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[2021] ZAKZPHC 14
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Pietermaritzburg Pistol Club v Member of the Executive Council: Department of Economic Development, Tourism and Environmental Affairs for the Province of KwaZulu-Natal and Another (AR 165/19) [2021] ZAKZPHC 14 (1 March 2021)
HIGH
COURT OF SOUTH AFRICA, KWAZULU-NATAL DIVISION PIETERMARITZBURG
Reportable/Not
Reportable
APPEAL
NO: AR 165/19
CASE NO: 11557/2016P
In
the matter between:
PIETERMARITZBURG
PISTOL
CLUB
APPELLANT
and
MEMBER
OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF ECONOMIC DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS FOR
THE
PROVINCE OF KWAZULU-NATAL
FIRST
RESPONDENT
MSUNDUZI
MUNICIPALITY
SECOND RESPONDENT
Coram:
KOEN, MNGUNI et SEEGOBIN JJ
Heard
:
4 December 2020 and 17 February 2021
Delivered
:
1 March 2021
ORDER
On
appeal from:
KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Van Zyl J, sitting as court of first instance).
(a) The appeal is
dismissed;
(b) The appellant is
directed to pay the costs of the appeal which will include the costs
of the unsuccessful application
for leave to appeal before the court
a quo and the costs of the petition to the Supreme Court of Appeal,
but exclude the costs
relating to the hearing of the appeal on 4
December 2020;
(c) In respect of the
hearing of the appeal on 4 December 2020, each party shall be liable
for its own costs.
JUDGMENT
Koen
J (Mnguni et Seegobin JJ concurring)
Introduction
[1]
This is an appeal against
the judgment of Van Zyl J dismissing the application by the
appellant, the Pietermaritzburg Pistol Club
(the Club), to review the
decisions of the first respondent, the Member of the Executive
Council, Department of Economic Development,
Tourism and
Environmental Affairs for the Province of KwaZulu-Natal (the MEC)
dated 1 July 2015 (the Record of Decision or ROD)
and 26 May 2016
(the first appeal decision).
[1]
The appeal is with the leave of the Supreme Court of Appeal.
[2]
Two preliminary issues
arise in this appeal, either of which, if answered against the
appellant, will be dispositive of the appeal.
The first, which was
raised from the bar on 4 December 2020 when the appeal first was to
be argued, was whether a subsequent appeal
decision by the first
respondent dated 13 November 2018 (the second appeal decision),
[2]
rendered the appeal moot. The second issue is whether the Club
established that it has
locus
standi in iudicio
to
review the first appeal decision.
[3]
This judgment concludes that the appeal has been rendered moot by the
second appeal decision; that the issue of the Club’s
locus
standi
should nevertheless be determined in the interests of
justice; and that the Club had not established that it has the
required
locus standi
to review the decisions. That disposes
of the appeal without the need to consider the further arguments
advanced. Accordingly, this
judgment will be confined to these
issues.
Background
[4]
The immovable property
described as the farm Natal Crushers No 14772, in extent 3.318 acres
(‘Quarry farm’) is owned
by Natal Crushers (Pty) Ltd. The
Club leases a portion of Quarry farm in terms of an indefinite lease
which commenced on 1 January
1969. The Club describes itself as the
owner of a shooting range on the portion it leases and alleges that,
in terms of its lease,
it became entitled to erect upon the leased
property improvements, for the purpose of ‘conducting a pistol
range or rifle
range, or for allied purposes.’ The Club did not
provide further detail of the lease between it and the owner of
Quarry farm
and did not disclose what official permission it held,
allowing it to conduct its activities. Elsewhere, on another portion
of
Quarry farm, Natal Crushers (Pty) Ltd carries on its quarry and
stone crushing business.
[3]
Immediately adjoining the land leased by the Club, on the north
eastern side of Quarry farm, is the immovable property described
as
Portion 11 of the farm 2284, Copesville (unregistered portion 11 of
the farm Duncopfolly No 16354) in the Msunduzi Municipality
and
uMgungundlovu District Municipality, owned by the second respondent,
the Msunduzi Municipality (the Municipality).
[4]
The genesis of this appeal arises from a resolution of the
Municipality to proceed with a low income housing development for 681
sites including 649 residential sites (the development) on its land.
The
ROD
[5]
To give effect to its
intention to proceed with the development, the Municipality is
required, insofar as the development would
implicate certain
activities identified pursuant to the provisions of s 24(2)
[5]
of the National Environmental Management Act
[6]
(NEMA), to apply in terms of s 24 of NEMA and regulation 25 of the
Environmental Impact Assessment Regulations, 2010,
[7]
to the relevant competent authority identified pursuant to s
24C(1)
[8]
of NEMA, for the necessary environmental authorisation. The
application by the Municipality for such environmental approval
listed
the activities which would be implicated by the development.
There has been no dispute as to which activities would be affected.
The activities are accordingly, in the interests of brevity, not
itemised in this judgment. According to the relevant Government
Notices
[9]
the competent authority in respect of the activities identified was
‘. . . the environmental authority in the province in
which the
activity is to be undertaken’, that is, the MEC, or more
appropriately in this matter it seems, officials in his
Department,
the Department of Economic Development, Tourism and Environmental
Affairs (the Department) to whom he has delegated
this
responsibility.
[10]
[6]
As part of the application for environmental authorisation certain
recommendations,
contained in a report of RCMS Consultants CC (RCMS)
which conducts business in risk control management systems, dated 26
January
2012, were submitted. RCMS concluded that because the
development would be situated on a slope above the range operated by
the
Club, it increased the risk of someone being injured by a stray
bullet. It accordingly recommended that a 200-meter-wide safety
buffer zone be established extending parallel to the border between
the Club’s leased property and an unnamed parallel tar
road,
for about 2 500-meters in a northerly direction to where it reaches
the Bishopstowe Road. It also recommended that the buffer
zone should
include a 5-meter-high earth embankment with a 3-meter-high precast
wall set on top of the embankment.
[7]
Notwithstanding an
objection by the Club, conditional environmental authorisation was
granted by the Head of the Department in the
ROD of 1 July 2015.
[11]
The ROD inter alia provided as follows:
‘
5.4.6
The above-mentioned layout must adhere to the recommendations of the
RCMS report (dated 26 January 2012) which recommends
a risk buffer of
200 m radius
from the Pietermaritzburg Pistol Club, in which no housing or other
development is permitted. The specific recommendations which
must be
adhered to are as follows:
5.4.6.1
This buffer zone perimeter (
at 200 m radius
) should be
constructed of a 5 (five) meter high earth embankment with a 3
(three) meter high pre—cost wall… Set on
top of this
embankment.
