
NEMA.
[7]
The applicants for leave to appeal contend that the delay beyond 180
days was
per se
unreasonable; the period between 29 April 2014
and 02 December 2021 when the review application was instituted
constitutes an inordinate
delay. The court, they further
contend, erred in deviating from the trite and binding prescripts
that, where administrative
action affects the public at large, the
enquiry is not when a particular applicant knew or ought to have
known about the administrative
action, but rather when the public at
large might reasonably have been expected to have gained knowledge
thereof.
[8]
It is further contended that the court should have proceeded to the
second stage of
the enquiry under the undue delay rule and pronounced
on whether the unreasonable delay ought to be condoned in terms of
section 9
(1) of the
Promotion of Administrative Justice Act, 2000
[6]
and that the court erred in applying
section 3
(and not
section 4)
of
PAJA and finding that the Minister failed to comply with the
provisions of
section 3(2)
(b)
of PAJA.
[9]
The contention is also made that, having regard to
section 7(1)
of
PAJA, the court was prevented from embarking upon and pronouncing on
the merits of the review application.
[10]
Apropos lack of meaningful consultations, the applicants for leave to
appeal submit that, there
having been substantial compliance with
regulation 3
of the Regulations made in terms of the
Mineral and
Petroleum Resources Development Act 28 of 2002
,
[7]
the court, in effect, found that
regulation 3
was unconstitutional
and thus invalid, whereas the applicant communities concerned had not
challenged the constitutionality of
the regulation.
[11]
The instant proceedings also seek to assail the ancillary findings of
the court in its main judgment.
In the view we take of this
matter, it is not necessary to deal with each and every contention
raised against the ancillary findings.
[12]
The applications for leave to cross-appeal implicate the judgment in
the main on the basis that
the court erred in finding that since it
had reviewed and set aside the exploration right there was no longer
a dispute between
the parties in need of resolution by way of a
declaratory order.
[13]
In our view, the applications for leave to appeal and cross-appeal do
not pass muster; the appeal
sought has no reasonable prospects of
success. The view we take of this matter renders it unnecessary
for us to delve deeply
into this because the impugned judgment
traverses all the concerns raised by the parties. We, however,
point out a few aspects
in further support of our conclusion that the
applications for leave to appeal and cross-appeal lack reasonable
prospects of success.
[14]
It is convenient to deal first with the undue delay point. The
court drew a distinction
between the facts in the
OUTA
case
and those in the instant matter. It should be highlighted that
the court was not dealing with a member or certain members
of the
public, but with certain communities such as the Dwesa-Cwebe
community. The difference between a community and a member
of
the public is not without significance. If one has regard to
the EMPr in so far as it embodies comments and responses,
it is
apparent that Impact knew and appreciated that it was dealing with
communities. The applicants for leave to appeal
were mindful of
the fact that there was no consultation with the communities but
decided to rely on the Monarchs to inform their
communities.
This despite the fact that the Monarchs, themselves, had made it
clear that the communities had to be consulted.
Therefore, the
contention based on the
OUTA
principle that this court should
have adopted a broader view of the public at large might reasonably
be expected to have had knowledge
of the action does not meet the
threshold.
[15]
Something need be said about the interplay between
sections 3
and
4
of PAJA.
Section 4
of PAJA makes reference to ‘
administrative
action affecting public
.’ However, in
section 4
(1)
(e)
there is provision for following another appropriate
procedure ‘
which gives effect to
section 3
.’
If the interpretation to be given to
section 3
relates exclusively to
individuals, the question is – why would those provisions that
specifically apply to the public incorporate
reference to “
any
person
”? Moreover, why would
section 4
incorporate
section 3
, if the intention of the legislature was to apply the two
sections in the manner contended for by the applicants for leave to
appeal?
In our view, following the interpretation
contended for by Shell and Impact would be narrow and exclusionary.
The public
and the community are two different concepts. We are
all members of the public but not all of us are a community. In
any event, the incorporation by reference of
section 3
in
section 4
makes the argument contended for between the two sections in the
context of this case irrelevant.
