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[2021] ZASCA 84
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Black Eagle Project Roodekrans v MEC: Department of Agriculture, Conservation and Environment, Gauteng Provincial Government and Others (542/2019) [2021] ZASCA 84 (17 June 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 542/2019
In
the matter between:
THE
BLACK EAGLE PROJECT ROODEKRANS APPELLANT
and
THE
MEC: DEPARTMENT OF
AGRICULTURE,
CONSERVATION
AND
ENVIRONMENT, GAUTENG
PROVINCIAL
GOVERNMENT
FIRST RESPONDENT
THE
HEAD OF DEPARTMENT:
DEPARTMENT
OF AGRICULTURE,
CONSERVATION
AND ENVIRONMENT,
GAUTENG
PROVINCIAL GOVERNMENT
SECOND RESPONDENT
LANDEV
(PTY) LTD
THIRD RESPONDENT
NETRAC
INVESTMENTS
NO.
72 (PTY) LTD
FOURTH RESPONDENT
Neutral
citation:
The
Black Eagle Project Roodekrans v The MEC: Department of Agriculture,
Conservation and Environment, Gauteng Provincial Government
and
Others
(Case
No. 542/2019)
[2021] ZASCA 84
(17 June 2021)
Coram:
PONNAN,
ZONDI and SCHIPPERS JJA and CARELSE and MABINDLA-BOQWANA AJJA
Heard:
4
May 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published
on the website of the Supreme Court of Appeal and released to SAFLII.
The date and time for hand-down is deemed to be 09h45 on
17 June
2021.
Summary:
Administrative
Law – review of appeal decision by Member of Executive Council
(MEC) – failure to timeously review decision
of the Head of
Department of Agriculture, Conservation and Environment, Gauteng
Provincial Government (HOD), subject of the appeal
decision of the
MEC – inordinate delay in seeking to review HOD’s
decision – want of compliance with
ss 7
and
9
of the
Promotion
of
Administrative
Justice Act 3 of 2000
– appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Vally J) sitting as court
of first instance).
The
appeal is dismissed with costs, including those of two counsel where
so employed.
JUDGMENT
Carelse
AJA (Ponnan, Zondi and Schippers JJA and Mabindla-Boqwana AJJA
concurring)
[1]
The appellant, The Black Eagle Project Roodekrans (Black Eagle)
is
a
section 21
Company, incorporated in terms of the
Companies Act 71
of 2008
. It is concerned with the protection of the environment.
The
first respondent is the MEC: Department of Agriculture, Conservation
and Environment, Gauteng Provincial Government (MEC) and
the second
respondent is the Head of Department of Agriculture, Conservation and
Environment, Gauteng Provincial Government (HOD).
The third
respondent, Landev (Pty) Ltd (Landev), is a property developer.
[2]
More than 14 years ago, in February 2007, Black Eagle brought an
urgent application to interdict Landev
from developing a property in
the Mogale Municipal District (the property) pending a review of the
MEC’s decision to dismiss
Black Eagle’s appeal against a
decision of the HOD. The respondents consented to the interdict. In
November 2018, more than
11 years after the urgent interdict was
granted, Vally J in the Gauteng Division of the High Court,
Johannesburg (the high court)
heard the review. On 28 February 2019,
the high court delivered its judgment and it made the following
order:
‘
a.
The challenge to the appeal decision is dismissed.
b.
The amendment decision of the first respondent (the MEC) is reviewed
and set aside.
c.
The first respondent is to bear fifty percent of the costs of the
applicant, which costs are to include those occasioned by the
employment of two counsel.’
On
29 April 2019, the high court granted leave to appeal to this Court
against orders
(a)
and
(c)
above.
[3]
Over the more than 11-year period, starting in February 2007 and
ending in November 2018, Black Eagle
supplemented its founding
affidavit on 12 February 2007, 16 February 2007, 8 August 2007, 11
September 2015 and 9 October 2017.
It amended its notice of motion on
7 February 2007, 9 February 2007, November 2007, August 2008, August
2012 and September 2017.
Background
facts
[4]
The Environmental Conservation Act 73 of 1989 (the ECA) lies at the
heart of the review.
On
14 September 2004, Landev acting in terms of s 22(1) of the ECA,
[1]
applied to the HOD for authorization to establish a residential
development on the property. On 12 January 2006, the HOD granted
permission for Landev to develop phase 1 and part of phase 2 of the
proposed development. The application in respect of the remainder
of
phase 2 and phases 3 to 5 was refused. Landev appealed to the MEC
against the refusal. On 24 March 2006, the MEC dismissed Landev’s
appeal. This decision is irrelevant to the present appeal.