5.4.6.2
The buffer zone area between the boundary of Pietermaritzburg
Pistol
Club and the constructed embankment should be declared a no go area
and signposted accordingly.
5.4.6.3
Regular scheduled inspections of the embankment should
be conducted
to ensure the embankment and walls are kept in a good state of
repair.
5.4.6.4
In terms of the boundary with AfriSam (South Africa)
Pty Ltd, a
boundary wall/fence between AfriSam (South Africa) Pty Ltd and the
development, must be erected and suitably signposted.
5.4.6.5
The earth embankment, precast wall and AfriSam (South
Africa) Pty Ltd
boundary
wall/fence must be in place prior to the occupation of the
residential units.
5.4.7
Additionally, the layout plan must
comply with the requirement of the
Department of Minerals Resources (DMR, letter dated 28 August 2014)
to adhere to a buffer zone
of 100 m no – development zone on
the Copesville Area 2 and Area 3 housing development site and a
Hundred metre no –
mining zone on the AfriSam (South Africa)
Pty Ltd quarry side.
5.4.8
The authorisation holder install
and maintain pictographic warning
signage at regular intervals along the boundary with AfriSam (South
Africa) Pty Ltd quarry and
within the Copesville Area 2 and Area 3
housing development to ensure that all passes – by are able to
understand the potential
danger associated with the neighbouring
quarry and its associated end use. Warning signs are to include
reference to the potential
risk associated with the Pietermaritzburg
Pistol Club located on the AfriSam (South Africa) Pty Ltd quarry
site.’
(Emphasis
added)
The
first appeal decision
[8]
Dissatisfied with the
terms of the ROD, the Club appealed
[12]
the ROD to the MEC, in terms of section 43(2)
[13]
of NEMA, seeking also condonation for its failure to lodge its appeal
timeously. It contended that the recommendation of RCMS had
been
misunderstood by limiting the buffer zone ‘to a radius’
of 200-meters from the shooting range, and that the 200-meter
buffer
should be as recommended by RCMS. The effect of the appeal was to
suspend the ROD.
[14]
[9]
The first appeal decision
refused the condonation. It however went on to consider, and the
parties were agreed that it did consider,
the merits of the Club’s
appeal.
[15]
That was also the view taken by the court a quo and counsel in the
appeal before this court. The MEC dismissed the Club’s
appeal
and ruled that ‘the
authorisation
dated the 1
st
July 2015 for the establishment of a low-cost housing project . . .
is hereby upheld
.’
[10]
Although the first appeal decision had the effect of confirming the
200-meter radius buffer
zone, the MEC drew attention to his view that
the Department
‘
does
not have powers to regulate land use and land use management. .
.(and). . . [T]herefore whilst environmental authorisation
may have
been granted for the proposed project, I will be addressing a letter
to the Mayor and Municipal Manager to express my
grave concern
regarding the apparent conflict of land use and recommending that
this be resolved prior to the occupation of any
housing units.’
The
first review
[11]
In the review of the first
appeal decision, instituted on 18 October 2016 (the first review),
the Club contended that the failure
to correct the extent of the
buffer zone to accord with that recommended by RCMS, constituted a
reviewable irregularity. It pointed
out that notwithstanding its
name, its activities were not confined to pistol shooting, but that
it operated as a shooting range
and law enforcement tactical training
centre ‘approved and accredited by the SABS/SANS’, that
it met all safety requirements
of the South African Police Services,
that firearms discharged on its range included 9mm pistols, 12 bore
shotguns, 0,223/0,308
rifles, 0,22 long rifles, R4 and R5 assault
rifles, and that smoke grenades and teargas were also used at its
facility for training
purposes. It maintained that the continuation
of these activities required a buffer zone as recommended by RCMS,
and not only one
with a 200 meter radius from the range as determined
in the ROD and upheld in the first appeal decision. The Club
maintained further
that the ROD and first appeal decision constituted
administrative action as contemplated in the Promotion of
Administrative Justice
Act
[16]
(the PAJA).
[17]
Specifically, it argued that the first appeal decision fell foul of s
6(2)
(e)
(iii)
[18]
and s 6(2)
(h)
[19]
of PAJA having regard to the following: the activities conducted by
it on the leased property; the requirement of a ‘radius’
of 200 meters rather than following the recommendation of RCMS;
accordingly that the MEC had failed to apply his mind properly
in
considering the appeal; that the decision was therefore irrational
and based on irrelevant considerations; that the Department
and MEC
failed properly to consider relevant considerations; and that the
decisions were so unreasonable and irrational that no
reasonable
person would so have exercised the powers entrusted in NEMA.
Accordingly, the Club sought an order that the ROD and
the first
appeal decision be reviewed and set aside. It also sought an order
that the MEC’s decision to refuse the Club’s
application
for condonation be reviewed and set aside.
[12]
The MEC and the Municipality opposed the first review on various
grounds.
In limine,
both before the court of first instance,
and also on appeal before this court, they challenged the Club’s
locus standi in iudicio
to review the first appeal decision.
When the appeal came before this court, the Municipality also
contended that the appeal had
become moot, as a result of the second
appeal decision. As part of these points but also separately, it was
specifically argued
that the fixing of a buffer zone was a land use
and municipal planning matter which falls solely within the exclusive
competence
and constitutional power of local government, the
Municipality, and could not be dealt with by the Department and the
MEC as provincial
authorities.
The
decision of the court a quo
[13]
The judgement of the court a quo, delivered on 16 August 2018,
concluded that there were
‘no sufficient grounds’
advanced upon which the first appeal decision should be reviewed and
set aside, even if it
was assumed that the appellant had established
its
locus standi in iudicio
to pursue the application for
review. Briefly, the reasoning of the Court included the following:
the Club was not authorised or
entitled to allow gunshots fired from
a shooting range to stray on to neighbouring property; the Club was
only permitted by the
National Regulator to operate ‘an outdoor
no danger area range’ which, if used properly, would pose ‘no
realistic
danger to life beyond the perimeter of the range from any
misdirected shots leaving the range’; that the Club therefore
had
no cause to complain about the limitations of the buffer zone;
the Club had no right to demand that the Municipality make any
further
sacrifice of the use of its land; accordingly, that the
Club’s direct interest were not adversely affected by the
administrative
decision and it therefore lacked locus standi; but
that even if it had locus standi it was not established that the ROD
and first
appeal decision were unreasonable or unwise.
Mootness
[14]
A court will not entertain
an appeal if it has become moot. The statutory basis for that defence
is contained in s 16(2)
(a)
(i)
of the Superior Courts Act
[20]
(the Superior Courts Act). Section 16(2) provides that:
‘
(a)
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision
sought will have no practical effect or result, the
appeal may be dismissed on this ground alone.
(ii)
Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined without
reference to any consideration of costs.
