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[2021] ZAGPPHC 118
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Sawmilling South Africa v Department of Environmental Affairs and Another (28608/2019) [2021] ZAGPPHC 118 (22 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHERS JUDGES: YES/
NO
(3)
REVISED
22/2/2021
Case number: 28608/2019
Date:
In
the matter between:
SAWMILLING
SOUTH
AFRICA
APPLICANT
AND
THE DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
1
ST
RESPONDENT
THE MINISTER
OF ENVIRONMENTAL AFFAIRS
2
ND
RESPONDENT
JUDGMENT
TOLMAY
J:
INTRODUCTION
[1] The applicant
(Sawmilling) sought to review an environmental Regulation designed
to
govern air quality control. These Regulations were made by the second
respondent (the Minister) under the National Environmental
Management: Air Quality Act 39 of 2004 (“AQA”).
[2] The primary relief
sought by Sawmilling was an order to declare a provision in the
Regulations unconstitutional and invalid, in so far as it purports to
apply to sawmills on the ground that the Regulation violates
the rule
of law as contemplated in section 1(c) of The Constitution of the
Republic of South Africa, 1996 (“the Constitution”),
because it was alleged that it is irrational.
[3] In the alternative, an
order was sought by Sawmilling to review and set aside the
Minister’s
aforementioned decision to implement the impugned provision in the
Regulation on grounds contained in the Promotion
of Administrative
Justice Act 3 of 2000 (“PAJA”).
[4] An order was sought in
the following terms:
1. Declaring that the
listed activity in sub-category 9.5 of the regulations made
in terms
of section 21(1)(b) of the National Environmental Management: Air
Quality Act of 2004 published in Environmental
Regulation, GN
R1207, GG2647, 31 October 2018 (“the 2018 regulations”)
is unconstitutional and invalid to the extent
that it requires a
sawmill that dries wood in an indirectly fired kiln with an external
heat source in the form of a boiler with
a design capacity of 50 MW
or lower than that to obtain an atmospheric emission licence.
2. Alternatively to
para 1 above, reviewing and setting aside the decision of the
second
respondent to publish the listed activity in sub-category 9.5 of the
2018 regulations in its current form.
[5] The respondents opposed
both the rationality review based on the Constitution, as
well as the
administrative review based on PAJA.
[6] In the joint practice
note four points were raised by the respondents in
limine,
they
were the following:
6.1 In relation to the PAJA
review, it was contended that there was no “administrative
action” capable of being reviewed. This was based on the
argument that the regulated activity in sub-category 9.5 remained
as
it was in the Environmental Regulation, GN R893, GG 3705, 22 November
2013 (“the 2013 regulations”) and was not
changed in the
2018 Regulations. There was thus no decision that could be
reviewed. This point is dealt with under the merits
of the
application in the judgment, as the answer to this question is
inextricably linked to the PAJA review.
6.2 It was submitted that the
declaratory relief sought by Sawmilling in prayer one was fallacious.
6.3 Assuming that there was an
administrative action, whether Sawmilling was limited to bring
its
review under PAJA or whether it could permissibly still review the
impugned conduct under section 1(c) of the Constitution.
6.4 Whether the applicant’s
application was late.
[7] In relation to the
merits of the review, the parties were in agreement
that the following must be decided:
7.1 Whether listed activity
sub-category 9.5 in the 2018 regulations is unconstitutional on
the
basis that its inclusion, in its current form, was irrational;
7.2 Whether the Department’s
‘decision’ to publish listed activity sub-category
9.5 in
the 2018 Regulations in its current form was unlawful on the basis
that –
7.2.1 section 6(2)(f)(ii) of PAJA is contravened because
the decision was irrational; and/or
7.2.2 section 6(2)(c) of PAJA is contravened because the
decision was procedurally unfair; and/or
7.2.3 section 6(2)(h) of PAJA is contravened because the
decision was so unreasonable that no reasonable regulator
would have
made it.
BACKGROUND
[8] Sawmilling is a
voluntary association, whose members are predominantly saw millers
and business associates of Sawmilling.
[9]
Sawmilling
explained that sawmills’ basic operation is the harvesting of
trees in a plantation which are felled and turned
into logs. The logs
are then taken to a sawmill where they are sawn into planks and then
dried out so that naturally occurring
moisture is removed from the
wood. The drying is done in kilns. A kiln is a thermally insulated
chamber. There are two types of
kilns. The first type is known as
directly fired kilns, where the heat is generated through combustion
(burning of fuel) within
the kiln chamber itself. The second type is
known as indirectly fired kilns, where the heat source is external to
the kiln and
no fuel is burned (no combustion takes place) within the
kiln chamber.
[10]
The applicant explained that the sawmilling industry in South Africa
uses indirectly fired kilns
which are also known as externally heated
kilns. Moist timber is stacked inside the kiln and heat is then
supplied to the kiln
from an external source. The external source is
a boiler, which is located some distance away from the kiln, usually
about 50 metres.
The boiler is heated by burning biomass fuel usually
in the form of wood chips, off-cuts and bark. The heated boiler then
boils
water to generate steam. The steam makes a 50 metre trip from
the boiler to the kiln in steel pipes. When the hot steam gets to
the
kiln, it passes through a system of closed pipes inside the kiln.
Acting like a radiator does, the steam filled pipes heat
up the air
inside the kiln. The warm air
dries out the stacked timber.
It
was stated that it is extremely important to note that the kiln does
not, itself, produce any heat. The heat is all produced
externally by
the boiler. Sawmilling stated that all sawmills in South Africa, and
certainly all of Sawmilling’s members,
use boilers with a
design capacity of less than 50 MW.
THE LEGISLATIVE FRAMEWORK
[11] The second
respondent (“the Minister”) has the responsibility of
administering environmental
laws, including the National
Environmental Management Act 107 of 1998 (“NEMA”). She
also has the power to enact Regulations
under NEMA and other NEMA
related legislation. In this instance the Minister enacted
Regulations that have impacted sawmills and
in particular on the way
that they dry timber.
[12]
Environmental management finds its origin within the Constitution.
Section 24 of the Bill of
Rights provides as follows:
“Everyone has the right:
(a)
To
an environment that is not harmful to their health and wellbeing; and
(b)
To
have the environment protected, for the benefit of present and future
generations, through legislative and other measures that
–
(i)
Prevent
pollution and ecological degradation;
(ii)
Promote
conservations; and
(iii)
Secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.”
