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[2021] ZAMPMBHC 16
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Save The Maize Belt Society v Member of the Executive Council of the Mpumalanga Provincial Government responsible for Agriculture, Rural Development, Land, and Environmental Affairs and Others (1029/2019) [2021] ZAMPMBHC 16 (11 May 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT)
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
11/ 05/
2021
CASE NUMBER
1029/2019
SAVE
THE MAIZE BELT SOCIETY
And
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE MPUMALANGA PROVINCIAL GOVERNMENT
RESPONSIBLE
FOR AGRICULTURE, RURAL
DEVELOPMENT,
LAND AND ENVIRONMENTAL
APPLICANT
AFFAIRS
CHIEF
DIRECTOR-INTEGRATED
ENVIRONMENTAL
AUTHORISATION
1
ST
RESPONDENT
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
THE
DIRECTOR-APPEALS AND LEGAL REVIEW
2
ND
RESPONDENT
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
3
RD
RESPONDENT
DIALSTAT
TRADING 115 (PTY) LTD
4
TH
RESPONDENT
JUDGMENT
LEGODI
JP
[1]
A decision on 1 November 2014 in terms of Environmental Management
Act 107 of
1998 (NEMA) by the second respondent, Chief
Director-Integrated Environmental Authorisation-Department
Environmental Affairs –
Mpumalanga Province, followed by an
appeal decision on 19 November 2019 taken by the first respondent
Member of the Executive Council
of the Mpumalanga Provincial
Government (hereinafter referred to as the MEC), became the centre of
a dispute before me. At
the heart of the dispute the question
is whether both decisions should be set aside and if need be remit
the matter for reconsideration
of the appeal by the MEC.
[2]
The background to the dispute can be summed up as follows: On 6
December
2010 the fourth respondent namely, Dialstat Trading 115
(Pty) Ltd (herein after referred to as Dialstat) granted a mining
right
in terms of
section 22
of the
Mineral and Petroleum Resources
Development Act No 28 of 2002
to mine coal on various properties in
the district of Delmas, Mpumalanga.
[3]
On 23 October 2013 Dialstat applied for authorisation as contemplated
in
section 24
of the National Environmental Management Act 107 of
1998 (NEMA). The authorisation which is now the subject of a
dispute
herein was granted by the ChiefDirector on 11 November 2014.
On 9 December 2014 the applicant, Save the Maize Belt (hereinafter
referred to as the Society) filed an appeal with the MEC.
[4]
The appeal was submitted
as contemplated in regulation 60 of the Environmental Impact
Regularisation of 2010 under Chapter 7 of
the regulations. A
person affected by the decision referred to in these regulations who
wishes to appeal against the decision,
must submit a notice of
intention to appeal with the Minister or MEC within 20 days after the
date of decision
[1]
.
If the appellant is the person other than the applicant, the
appellant must provide the applicant within 10 days of having
lodged
the notice of intention to appeal with (a) the copy of the notice of
intent, (b) a notice including where and for what period
the appeal
will be available for inspection by the applicant
[2]
.
[5]
An appeal lodged must be
submitted to the appeal authority as indicated in terms of section 43
of NEMA
[3]
.
Any person may appeal to an MEC against a decision taken by any
person acting under the power delegated by that MEC under
this Act or
a specific environment management Act
[4]
.
The Chief-Director was such a person when authorisation was granted
on 11 November 2014.
[6]
An appeal must be submitted in writing, accompanied by (i) a
statement setting
out the grounds of appeal, (ii) supporting
documents which is referred to in the appeal and which is not in
possession of the MEC,
(iii) a statement by the appellant that the
regulation 60(2) and (3), has been complied with together with the
copies of the notices
referred to in that regulation
.
[7]
On 9 January 2015 the Society submitted what is referred to as “a
responding
statement”. The appeal that was lodged on 9
December 2014 was not responded to and this prompted the society to
approach
this court on 11 September 2018 to compel the MEC to do so.
The order was granted by this court on 20 September 2018 in terms
of
which the MEC was ordered to consider the appeal by not later than 20
October 2018 and to provide the Society with written notice
of the
decision as contemplated in regulation 66(3) under NEMA and written
reasons for the decision as contemplated in regulation
66(4).