(b)
If,
at any time prior to the hearing of an appeal, the President of the
Supreme Court of Appeal or the Judge President or the judge
presiding, as the case may be, is prima facie of the view that it
would be appropriate to dismiss the appeal on the ground set
out in
paragraph
(a)
,
he or she must call for written representations from the respective
parties as to why the appeal should not be so dismissed.
(c)
Upon
receipt of the representations or, failing which, at the expiry of
the time determined for their lodging, the President of
the Supreme
Court of Appeal or the Judge President, as the case may be, must
refer the matter to three judges for their consideration
.
(d)
The
judges considering the matter may order that the question whether the
appeal should be dismissed on the ground set out in paragraph
(a)
be argued before them at a place and time appointed, and may, whether
or not they have so ordered—
(i)
order that the
appeal be dismissed, with or without an order as to the
costs
incurred in any of the courts below or in respect of the costs of
appeal, including the costs in respect of the preparation
and lodging
of the written representations; or
(ii)
order that the
appeal proceed in the ordinary course.’
[15]
It
was held in
Normandien
Farms (Pty) Ltd v South African Agency for Promotion of Petroleum
Exploration and Exploitation SOC Ltd and another
[21]
that:
‘
[47]
Mootness is when a matter “no longer presents an existing or
live controversy”. The doctrine is based on the notion
that
judicial resources ought to be utilised efficiently and should not be
dedicated to advisory opinions or abstract propositions
of law, and
that courts should avoid deciding matters that are “abstract,
academic or hypothetical”.
[48]
This court has held that it is axiomatic that “mootness is not
an absolute bar to the justiciability of an issue . .
. . [and that
this] court may entertain an appeal, even if moot, where the
interests of justice so require”. This court has
“discretionary
power to entertain even admittedly moot issues”.
[49]
Where there are two conflicting judgments by different courts,
especially where an appeal court's outcome has binding implications
for future matters, it weighs in favour of entertaining a moot
matter.
[50]
Moreover, this court has proffered further factors that ought to be
considered when determining whether it is in the interests
of justice
to hear a moot matter. These include —
(a)
whether
any order which it may make will have some practical effect either on
the parties or on others;
(b)
the
nature and extent of the practical effect that any possible order
might have;
(c)
the
importance of the issue;
(d)
the
complexity of the issue;
(e)
the
fullness or otherwise of the arguments advanced; and
(f)
resolving
the disputes between different courts.’
[22]
[16]
The possible mootness of the appeal because of the second appeal
decision issued by the
MEC on 13 November 2018 was raised by the
Municipality only at the initial hearing of this appeal on 4 December
2020. The document
containing the second appeal decision was handed
up and received with the consent of all the parties. The appeal was
thereafter
adjourned to allow all the parties to file heads of
argument on the issue, which was done. We are grateful to counsel for
their
heads of argument.
[17]
In considering the issue of the mootness of the appeal, it is
necessary to recount the
material events in the chronology in which
they occurred culminating in the second appeal decision of the MEC.
[18]
On 7 April 2017, following the first appeal decision (26 May
2016) and the launch
of the Club’s review application (18
October 2016), the Municipality applied for certain amendments to the
conditions of
the ROD. Material to this appeal, is that it sought,
amongst others, the deletion of the condition providing for a
200-meter radius
buffer zone on its property. The Department regarded
this application for amendments as an application for a substantive
amendment
of the environmental authorisation, which required a public
participation process. The Club participated in this process and made
representations. On 28 March 2018 the Department granted a partial
amendment to the ROD (in respect of conditions not relevant
to this
appeal), but refused to amend conditions 5.4., 5.4.7 and 5.4.8. That
left the condition of the original ROD stipulating
a buffer zone with
a radius of 200-meters on the Municipality’s land intact. The
Department reasoned that the application
for the amendment of the
condition relating to the 200-meter radius buffer zone in the first
appeal decision, being the subject
of the first review, was premature
as the review process of the first appeal decision before the
Pietermaritzburg High Court had
not yet been concluded. It opined
that once a legal determination in respect of the lawfulness of the
shooting range and the appropriateness
of the various buffers had
been made, the Municipality would be entitled to make a new
application.
[19]
In that respect the Department was misdirected. Section 43(7) of NEMA
provides that an
appeal under that section suspends an environmental
authorisation or any provision or condition attached thereto. But
that an environmental
authorisation might form the subject of a
review in legal proceedings would not preclude an administrative
appeal decision in respect
thereof. At most it might affect the costs
in the legal proceedings. There was no impediment in law to the
application for amendment
being considered. The ROD, upheld in the
first appeal decision, was simply an administrative action, which,
where there is express
statutory authority for the amendment thereof
without any limitation, could be amended at any stage.
[20]
On 18 April 2018 the Municipality accordingly appealed the
Department’s refusal to
grant the amendments. The Club also
appealed. The Municipality sought an order setting aside the refusal
to delete any requirement
of a 200-meter radius buffer zone, and an
order granting the application for the amendments
in toto
. The
Club, as explained by the MEC in the second appeal decision,
‘requested a detailed explanation on several issues but,
importantly, has not requested me to set aside the Department’s
decision.’ The appeals, like any appeal, would lie
against the
result of the application, not the reasons therefore.
[21]
The judgment of the court
a quo was delivered on 16 August 2018. It dismissed the Club’s
review. The effect of the judgment
was to leave the first appeal
decision intact. Accordingly, the condition requiring a 200-meter
radius buffer zone on the Municipality’s
land, as determined in
the original ROD remained.
[23]
[22]
On 13 November 2018 the MEC issued the second appeal decision. The
second appeal decision
inter alia decided that:
‘
7.1
The (municipality’s) appeal is hereby upheld;
7.2
The Department’s
partial refusal is hereby withdrawn;
7.3
The application for
amendments is hereby granted;
7.4
Specifically, the
following paragraphs are hereby deleted from the environmental
authorisation:
7.4.1
Paragraph 5.4.6.1;
7.4.2
Paragraph 5.4.6.2;
7.4.3
Paragraph 5.4.6.3;
7.4.4
Paragraph 5.4.6.5;
7.4.5
Paragraph 5.4.7;
7.4.6
Paragraph 5.4.8.
7.5
Notwithstanding the above-mentioned amendments, a boundary fence must
be erected with the
appropriate signage which includes reference to
the potential risk associated with the activities of the Appellant
and AfriSam.
7.6
In addition, the first sentence in Paragraph 5.4.5 of the
environmental authorisation is
hereby amended to read as follows:
“
The
Copesville Area 2 and Area 3 housing project must substantially
adhere to the Layout Plan (prepared by Greene Land, referenced
as
Plan No 425C-DEV entitled “Proposed portions of a portion of
Erf 2291 Copesville”) attached as Annexure 4 to this
Environmental Authorisation.”
