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[2021] ZAFSHC 2
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Albertse and Others v Members of the Executive Council: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province and Others (2452/2019) [2021] ZAFSHC 2 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case number:
2452/2019
In
the matter between:
FREDERIK
JACOBUS ALBERTSE
1st
Applicant
LEVINA
FRANCINA
ALBERTSE
2
nd
Applicant
FREDERIK
FRANCINA ALBERTSE
N.O.
3
rd
Applicant
LEVINA
FRANCINA ALBERTSE
N.O.
4
th
Applicant
NELMARK
ALBERTSE OOSTHUIZEN
N.O.
5
th
Applicant
JACO
ALBERTSE
N.O.
6
th
Applicant
(In
their capacities as trustees of the
ALBRMAX
TRUST, IT 1660/2006)
And
MEMBER
OF THE EXECUTIVE COUNCIL:
ECONOMIC,
SMALL BUSINESS DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS,
FREE
STATE
PROVINCE
1
st
Respondent
THE
HEAD OF THE DEPARTMENT: ECONOMIC,
SMALL
BUSINESS DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS, FREE STATE PROVINCE
2
nd
Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS OF THE
GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA
3
rd
Respondent
JACOBUS
ADRIAAN
SMITH
4
th
Respondent
JACOBUS
ADRIAAN SMITH
N.O.
5
TH
Respondent
CORNELIA
ELIZABETH SMITH
N.O.
6
TH
Respondent
(In
their capacities as trustees of the ANCOR FAMILY
TRUST,
IT 310/2003)
NELESCO
91 (PTY)
LTD
7
th
Respondent
(Reg.
no.: 2004/003294/07)
CORAM:
MBHELE
ADJP et JORDAAN J
JUDGMENT
BY:
MBHELE
ADJP
HEARD ON:
14 SEPTEMBER 2020
DELIVERED ON:
21 JANUARY 2021
[1]
The first to sixth applicants launched an application in this Court,
seeking to declare unlawful and review
and set aside the
environmental authorisation number EMB / 14. 2728 (ii) issued on 20
March 2018 (EA) by the second, alternatively
first respondent in
favour of the fourth and / or seventh respondent in relation to
Portion 5 of the farm Avenham 2187 (portion
5 of Avenham) and the
first respondent’s refusal of an appeal against the granting of
the aforementioned environmental authorization.
They further request,
in the alternative, that the EA be remitted to the first respondent
for consideration subject to the applicants’
right to submit
comments on the EA application in terms of regulations 40 and 44 of
the Environmental Impact Assessment Regulations
and that such
comments shall be considered by the first and / or second respondent
when the EA is reconsidered.
[2]
The fourth to seventh respondent oppose the application and launched
a counter application, which counter
application is opposed by the
applicants.
[3]
In terms of the counter application, the 4
th
to 7
th
respondent seek the review and setting aside of the first
respondent’s decision to accept the applicant’s appeal,
alternatively to accept and adjudicate the appeal, on the basis that
the appeal was late and the applicants did not comply with
section 43
of the National Environmental Management Act (NEMA), and with the
National Appeal Regulations of 2014 (Appeal Regulations).
[4]
Although the first and second respondent delivered a notice of
intention to oppose the main application they
later filed
a notice to abide by the decision of the court on 19 July 2019 and
again on the date of the hearing. The
third respondent delivered a
notice to abide by the decision of the court on 25 June 2019.
[5]
The Albrmax Trust represented by the third to 6
th
applicant is the registered owner of portion 7 of Avenham where a
diesel depot is situated.
[6]
The Ancor family trust, represented by the fifth and sixth
respondent, is the owner of portion 5 of
Avenham. The Albrmax Trust
leases a portion of portion 7 of Avenham to the seventh respondent,
as represented by the fourth respondent.
[7]
During 1957 the Department of Transport granted the erstwhile owner
of portion 7 of Avenham permission to
conduct a filling station from
this property.
[8]
During 1982 the Department of Transport endorsed the validity of the
authorisation granted in 1955 in respect
of portion 7 of Avenham’s
for the development of a filling station on the current diesel depot
erf. In terms of the letter
written by the Department of transport on
23 August 1982 the authorisation vests in the land and not the owner.
[9]
The first and second applicant purchased portion 7 of Avenham during
1994 and applied for permission
to commence with the development of a
filling station during May 1994 whereupon the Department of Transport
confirmed that the
authorisation granted in 1982 remains valid.