[5]
Following upon an amendment to the ECA, Landev applied on 10 May 2006
to the HOD for an exemption in
accordance with the new s 28A of the
ECA
[2]
from certain provisions
of the ECA. Black Eagle opposed the exemption application on grounds
that the development would have a
substantially detrimental effect on
the environment. On 28 August 2006, and following a duly constituted
hearing, the HOD granted
Landev’s exemption application, the
effect of which was to authorize the partial development of the
remainder of phase 2
and phases 3 to 5 of the development.
[6]
On 26 September 2006, Black Eagle noted an appeal to the MEC against
the HOD’s exemption decision.
On 8 November 2006, the MEC
dismissed the appeal. In February 2007, Black Eagle obtained an
interdict to prevent Landev from continuing
with the development,
pending a final decision on the review that was brought in terms of
the
Promotion of Administrative Justice Act 3 of 2
000 (PAJA).
[7]
In 2014, Landev brought an application to increase the density of its
development from 358 to 1064 residential
units (the amendment
application). The HOD dismissed the amendment application. On 27
March 2015, the MEC upheld Landev’s
appeal against the HOD’s
decision. Black Eagle then supplemented its review application to
include a review of the MEC’s
decision on the amendment
application. This review was upheld and is the subject of the high
court’s order
(b).
Landev has not cross-appealed order
(b)
of the high court. Although the MEC elected not to
cross-appeal order
(c)
of the high court, counsel was
instructed to make submissions as to why, in the event of Black Eagle
succeeding before this Court
in its appeal against order
(a)
,
the MEC should not be mulcted with the costs of the appeal.
[8]
The HOD and the MEC elected not to oppose the review application and
decided that they would abide the
decision of the high court. The HOD
on behalf of the MEC filed an affidavit to place information before
the high court with a view
to assisting the court.
[9]
When Black Eagle brought the review application, the relief sought
was limited to the review and setting
aside of the MEC’s
decision on appeal from the HOD’s decision. In accordance with
rule 53 of the Uniform Rules of Court,
the MEC was required to
furnish his reasons and a copy of the record. Over the period 12
February 2007 to August 2012, more than
five years and
notwithstanding the numerous amendments to its notice of motion and
its supplementary affidavits referred to above,
no relief was sought
against the HOD. In the affidavit filed on behalf of the MEC and
deposed to by the HOD in August 2007, Black
Eagle’s attention
was drawn to the fact that it had not sought to review and set aside
the HOD’s decision. This was
also raised by Landev.
[10]
In September 2017, more than ten years after bringing the urgent
application Black Eagle introduced an alternative
prayer in terms of
which it sought to review and set aside the HOD’s exemption
decision. In the accompanying supporting affidavit,
no facts or
submissions are set out to support that relief.
[11]
Having regard to the aforegoing history, I turn to deal with a
preliminary
issue that is dispositive of the appeal. The general rule is that all
administrative action is valid until set aside
by a court of law. In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
,
[3]
this Court held:
‘
[26]
For those reasons, it is clear, in our view that the
Administrator’s permission was unlawful and invalid
at the
outset. Whether he thereafter also exceeded his powers in granting
extensions for the lodgement of the general plan thus
takes the
matter no further. But the question that arises is what consequences
follow from the conclusion that the Administrator
acted unlawfully.
Is the permission that was granted by the Administrator simply to be
disregarded as if it had never existed?
In
other words, was the Cape Metropolitan Council entitled to disregard
the Administrator’s approval and all its consequences
merely
because it believed that they were invalid provided that its belief
was correct?
In
our view it was not. Until the Administrator’s approval (and
thus and also the consequences of the approval) is set aside
by a
court in proceedings for judicial review it exists in fact and it has
legal consequence that cannot simply be overlooked.
The proper
functioning of a modern state would be considerably compromised if
all administrative acts could be given effect to
or ignored depending
upon the view the subject takes of the validity of the act in
question. No doubt it is for this reason that
our law has always
recognized that even an unlawful administrative act is capable of
producing legally valid consequences for so
long as the unlawful act
is not set aside.
.
. .