[13] The
legislation contemplated in section 24(b) of the Constitution is,
amongst others NEMA. It
provides a general framework for how
environmental management must be undertaken. It makes provision for
the tools in the integrated
environmental management system, namely
environmental impact assessments (EIA).
[14] It is stated
as follows in paragraphs 15 to 21 of the founding affidavit and this
at least, is
uncontested by the respondents:
“15. The EAI process is an
inter-disciplinary and multi-step procedure designed to ensure that
environmental considerations
are properly taken into account when
decisions are made about whether or not to authorise activities that
may impact harmfully
on the environment. Thus, where an activity is
likely to have an adverse impact, NEMA and some of the related
legislation requires
that an EIA process be followed. Essentially,
this means that an environmental assessment practitioner must
carefully consider
the impact of the proposed activity on the
environment and prepare a report to motivate to the relevant
environmental authority
why, notwithstanding the potential harm to
the environment, the activity should be authorised. The authorisation
will then also
regulate the activity, sometimes with conditions.
16. Significantly, not all
activities require an EIA. Only those that involve a regulated
activity require authorisation.
Regulated activities are controlled.
Thus, under NEMA, the Minister has published a list of regulated
activities that require an
environmental authorisation. These are
referred to in environmental management parlance as ‘listed
activities’.
17. Thus, South Africa has a
system of integrated environmental management which envisages that
the government
will protect the environment by creating, through
Regulations, lists of regulated activities and if any project is
undertaken which
triggers one of these listed activities, the project
or activity needs environmental authorisation …
18. As stated above, NEMA is
the broad legislative framework that regulates environmental
management in South
Africa. However, specific NEMA-related statutes
have been enacted to regulate particular aspects of the environment
such as soil,
water, forests, marine areas and air quality.
19. …
20. Air quality control is an
important part of environmental management. Polluted air is damaging
to people’s
health, the environment and ultimately the economy…
21. The need for government
to regulate air quality control is a legitimate governmental purpose
of the National
Environmental Management: Air Quality Act 39 of 2004
(“the AQA”) …
[15] The
aforesaid sets out the framework within which the Minister and the
first respondent (the
Department) need to provide an appropriate
framework to ensure reasonable measures are put in place for
ecological sustainable
development, while at the same time promoting
justifiable and social development
[16] This case is
concerned with air quality control and the Regulation, by the
government, of listed
activities included in the AQA Regulations.
[17] The EIA
process, as explained by Sawmilling, is an inter-disciplinary and
multi-step procedure,
designed to ensure that environmental
considerations are properly taken into account, when decisions are
made about whether or
not to authorise activities that may harmfully
impact on the environment.
[18] In its
founding affidavit, Sawmills explains that not all activities require
authorisation, only
those that are regulated. Environmental laws, it
was explained, therefore revolve, to some extent, around lists of
regulated activities,
referred to as “
listed activities
”.
Different environmental statutes have different listed activities,
all depending on what the purpose of the legislation
is and on what
needs to be regulated.
[19] Listed
activities are incorporated into the environmental protection system
via Regulations.
As stated above, the Minister makes these
Regulations under some of the environmental statutes. This is the
case with the legislation
that governs air quality control, the
AQA, where the Minister’s power to make Regulations originates
in section 21
of AQA, which reads as follows:
“
Listing
of activities
.
–
(1) The Minister must, or the MEC may, by notice in the Gazette-
(a) publish a list of activities which result in
atmospheric emissions and which the Minister or MEC reasonably
believes have or may have a significant detrimental effect on the
environment, including health, social conditions, economic
conditions,
ecological conditions or cultural heritage; and
(b) when necessary, amend the list by-
(i) adding to the list activities in addition to those
contemplated in paragraph (a);
(ii) removing activities from the list; or
(iii) making other changes to particulars on the list.
(2) A list published by the Minister applies nationally
and a list published by the MEC applies to the relevant province
only.
(3) A notice referred to in subsection (1)-
(a) must establish minimum emission standards in respect of a
substance or mixture of substances resulting from a listed activity
and identified in the notice, including-
(i) the permissible amount, volume, emission rate or
concentration of that substance or mixture of substances that may be
emitted; and
(ii) the manner in which measurements of such emissions must be
carried out;
(b) may contain transitional and other special arrangements in
respect of activities which are carried out at the time of their
listing; and
(c) must determine the date on which the notice takes effect.
(4) (a) Before publishing a notice in terms of subsection (1) or any
amendment to the notice, the Minister or MEC must follow a
consultative process in accordance with sections 56 and 57.
(b) Paragraph (a) need not be complied with if the notice is amended
in a non-substantive way.
(Date of commencement of s. 21: 1 April, 2010.)”
[20]
The need for government to regulate air quality control is
unquestionably a legitimate governmental
purpose, and there cannot be
any question about that. In terms of the AQA, t
he
Minister, from time to time, identifies various harmful activities
and publishes them in a national list in the Government Gazette
.
Section 21(1)(a) of the AQA, clearly includes a list of activities
that cause atmospheric emissions that have a “
significant
detrimental effect on the environment
”.
In keeping with the general licensing model of environmental law, if
one of these listed activities is triggered by a project,
then
authorisation for the project is required from the relevant licensing
authority in terms of s
ection
22(
a
)
of the AQA which provides that, “
no
person may without an atmospheric emission licence conduct any
activity listed on the national list
”
.
THE HISTORY OF THE
REGULATIONS ON SAWMILLS
[21] The majority
of the provisions of the AQA came into force on 11 September 2005. It
ushered in
a new legislative regime for controlling air pollution.
Since then, the Minister has made various Regulations under the AQA
relating
to various aspects of air pollution.
[22] It is appropriate to begin with
the Regulations that were published
on 31 March
2010 in Environmental Regulation, GN R248, GG33064, 31 March 2010
(“the 2010 regulations”). Listed activity
sub-category 9.5 was couched in the following terms in the 2010
Regulations:
“Description: the drying of wood by an
external heat source…
Application: all installations producing more
than 10 tons per month.”
[23] In terms of the 2010 Regulations
the listed activities targeted the external heat source, that
is the
boiler that generates hot steam in the case of indirectly fired
kilns. Sawmills argued that the boiler is the only part
of the wood
drying process that emits pollutants into the atmosphere.
