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[2019] ZAGPPHC 1031
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Minister of Environmental Affairs and Another v Arcelomittal South Africa Limited (86171/2016) [2019] ZAGPPHC 1031 (14 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 86171/2016
MINISTER
OF ENVIRONMENTAL AFFAIRS
First
Applicant
(First
Respondent in the main application)
DEPUTY
DIRECTOR-GENERAL LEGAL
AUTHORISATIONS,
COMPLIANCE
AND ENFORCEMENT
Second
Applicant (Second
Respondent the main application)
and
ARCELOMITTAL
SOUTH AFRICA LIMITED
Respondent (Applicant in
the main application)
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL: 6 FEBRUARY 2019
MOLEFE
J
[1]
There
are two applications which must be decided. The first is a leave to
appeal to the Supreme Court of Appeal (SCA) against ,the
whole of the
judgment handed down and order made by this court on 8 June 2018 by
the applicants. The second is an application in
terms of s 18 of the
Superior Courts Act 10 of 2.013
(the
Act) by the respondents
(AMSA),
that
the order of 8 June 2018 be Implemented, pending the outcome of the
appeal process.
The
application for leave to appeal
[2]
Section
17(1) of the Act provides that leave to appeal may be granted only
inter
alia,
where
the court is of the opinion that the appeal has a reasonable prospect
of success or there is some other compelling reason
why the appeal
should be heard
[1]
.
[3]
Counsel
for the applicants
[2]
submits
that the appeal warrants the attention of the SCA as this case
concerns the interpretation of certain provisions of the
National
Environmental Management: Waste Act
(NEM
:WA).
[3]
[4]
The
applicants' counsel contends that the court erred in giving
consideration to
AMSA's
argument
on the' retrospective application of the provisions of the
Environmental Conservation Act (ECA)
[4]
,
and by extension, upholding the argument in relation to the
provisions of section 80(4) of NEM:WA , when the issue
was irrelevant to the facts of this matter. In view , there is
no reasonable prospect of success on these grounds for the
reasons
advanced in paragraphs 19 to 35 of the judgment.
[5]
The remaining grounds of appeal are that
the court erred in that:
5.1
as soon as AMSA applied for and was
granted the Waste Management Licenses (WMLs) in terms of the NEM:WA,
it subjected itself to
the provisions of NEM:WA and was obliged to
comply with the terms and conditions of the WMLs issued to it in
terms of the NEM:WA;
5.2
it
upheld AMSA's grounds of review under the provisions of 56 of the
Promotion
of Administrative Justice Act
(PAJA)
[5]
and granted the declaratory orders sought by
AMSA;
5.3
it upheld AMSA's argument that
'reclaimed' Basic Oxygen Furnace (BOF) slag and 'current arising' are
to be differentiated from each
other for the purpose of defining
'waste' in terms of NEM:WA;
5.4
it substituted the court's decision for
that of the Minister instead of remitting the matter back to the
first applicant;
5.5
it failed to uphold the applicant's
points in
/imine
in
respect of the incomplete record; and
5.6
it
granted costs in favour of
AMSA.
[6]
In my opinion, these grounds of appeal
likewise have no prospect of success for the reasons set out in the
judgment.
[7]
However,
I consider that leave to appeal should be granted because there are
other compelling reasons why an appeal should be heard
[6]
.
It is evident that the issues for determination in this matter turn
particularity on the interpretation of the NEM:WA and its regulations
as a legislative mechanism that raises issues of public importance.
On the undisputed facts of this matter, the interpretation
of NEM:WA
is critical to the outcome of the matter and will have impact on
future matters of this nature and therefore warrants
a definitive
judgment by the SCA.
companies
without the need to provide proof that the companies that buy the
slag from it are in possession of WMLs. Disposal to
the old BOF slag
disposal site to which the compliance notice pertained has already
ceased during 2015 and will not recommence
because the new BOF slag
disposal site had been commissioned during 2016.