[10] Tortello
petroleum leased portion 7 from the first and second applicant and
obtained environmental authorisation to
establish a diesel depot on
the property. In April 2001 Tortello petroleum commenced with
operations of the depot.
[11] Tortello
Petroleum constructed diesel tanks and pumps on the diesel depot
property. The diesel depot was rented to MBT
petroleum who in turn
subleased the depot to the fourth respondent from 2009. The fourth
respondent constructed additional diesel
tanks on the property.
[12] In 2013
the Albrmax Trust concluded a written lease agreement with the
seventh respondent for the rental of the diesel
depot. This lease
agreement lapsed in February 2017. On 1 March 2017 the parties
concluded a new written lease agreement lapsing
on 31 January 2022,
for the rental of the diesel depot.
[13] The
owner of the property where a diesel depot is to be conducted must be
issued with a site licence while the operator
of a filling station
must be in possession of a retail licence. Albrmax trust was issued
with a site licence in December 2011 and
the seventh respondent was
issued with a retail licence in December 2011.
[14] The site
licence, retail licence and the environmental authorisation were
granted in respect of portion 7 of Avenham
2187.
[15] Portion
5 of Avenham, situated adjacent to the diesel depot became the
property of Ancor family trust during March
2016. Ablution
facilities, office and 2 pumps are located on portion 5 of Avenham.
[16] During
August 2017 the fourth respondent on behalf of Ancor family trust
applied for environmental authorisation on
portion 5 of Avenham to
construct or operate a truck shop/diesel depot on Portion 5. A notice
to all interested and affected parties
was sent on 30 August 2017 to
inform them that an application for environmental authorisation would
be submitted to the relevant
Department. Interested parties were
invited to register their interests within 30 days from the date of
the notice.
[17] The
applicants received the above notice which was accompanied by
a CD containing the application for authorisation
during August 2017
in their capacities as trustees of Albrmax Trust. On 17 November 2017
another notice was sent to interested
and affected parties inviting
comments regarding the environmental impact of the proposed
development. This notice was also received
by the applicants in their
capacities as trustees of Albrmax Trust. On 27 March 2018 the
application for Environmental Authorisation
was granted. Interested
parties were notified in a letter dated 5 April 2018 that the
environmental authorisation that the fourth
to seventh respondents
applied for has been granted. The paragraph dealing with the appeal
reads as follows:
“
If any person
affected by this decision wishes to appeal against the decision, the
person should lodge an appeal with the Member
of the Executive
Council (MEC), the applicant, any registered IAP as well as organ of
state with interest in the matter in terms
of the National Appeal
Regulations as published in Government Gazette No. 38303 of 8
December 2014, within 20 days of this notification.
The MEC contact
details are as follows:
MEC Office
(DESTEA)
Private Bag x 20801
Bloemfontein
9300
Tel: 051 400
4903
mosholij@detea.fs.gov.za
.”
[19] It is
the above notice that prompted the first applicant to act. It is not
clear when did he receive this notice. In
his affidavit he alleges
that he received it on or about 23 April 2018 while on the letters
addressed to the MEC by his Attorney
on 28 September 2018 and 19
November 2018 respectively, it is alleged that he received the notice
on or about 25 April 2018.
[20] Despite
receiving the aforementioned notices even before the environmental
authorisation was granted the first and second
applicants failed to
lodge their objection to the granting of the application either as
interested and affected parties in their
capacities as Trustees of
Albrmax Trust nor in their personal capacities. The first applicant
attributes their failure to lodge
their objection to MDA, the
environmental and Development consultants who were responsible for
facilitating the lodging and finalisation
of the application.
[21] He
contends that he requested hard copies of the application as he does
not own a computer on which he could download
and view the
application. This is denied by MDA consultants who assert that the
first applicant demanded that the application be
translated into
Afrikaans. According to them he refused an offer from MDA officials
to attend a meeting where the document would
be translated to
Afrikaans.
[22] The
applicant filed an appeal against the decision of the second
respondent to grant the aforementioned environmental
authorisation.
The first respondent considered the applicant’s appeal and
dismissed it on 9 January 2019. Below are her reasons
for dismissing
the appeal:
“
1. Mr. Smith,
holder of the Environmental Authorisation complied with the
Environmental Impact Assessment statutory requirement
and processes.