[24] Then, in 2013 two further sets of
relevant Regulations were published. The first was
published
on 1 November 2013 in Environmental Regulation, GN R831, GG 36973, 1
November 2013
(“the small boiler Regulations”).
The effect of the small boiler Regulations was to regulate all small
boilers, defined
to mean “
any boiler with a design capacity
equal to 10 MW but less than 50 MW net heat input…
”.
This means that, as of 1 November 2013, the boiler component of wood
drying installations used at sawmills were separately
regulated, if
they were between 10 MW and 50 MW.
[25] Later that
same month, November 2013, a second set of Regulations were published
by the Minister.
The Regulations effectively updated the national
list. Thus, on 22 November 2013 the Minister published the 2013
Regulations. As
it turns out, the wording of sub-category 9.5 in the
2013 Regulations did not change from what it was under the 2010
Regulations.
Sawmilling stated that in light of the small boiler
regulations, the sawmilling industry expected that wood drying
installations
that use a small boiler to heat them up would be
removed from the national list. It was stated that it was plain to
the industry
that no useful purpose could be served by requiring
sawmills, whose drying installations were already regulated under the
small
boiler Regulations, to also have to undergo further regulation
under the 2013 Regulations which would, if their drying installations
were dealt within the ambit of listed activity sub-category 9.5,
require them to obtain an atmospheric emission licence.
[26] Sawmilling
argued that the result of the two sets of Regulations promulgated by
the Minister
in 2013 was that a sawmill’s wood drying
installation was regulated in two instances. Firstly, in the small
boiler Regulations
and in the 2013 Regulations, if the boiler was
between 10 MW and 50 MW. Boilers smaller than 10 MW, although not
regulated by the
small boiler Regulations were nevertheless regulated
at local government level.
[27] The
sawmilling industry complained to the Minister and the Department and
pointed out that there
was no need to regulate the wood drying
installations in different places. Numerous engagements between the
industry and the Minister
followed.
[28]
Sawmilling’s argument was that for the purposes of this
application, they were already
regulated, in relation to the second
category, boilers between 10 MW and 50 MW, these are referred to as
“
controlled
emitters
”
and are regulated in terms of the small boiler regulations which were
promulgated by
the
Minster on 1 November 2013.
[29]
In
relation to the third category, that being boilers bigger than 50 MW,
Sawmilling stated that most South African sawmills do not
use boilers
this big. In South Africa, Sawmilling argued the boilers used as an
external heat source for indirectly fired kilns
all fall into either
the first or second category, both of which are already regulated.
Boilers with a design capacity of 50 MW
or more are, in any event
also regulated as listed activities 1.1, 1.2 and 1.3 in the 2018
Regulations.
[30] In a letter
dated 28 August 2017, Sawmilling suggested that listed activity
sub-category 9.5
should be amended. Instead of referring to “
the
drying of wood by an external heat source
” it was suggested
that the regulated activity be “
the drying of wood using
direct-fired kiln.”
The Minister, at that time, notified
the industry that he intended amending the wording of listed activity
sub-category 9.5 to
read as follows:
“Description: the drying of wood using
direct-fired kilns, and the manufacture of laminated and compressed
wood products.
Application: all installations producing more
than 10 tons per month.”
[31] The wording
set out above was published by the Minister on 25 May 2018 in
Environmental Regulation,
GN R516, GG 41650, 25 May 2018. The notice
called upon interested parties to comment on the aforementioned
wording. The industry
was, according to Sawmilling, satisfied with
the wording and as a result did not comment.
[32] Despite the
consultation process, and the notice of 25 May 2018, a new set of
Regulations were
promulgated during 2018 with a new national list.
These new Regulations were published on 31 October 2018 in the 2018
regulations.
Listed activity sub-category 9.5 in the 2018 regulations
was then worded as follows:
“Description: the drying of wood; and the
manufacture of laminated and compressed wood products.
Application: all installations producing more
than 10 tons per month.”
[33] The
regulated activity was now couched in terms that were wider than
before. Under both the 2010
and 2013 Regulations it only covered wood
drying-installations that had an “
external heat source
”.
After the amendment it covered a broader phrase “
the drying
of wood
” and this, according to the Minister in her
answering affidavit, includes the drying of “
all”
wood in “
all”
installations subject only to the
proviso that “
the installations produce more than 10 tons
per month
”. This specifically includes indirectly fired
kilns even though the boiler that provides the external source of
heat for
the kiln was already regulated.
[34] The Minister
was requested to explain the aforesaid deviation, but in her
affidavit states that
the Department has no obligation to produce
evidence contrary to that stated by Sawmilling.
THE
RELIANCE ON SECTION 1(c) OF THE CONSTITUTION
[35] The
respondents argued that Sawmilling could not legally rely on section
1(c) of the Constitution.
It was argued that, if the conduct
constituted an administrative action, as defined in section 1 of
PAJA, it was impermissible
to seek declaratory relief and
Sawmilling’s cause of action should be founded on the
provisions of PAJA.
[36] The
respondents furthermore contended that if the Court should find that
the 2018 Regulations
constituted a reviewable action in terms of
PAJA, it was not open to Sawmilling to seek direct reliance on the
provisions of the
Constitution to set aside the decision.
[37]
The
Minister argued with reference to the
Minister
of Defence and Another v Xulu
[1]
that the process to be followed was explained by the SCA
and it was set out as follows:
“
Before
dealing with the relevant grounds of review it must be said that the
approach of the full court, in avoiding the question
whether this was
a case of administrative action and disposing of it on the basis of
the principle of legality, was in principle
incorrect and one to be
discouraged. The right to just administrative action is the primary
source of the power of courts to review
the actions of the executive
and the administration. The Constitution required legislation to be
enacted to provide for this and
PAJA is the result. It is specific,
although not necessarily simple, in its provisions and prescribed
procedures that must be followed
in pursuing judicial review, while
vesting rights in people dealing with the administration, such as the
right to reasons. It imposes
significant limitations in regard to the
requirement to exhaust internal remedies and in regard to the time
within which review
proceedings must be brought. Litigants and courts
should not circumvent these by proceeding directly to questions of
legality.