7.7
The (Club’s) appeal is dismissed.
7.8
The granting of the amendments of the environmental authorisation
does not exempt the (municipality)
from the obligation to obtain all
other applicable permission/s.’
[23]
The Municipality submits that the second appeal decision removed any
requirement for a
buffer zone; accordingly, the appeal in respect of
the judgment which had left the ROD requiring a 200-meter radius
buffer zone
and the first appeal decision intact because they were
not liable to be reviewed and set aside, had been rendered moot.
[24]
Whether the appeal has been rendered moot depends on whether the
second appeal decision
indeed amended the first appeal decision in
respects material to the review, that is whether it amended and
replaced the condition
requiring a buffer zone. The answer to that
question depends on a proper interpretation of the second appeal
decision. The correct
interpretation of the second appeal decision
requires inter alia a consideration of the meaning of the words
employed by the MEC
in the context in which the second appeal
decision was issued.
[25]
It was argued by the Club that the second appeal decision deleted
paragraphs 5.4.6.1, 5.4.6.2,
5.4.6.3, 5.4.6.5, 5.4.7 and 5.4.8 of the
environmental authorisation (ROD) only, but not the preamble to
paragraph 5.4.6, so that
what remained read:
‘
The
above-mentioned layout must adhere to the recommendations of the RCMS
report (dated 26 January 2012) which recommends a risk
buffer of 200m
radius from the Pietermaritzburg Pistol Club, in which no housing or
other development is permitted. The specific
recommendations which
must be adhered to are as follows:
5.4.6.4
In terms of the boundary
with AfriSam (South Africa) Pty Ltd, a boundary wall/fence between
AfriSam (South Africa) Pty Ltd and the
development, must be erected
and suitably signposted.’
Based
on that interpretation, it was contended that the recommendation of
the RCMS report had not been deleted.
[26]
That interpretation cannot be sustained, either on the wording of the
second appeal decision
as a whole, or in the context in which the
second appeal decision came into existence. Firstly, as regards the
wording of the second
appeal decision, the interpretation contended
for ignores paragraph 7.3 of the second appeal decision which makes
it clear that:
‘
The
application for amendments is hereby granted.’
[27]
Further, the effect of the
amendments sought and granted by the second appeal decision,
construed in totality, were to delete the
requirement of any buffer
zone of 200-meter radius on the Municipality’s property.
Whether that is a rational decision or
may otherwise be reviewed
successfully, is an issue which might have to be determined
elsewhere, for example in the second review,
if proceeded with,
[24]
but there is no longer any environmental authority requiring a
200-meter buffer zone in respect of the development. As a matter
of
interpretation and law, the requirement of a 200-meter radius buffer
zone which formed part of the ROD and confirmed by the
first appeal
decision, which formed the basis for the Club’s review and
which it sought to have set aside with the hope to
pave the way for a
determination of a 200-meter buffer zone not confined to a 200-meter
radius on the Municipality’s property,
was removed by the
second appeal decision. Had it been done a day before the review was
launched, the whole substratum for the
review would have fallen away.
[28]
The judgment in the first review has accordingly been rendered moot.
[29]
The question then arises whether there are factors present that
require that the appeal
should nevertheless be decided
notwithstanding its mootness. It appears that the Club continues to
operate its facility and that
the development, for which there is
presumably a pressing need, has not progressed and is unlikely to
progress even if the appeal
is dismissed for mootness, until the
second review is finalised, due to the Club’s contention that
there should be a buffer
zone requirement as a condition of the
environmental approval. It is an issue on which the MEC expressed
specific concern in the
first appeal decision. It no doubt was a
significant consideration in the second appeal decision. The court a
quo also questioned
whether the buffer condition was properly an
issue to be determined by the Department in the ROD and the MEC, and
whether the Club
had the locus standi to bring the review
application. It seems that these findings of the court a quo should
be determined in this
appeal. They are clearly of importance and
satisfy all the other considerations repeated in the
Normandien
matter which a court is required to consider when deciding whether to
entertain an appeal which is moot. The issues considered
below were
pertinently raised and dealt with by the parties in their affidavits,
heads of argument and in argument. They are important
to the parties
and should be resolved, particularly also as they may impact on
pending litigation. In the alternative, and to the
extent that this
judgment might be incorrect in concluding that the appeal has been
rendered moot, the issues considered below
would in any event have
arisen.
Land
use, zoning and management: an exclusive local authority competence
[30]
As alluded to earlier, in the first appeal decision the MEC
pertinently raised the issue
whether the determination of a buffer
zone properly should form part of the environmental authorisation. He
stated:
‘
4.2
However, I am gravely concerned at the potential fatal risks that
might emanate from the activities
of the (Club) and that people in
the vicinity of the proposed development will be exposed to high
risks should the development
proceed.
4.3
I have had sight of a compliance notice served on the (Club) by the
(Municipality) subsequent
to the appeal having been lodged in which
the (Municipality) submits that the (Club) is in contravention of
Town Planning scheme
in that the property used by the (Club) is not
zoned for the activities which it uses the property i.e. as a
shooting range and
quarry.
4.4
The mandate of the (MEC) is limited when dealing with matters related
to planning issues
within the environmental impact assessment
process. This has been discussed in several previous appeal
decisions. This was also
clarified in the Constitutional Court
decision of the
City of Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal and Others
where the court held
that:
“
The
Constitution confers “planning” on all spheres of
government by allocating “regional planning and development”
concurrently to the national and provincial spheres, “provincial
planning” exclusively to the provincial sphere, and
executive
authority over, and the right to administer “municipal
planning” to the local sphere.”
The
Court also had regard to the fact that “provincial planning”
does not include “the support planning”.
The Court
further clarified that:
“
.
. . the meaning of “municipal planning”, is not defined
in the Constitution. But “planning” in the context
of
municipal affairs is a term which has assumed a particular, well
established meaning which includes the zoning of land and the
establishment of townships. In that context, the term is commonly
used to define the control and regulation of the use of land.
There
is nothing in the Constitution indicating that the word carries a
meaning other than it is common meaning which includes
the control
and regulation of the use of land.”
4.5
The Court’s decision has clarified the powers of the various
spheres of government
with regard to planning. This simply means that
the (MEC) could not base its findings during the environmental impact
assessment
process, on issues of municipal planning.
4.6
The (MEC) must exercise its powers in the manner which does not
assume powers of the local
authority. This was reiterated in
Fuel
Retailers Association of Southern Africa v Director – General:
Environmental Management and Others
where the Constitutional
Court held that:
“
The
local authority considers need and desirability from the perspective
of town – planning, and an environmental authority
considers
whether a town – planning scheme is environmentally
justifiable. A proposed development may satisfy the need and
desirability criteria from a town planning perspective and yet fail
from an environmental perspective.”