[28]
That has led some writers to suggest that legal validity (or
invalidity) in the context of administrative
action is never absolute
but can only be described in relative terms. In Wade: Administrative
Law 7 ed by H. W.R. Wade and Christopher
Forsyth at pages 342-4 that
view is expressed as follows:
“
The
truth of the matter is that the court will invalidate an order only
if the right remedy is sought by the right person in the
right
proceedings and circumstances. The order may be hypothetically a
nullity, but the court may refuse to quash it because of
the
plaintiff’s lack of standing, because he does not deserve a
discretionary remedy, because he has waived his rights, or
for some
other legal reason. In any such case the ‘void’ order
remains effective and is, in reality, valid. It follows
that an order
may be void for one purpose and valid for another; and that it may be
void against one person but valid against another
. . . ‘Void’
is therefore meaningless in any absolute sense. Its meaning is
relative, depending upon the court’s
willingness to grant
relief in any particular situation.”’ (My emphasis.)
[12]
It is clear from the decision in
Oudekraal
that a successful
review of the MEC’s decision would not affect the validity of
the HOD’s decision, which would remain
intact. What was
required of Black Eagle and what it failed to do was to advance a
proper challenge to the HOD’s decision.
[13]
Applying the
Oudekraal
principle, Plasket J in
Wings
Park v Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
[4]
held:
‘
[33]
When a decision favourable to an applicant has been taken at first
instance, but reversed on internal appeal,
however, it is only the
appellate decision that needs to be reviewed: if the review is
successful, the decision at first instance
will be revived. This was
the case in
Golden
Arrow Bus Services v Central Road Transportation Board and Others.
[5]
[34]
When an applicant has suffered an unfavourable decision at first
instance and it is confirmed
on appeal, the situation is somewhat
different. Both decisions must be taken on review and, for the
applicant to achieve success,
usually both decisions will have to be
set aside. . .
In
these circumstances, had only one decision been attacked, whether at
first instance or on appeal, the other would have remained
in
place.
’
[6]
(My
emphasis.)
In
Wings
Park
,
the court held that ‘
failure
to challenge the MEC’s appellate decision has the effect that
the setting aside of the decision at first instance,
if a ground or
grounds of review were to be established, would be academic and of no
practical effect’
.
As a result, the court dismissed the review application on this basis
alone. The decision in
Wings
Park
was subsequently endorsed in a recent decision of this Court in
South
Durban Community Environmental Alliance v MEC for Economic
Development, Tourism and Environmental Affairs: KwaZulu-Natal
Provincial Government
.
[7]
[14]
Black Eagle sought to avoid the consequence of
Wings
Park
by relying on
Sewpersadh
v The Minister of Finance and Another
.
[8]
However, its reliance on
Sewpersadh
is
misplaced. In paragraphs 20 and 42 of the
Sewpersadh
judgment, this Court held:
‘
[20]
. . . For some reason he did not challenge the initial decision of
the Treasury. It would probably have been
better had he done so. It
was pointed out in
Wings
Park
that when an applicant has suffered an unfavourable decision at first
instance which is confirmed on an internal appeal, both decisions
must usually be taken on review in order to have the decision set
aside. This is because if just the appeal decision is set aside,
the
first decision that was the subject of the internal appeal will
continue to stand, should it, too, not be set aside on review.
The
failure to target the original decision is, however, not necessarily
fatal to a review in such circumstances, and much depends
on the
nature of the decision at first instance and the remedy sought on
review. Here the proceedings before [the] Appeal Board
do not amount
to a simple rehearing as in the case of a true appeal but, rather are
akin to proceedings
de
novo
in as much as the Appeal Board can receive further evidence and make
further enquiries. In my view, this is a case where a failure
to
target the original decision does not preclude relief. Certainly, if
the Appeal Board’s decision is substituted on review
with an
order which overturn’s the Treasury’s initial decision,
no harm can be done.
.
. .
[42]
. . . That seems to be the best approach, as it does away with the
difficulty that I mentioned
earlier in this judgment of the original
order standing until it is reconsidered by the Appeal Board, and
serves to avoid both
further delay and unnecessary costs . . . When
this was drawn to the attention of the parties, they were agreed that
if this court
should find for the appellant, we should direct that he
be paid his pension.’
[15
]
Sewpersadh
is clearly distinguishable from the present matter. All the facts
were before the Supreme Court of Appeal. The effect of the impugned
appeal decision necessitated the matter being remitted to the initial
decision-maker. Because of the lengthy passage of time and,
in
particular, the amendments to the relevant legislation and the fact
that the initial decision-making body no longer existed,
remittal was
not possible. In
Sewpersadh
,
in order to overcome the difficulty posed by the appellant’s
failure to attack the initial decision, the parties agreed
that the
initial decision of the Treasury be set aside and replaced with an
order granted by this Court. There is no such agreement
between the
parties in this appeal
.