If action by the executive and administration is
administrative action, then the jurisprudence of the Constitutional
Court is clear
in saying that this is the path that the litigation
must follow.
”
[38] The
respondents furthermore contended that if the Court should find that
the 2018 Regulations
constituted a reviewable action in terms of
PAJA, it was not open to Sawmilling to seek direct reliance on
the provisions
of the Constitution to set aside the decision.
[39]
In
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and
Others
[2]
Chaskalson CJ held that:
“
Professor
Hoexter sums up the relationship between PAJA, the Constitution and
the common law, as follows:-
‘
The
principle of legality clearly provides a much-needed safety net when
the PAJA does not apply. However, the Act cannot
simply be
circumvented by resorting directly to the constitutional rights in s
33. This follows logically from the fact that
the PAJA gives
effect to the constitutional rights. (The PAJA itself can of
course be measured against the constitutional
rights, but that is not
the same thing.) Nor is it possible to sidestep the Act by resorting
to the common law. This, too,
is logical, since statutes
inevitably displace the common law. The common law may be used
to inform the meaning of the constitutional
rights and of the Act,
but it cannot be regarded as an alternative to the Act.’”
[40] The Minister argued in
effect that if PAJA applies no reliance can be placed on section 1(c)
of the Constitution.
The aforesaid seems to be a correct
interpretation of the law, and the review should, in the light of the
conclusion that the Court
came to, be considered in accordance with
PAJA, and not in terms of section 1(c) of the Constitution and prayer
one of the notice
of motion could accordingly not be granted.
WAS
THE REVIEW APPLICATION BROUGHT OUT OF TIME?
[41] The Minister
raised the point that Sawmilling brought the review out of time and
failed to ask
for condonation. The Minister pointed out that the
review application was late in that the impugned Regulations were
promulgated
on 31 October 2018, but the review application was only
issued on 26 April 2019. Sawmilling pointed out that the review
application
was instituted 178 days after the Regulations were made.
[42]
The review was brought under section 1(c) of the Constitution and/or
section 6(2) of PAJA. As
far as the review in terms of PAJA is
concerned, section 7(1) of PAJA states that a review under section
6(2) must be instituted
within 180 days
[3]
.
[43]
S
ection 7(1) also
states that the review “
must
be instituted without unreasonable delay and not later than 180
days…
”.
In other words, there are some situations where applicants are not
entitled to wait out the full 180 days
[4]
.
This will apply where there are special circumstances that require
expedition. Those special circumstances must, however, be pleaded
by
the party who alleges that expedition was required. The Minister did
not point out anything special about this case which required
Sawmilling to have brought its review sooner than 180 days. There was
no evidence on the papers suggesting that this application
was
anything other than an ordinary review of administrative action taken
which would entitle the applicant to bring its application
within 180
days.
[44] The Minister should have at least
explained why she claimed, that the review was brought late.
Sawmilling did explain in its affidavit, that within a week of
becoming aware of the new regulations, and within a week of them
being made, it wrote to the Minister asking for clarity. In the
founding affidavit reference was made to numerous letters, emails
and
telephone calls that were made to engage government. None of these
were responded to. Only after all these attempts proved
fruitless was
the review application brought. These facts also support the
conclusion that there was no undue delay in launching
the review.
[45]
The notion of “
delay
”
was dealt with by the Constitutional Court in the context of reviews
brought under section 1(
c
)
of the Constitution in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[5]
.
In that case, the Constitutional Court explained that, unlike a
review in terms of PAJA, there is no 180 day time period
within which
to institute a rational review. The review must, however, be
instituted within a reasonable time. As to what is reasonable
will
depend on the facts and circumstances of each case
[6]
.
The CC explained that previous judgments which applied the 180-day
period in PAJA as a yardstick for reasonableness in rationality
reviews under section 1(
c
)
of the Constitution were wrong. The question simply is whether or not
the delay was reasonable in the circumstances of the specific
case.
The court in
Buffalo
City
further held
that
[7]
:
“
The
standard to be applied in assessing delay under both PAJA and
legality is thus whether the delay was unreasonable. Moreover,
in
both assessments the proverbial clock starts running from the date
that the applicant became aware or reasonably ought to have
become
aware of the action taken. However, it is important to note that the
assessment is not the same. A distinction between
the
assessments of the delay under PAJA versus the principle of legality
turns on the prescribed time period of 180 days.
This
distinction was succinctly described by the Supreme Court of Appeal
in Opposition to Urban Tolling Alliance, which
found that
section 7 creates a presumption that a delay of longer than 180 days
is ‘per se unreasonable’:
‘
At
common law application of the undue delay rule required a two stage
enquiry. First, whether there was an unreasonable delay
and,
second, if so, whether the delay should in all the circumstances be
condoned. Up to a point, I think, section 7(1) of
PAJA requires
the same two stage approach. The difference lies, as I see it,
in the legislature’s determination of
a delay exceeding 180
days as per se unreasonable. Before the effluxion of
180 days, the first enquiry in applying
section 7(1) is still whether
the delay (if any) was unreasonable. But after the 180 day
period the issue of unreasonableness
is pre-determined by the
legislature; it is unreasonable per se. It follows that
the court is only empowered to entertain
the review application if
the interest of justice dictates an extension in terms of section 9.
Absent such extension the
court has no authority to entertain the
review application at all. Whether or not the decision was
unlawful no longer matters.
The decision has been ‘validated’
by the delay.’
The
approach to undue delay within the context of a legality challenge
necessarily involves the exercise of a broader discretion
than that
traditionally applied to section 7 of PAJA. The 180-day bar in
PAJA does not play a pronounced role in the context
of legality.
Rather, the question is first one of reasonableness, and then (if the
delay is found to be unreasonable) whether
the interests of justice
require an overlooking of that unreasonable delay.
The second
difference between PAJA and the legality review for the purposes of
delay is that when assessing the delay under the
principle of
legality no explicit condonation application is required. A court can
simply consider the delay, and then apply the
two-step Khumalo test
to ascertain whether the delay is undue and, if so, whether it should
be overlooked.”
[46]
As stated above, Sawmilling explained the circumstances surrounding
its 178 day delay in terms
of launching the review application. Those
circumstances, suggested that it was reasonable to institute the
review when it did,
as attempts to engage with government proved to
be futile. Had it launched the application sooner, without first
trying to engage
the government, the litigation might have been
viewed as premature. Under these circumstances the 178 days that it
took to launch
the application was not an unreasonable delay, under
either under section 6(2) of PAJA or section 1(
c
)
of the Constitution.