[16]
DJ Brynard
[8]
explains the
practical functioning of the notion of procedural fairness to the
public as a group or class or persons by means of
an interpretation
and analysis of relevant legislation and judicial decisions and sheds
light on the benefit of procedural fairness
to the public as an
instrument to enhance the culture of public involvement and
participation, transparency and accountability
in public
administration. This thesis negates the contention that
sections 3
and
4
of PAJA are watertight compartments, unrelated to each
other.
[17]
Criticism has also been levelled against the court’s finding
regarding the use of English
and Afrikaans in the notices that
purportedly notified the relevant communities of the seismic survey.
It is contended that
the regulation makes provision for certain
languages that should be employed in the notices and once those
languages were used
there was substantial compliance with the
regulation. The findings reached by the court are consistent
with the constitutional
imperatives contained in section 6 of the
Constitution which make isiXhosa an official language. Nothing,
whatsoever, prevented
Shell and Impact from using isiXhosa instead of
Afrikaans and, in any event, adopting a mode of communication that
would guarantee
access to all relevant communities.
[18]
That is, however, not the end of the matter, for this court must
still decide whether there is
some other compelling reason why the
appeal should be heard. The parties agree that this matter is
of significant importance
and requires ventilation by the Supreme
Court of Appeal. We also agree. Moreover, and in any
event, at the primary
level, the matter hinges on the interpretation
of regulation 3 of the Regulations and the interplay between sections
3 and 4 of
PAJA. In matters involving statutory interpretation,
courts have inclined towards granting leave, because statutory
interpretation
is not an exact science.
[19]
It, therefore, behoves us to grant the parties the leave they are
seeking.
[20]
The following order is made:
1.
Leave to appeal in respect of the applications for leave to
appeal and the applications for leave to cross-appeal are granted to
the Supreme Court of Appeal against the whole of this court’s
judgment delivered on 01 September 2022.
2.
Costs occasioned by the applications shall be costs in the
appeal.
_____________________
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
_________________
T V NORMAN
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the 1
st
to
7
th
applicants
:
E Webber
(with
her,
N Stein
)
Instructed
by
: Legal
Resources Centre
Cape
Town
C/o
Huxtable Attorneys
Makhanda
Counsel for the 8
th
and 9
th
applicants
:
N
Ferreira
Instructed
by
:
Cullinan & Associates
Cape
Town
C/o
Huxtable Attorneys
Makhanda
Counsel for the 1
st
respondent
:
A
Beyleveld SC
(with
him,
A C Barnet
)
Instructed
by
: The State
Attorney
Gqeberha
C/o
Whitesides Attorneys
Makhanda
Counsel for the 4
th
respondent
:
C
Lockston SC
(with
him,
A Nacerodien
and
P Schoeman
)
Instructed by
: Cliffe
Dekker Hofmeyer Inc
Cape
Town
C/o
Wheeldon, Rushmere &
Cole Inc
Makhanda
Counsel
for the 3
rd
and 5
th
respondents
:
A
Friedman
Instructed
by
:
Shepstone &Wylie Attorneys
Durban
C/o
Nettletons Attorneys
Makhanda
Heard
on
:
28
November 2022
Delivered
on
:
13
December 2022
[1]
These litigants will bear the appellations by which they were cited
in the application that culminated in the judgment that is
the
subject of these proceedings. For the sake of convenience,
they will interchangeably be referred to as the Minister,
Shell and
Impact.
[2]
Where appropriate, the communities that were the applicants will be
referred to as the applicant communities.
[3]
They had sought an order declaring the decision to allow Shell to
commence a seismic survey without having sought and obtained
an
environmental authorisation in terms of the National Environmental
Management Act 107 of 1998 (NEMA) is unlawful.
[4]
As at the time the instant applications were heard, the other member
of the panel (Nhlangulela DJP) had been acting at the Supreme
Court
of Appeal of South Africa.
[5]
The section provides:
‘
If,
at any stage during the hearing of any matter by a full court, any
judge of such court is absent to perform his or her functions,
or if
a vacancy among the members of the court arises, that hearing must –
(a)
if the remaining judges constitute a majority of the judges before
whom it was heard, proceed before such remaining judges
. . .’
[6]
Act 3 of 2000 (PAJA).
[7]
The Regulations.
[8]
Procedural Fairness to the Public as an Instrument to Enhance Public
Participation in Public Administration,
Administratio
Publica
vol
19 no 4 December 2011, p 100.