2. The appellant was
registered as an interested and affected party and their
representations were considered during the environmental
impact
assessment processes.
3. I have considered
the appeal and found it to be unsubstantiated and inadequate to
affect the environmental authorisation.
4. The appeal was
based on commercial reasons and not on the environmental impact.
5. The Environmental
Authorisation granted over portion 7 of the farm Avenham, if valid,
have not been affected by the Environmental
authorisation granted for
portion 5 of farm Avenham.”
[23] The
fourth to seventh respondent,
in limine
, seek the review and
setting aside of the first respondent’s decision to accept and
adjudicate the appeal. The fourth to
seventh respondent contend that
the appeal was late and did not comply with the prescribed form set
out in the National Environmental
Management Act (NEMA).
[24] The
applicants challenge the impugned decisions on the basis that:
The environmental
authorisation was granted on a material misrepresentation made by the
fourth respondent in the application submitted
for environmental
authorisation, being that the owner of Portion 7 of Avenham consented
to the relocation of the site licence from
Portion 7 to Portion 5 of
Avenham; and that:
·
The fourth respondent actually applied for a
relocation of an existing environmental authorisation, which is not
authorised by either
NEMA nor the Environmental Impact Assessment
Regulations, 2014 (the EIA Regulations);
·
The first and second respondents did not have due
regard to provisions of the relevant legislation and their statutory
obligations,
as set out in NEMA and EIA Regulations, when issuing the
environmental authorisation and dismissing the appeal.
·
The first and / or second respondent failed to
afford the applicants administrative justice when they considered and
further rejected
the appeal against the granting of the environmental
authorisation.
[25] The
first and second applicants contend that, as owners of portion 6 of
Avenham farm, they are interested parties who
should have received
the notice for application for an environmental authorisation in
their personal capacities. It is denied by
the fourth to seventh
respondents that the first and second applicant qualify as interested
parties. The evidence by the Town Planner
indicates that the
applicants’ property does not fall within the affected area.
[26] The
fourth to seventh respondent submit that the review must fail purely
on the basis that the appeal authority considered
the appeal although
it was brought outside the prescribed time period and not on the form
prescribed by NEMA.
[27] The
applicants assail the counter application on the ground that it was
filed outside the 180 days’ period as
prescribed by the
Promotion of Administrative Justice Act (PAJA). They, further, submit
that the applicants have substantially
complied with NEMA in lodging
their appeal owing to them being lay persons with no legal knowledge
and access to prescribed form
for appeal.
[28] I now
turn to deal with the fourth to seventh respondents’ alleged
delay to institute the counter application.
The respondents opposed
the appeal on the basis that it failed to comply with statutory
requirements. The appeal authority entertained
the appeal in the face
of the objection from the respondents. It, nevertheless, dismissed
the appeal.
In
CHAIRMAN,
STATE TENDER BOARD v DIGITAL VOICE PROCESSING (PTY) LTD;
CHAIRMAN, STATE TENDER BOARD v SNELLER DIGITAL (PTY) LTD
AND OTHERS
2012 (2) SA 16
(SCA)
at par. 20 the court
held as follows when dealing with the ripeness of the administrative
action for challenge:
[20] Generally
speaking, whether an administrative action is ripe for challenge
depends on its impact and not on whether the decision
maker has
formalistically notified the affected party of the decision or even
on whether the decision is a preliminary one or the
ultimate decision
in a layered process. Many examples spring to mind but one will
suffice. If, for instance, a liquor board cancelled
a trader's liquor
licence without informing him or her, and the police then took steps
to close the premises or seize the trader's
stock, I have no doubt
that the decision would
be ripe for
challenge the moment those steps were threatened.
[29] There
was no prejudice suffered by the respondents when the appeal was
dismissed. As such the review would have been
premature and of no
consequential effect. Dismissal of the appeal cured the injury that
would have been suffered by the respondents.
As a general principle
courts do not issue hypothetical decisions which will have no impact
on the parties. The impact of
a decision establishes the
jurisdictional fact rendering the matter ripe for hearing.
[30] Having
dealt with the above, a question arises whether there was real delay
in reviewing the appeal decision. The impact
of the appeal decision
became alive when the applicants sought to overturn the appeal
decision, it brought about reasonable certainty
that their
constitutional interests are under threat. It follows that the
appropriate time for the fourth to seventh respondents
to apply for
the review of the appeal decision was when the applicants presented
an actual controversy involving imminent threat
of injury.