4.7
Furthermore, Section 41(1) of the Constitution of the Republic of
South Africa obliges the
(MEC) not to assume powers that it does not
have. From the afore-going discussion, it is clear that the (MEC)
does not have powers
to regulate land use and land use management.
4.8
So what is clearly established is that whilst a development might be
sound from an environmental
perspective, it may fail from a planning
perspective. This is however an issue that must then be referred to
and dealt with by
the competent planning authority concerned which in
this case is the Msunduzi Municipality.
4.9
Therefore whilst environmental authorisation may have been granted
for the proposed project,
I will be addressing a letter to the Mayor
and Municipal Manager to express my grave concern regarding the
apparent conflict of
land use and recommending that this be resolved
prior to the occupation of any housing units.’
[31]
Whether any buffer requirement, whether with a radius of 200-meters
or simply 200-meters
along the entire boundary for 2,5 kilometres,
should have been imposed as a condition of environmental approval at
all, was specifically
challenged in the answering affidavits. In para
15 of the MEC’s answering affidavit it is recorded that:
‘
The
former MEC clearly considered the risks that may emanate from the
(Club’s) activities but correctly concluded that he
did not
have the authority to deal with land use and planning matters as
those powers fall solely within the competence or authority
of local
government.’
The
point was raised more comprehensively in the answering affidavit of
the Municipality where the following was said:
’
29.
The
Municipality and its development service provider were required by
the National Environmental Management Act 107 of 1998 (NEMA)
to seek
an environmental authorisation in terms of Section 24 in respect of
the proposed township. They did so in respect of the
affected
property which is owned by the Municipality.
30.
This
process is an environmental protection issue.
31.
The
(Club’s) objection thereto was misguided from the outset
because the nature of the objection concerns the respect of land
use
and municipal planning. Such fields are within the exclusive
constitutional power of the Municipality and cannot be dealt with
by
provincial or national authority.
32.
Therefore,
in seeking a planning direction from the provincial environmental
authority is to seek an ultra vires direction.
33.
The
Municipality is presently making an application to the Department . .
. for an amendment of the Environmental Authorisation
in order to
delete any restrictions on the use of the Municipality’s
property.’
[32]
The learned judge in the court a quo referred to extracts from the
first appeal decision
in concluding that it was clear from the
reasons of the MEC that he was
‘
both
aware of the constitutional constraints with regard to his powers,
the fact that his decision concerned primarily environmental
matters
and that his decision should not intrude upon (the municipality’s)
rights with regard to land use and land use management,
including
municipal planning.’
The
learned judge concluded that it was in seeking to balance these
constitutional imperatives, that the MEC ‘nevertheless
expressed concern, in the light of the allegations by (the Club)
regarding the public safety, and upheld the decision to grant
environmental authority in a form which contained the provision for a
buffer zone, but extending for a lesser distance’ than
recommended by RCMS. The learned judge did not however specifically
decide the issue but appears to have accepted that the issue
whether
there should be any buffer zone, had to be determined by the
Municipality.
[33]
It is necessary in discussing this issue to consider the nature and
scope of an environmental
authorisation. NEMA is the legislation that
has been enacted to give effect to environmental rights protected by
s 24 of the Constitution.
The term ‘environment’ is
defined in section 1 of NEMA to refer to ‘the natural
environment and ‘the physical,
chemical, aesthetic, and
cultural properties and conditions of the [natural environment] in so
far as these influence human health
and well-being’. When
considering an application for a ROD a competent authority is
required to give effect to the general
objectives of ‘integrated
environmental management’ as set out in NEMA. Section 2(3)
requires that ‘development
must be socially, environmentally,
and economically sustainable’. Any person who wishes to develop
land must apply for environmental
authorisation in terms of NEMA, but
it is only required in respect of activities which the proposed
development may involve that
may have significant consequences for,
or impact on, the environment. Relevant factors to consider
constituting ‘sustainable
development’ are described in s
2(4)
(a)
of NEMA, which makes it clear that an environmental
authority is primarily concerned with the impact that any of the
proposed activities
might have upon the environment, insofar as the
development might, for example, disturb eco-systems, affect
biodiversity, cause
pollution, etcetera.
[34]
The Club’s
interests, based on its future continued operation of a shooting
range, have little, if any, relevance to the decision
that was
required to be made in terms of s 24 of NEMA in regard to the
proposed development on the Municipality’s land. Those
interests do not serve the interests of ‘sustainable
development, nor are they in the interests of the environment ‘as
defined.’ Specifically, they do not relate to any identified
activity. Considering what measures, such as the requirement
of a
buffer zone, should possibly be applied to allow the safe use of
property because of the activity of a neighbour, will involve
the
balancing of various interest, but is an issue for determination by
the local authority, the Municipality, not the MEC’s
Department, or the MEC. Municipal planning is an exclusive municipal
function.
[25]
[35]
The ROD and the first appeal decision should not have required a
buffer zone. The second
appeal decision simply and correctly removed
any reference to a buffer zone from the environmental authorisation.
The court a quo
should have refused the application for review on
that basis too.
Locus
standi in iudicio
[36]
The attack on the Club’s
locus standi
has been twofold: the attack by the MEC related mainly to the Club’s
operations exceeding the terms of its lease
[26]
(which argument was not persisted with); the attack by the
Municipality related more specifically to the Club not having proved
that its operations are lawful, that it holds the required authority
and permits to conduct an operation which might result in
stray
bullets which would require a safety buffer zone along its boundary,
and that is operations were not contrary to the zoning
use of the
property (the property not being zoned for the conducting of a
shooting range); and hence that the Club had a legal
interest in
decisions dealing with the specifications of such a zone.
[37]
The Club’s response to this challenge was to refer to the
provisions of s 32 of NEMA
which provides for standing in wide and
general terms. The
locus standi
in issue under this heading is
however not the standing to be heard in the administrative processes
provided by NEMA, but the legal
standing to challenge the ROD and the
first appeal decision in legal proceedings. Ultimately, it might make
little difference,
as the provisions in NEMA are similar to those in
s 39 of the Constitution which provides for standing in very wide
terms. The
specific issue, more pertinently, accepting that the
Club’s cause of action in the review is based on PAJA, is
whether the
Club had shown (and it would bear the onus to do so),
that it has rights which have been adversely affected.
[38]
In pursuing the review, it
was not in dispute that the Club was not pursuing a complaint qua
owner of Quarry farm – indeed
the owner was not a party to the
review or the ROD or the appeal – but as an own interest
litigant, and its cause of action
was founded on the provisions of
PAJA. In
Giant Concerts
CC v Rinaldo Investments (Pty) Ltd and others
[27]
it was reiterated that an own interest litigant needs to demonstrate
that its actual or potential interests are directly affected
by the
unlawfulness sought to be impugned upon review. It was thus incumbent
on the Club to establish such a direct effect in the
review.