[8]
On or about 18 October 2018 MEC in writing indicated that he or she
was unable
to comply with the court order for the reasons stated as
follows:
“
After
thorough search, it appears that Save the Maize Belt Society
(Applicant in these proceedings) did not file the appeal.
They
only issued notice of intention to appeal back in 2014…
Dialstart (4
th
Respondent) in these proceedings filed their responding statement to
the notice whereas it should have responded to the grounds
of
appeal.”
[9]
On 19 October 2018 and pursuant to the order of 20 September 2018,
the MEC delivered
its reason for dismissing the Society on 19
November 2018. The reasons are couched as follows:
“
3.
The Notice of Intention to Appeal submitted by Save the Maize Belt
Society was defective
in that it was unsigned by the appellant and
did not indicate where and for what period the appeal submission will
be available
for inspection by the applicant as per the provisions of
Regulation 60(1)(3) of the Environmental Impact Regulations 2010.
Importantly, Regulation 60 and 61 makes a vast differentiation
between a Notice of Intention to Appeal and an actual appeal.
These Regulations also lays down the legal procedure to be followed
when lodging same. The purported appeal lodged by the Appellant
does
not constitute a valid appeal as it did not comply with the
provisions of the abovementioned regulations. Further to
that,
the Notice did not contain any grounds of appeal as required by
Regulation 61(1).
4.
A Responding
Statement submitted by Dialstat Trading 115 (Pty) Ltd dated the 09
January 2015, did not constitute a valid responding
statement due to
the fact no appeal was lodged by the Save the Maize Belt Society in
which Dialstat Trading had to respond to in
terms of the EIA
Regulation 64 (1). The only documents submitted by the
appellant are the unsigned Notice of Intention to
Appeal received by
the MEC 09 December 2014, which does not constitute an appeal due to
the fact that no grounds of appeal were
submitted in terms of
Environmental Impact Assessment Regulations 61(1). To validate this
submission, Dialstat Trading also indicated
on their Responding
Statement that “
no
appeal is before the appeal authority as indicated in Section 43 of
NEMA”
(first page of the Responding Statement).
5.
Therefore, I the
undersigned, by virtue of the powers vested in me in terms of section
43 (6) of the
National
Environmental Management Act (Act 107 of 1998)
(as amended), after due consideration of all the information at my
disposal including the High Court, Judgement (case no: 698/2018)
of
20 September 2018; and the reasons set out hereinabove, state that
there is no appeal submitted before me in terms of the Environmental
Impact Assessment
Regulations
to consider and make a decision on. The Appellant’s
Notice of Intention to Appeal (“the purported
appeal”) is
hereby dismissed as it does not constitute a valid appeal.”
[10]
Unhappy with the reasons for the decision, the Society launched the
present application and as
per its amended notice of motion dated 12
February 2021 the relief is now sought as follows:
“
1.
An order declaring that the environmental authorization granted for
the proposed Argent coal mine on Portions 1, 2, 3, 4, 10,
11, 12, 13
and 14 of the farm Rondeblei 208IR and the remaining extent of the
farm Grondgesig 225IR Delmas, Victor Khanye Local
Municipality,
Mpumalanga issued under the reference number MPP/EIA/0000476/2012, in
favour of Dialstat Trading 115 (Pty) Ltd, have
lapsed and a new
application for environmental authorization must be made in order for
the activity to be undertaken.
2.
Reviewing and setting
aside the following decisions as being unlawful and invalid:
2.1
The decision on
the 2
nd
Respondent that was made on the 11
th
November 2014 granting the 4
th
Respondent the environmental authorization with reference number
MPP/EIA/0000476/2012 for the establishment of a coal mine on Portions
1, 2, 3, 4, 10, 11, 12, 13 and 14 of the farm Rondeblei 208IR and the
remaining extent of the farms Grondgesig 225IR, Delmas, Victor
Khanye
Local Municipality, Mpumalanga;
2.2
The decision of
the 1
st
Respondent dated 19
th
November 2018 with reference number 698/18 in which the 1
st
Respondent dismissed the Applicant’s appeal in terms of the
Environmental Management Act 107 of 1998 against the authorization
issued to Dialstat Trading 115 (Pty) Ltd for the proposed Argent coal
mine on Portions 1, 2, 3, 4, 10, 11, 12, 13 and 14 of the
farm
Rondeblei 208IR and the remaining extent of the farms Grondgesig
225IR, Delmas, Victor Khanye Local Municipality Mpumalanga
Province.