[31] Section
43 of the NEMA deals with appeals against the decision to
authorise an environmental authorisation.
Section
43(2) provides:
'Any
person may appeal to an MEC against a decision taken by any person
acting under a power delegated by that MEC under this Act
or a
specific environmental management Act.'
[32] The Minister
published
National Appeal Regulations (Appeal
Regulations) in
compliance with NEMA in a Government Gazzette date
08 December 2014. Section 4 of the Appeal
Regulations reads as
follows:
4. (1) An appellant
must submit the appeal to the appeal administrator, and a copy
of the appeal to
the applicant, any registered
interested and affected party and any organ of state with interest in
the matter within 20 days from:
(a)
the date that the notification of the decision
for an application for an environmental authorisation or a waste
management licence
was sent to the registered interested and affected
parties by the applicant; or
(b) the date that
the notification of the decision was sent to the applicant by the
competent authority, issuing authority or licensing
authority, in the
case of decisions other than those referred to in paragraph (a).
(2) An appeal
submission must be-
(a) submitted in
writing in the form obtainable from the appeal administrator; and
(b) accompanied by-
(i) a statement
setting out the grounds of appeal;
(ii) supporting
documentation which is referred to in the appeal submission; and a
statement, including supporting documentation,
by the appellant to
confirm compliance with regulation 4(1) of these Regulations.”
[33] An email
purporting to be an appeal by the applicants was sent to Mosholi, a
representative of the first respondent,
on 26 April 2018, a month
after 27 March 2018, being the date on which the environmental
authorisation was granted.
The email was sent from the second
applicant’s email address by the first applicant and it reads
as follows:
“
Mr. Neil
Devenish
re
ENVIROMENTAL
AUTHORISATION Nr. EMB / 14.27 27 ( ii )/ 17/30 ANDRE SMITH
This email is in
response to the abovementioned authorisation, which is granted on
false information. I hereby want to appeal against
the decision, and
should like to know when we can discuss this matter.
Yours faithfully
FJ ALBERTS (mr)
082 555 8987”
[34] On 09
May 2018 the first applicant sent a follow up email in which he
amplified his reasons for appeal. A further correspondence
was
addressed to the first respondent by the applicants’ attorneys
setting out the ground of appeal in September 2018. The
4
th
respondent objected and maintained that there was no duly submitted
appeal.
[35] The
parties are in agreement that the appeal was in the wide sense and
additional information was allowed. The
applicants want this
court to condone noncompliance with the statutory provisions by the
appeal authority in furtherance of their
argument for substantial
compliance.
[36] In
MOHLOMI v MINISTER OF DEFENCE
[1996] ZACC 20
;
1997 (1) SA 124
(CC)
the
following was said when the court dealt with the inherent powers of
the courts:
“…
The
wording of that looks odd. It appears to have presupposed a power
inherent in the courts to condone defaults of the kind covered
which
needed to be preserved. But courts have no such inherent power, and
none derived from any source unless and until it is conferred
on
them. That the subsection grants them the power in the circumstances
mentioned must necessarily be implicit in its terms, however,
since
they make no sense otherwise. “
[37] As
stated above the court does not have powers to condone noncompliance
with mandatory statutory provisions by administrative
organs.
The provisions of NEMA and
National Appeal Regulations are
peremptory. They set out a prescribed procedure that each prospective
appellant must comply with. The two sentences email
sent by the
first applicant in his attempt to lodge an appeal does not come close
to meeting the requirements laid down in
section 43
of NEMA and the
Appeals Regulations. The letter informing interested parties of
the decision had full information on the
procedure to follow when
lodging an appeal. Despite all this information the applicants filed
a defective appeal. Neither NEMA
nor Appeal Regulations cloak the
appeal authority with the power to accept an appeal filed outside the
prescribed time limits and
which failed to comply with the prescribed
requirements.
[38] These
are application proceedings which have to be adjudicated on the
principles set out in
Plascon Evans Paints Ltd v van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
. It is an established
principle as set out in Plascon Evans that where a bona fide dispute
of facts exists, the matter is dealt
with on the respondent’s
version unless the respondent’s version is untenable and
farfetched.