[39]
The definition of
‘administrative action’
[28]
in PAJA requires inter alia that the decision sought to be reviewed
must be one which adversely affects the aggrieved party’s
rights. The rights must be lawful rights to which it is entitled.
[40]
The learned judge raised the issue and appears to have accepted
that the Club had
not established that it had a legal right to
conduct its operations in a manner which might require a safety
buffer zone. The MEC
and the municipality supported that finding and
specifically submitted that the Club had not provided any evidence,
and had thus
not established, that it held the required official
authority to conduct its activities lawfully.
[41]
The allegations in the founding affidavit in the review application
papers regarding the
authority held by the Club to conduct its
operations lawfully, were terse. It was incumbent on the Club to
establish that it had
lawful rights to conduct its operations in a
particular manner, and that these rights would be adversely affected
if it would not
be able to continue to conduct itself as before
unless there was a safety buffer zone of 200-meters along the entire
boundary.
The Club was content with a simple general allegation that
the land leased by it ‘is utilised as a shooting range and law
enforcement tactical training centre, approved and accredited by the
SABS/SANS and also meets all safety requirements of the South
African
Police Services.’ It was argued that this implied that it
possessed whatever authority was required by it to conduct
its
activities lawfully.
[42]
The Municipality
complained that the Club did not, as part of its founding papers,
provide proof of the permits or other authorities
required to
lawfully operate its shooting range. It invited the Club to make a
full disclosure of the legal permits from the National
Regulator held
by it. It had however also conducted its own investigations. The
deponent to the Municipality’s answering
affidavit stated that
the Municipality’s township service provider, represented by a
Mr Owen Greene, had made enquiries of
the National Regulator as to
what permits were in place in respect of the Club’s shooting
range. Mr Greene dealt with the
principal inspector, a Mr Joseph
Lefifi. During the exchange of correspondence with Mr Lefifi he was
furnished with an extract
from the National Regulator for Compulsory
Specifications Act (5 of 2008): Amendment of the Compulsory
Specifications for Small
Arms Shooting Ranges - VC 9088.
[29]
[43]
Clause 3.1 of the
‘Compulsory Specification for Small Arms Shooting Ranges’,
[30]
identifies ‘three basic categories of shooting ranges’
namely indoor ranges (annex B), outdoor no danger area ranges
(see
annex C) and Outdoor danger area ranges (annex D). Clause 3.3 deals
specifically with ‘Outdoor no danger area ranges’
and
provides that ‘A no danger area outdoor range shall be
constructed in such a way that no misdirected shot, that can
reasonably be expected to be fired towards the targets, will leave
the range.’ Clause 3.4.1 provides that ‘Outdoor danger
area ranges are ranges where the stop butt (only outdoor ranges can
have danger areas) is not sufficiently high and/or wide to
meet the
requirement to contain all reasonably expected misdirected shots.’
Clause 3.2.1 provides that outdoor danger area
ranges shall have a
danger area beyond the stop butt. Clause 2.4 thereof defines a
‘danger area’ as ‘the fan
shaped area beyond the
targets where those misdirected shots that do not impact the stop
butt (qv), either in azimuth or elevation,
will impact. A danger area
is not required if the stop butt is of sufficient size.’
[44]
Mr Lefifi had conducted an
inspection and assessment of the Club’s range on 15 February
2017. He confirmed that the specification
for the shooting range
permitted for the Club was an ‘outdoor no danger zone’
range. The Club’s range accordingly
had to comply with that
specification. More than that Mr Lefifi apparently was not at liberty
to disclose because of a confidentiality
clause in the National
Regulator for Compulsory Specifications Act.
[31]
The answering affidavit specifically alleged, based on the wording of
the specification, that an outdoor no danger zone range has
to be
equipped with a stop butt and a bullet trap and had to be constructed
in such a way that no misdirected shot that can reasonably
be fired
at the targets on the range, would leave the range. That the Club’s
range had been approved as such an outdoor,
no danger area range, was
also confirmed in an email from Mr Lefifi dated 29 March 2017 in
response to a specific enquiry from
Mr Greene. The email confirmed Mr
Lefifi NRCS Shooting Range Site Inspection at the Club’s range
on 15 February 2017. It
records:
‘“
Shooting
Range Details: The Lambert-Bhika Shooting Range AZC2005/350 (Outdoor
no danger zone)”.
All
shooting ranges are required to be in compliance with the Compulsory
specification for small arms shooting ranges VC9088:2015,
Published
by Government Notice No 518 (government Gazette No 38877 of 19 June
2015) when assessed and examined against all relevant
requirements of
the Compulsory specification VC9088:2015.
We
cannot reveal the outcome of the inspection to the third party as we
are bound by a confidentiality clause in our Act NRCS Act
(Act 05 of
2008)’.
A
further enquiry by Mr Greene to Mr Lefifi as to what was meant by ‘no
danger zone’ resulted in the following reply,
incorporated in
the answering affidavit:
‘
3.3
Outdoor no danger area ranges
A
no danger area outdoor shall be constructed or designed in such a way
that no misdirected shot, that can reasonably be expected
to be fired
towards the targets, will leave the range, (kindly refer to the
attached document for reference).’
[45]
In reply, the Club annexed the same inspection report completed by Mr
Lefifi in respect
of its shooting range, the Lamberti-Bhika Shooting
range, dated 15 February 2017, as the Municipality had obtained from
Mr Lefifi
pursuant to Mr Greene’s enquiries. The report
confirms that an outdoor shooting range inspection was conducted and
that ‘this
shooting range shall at all times be in full
compliance with the requirements of the compulsory specification for
small arms shooting
ranges VC9088/2015’.
[46]
The reference to the Specifications and the allegation in the
answering affidavit that
it was confirmed to be an ‘outdoor no
danger zone’ range, were not disputed – it was simply
contended that these
were hearsay allegations as they were not
confirmed by a confirmatory affidavit from Mr Lefifi. Regardless of
whether Mr Greene
was himself qualified to express any opinion on
these issues, the replies which he had received from Mr Lefifi had
been adopted
as his own, were confirmed by his confirmatory
affidavit, and were advanced as the Municipality’s case. Rather
than answering
the substance of the allegation that the Club’s
range approved by the Regulator is as an outdoor no danger zone
range, these
allegations were sidestepped and discounted by the Club
as irrelevant as ‘it was not part of the factors that the MEC
had
to decide about and did not form part of his decision that is
taken on review.’ That response was misguided. The requirement
of lawful use arises in the context of the reviewability of the
decisions, in terms of PAJA. As the allegations in the answering
affidavit of the Municipality were not disputed, they had to be
accepted as correct for the purposes of the review application.