[12]
'Exceptional circumstances' is something
out of the ordinary and of an unusual nature that justifies a
deviation from the norm in
a given matter and that which is
exceptional is dependent on an assessment of the facts and
circumstances of each case.
[13]
In
addition, the prospects of success in the appeal is also relevant in
determining whether or not exceptional circumstances exist
within the
context of the application in terms of section 18(3) of the Act
[7]
.
[14]
AMSA
seeks the implementation of the judgment and order so that it can
contim,1e to sell BOF slag arising out of its operations
to
downstream consumers for construction
•
purposes and as agricultural lime
[8]
The
effect of the second applicant's directive was for
AMSA
to
immediately cease the disposal of waste into BOF slag disposal site
until such time that the Department agrees in writing that
the
activities may recommence.
AMSA
was
also
directed to immediately cease the selling of slag to downstream
companies unless the companies are in possession of waste management
licences.
[15]
Counsel for
AMSA
submitted that what constitute
exceptional circumstances is the fact that since 7 December 2015
until 8 June 2018 when the judgment
was handed down, AMSA was
precluded from disposing of waste into the BOF slag disposal site
and selling slag unless the buyers
had WMLs. This prohibition of
selling slag to consumers has adverse financial impact on AMSA and
that it has suffered lost sales
in the amount of R49 million
since the directive was imposed in December 2015 and stands to lose a
further R1, 3 million
per month until the matter is resolved. It is
further submitted that AMSA's even greater and unquantifiable loss is
its goodwill,
which is also irreparable harm as AMSA cannot bring a
damages claim against the applicants for loss of sales and profit.
[16]
AMSA's counsel argued that the
applicants on the other hand will simply not suffer any irreparable
harm or damage. Insofar as it
is contended by the applicant, that
there is degradation of the environment, AMSAs counsel argues that
the contention is not borne
out by evidence.
[17]
I have carefully considered the
submissions by the applicants' counsel as to why the order should not
be implemented,
inter alia
that
the BOF slag is a secondary product and not AMSA's primary source of
income and that the economic value thereof cannot constitute
exceptional circumstances. I have come to the conclusion that the
circumstances of this case are out of the ordinary and thus
exceptional and that the order should be implemented for the reasons
as set out in the judgment.
[18]
It is common cause that the appeal
process might take a considerable period of time and in my view will
also constitute irreparable
harm to AMSA whilst the appeal process
runs its course. I have also considered the applicants' submission
that by granting the
relief to execute the order, it will infringe
the objects of NEM:WA and create a precedent within the waste
management industry
to trade in waste.
[19]
I am however of the view that AMSA has
made out a proper case for the order to be implemented. AMSA has in
terms of section 18(3)
of the Act proved on a balance of
probabilities that it will suffer irreparable harm in the event of
the execution order not being
granted and that the applicant would
not.
[20]
I therefore make the following order:
1.
Leave to appeal to the Supreme
Court of Appeal against the whole judgment of this court handed down
on 8 June 2018 is granted;
2.
The costs of the application for
leave to appeal shall be costs in the appeal;
3.
The order of this court handed
down on 8 June 2018 shall operate and be executed, pending the
outcome of the appeal to the
Supreme
Court of Appeal;
4.
The costs of the application to
implement the order of 8 June 2018 shall be costs in the appeal
DS
MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES
On
behalf of First and Second Applicant
Instructed
by
On
behalf of Respondent/Applicant
Instructed
by
Adv.
I
Ellis
SC and Adv. F Patel
State
Attorneys
Adv.
NH Maenetje SC and Adv. B
Makola
McRobert Attorneys
Date
of Hearing 6 February 2019
Date
of Judgment 14 March 2019
[1]
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
[2]
Advocate I Ellis SC
[3]
Act 59 of 2008
[4]
Act 73 of 1989
[5]
Act 3 of 2000
[6]
Section 17(1)(a)(ii) of the Supreme Court Act
[7]
University of the Free State v Afriforum and Another 2018(3) SA 428
(SCA) at {14] - [15]
[8]
Judgment para [14]