3.
Alternatively, to order (1) above and in so far as this Honourable
Courts finds that the environmental authorization mentioned
in (1)
above has not lapsed, ordering that 4
th
Respondent’s
application for environmental authorization is remitted back to the
2
nd
Respondent for consideration. The 2
nd
Respondent is ordered to consider: -
3.1
A climate change
impact assessment report;
3.2
A paleotological
impact assessment report;
3.3
Comments on these
reports from interested and affected parties;
3.4
Any additional
information that the 2
nd
Respondent requires in order to reach a decision.
4.
Costs of suit against the
1
st
, 2
nd
and 3
rd
Respondents,
jointly and severally with the one paying and the other to be
absolved.”
[11]
In
paragraph 18 of the Society’s founding
affidavit deposed to on 1 February
2019
the Society’s grounds of review relate primarily to the fact
that the Chief-
Director’s
decision to grant the environmental authorisation on 11 November 2014
and the dismissal of its appeal by the MEC
on 19 October 2018 were
erroneously made in the absence of a climate change impact assessment
and that, given South Africa’s
international and domestic
policy commitments to address climate change, climate change impact
assessment was necessary to form
a full assessment of the environment
impact of the proposed coal mine project.
[12]
It is the Society’s case that the authorisation was not
preceded by taking into account
all the relevant factors referred to
in section 24(1) of NEMA and that more specifically those factors
referred to in sections
24(1)(b)(i), 240(b)(iii) and
240(1)(b)(v)(vi)(vii) of NEMA.
[13]
Two issues are at play here: First, whether the suggestion that
the authorisation
has lapsed has any merit. Second, whether any
grounds of appeal are founded and if so whether this court should
turn itself
into a functionary or remit the application to the
Chief-Director for reconsideration of those factors that may be found
not to
have been considered by the Chief Director. Preceding
all these questions, the question should perhaps be whether the MEC
dealt with the merits of the appeal and if not, what order should be
made.
Alleged
lapse of the authorisation
[14]
This point in my view has no merits. Subsection (7) of section
43 of NEMA disposes
of any suggestion or contention that the
authorisation has lapsed. Subsection 7 provides that an appeal
under this section
suspends an environmental authorisation,
extension, directive, or any other decision made in terms of this Act
or any other specific
environmental management Act, or any provision
or condition attached thereto. On the other hand, regulation 59
of the 2010
Regulations provides that an appeal must be decided as
provided for in section 43 of the Act.
[15]
Although subsection (7) of section 43 was repealed in 2014 by the
NEMA Amendment Act to
the extent that the provision that the appeal
suspends authorisation, exemption or directive or any other decision
made in terms
of NEMA, that did not operate retrospectively.
That is, a pending applications and appeals that ensued under the
2010 Regulations,
must be dealt with as if the repeal has not taken
place. This is part of the transitional arrangements in the
2014 Amendment
Act. In other words, an appeal lodged prior to
the commencement of the 2014 Regulations, and which is still pending
when
the 2014 regulations took effect must be finalised in terms of
the legislation that applied at the time when the appeal was lodged.
In the light hereof, the lapsing point ought to be dismissed.
Non-joinder
point raised by the state respondents
[16]
The issue has been raised as a point
in limine
. In
paragraph 7.3 of the answering affidavit the non-joinder point is
introduced as follows:
“
Considering
the legislation as mentioned above, it is clear to me that the MEC
for Environment in Mpumalanga is the executive authority
of the
provincial department that took the decisions sought to be reviewed,
and ought to have been cited in these proceedings.
Applicant,
on the face of the papers has consistently cited the Minister of
Environmental Affairs as the first respondent, albeit
in the founding
affidavit the first respondent is described as the MEC. I am advised
that, failure to cite an executive authority
of the department is
fatal to the current proceedings, even before any other issues are
considered. The non-joinder of the
MEC for environment,
Mpumalanga and/or alternatively misjoinder of the Minister of
Environmental Affairs in the current circumstances
is against
legislation and that is fatal to the proceedings.”