[47]
The Club accordingly had not shown that it had lawful rights
adversely affected by the
decisions. Accordingly, it has failed to
establish that it has locus standi to review the ROD and first appeal
decisions. That
conclusion also disposes of the appeal.
Costs
[48]
When granting leave to appeal, the Supreme Court of Appeal directed
that the costs of the
unsuccessful application for leave to appeal
before the court a quo, and the costs of the petition to the Supreme
Court of Appeal,
be reserved for determination by this court.
[49]
In addition, when the appeal was adjourned on 4 December 2020 to
allow the parties to exchange
heads in respect of the mootness of the
appeal, the costs of that hearing were reserved. As regards those
costs, according to the
Municipality counsel’s heads of
argument, it was only
‘
(i)n
the midweek [that is before the appeal was to have been argued
initially] . . . disclosed to (the municipality’s) Counsel
that
the decision in respect of which the appeal is being heard had not
only been amended by the authority who made it,
[32]
but that there had been a successful appeal to the MEC (the First
Respondent) and that the appeal decision had altered the decision
originally granted in material respects’.
[50]
Had the issue of the
possible mootness of the appeal been raised properly and timeously,
then the appeal could have been disposed
of on 4 December 2020
without the need for an adjournment and a further hearing. There is
no reason why the Club, the MEC and the
Municipality would not have
been aware of the second decision very shortly after it was issued on
13 November 2018. None of the
parties however referred to or raised
the fact of its existence.
In
Western
Cape Education Department and another v George
[33]
Howie JA cautioned that practitioners should keep the provisions of s
21A
[34]
in mind, not only at the stage of an application for leave to appeal
but also thereafter.
The
Club and the MEC might initially have been excused from not having
raised the mootness issue, as the attitude adopted by their
counsel
was that the appeal had not been rendered moot. This judgment has
however concluded that the appeal was moot. The Municipality
was
accordingly successful and the Club and the MEC unsuccessful in that
regard. It however seems inappropriate that the Club should
be
burdened with the reserved costs of the hearing for that day simply
because it believed, albeit incorrectly, that the appeal
was not
moot, particularly where the Municipality could also have raised the
mootness issue earlier, and further where although
the appeal was
found to be moot, this court decided that it was in the interests of
justice to hear the appeal regardless. It seems
to me that in the
exercise of this court’s discretion on costs, the costs of the
hearing on 4 December 2020 should not form
part of the costs of
appeal, but that each party shall pay its own costs in relation to
the hearing of the appeal on 4 December
2020.
[51]
As regards the costs of
the appeal, other than the reserved costs relating to the hearing on
4 December 2020, there is no reason
why the costs should not follow
the result, and that those costs should include the costs of the
unsuccessful application for leave
to appeal before the court a quo,
and the costs of the petition to the Supreme Court of Appeal. This is
not an instance in which
the
Biowatch
principle
[35]
would find application.
Order
[52]
The following order is granted:
(a) The appeal is
dismissed;
(b) The appellant is
directed to pay the costs of the appeal which will include the costs
of the unsuccessful application
for leave to appeal before the court
a quo and the costs of the petition to the Supreme Court of Appeal,
but exclude the costs
relating to the hearing of the appeal on 4
December 2020;
(c) In respect of the
hearing of the appeal on 4 December 2020, each party shall be liable
for its own costs.
KOEN
J
Appearances
For
the appellant:
Mr Choudree SC (with him Mr Manikam)
Instructed
by:
SIVA CHETTY AND COMPANY
378 Langibalele Street
Pietermaritzburg
(Ref Mr S Chetty)
For
the first respondent:
Mr Crampton
Instructed
by:
PKX Attorneys
Suite 36, 3 On Cascades Crescent
Montrose
Pietermaritzburg
(Ref Mr Potgieter)
For
the second respondent:
Mr Dickson
SC
Instructed
by:
J Diederichs Attorneys
90C Roberts Road
Clarendon
Pietermaritzburg
(Ref 1M4560/LY/CS)
[1]
The original Notice of Motion did not identify the decisions by date
but simply prayed:
‘
1.
That the first respondent's decision to approve the environmental
authorisation for
the low income housing project situated in the
Copesville Area 2 an Area 3 of Portion 11 erf 2284, Copesville
(unregistered Portion
11 of Farm Duncopfolly No 16354) in the
Msunduzi Municipality and uMgungundlovu District Municipality; which
decision was taken
in terms of the
National Environmental Management
Act 107 of 1998
and the Environmental Impact Assessment Regulations
2010, be and is hereby reviewed and set aside.’
The
amended Notice of Motion in terms of rule 53(4) amended the relief,
material to this appeal, to be formulated as follows:
‘
1.
That the first respondent's decision dated 1 July 2015 to approve
the environmental
authorisation for the low income housing project
situated in the Copesville Area 2 an Area 3 of Portion 11 erf 2284,
Copesville
(unregistered Portion 11 of Farm Duncopfolly No 16354) in
the Msunduzi Municipality and uMgungundlovu District municipality;
which decision was taken in terms of the
National Environmental
Management Act 107 of 1998
and the Environmental Impact Assessment
Regulations 2010, be and is hereby reviewed and set aside.
2.
That the first respondent's decision taken on 26 May 2016 (to)
dismiss the
applicant's appeal be and is hereby reviewed and set
aside.’
[2]
The second appeal decision is dated 18 November 2018. It was granted
after the judgment forming the subject of the appeal had
been
delivered on 16 August 2018 and after an application for leave to
appeal against the judgment had been dismissed with costs,
and a
petition to the Supreme Court of Appeal had been lodged on 2
November 2018. The second appeal decision is itself the subject
of a
further review by the Club under case no 4255/19P, which is still
pending.
[3]
Other portions of Quarry farm are let out and used for growing sugar
cane.
[4]
During argument it was contended that the Municipality’s
ownership of this land was disputed. This contention is without
substance as the court a quo invited the Club at the outset to state
whether there were any factual disputes which required to
be
referred to oral evidence. The Club elected not to refer any dispute
to oral evidence. Accordingly, the respondent's version
that the
Municipality is the owner of the land, prevailed.
[5]
Environmental authorisation is required in respect of certain
identified activities which may not commence without environmental
authorisation from a competent authority identified by the Minister
responsible for environmental matters, or an MEC (being the
Member
of the Executive Council of a Province to whom the Premier has
assigned responsibility for environmental affairs) with
the
concurrence of the Minister.
[6]
National
Environmental Management Act 107 of 1998
.