[47] In the light of the aforesaid
there was no undue delay nor was the application brought out of
time.
In the light thereof this point
in limine
should be dismissed.
IS
THERE ANY “ADMINISTRATIVE ACTION” CAPABLE OF BEING
REVIEWED UNDER PAJA?
[48]
It is trite that the purpose of PAJA is to give effect to the
constitutional right that every
person has to administrative action
that is lawful, reasonable and procedurally fair. The purpose of PAJA
is to codify the standard
for permissible administrative action
contemplated in section 33 of the Constitution, as was stated by the
Constitutional Court,
[8]
the purpose of section 6 of PAJA is to codify the grounds of judicial
review as contemplated in section 33 of the Constitution.
[9]
[49] The Constitutional Court in
Minister of Defence and Military Veterans v Motau and Others
[10]
citing
Greys Marine Hout Bay (Pty) Ltd and Others v Minister of
Public Works and Others
[11]
with approval, defined an administrative action into seven
components, it stated that there must be:
1.1 A
decision of an administrative nature;
1.2
By an Organ of State and/or a national and/or juristic person;
1.3
Exercising a public power or performing a public function;
1.4
In terms of any legislation and/or empowering provision;
1.5
That adversely affects rights;
1.6
That has a direct external legal effect;
1.7
That does not fall under any of the exclusions.
[50] A decision is defined
[12]
as meaning “
any decision”
, of an administrative
nature made, proposed to be made or required to be made, as the case
may be under an empowering provision,
including a decision relating
to the making, suspending, revoking, refusing to make an order, award
and/or determination. It includes
giving, suspending, revoking or
refusing to give a certificate, direction, approval, consent or
permission. Issuing, suspending,
revoking or refusing to issue a
licence, authority or other instrument or imposing a condition or
restriction. It also means making
a declaration, demand or
requirement or retaining and/or refusing to deliver up an article, or
doing and/or refusing to do any
other act or thing of an
administrative nature and a reference to a failure to take a
decision.
[51] Against the aforesaid background, the Minister
argued that the statement of the 2013 listing of “
the drying
of wood by an external heat source”
in the 2018
Regulations, is not a decision as envisaged in Section 1 of PAJA. It
was argued that the decision to list the drying
of wood, using an
external heat source was taken in 2013 and not in 2018 and therefore
the challenge against such listing should
have been directed against
the 2013 Regulations and not the 2018 Regulations. The Minister based
her argument on the following:
a) On 31 March 2010, the Minister promulgated the
2010 Regulations, in which certain activities were included
in the
list of activities, which may result in harmful atmospheric
emissions or which have or may have a significant detrimental
effect
on the environment, including health, social, economic, ecological
conditions or cultural heritage.
b) Wood drying and the production of manufactured wood
products was listed as a listed activity in the 2010 Regulations
mentioned above and was listed as follows:
“
Description:
The drying of wood by an external source of heat; the manufacture of
laminated and compressed wood products: All installations
producing
more than 10 tons per month.”
c) The 2010 description of the listed activities
was later revised by the Minister in the 2013 Regulations.
d) The revision was part of the exercise to provide
clarity to the 2010 listed activities, as well as to address the
unintended consequences that were caused by the re-grouping and
re-categorisation that was implemented earlier in terms of the
International Best Practice.
e) The revised description of the listed activity was
thus described in the 2013 Regulations as follows:
“
Wood
burning, drying and the production or manufactured products. The
burning and/or drying of wood by an external source of heat
and the
manufacture of laminated and compressed wood products. All
installations producing more than 10 tons a month.”
f) Thus, whereas the 2010 Regulations
described the listing as “
the drying of wood by external
heat source”,
the 2013 Regulations changed the description
to the “
burning of wood
”. In other words, the 2013
Regulations were all encompassing of the listing activity applied to
the wood drying process irrespective
of the source of heat. The
source could either be a direct heat source or an indirect heat
source.
g) Also, in 2013, additional emission control tools were
introduced, namely, the declaration of a Small Boiler as a
controlled
emitter established in terms of the small boiler Regulations.
[52] The Minister pointed out that the declaration
of a small boiler as a controlled emitter brought about challenges
to
the licensing regime in the wood product industry sector, primarily
because most sawmills in South Africa had indirectly fired
kilns,
which use small boilers as the energy source.
[53] It was common cause that the licensing
authorities also applied the listed activities Regulations and the
small boiler Regulations inconsistently, in that some authorities
interpreted that sawmills that had an external source of heat
i.e.
small boilers, were exempted from atmospheric emission licensing; and
others had a different view and subjected it to both
licensing and
compliance with the small boiler emission standard.
[54] These discrepancies referred to above were
brought to the Department’s attention by both the industry
and
numerous testing bodies that conducted emission measurements and
reporting on behalf of sawmills.
[55] As a result of these issues being brought to
the Department’s attention, the Department engaged all
the
stakeholders and implemented various measures in the regulatory
review process to provide clarity in order to ensure consistent
application of these tools in air pollution control.
[56] The Minister herself pointed out that it was
on the basis of those engagements that the Department, on 25
May 2018
published the draft amendment notice for public comment
(Environmental Regulation, GN R516, GG 41650, 25 May 2018). The
notice was published in terms of sections 56 and 57 of AQA.
[57] The draft amendment notice proposed that the
description of listed activities in sub-category 9.5. regulating
sawmills be changed and be limited to processes involving direct
fired kilns only.
[58] The Minister stated that having considered all
the comments received from various stakeholders, it became
evident
that the proposal, if promulgated as proposed, would have resulted in
the exclusion of the majority of sawmills from being
licensed under
the AQA. She declared that it was then considered that the exclusion
of the majority of sawmills from the licencing
regime to be
inconsistent with the objects of AQA and in particular, such
exclusion would be inconsistent with the management of
the impact
sawmills have on air quality. She stated that the exclusion was
considered to be ignoring the value of licence and management
of the
impact of sawmilling effectively. The proposal to amend the 2013
Regulation was then not accepted.