[17]
I am unable to understand the basis for the allegation and contention
on behalf of the
MEC and the Chief-Director. One has to look at
it this way: In paragraph 7 of the Society’s founding
affidavit
the MEC is cited
inter alia
, as follows:
“
The
1
st
Respondent is the member of the
Executive Counsel (sic) of the Mpumalanga Provincial Government to
whom the premier of the Mpumalanga
Province has assigned
responsibility for Environmental Affairs of the Mpumalanga Province
(MEC) and cited in his or her official
capacity and by virtue of the
powers and duties confirmed upon him/her under section 43(2) of NEMA,
the 2010 E1A Regulation”.
[18]
This should have brought to a rest any suggestion that there was a
non-joinder also taking
into account the fact that in paragraph 7 of
the Society’s affidavit is stated that ‘wherein the
affidavit I
refer to the MEC such references are to the MEC who at
all relevant times was the MEC for Environmental Affairs, namely
initially
under the name MEC for Economic Development, Environmental
and Tourism and subsequently under the name MEC for Agriculture,
Rural
Development, Land and Environmental Affairs’. I
therefore, find that the non-joinder point has no merits. I now
turn to deal with the merits of the review.
Merits
of the review application
[19]
What appears to have been the dispute at the heart of this review
application has in my
view, now fallen by the way side. In an
affidavit deposed to on 14 January 2021 on behalf of the MEC, it is
conceded that
the MEC committed an error in not dealing with the
appeal on its merits and that the decision of the MEC can only be
found wanting
insofar as the MEC effectively dismissed the appeal on
technical basis without considering the merits of the appeal
[20]
The concession herein should be seen in the context of what is quoted
in paragraph 9 of
this judgment. Therein, is clear that the MEC
did not deal with the merits of the internal appeal. It is the
reasoning
therein that prompted the Society to launch the present
review application. That being the concession, it is clear that
the
MEC’s
decision of 19 November 2018 dismissing the Society’s internal
appeal cannot stand. That in my view, leaves
one live issue.
Appropriate
remedy
[21]
The MEC confronted with difficulty as to what remedy must then in the
circumstances be
resorted to, makes two crucial statements in the
answering affidavit deposed to on 14 January 20121 as follows:
“
10.6
In the event First Respondent were to consider merits of the internal
appeal, it is a clear foregone conclusion that the environmental
authorizatio
n
would have remained valid as the First Respondent would in law have
had no basis upon which he would reverse or change the decision
of
the second Respondent to grant the environmental authorisation”
[22]
I am unable to understand why on behalf of the MEC such a statement
is made. The
MEC is a decision maker regarding the internal
appeal directed to him or her. As such he or she should be
guided by what
is placed before him or her and grant an appropriate
relief either by upholding the appeal or dismissing such an appeal
submitted
by the Society if it has no merits. Therefore, the
statement that ‘
the First Respondent would in law have had
no basis upon which he would reverse or change the decision of the
second respondent
to grant the environmental authorisation’
,
makes no sense. True, ‘
the environmental authorisation
would have remained valid
…’, for as long as the MEC
has not entertained the intended appeal on merits.
[23]
Dealing with the appropriate remedy, on behalf of the MEC, is stated
in the answering affidavit
as follows:
“
10.7
It is on this basis that I am of the view that referral of the matter
back to First Respondent would simply
cause administrative burden and
also cause injustice.
10.8
I am therefore advised that the above honourable court would as an
exceptional circumstance consider
the view of the First Respondent in
so far as interest of justice and lapse of time since the granting of
the environmental authorization.
More particularly that there
is no basis upon which First Respondent on appeal would have found
that the authorisation ought not
to have been granted nor had lapsed
in the first place.”
[24]
This is almost like passing the buck. Starting with the latter
statement quoted above,
if that is
prima facie
view held by
the MEC as a decision maker on the merits or demerits of the internal
appeal, the MEC could if he or she deems fit
invite the parties to
address him or her on specific aspects of her concerns, which address
could change her
prima facie
view. To allow the MEC to
pass the buck as it is suggested, would not constitute exceptional
circumstances. In fact, it would
amount to an abuse and dereliction
of duty by the MEC. It would encourage functionaries to delay from
taking decisions and hoping
that the delay will entitle the courts to
step into their shoes as it has happened in this case. In the present
it was not only
the delay, but there was also an attempt not to deal
with the merits by taking a short cut on a pointless procedural
aspect.