[16]
What compounds Black Eagle’s problem is that s 7 of PAJA
required it to bring its review of the HOD’s
decision within
180 days.
[9]
Black Eagle failed
to do so
.
The time limit serves an important function in providing certainty
and finality in administrative decision making.
Section
9 of PAJA gives a court power to condone a non-compliance with s 7 if
it is in the interests of justice to do so.
[10]
No such application was brought. It follows that this appeal against
order
(a)
of the high court must fail. The MEC did not seek costs on appeal.
Landev did. It is entitled to those costs.
[17]
In the result, the appeal is dismissed with costs, including those of
two counsel where so employed.
Z
CARELSE
ACTING
JUDGE OF APPEAL
APPEARANCES
For
the appellant:
R S Willis (with A C McKenzie and S Mohapi)
Instructed
by:
Webber Wentzel, Johannesburg
Webbers
Attorneys, Bloemfontein
For
the 1
st
& 2
nd
respondents: V Soni SC
Instructed
by:
The State Attorney, Johannesburg
The
State Attorney, Bloemfontein
For the 3
rd
respondent:
W Lüderitz SC (with C Vetter SC)
Instructed
by:
Anderson’s Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein
[1]
Section 22 of the ECA provides:
‘
(1)
No person shall undertake an activity identified in terms of section
21(1) or cause such an activity to be undertaken except
by virtue of
a written authorisation issued by the Minister or by a competent
authority or a local authority or an officer, which
competent
authority, authority or officer shall be designated by the Minister
by notice in the
Gazette
.
(2)
The authorisation referred to in subsection (1) shall only be issued
after consideration of reports concerning the impact
of the proposed
activity and of alternative proposed activities on the environment,
which shall be compiled and submitted by
such persons and in such
manner as may be prescribed.
(3)
The Minister or the competent authority, or a local authority or
officer referred to in subsection (1), may at his or its
discretion
refuse or grant the authorisation for the proposed activity or an
alternative proposed activity on such conditions
if any, as he or it
may deem necessary.
(4)
If a condition imposed in terms of subsection (3) is not being
complied with, the Minister, any competent authority or any
local
authority or officer may withdraw the authorisation in respect of
which such condition was imposed after at least 30 days’
written notice was given to the person concerned.’
[2]
Section 28A of the ECA, which
was inserted by s 17 of the Environment Conservation Amendment Act
79 of 1992, provides:
‘
28A
Exemption to persons, local authorities and government institutions
from application of certain provisions, (1) Any person,
local
authority or government institution may in writing apply to the
Minister or a competent authority, as the case may be,
with the
furnishing of reasons, for exemption from the application of any
provisional notice or direction which has been promulgated
or issued
in terms of the Act. . . .’
[3]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[2004] ZASCA
48; [2004] 3 All SA 1; 2004 (6) SA 222 (SCA).
[4]
Wings Park
v Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
2019
(2) SA 606 (ECG).
[5]
Golden Arrow Bus Services v
Central Road Transportation Board & Others
1948
(3) SA 918 (A).
[6]
See also
MEC
for Health, Province of Eastern Cape N O & Another v Kirkland
Investments (Pty) Ltd t/a Eye and Laser Institute
[2013]
ZASCA 58
;
2014 (3) SA 2019
(SCA) paras 20-21.
[7]
Durban
Community Environmental Alliance v MEC for Economic Development,
Tourism and Environmental Affairs: KwaZulu-Natal Provincial
Government
[2020]
ZASCA 39; [2020] 2 All SA 713; 2020 (7) BCLR 789; 2020 (4) SA 453
(SCA).
[8]
S
ewpersadh
v The Minister of Finance and Another
[2019]
ZASCA 117; [2019] 4 All SA 668 (SCA).
[9]
Section 7 of PAJA provides:
‘
(1)
Any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date –
(a)
subject to section
(2)
(c)
,
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)
(a)
have been concluded;
or
(b)
where no such
remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action
and the reasons
for it or might reasonably have been expected to have become aware
of the action and the reasons.’
[10]
Section 9 provides:
‘
9.
Variation of time
(1)
The period of
–
(
a
)
90 days referred to in section 5 may be reduced
; or
(
b
)
90 days or 180 days referred to in sections 5 and 7 may be extended
for a fixed period, by agreement between the parties
or, failing
such agreement, by a court or tribunal on application by the person
or administrator concerned.
(2)
The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require.’