[7]
The Environmental Impact Assessment Regulations, 2010 in GN R543,
GG
33306, of 18 June 2010.
[8]
The competent authority responsible for granting environmental
authorisations in respect of particular activities is, in terms
of s
24C(1) of NEMA required to be identified when the activities are
identified.
[9]
Listing Notice 1: List of Activities and Competent Authorities
Identified in terms of sections 24(2) and 24D in GN R544,
GG
33306 of 18 June 2010; Listing Notice 2: List of Activities and
Competent Authorities Identified in terms of sections 24(2) and
24D
in GN R544,
GG
33306 of 18 June 2010; Listing Notice 3: List of Activities and
Competent Authorities Identified in terms of sections 24(2) and
24D
in GN R544,
GG
33306 of 18 June 2010; and Environmental Impact Assessment
Regulations Listing Notice 2 of 2014, GN R984,
GG
38282 of 4 December 2014.
[10]
In terms of
the Companion Guideline on the Implementation of the Environmental
Impact Assessments Regulations, 2010 of GN R 805,
GG
35769, 10 October 2012, para 3.1, the competent authority is:
‘
.
. . The MEC responsible for environmental affairs in a province is
the CA if the application is province specific. The Minister
of
Environmental Affairs is the CA for all applications that are being
processed by the national department (DEA).
The
Minister of Mineral Resources will be the competent authority for
mining related applications.
The
Minister/MEC can delegate certain responsibilities to officials
within their respective departments.’
[11]
The ROD was communicated to the Club on 6 July 2015.
[12]
The appeal was dated 30 October 2015 but received 4 November 2015.
[13]
Section 43(2) provides that ‘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.’ In terms of s 43 (6), ‘The
Minister or an MEC may, after considering such an appeal, confirm,
set aside or vary the decision, provision, condition or directive
or
make any other appropriate decision, including a decision that the
prescribed fee paid by the appellant, or any part thereof,
be
refunded.'
[14]
Section 43 (7) of NEMA.
[15]
The refusal of condonation become irrelevant in view of the ruling
on the merits. That was also the view taken by counsel and
the court
a quo.
[16]
Promotion
of Administrative Justice Act 3 of 2000
.
[17]
It was not
disputed by the MEC and the Municipality that the matter should be
argued as a PAJA review.
[18]
The subsection refers to ‘because irrelevant considerations
were taken into account all relevant considerations were not
considered.’
[19]
The subsection refers to ‘the exercise of the power or the
performance of the function authorised by the empowering provision,
in pursuance of which the administered of action was purportedly
taken, is so unreasonable that no reasonable person could have
so
exercised the power or perform the function ‘.
‘
[20]
Superior
Courts Act 10 of 2013
.
[21]
Normandien
Farms (Pty) Ltd v South African Agency for Promotion of Petroleum
Exploration and Exploitation SOC Ltd and another
[2020] ZACC 5
,
2020
(4) SA 409
(CC) para 47 to 50 (footnotes omitted).
[22]
See also
Independent
Electrical Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (9) BCLR 883
(CC);
2001 (3) SA 925
(CC);
Resultant
Finance (Pty) Ltd and others v Head of Department for the Department
of Health, KwaZulu-Natal and another
[2020] ZASCA 87.
[23]
The
appellant filed an application for leave to appeal which was refused
with costs on 4 October 2018. The appellant’s
subsequent
petition to the Supreme Court of Appeal was delivered on 2 November
2018.
Section
18(1)
of the
Superior Courts Act provides
:
’
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision
of the application or appeal.’
Although
the effect of the petition would be to suspend the operation of the
judgment, there was no impediment to the administrative
process and
an appeal to the MEC in respect the application for amendment of the
conditions of the ROD which the Department had
not granted
specifically in respect of the 200m buffer zone proceeding and being
considered. Having regard to the terms of the
judgment, there was
also no order which effectively could be suspended. The suspension
of the order of the Court a quo, did not
mean that the first appeal
decision had been reviewed. Accordingly, there was no procedural
impediment to the second appeal decision
being issued.
[24]
In the
second review the Club seeks inter alia an order that:
‘
the
decision and/or administrative action of the (MEC) made on the 13
November 2018 in upholding the appeal of the (municipality)
for the
amendment of the conditional environmental authorisation granted to
the (municipality)’ be reviewed and set aside’.
[25]
Schedule 4 Part B of the Constitution,
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and others
2010 (6) SA 182
(CC),
Tronox
KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal
Tribunal and others
[2015] ZAKZPHC 42, and
Tronox
KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal
Tribunal
[2016] ZACC
2, 2016 (4) BCLR 469 (CC), 2016 (3) SA 160 (CC).
[26]
In his
answering affidavit the MEC alleged that the activities conducted by
the Club were not authorised in terms of the lease,
a copy whereof
he annexed to his affidavit. Clause 6 of the lease the activities of
the Club were limited to conducting ‘a
Pistol Club or rifle
range, or allied purpose, and no other operations or any business
whatsoever shall be conducted on the said
property.’ It
accordingly alleged that conducting the business of a ‘professional
shooting range’ and ‘tactical
training centre’
were in contravention of the lease.
[27]
Giant Concerts CC v
Rinaldo Investments (Pty) Ltd and others
2013 (3) BCLR 251
(CC) para 43.
[28]
The portions of the definition of ‘administrative action’
in PAJA relevant and material to this judgement are as
follows:
‘“
administrative
action” means any decision taken, or any failure to take a
decision, by—
(a)
an organ of state, when—
(i)
exercising a power in
terms of the Constitution or a provincial constitution;
or
(ii)
exercising a public power or
performing a public function in terms of any legislation;
or
(b)
a natural or juristic person,
other than an organ of state, when exercising a public
power or
performing a public function in terms of an empowering provision,
which
adversely affects the rights of any person and which has a direct,
external legal effect, but does not include — .
. .’
[29]
National Regulator for Compulsory Specifications Act (5 of 2008):
Amendment of the Compulsory Specifications for Small Arms Shooting
Ranges - VC 9088 of GN R518,
GG
38877 of 19 June 2015.
[30]
Compulsory Specification for Small Arms Shooting Ranges of GN R643
GG
26375 of 28 May 2004,
[31]
National
Regulator for Compulsory Specifications Act 5 of 2008.
[32]
That is not strictly correct as the department did not amend the
condition regarding the buffer zone. But that decision of the
department was amended on appeal to delete the condition regarding
the 200m buffer zone.
[33]
Western Cape Education
Department and another v George
1998
(3) SA 77 (SCA)
at 83E–
F.
[34]
That is section 21A of the Supreme Court Act 59 of 1959, the
precursor to
s 16
of the
Superior Courts Act 10 of 2013
.
[35]
BiowatchTrust
v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14;
2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC)
(3 June 2009).