[25]
Similarly, the suggestion that referral to the MEC “would
simply cause administrative
burden and also cause injustice”,
makes no sense. This is almost like let the court be burdened
with administration
difficulties. That in my view, would not be
in the best interests of justice. It would in fact make a
mockery of the
internal remedy process. If the concern is that,
there might be a delay, this court may make an order to keep the MEC
to
time-frames within which to deliver a decision on the internal
appeal. In any event, the MEC cannot be rewarded for the delay
in considering the merits of the internal appeal that was lodged by
the Society in 2014 and only responded to that appeal on 19
October
2018 after the MEC was so ordered. To take the MEC’s
obligation to consider the merits of the appeal out of
his or her
hands in the circumstances of the case, would only exacerbate the
abuse and the dereliction of duty referred to earlier
in this
judgment.
[26]
The court or tribunal, in
proceedings for judicial review in terms of section 6(1) may grant
any order that is just and equitable,
including setting aside the
administrative action and in exceptional cases, substituting or
varying the administrative action or
correcting a default resulting
from the administrative action
[5]
.
Internal administrative remedies may require specialised knowledge
which may be of a technical and or practical nature.
The
same holds true for fact-intensive cases where
the administrators have
easier access to the relevant facts and information.
Judicial review can only benefit
from
a full record
of an
internal adjudication, particularly in the light of the fact that
reviewing courts do not ordinarily engage in fact-finding
and hence
require a fully developed factual record
[6]
.
[27]
It would form a striking
exception to the general rule as to the exercise of discretion by
public administrative officials to whose
determination a matter is
committed by a statute.
That
rule is that the courts cannot and will not inquire into
merits, or interfere
with the officer’s discretion.
If his discretion has in fact been exercised, save on certain special
grounds (such as
mala
fides
, improper
motive, exceeding of the discretionary power, non-compliance with the
statutory procedure, etc. which do not exist in
the present case.
To put it shorty, in all such cases, apart from such special grounds,
the only question for the courts
of law to determine is whether the
official has in fact exercised his discretion, not whether he has
correctly exercised it
[7]
.
[28]
In treating the decisions
of administrative agencies with the appropriate respect, a court is
recognising the proper role of the
executive within the
Constitution.
In
doing
so,
a court should be careful not to attribute to itself superior wisdom
in relation to
matters
entrusted to other branches of government
.
A court should thus give right to findings of fact and policy
decisions made by those with special expertise and experience
in the
files. The extent to which a court should give weight to these
considerations will depend upon the character of the
decision itself;
as well as on the identity of the decision-maker.
A
decision that requires an equilibrium to be struck
between a range of
competing interests or considerations which are to be
taken by a person or institution with specific expertise in that area
must be followed to achieve that goal. In such circumstances
a
court should pay respect to the route selected by the
decision-maker
[8]
.
(my emphasis).
[29]
A court must show respect
for a legislative decision which creates a specialist body to deal
with the task of making decisions of
an administrative nature.
Besides, review cannot simply be conflated into an appeal to usurp
these decision-making powers,
thereby expanding the powers of courts
into areas which a legislative framework has expressly eschewed
[9]
.
[30]
As grounds of review, the Society in its founding affidavit
inter
alia,
raised what should be contained in the environment impact
assessment report and the assessment process to indicate the extent
to
which the issues could be addressed by the adoption of mitigating
measures. For this purpose, it is said the report must further
address each identified potentially significant impact including the
nature of the impact, the extent and duration of the impact,
the
probability of the impact occurring, the degree to which the impact
can be reversed, the degree to which the impact may cause
irreplaceable loss of resources and the degree to which the impact
can be mitigated.
[31]
Clearly, one could see
that some serious expertise is required to deal and properly assess
all the factors mentioned above.