[59] On 31 October 2018, the then Minister, Mr
Derek Hanekom, promulgated amendments to the listed activities
and
associated minimum emission standards identified in terms of section
21 of the AQA in the 2018 regulations. Notably without
engaging or
alerting the sawmilling industry of the about turn.
[60] The description of the listed activity in
respect of drying of wood, remained unchanged, but for the special
arrangements that were included in the description for the purpose of
providing clarity and/or providing for special arrangements,
where an
external source of heat was used for the drying of wood and
manufacturing of wood products.
[61] As a result, the 2013 description of the
listed activity in sub-category 9.5 was retained in the 2018
regulations.
i.e. “
the burning or drying of wood and the
manufacture of laminated and compressed wood products.”
The
only change made in the 2018 Regulations, was the introduction of the
special arrangement provision made in sub-category 9.5
(a)(i) and
(ii).
[62] The Minister, concluded that because the
proposal to amend the listed activity was not accepted, it meant
that
the 2013 description was retained (the law therefore was not changed)
and the proposal, (as published for comment was rejected).
As a
result the law was, according to her interpretation of it, not
changed.
[63] In its replying affidavit and quite correctly
so, Sawmilling did not challenge the statements made by the
Minister
that the description of sub-category 9.5 was not changed in 2018,
from how it read in 2013. It stated in its reply that:
“
I
note the allegations made in para 150.13 of the answering affidavit,
namely that the description of 9.5 was not changed in 2018
from how
it read in 2013. Sawmilling’s point however was that the
description of the listed activity 9.5 needed to be changed.
Indeed,
that is why a change was proposed in 2017/2018. It was proposed
because it was needed and the fact that the needed change
was not
implemented renders the 2018 regulations just as problematic as the
2013 Regulations. I should point out that the main
reason why the
position needed to change after 2018, is because it was in that year
that the small boiler Regulations were introduced.
Indeed, it is
because of the introduction of the small boiler regulations that it
becomes unnecessary for the listed activity 9.5
to be extended to
Sawmilling SA members.”
[64] According to the Minister the question that
therefore arose was whether it was legally competent for Sawmilling
to seek to challenge the listing of the wood drying process
irrespective of the source of heat, in the 2013 Regulations as
opposed
to the 2018 Regulations.
[65] Counsel for the Minister submitted that it was
incompetent and legally impermissible for Sawmilling to challenge
the
2018 Regulation, as the listing of wood drying, irrespective of the
source of heat, was made in the 2013 Regulations. The 2018
Regulations merely added special arrangements in case where an
external heat source is used, The Minister therefore concluded that
the challenge to the 2018 regulation was not competent.
[66] The Minister made the point in her answering
affidavit that if Sawmilling had any cause of complaint, that
complainant should have been directed against the introduction of a
listed activity sub-category 9.5 (as incorrectly numbered)
of 31
March 2013.
[67] The Minister contended that because Sawmilling
did not seek to impugn sub-category 9.5, as was introduced
by virtue
of the 2013 regulations. Therefore, the application was ill-conceived
because, so she alleged, no decision was taken
by the promulgation of
the regulations in the 2018 Regulations, which negatively affected
the rights of Sawmilling and that of
its members. The only decision
taken, it was argued, in the 2018 regulations was the introduction of
additional measures in the
instance where an external heat source was
used during the wood drying process.
[68] Finally the Minister argued that, if it was
found that the listing of the wood drying process was reviewable
on
any of the grounds advanced, then the review should be directed
against the 2013 Regulations and not the 2018 Regulations, as
no
decision that adversely affects Sawmilling rights was taken in the
2018 Regulations. In fact, no decision was taken in the 2018
Regulations except for the introduction of special arrangements.
[69]
In
New Clicks
[13]
the Constitutional
Couert confirmed that the enactment of Regulations under an
empowering statute constitutes an administrative
action.
[70] As a result the action of the
Minister must meet the minimum standards prescribed in PAJA.
Sawmilling relied on the following three grounds for review set out
in PAJA:
(a) Section 6(2)(f)(ii), on the
ground that the listed activity is allegedly irrational;
(b) Section 6(2)(c), on the basis
that there was inadequate consultation pertaining to sub-category
9.5
and as a result it rendered the process unfair; and
(c) Section 6(2)(h),
because the listed activity in sub-category 9.5 is so unreasonable
that no reasonable regulator would have listed it.
[71]
Section
6(2)(
f
)(ii)
of PAJA reads as follows:
(2) A court has the power to
judicially review an administrative action
if –
(f) the action itself is not rationally
connected to –
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering
provision;
(cc) the information before the
administrator; or
(dd)
the reasons given for it by the administrator.”
[72]
In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex Parte
President of South Africa and Others
[14]
the Constitutional Court explained that rationality is a minimum
requirement for the constitutional validity of any law.
When
addressing the rationality and its relationship with the rule of law,
the Constitutional Court held that
“It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should
not be arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public
power by the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of
the standards demanded by our
Constitution for such action [including legislation making action].
The question whether a decision
is rationally related to the purpose
for which the power was given calls for an objective enquiry.”
[15]
[73]
The Constitutional Court in
Pharmaceutical
Manufacturers Association
formulated a two-prong test for determining whether a public power
has been exercised rationally. The first part requires that
the
review court must determine the purpose for which the power was
given, which must be a legitimate governmental purpose. The
second
leg of the test requires that the court must determine whether the
power so-given is exercised in a manner that is reasonably
capable of
achieving its stated purpose. This test has been applied in a number
of cases by the Constitutional Court
[16]
.
[74] The Minister
set this purpose out in her answering affidavit, she stated that her
duty, when
compiling national lists, is to identify activities during
which pollutants are emitted into the atmosphere that pose a threat
to the environment. After identifying such threats, she must publish
a list of all those activities so that they can be controlled.
The
Minister alleged that she identified the criteria to be used when
identifying whether an activity should be listed or not.
She said
that “
only those activities that are likely to have a
significant detrimental effect on the environment
” should
be listed. The legitimate aim for identifying activities that emit
harmful substances into the atmosphere, is to
protect the
environment. The question then arises whether sub-category 9.5
contributes to the stated purpose, by assisting in protecting
the
environment against the emission of harmful pollutants into the
atmosphere.