[39] The
applicants’ version that he was unable to lodge his objection
because he had no access to a computer is untenable.
The first
applicant is not an unsophisticated individual, he has access to
email and understands English. It is clear that the
applicants had
knowledge of the impending environmental authorization and did
nothing to register their objection. Before the final
decision was
taken two notices were sent out and they came to the knowledge of the
applicants. They failed to make representations.
A reasonable person
in their position would have reacted timeously to the correspondence
to protect their rights.
[40] Their
argument that the first and second respondents did not consider the
environmental impact when granting the authorisation
is not supported
by available evidence. The applicants were invited in their capacity
as trustees of Albrmax trust to comment on
the environmental impact
assessment report. They did not make any representation nor send
their comments thereto. As interested
parties one would have expected
them to act the first time it came to their knowledge that the
application for environmental authorization
for portion 5 of Avenham
is being considered by the relevant authorities.
[41] The
appeal authority dismissed the applicant’s appeal on, amongst
others, the basis that the
fourth respondent
complied with the Environmental Impact Assessment statutory
requirements and processes and that the appeal was
based on
commercial reasons and not on environmental impact. The First
respondent further found that the environmental authorisation
granted
over portion 7, if valid, will not be affected by the environmental
authorisation granted on portion 5 of Avenham farm.
[42] The
Environmental Assessment Impact report was not challenged. The main
concern by the applicants is commercial viability
of the operations
on portion 7 if two depots exist alongside each other in addition to
a Caltex fuel station just across the road.
At the time when the
Environmental Authorisation application was lodged, the Caltex fuel
station was no longer operational and
it remained closed. All these
issues were taken into consideration when the Environmental
Authorisation for portion 5 of Avenham
was granted.
[43]
Available evidence shows that the boundary between portion 5 and 7 of
Avenham farm dissects the existing filling station
which is conducted
on portion 7 of the farm. In essence the evidence shows that the
depot on portion 7 of the farm Avenham encroached
on portion 5 of the
farm. The parties agree that some of the infrastructure necessary for
the operations of the current diesel
depot is already located on
portion 5 of Avenham.
[44] It is,
further, clear from the Traffic Impact study conducted by Marais, a
Professional Engineer specialising in traffic
and transport
engineering that the access to portion 7 is located only 130m from
the interchange off ramp which distance should
be 300m. In his view,
once the boundaries between portion 7 and 5 are corrected there will
be no sufficient turning area for interlink
trucks on portion 7
alone. The facility on portion 7 requires some portion of land owned
by Ancor Trust to comply with geometric
standards set by the relevant
authorities.
[45] It is
submitted on behalf of the applicants that the Albrmax trust acquired
the relevant portion of land in portion
5 of Avenham by prescription.
No evidence was brought to support the assertion that the owners of
portion 7 of Avenham had been
using the portion of land on portion 5
of Avenham since 1986. The information supplied does not prove
acquisitive prescription.
It cannot be said that the Ancor
trust waived its right to the use of that portion of land because
there is evidence to show that
Ancor Trust did demand that portion of
its land. The argument of acquisitive prescription and waiver cannot
stand.
[46] In
view of the above, the first respondent was correct to dismiss the
applicants’ appeal. The applicants’
application for
review of the second’s respondent’s decision to grant the
Environmental Authorisation and the appeal
against that decision
ought to fail. Because of our findings on the main application, no
order is necessary in the counter application
although it was
necessitated by the main application. There is no reason why costs
should not follow the event.
[47]
Therefore, the following orders are made.
[48] ORDER
1.
The applicants’ application for review is dismissed with
costs including the costs occasioned
by the counter
application;
2.
No order in respect of the counter application;
3.
The 1
st
to 6
th
applicants shall jointly and severally pay the 4
th
to 7
th
respondents’ costs on party and party scale, the one paying the
others to be absolved
N.M. MBHELE, ADJP
I concur
A. F. JORDAAN, J
On behalf of the
Applicants:
Adv Pienaar
Adv
Rautenbach
Instructed
by:
PHATSOANE
HENNEY INC
BLOEMFONTEIN
On behalf of the 4
th
to 7
th
Respondents: Adv Snellenberg
SC
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
On
behalf of 1st to 3rd Respondents:
E GREYLING
STATE
ATTORNEY
BLOEMFONTEIN