The Chief – Director and
or the MEC as part of their legislative functions to make proper
assessment of legislative and regulatory
compliance would themselves
better placed than this court in dealing with these issues. In
considering the merits and demerits
of the internal appeal, the MEC
also has the machinery to ask for more information including but not
limited to the broad nature
of the appeal. For example, an MEC
as the case may be, may consider and decide on appeal or appoint an
appeal panel to consider
and advice the MEC on the appeal
[10]
.
[32]
There is also another issue which has been raised by the Society, but
disputed. That
is, the climate impact assessment. The
question is whether or not is a relevant factor as envisaged in
section 240(1)(b)
of NEMA. According to the Society, the
absence of any environmental impact assessment report or information
of the impacts
its intended coal mine project will have on climate
change, is clear. These are issues which should be left for the
MEC to
deal with during consideration of the internal appeal on
merits. The remittal of the appeal would therefore be
appropriate.
That being so, I do not have to deal with the
merits and demerits of the authorisation decision of 11 November 2014
by the Chief
Director.
[33]
Consequently, an order is hereby made as follows:
33.1
The decision of 19 November 2018 by the MEC dismissing the Society
appeal on procedural grounds
is hereby reviewed and set aside.
33.2
The internal appeal by the Society is hereby referred back to the MEC
for consideration of the
appeal on merits.
33.3
The outcome of the internal appeal on merits must be considered and
communicated to the parties
by not later than 13 June 2021 and it is
up to the MEC whether or not he or she appoints a panel as
contemplated in subsection
(5) of section 43 of NEMA but with the
understanding that the ultimate decision shall be that of the MEC and
not of the panel.
33.4
Should the MEC appoint the panel to consider the internal appeal as
contemplated in section 43(5)
of NEMA, the time-line in paragraph
33.3 shall
mutatis mudantis
apply.
33.5
The first to the fourth respondents to pay the costs of the
application jointly and severally,
the one paying the other to be
absolved.
LEGODI JP
DATE
OF HEARING: :
04 MAY 2021
DATE
OF JUDGMENT : 11 May
2021(Handed down electronically)
FOR
THE APPLICANTS:
ADV.
T STRYDOM SC/ ADV. G EGAN/ ADV. AB OMAR
INSTRUCTED
BY
ZEHIR
OMAR ATTORNEYS
C/O
VAN ZYL LE ROUX ATTORNEYS
CORNER
HOUSE, 1
ST
FLOOR
38
NELSTREET
MBOMBELA
TEL:
013 752 2367
REF:
K NONG/no/MAT136242
Email:
admin@zehiromarlaw.co.za
FOR
THE
1
ST
, 2
ND
AND
3
RD
RESPONDENTS :
ADV.
S MPAKANE
INSTRUCTED
BY
OFFICE
OF THE STATE ATTORNEY
C/O
SIBIYA SS ATTORNEYS INC
40
BESTER STREET
COOPER
BUILDING, OFFICE NO 8
MBOMBELA
Email:
naqongqo@justice.gov.za
;
sibiyassattorneys@gmail.com
REF:
Ms N N Qongqo / 2297/2018/Z22
FOR
THE 4
th
RESPONDENT :
ADV. A E BHAM SC / ADV. MA WESLEY
INSTRUCTED
BY
NORTON ROSE FULBRIGHT SOUTH AFRICA INC
34
FREDMAN DRIVE
C/O
SWANEPOEL AND PARTNERS INC
B604
THE PINNACLE, 1 PARKIN STREET
SONHEUWEL
MBOMBELA
Email:
melissa@swanvenn.co.za
Andre.vos@nortonrosefulbright.com
Sa’ood.lahri@nortonrosefulbright.com
REF:
XST145/Mr AP Vos/ Mr S Lahri
[1]
Subrule (1) of rule 60 of the Environmental Impact Regulations of
2010
[2]
Subrule (3) of rule 60
[3]
Subrule (1) of regulation 61
[4]
Subrule (2) of section 43 of NEMA
[5]
Section 8(1)(c)(ii) of PAJA
[6]
Koyabe and Others
2010 (4) SA 327
(CC) at para 37
[7]
Shemke v The Master
1936 AD 136
at pp 146
[8]
Bato Star Fishing Pty Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 48
[9]
Harerimana v Chairperson, Refugee Appeal Board 2014 (5) SA (COCC) at
para 28
[10]
Subsection (5) of section 43 of NEMA