[75] Currently
sub-category 9.5 is triggered whenever more than 10 tons of wood is
dried, there should
be some evidence that something harmful is taking
place during this process to ensure that the regulation is both
rational and
serves its intended purpose. After all the national list
is intended to protect the environment from significant harmful
emissions.
[76] In order to
determine this, one needs to determine whether sub-category 9.5 in
this instance
is reasonably capable of preventing something harmful.
It is in this regard where the Minister’s lack of evidence
becomes
problematic. Neither this Court, nor the Minister is
qualified to reach a conclusion in this regard without expert
evidence. Such
evidence needs to indicate that the environment would
be at risk of suffering some “
significant detrimental
effect
” as indicated in section 21(1)(a) of AQA. The only
evidence available to this Court was the report and subsequent
confirmatory
affidavit of Dr Strὄhr, who confirmed that no
significant harmful pollutants are emitted by indirectly fired kilns.
In the
absence of any other scientific evidence, there was no
evidence available that sub-category 9.5 will indeed prevent
something harmful.
[77]
Despite the Minister’s assertion to the contrary, the
Constitution requires from government
to justify its Regulations. In
Border
Deep Sea Angling Association vs Department of Agricultural, Forestry
and Fisheries
,
[17]
where the government relied on an outdated research report, the court
held that there was no rational connection between the outdated
research and, in this instance, the need to ban the catching of red
Steenbras. It is clear that it is required from government
to produce
evidence to justify the manner in which it regulates. The Minister’s
assumption that she does not have to account
to interested parties is
not in accordance with the authorities.
[78]
If no relevant evidence is provided the regulation may be declared
arbitrary and unlawful. In
Fair
Trade Independent Tobacco Association v The President of the Republic
of South Africa
[18]
the reliability and content of the evidence that government relied on
to promulgate Regulations were challenged. The Court found
that the
government did produce evidence to justify the Regulations and did
not want to second guess the wisdom of that evidence.
In this
instance however, the Minister failed to provide evidence to support
her justification for the Regulation and as a result
it is rendered
irrational by default. Without any evidence at all, there is no way
to determine the rationality of the Regulation.
There is presently no
evidence that sub-category 9.5 can achieve its intended purpose. The
inclusion of sub-category 9.5
in the national list therefore did not
achieve the stated purpose for which the national list was created.
[79] In this
instance the only evidence before the Court regarding the emission of
harmful emissions
in significant quantities was the allegation by the
Minister that it does occur. The only expert evidence available
before the
court was that of Dr Strὄhr, which ironically
emanated from the record supplied by the Minister, which she then
proceeded
to question. It is inexplicable that the Department would
obtain a report from someone who is an expert and then question his
expertise,
without laying a foundation for the rejection of that
evidence. The Minister raised the criticism that no affidavit by Dr
Strὄhr
was attached. This was rectified in her reply. One must,
when evaluating the facts take into consideration that this report
was
in the possession of the Department. Apart from the
aforementioned, the Department provided no evidence to counter Dr
Strὄhr’s
evidence that an indirect fired kiln emits
harmful emissions. As a result, the Court could not but find
that the Minister’s
decision to regulate the whole wood drying
process was without any scientific foundation and therefore
irrational. In this
instance an objective enquiry points to an
irrational decision.
[80] Section
6(2)(
c)
of PAJA provides as follows:
“A court has the power to judicially
review an administrative action if the action was procedurally
unfair.”
[81] In this
regard the Department gave a notice and requested comments from
interested parties as
provided for in section 4(3) of PAJA. The
procedure denotes that the public will be given notice of a proposed
Regulation and asked
to comment on its suitability. In this instance
the public was asked to comment on the formulation of sub-category
9.5 as it was
initially proposed, when published in the Environmental
Regulation, GN R516, GG 41650, 25 May 2018. The comments of the
public
were made with reference to the proposed regulation. However,
the proposed Regulation was not adopted. A different formulation of
sub-category 9.5 was promulgated on 31 October 2018. The public was
never asked to comment on the promulgated Regulation, nor were
they
consulted on it. Accordingly, the input submitted by Sawmilling, or
any other interested party did not reflect in the 2018
Regulations
promulgated. If such a procedure is allowed, only lip service is paid
to section 4(3) of PAJA and this will inevitably
result in a
procedurally unfair administrative action, as it circumvents the
whole purpose of giving the public and interested
parties the
opportunity to give their input relating to administrative action
that will have an impact on their rights. This could
certainly not
have been the intention of the legislature.
[82] It was
argued that the only significant change to the 2018 Regulations is
the introduction of
a special arrangement provision made in
sub-category 9.5(i) and (ii) and that actually no decision was made
that stood to be reviewed,
as set out above.
[83] However to
inform the industry of a proposed Regulation, and then not to follow
through with
the proposal, can be nothing else than a decision. As
set out above, the 2013 Regulation caused confusion and that was what
led
to the engagement with the industry and the proposed 2018
regulation. To argue otherwise is opportunistic. The decision was to
not proceed with the proposed Regulation and to revert to the
previous regulation with a minor adjustment.
[84] The
Minister’s belief that no comment was required, as she merely
reverted to the 2010
Regulation is without merit and opportunistic.
There is no point in giving the public an opportunity to comment on a
proposed Regulation,
which ironically was published by government, if
that Regulation is not going to be implemented. To do so is to
mislead the public.
If a deviation from the published proposed
regulation is considered, fairness dictates that the public must be
given the opportunity
to comment and give input on that Regulation.
As a result, the Minister did indeed take a decision and the
procedure followed was
unfair and the review should succeed on this
ground too.
[85] Section
6(2)(
h
) of PAJA provides as follows:
“A court has the power to judicially
review an administrative action if the exercise of the power or the
performance of the
function authorised by the empowering provision,
in pursuance of which the administrative action was purportedly
taken, is so unreasonable
that no reasonable person could have
exercised the power or perform the function.”
[86] The term
reasonableness implies an element of proportionality. Sawmilling
argued that a decision
will be unreasonable where it visits a
disproportionate hardship on a particular subject. It was argued that
no reasonable administrator
would double regulate sawmills in the
manner that the Minister did. It was argued that the same activity
now requires compliance
with two regulatory instruments, each
requiring its own study, monitoring and reporting and imposes
additional costs, which are
onerous and expensive. The hardship to
sawmills, so the argument went, were disproportionate to the benefit
that double regulation
may confer on the environment.
[87]
Sawmilling referred to an article by Plasket AJ in which he
proposed
[19]
that disproportionality is a hidden ground of review, because it is
often referred in relation to the reasonableness of an administrative
decision instead of by its own name. Plasket AJ quoted from Cora
Hoexter’s book on Administrative Law, which states as follows:
“Proportionality may be defined as the notion that one ought
not to use a sledgehammer to crack a nut. Its purpose is to avoid an
imbalance between the adverse and beneficial effects…
of an
action and to encourage the administrator to consider both the need
for the action and the possible use of less drastic or
less
oppressive alternative means to accomplish the desired end.
[20]
”
[88] The
disproportionality according to Sawmilling’s argument, was
based on the argument that
the government over-regulates sawmills by
imposing new Regulations with an expensive licencing regime, in
circumstances where there
are existing Regulations that are designed
to achieve the same purpose. The 2018 Regulations did nothing to
protect the environment
any further and with no tangible added
benefit to the environment.
[89] The Minister
disputed both the costs imposed by the licensing regime and the fact
that these
costs are onerous for sawmills, in her answering
affidavit. She criticised Sawmilling’s costing by simply saying
that it
“
sets out a globular amount without giving any
particularity as to how the costs are made up
” and that,
without any particularity, she could not accept that the costs will
be significant, nor that “
they will cause the shutting down
of some of the sawmills
”. The Minister said that Sawmilling
SA’s claim of high costs and adverse impact was “
nothing
but conjecture and speculation
”.
[90]
The affidavits filed by Sawmilling made out a case for why the
additional costs should not be
imposed on sawmills. It also made out
the case that these additional costs are unduly burdensome on many
sawmills, especially the
smaller ones. The Minister, without putting
up any evidence to the contrary in her answering affidavit, simply
denied these allegations.
A bald denial of this type is unacceptable
as has been stated in numerous decisions.
[21]
[91]
Sawmilling responded with more particularity regarding these aspects
in the replying affidavit.
Mr Southey an expert in this field set out
the financial burden that will be placed on the industry. The
Minister gave no concrete
evidence that could counter his explanation
of the costs involved and the impact that it may have on the
sawmilling industry.
[92] The
inclusion of the indirectly fired kilns used by sawmills on the
national list, in Sub-category
9.5, will evidently, in the light of
all the facts, place a financial burden on sawmills without any
additional benefit to the
environment. This equates to
unreasonableness which, in turn, renders sub-category 9.5 so
unreasonable that no reasonable regulator
would have included it on
the national list.
[93] In the light
of the aforesaid, the sub-category 9.5 regulation and its impact on
the sawmilling
industry constitute unreasonableness as defined in
PAJA.
CONCLUSION
[94] In the light
of all the facts Sawmilling must succeed with the review based on
section 6(2)(f)(ii),
6(2)(c) and/or 6(2)(h) of PAJA.
[95] In my view
therefore PAJA’s challenge to the Regulation should succeed.
[96]
I make
the following order:
1.
The Minister’s decision to publish the listed activity in
listed activity
in sub-category 9.5 of the 2018 regulations are
reviewed and set aside.
2.
The respondents are ordered to pay the applicant’s costs
jointly and severally,
the one paying the other to be absolved.
TOLMAY J
JUDGE OF THE HIGH COURT
DATE OF
HEARING:
5 NOVEMBER 2020
DATE OF JUDGMENT:
ATTORNEY
FOR APPLICANT:
KLAGSBURN
EDELSTEIN
WINSTANLEY
INC
BOSMAN
DU PLESSIS INC
ADVOCATE FOR APPLICANT:
ADV K HOPKINS
ATTORNEY
FOR RESPONDENT:
WINSTANLEY
INC
STATE
ATTORNEY(MR S MOSITO)
ADVOCATE FOR RESPONDENT:
ADV C ERASMUS (SC)
AND H MPSHE
[1]
2018
(6) SA 460
SCA at para 47. See also Minister of Home Affairs v
Public Protector
2018 (3) SA 380
SCA at para 28
[2]
2006(2) SA 311 at para 97
[3]
Section 7(1) provides: Procedure for judicial review.
(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 subsection (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.
[4]
Opposition to Urban Tolling Alliance and Others v The South African
National Roads Agency Ltd and Others
[2013] 4 All SA 639
(SCA) at
para 26.
[5]
2019 (4) SA 331 (CC).
[6]
Ibid
at para 66.
[7]
Ibid
at
paras 49-55
[8]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others 2004(4) SA 490 (CC) at para 25.
[9]
See C Hoexter
Administrative
Law in South Africa
2
ed 2012 at 118.
[10]
2014(5) SA 69 CC at para 33.
[11]
2005 (6) SA 313 (SCA).
[12]
Section
1 of PAJA. See also
Phenithi
v Minister of Education and Others
2008 (1) SA 420
(SCA), where the
court found that administrative action presupposes a decision by the
administrator. Therefore, conduct that
does not amount to a decision
is not subject to administration law.
[13]
Supra
note
3, at para 467
[14]
2000
(2) SA 674 (CC)
[15]
Ibid
at
paras 85 - 86
[16]
Prinsloo
v Van der Linde and Another 1997(3) SA 1012 (CC) at para 25; Harksen
v Lane N.O. and Others 1998(1) SA 300 (CC) at para
53; Jooste v
Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening) 1999(2) SA 1 (CC) at para 17; Van
der Merwe v
Road Accident Fund and Another (Woman’s Legal Centre Trust as
Amicus
Curiae
)
2006(6) SA 230 (CC) at para 42 and Weare and Another v Ndebele
N.O. and Others 2009(1) SA 600 (CC) at para 46
[17]
2014 JDR 2510 GP.
[18]
[2000] ZAGPHHC 246
[19]
C Plasket “Disproportionality – The hidden ground of
review: Medirite (Pty) Ltd v South African Pharmacy Council
&
Another” (2019) 136
SALJ
at 14.
[20]
Hoexter
Administrative
Law in South Africa
p
341.
[21]
Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd,
1949 (3)
SA 1155
(T) at 1165; Soffiantini v Mould,
1956 (4) SA 150
(E) at
154G; Da Mata v Otto, N.O.
1972 (3) SA 858
(A) at 882H and Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another,
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at para 13