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[2019] ZAKZPHC 62
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Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (11488/17P) [2019] ZAKZPHC 62 (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 11488/17P
In
the matter between:
GLOBAL
ENVIRONMENTAL
TRUST
First
Applicant
MFOLOZI
COMMUNITY ENVIRONMENTAL
JUSTICE
ORGANISATION
Second
Applicant
SABELO
DUMISANI
DLADLA
Third
Applicant
and
TENDELE
COAL
MINING (PTY)
LTD
First
Respondent
MINISTER
OF MINERALS AND
ENERGY
Second
Respondent
MEC:
DEPARTMENT OF ECONOMIC
DEVELOPMENT,
TOURISM AND
ENVIRONMENTAL
AFFAIRS
Third
Respondent
MINISTER
OF ENVIRONMENTAL
AFFAIRS
Fourth
Respondent
MTUBATUBA
MUNICIPALITY
Fifth
Respondent
HLABISA
MUNICIPALITY
Sixth
Respondent
INGONYAMA
TRUST
Seventh
Respondent
EZEMVELO
KZN
WILDLIFE
Eighth
Respondent
AMAFA
AKWAZULU-NATALI
HERITAGE
COUNCIL
Ninth
Respondent
Coram:
Seegobin J
ORDER
(a) The Centre for Environmental
Rights is granted leave to intervene in these proceedings as
amicus
curiae.
(b) The applicants and the Centre for
Environmental Rights are granted leave to appeal to the Supreme Court
of Appeal.
(c) The costs of the application for
leave to appeal will be costs in the appeal.
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Seegobin
J
[1]
On 20 November 2018 and in terms of a written judgment I
dismissed the applicant's application with costs and ordered that
such
costs should include the costs of two counsel. This is an
application for leave to appeal against the whole of the judgment and
order.
[2]
In this application the applicants are now represented by Mr
Ngcukaitobi and Ms Mazibuko. Mr Lazarus SC continues to represent the
first respondent ('Tendele'). A new party known as the Centre for
Environmental Rights ('CER') now wishes to be admitted as an
amicus
curiae.
CER is represented by Mr du Plessis together with Ms
Palmer and Ms Lushaba.
[3]
At the outset I mention that Mr Lazarus, both in his written
argument and in oral submissions, effectively abandoned the costs
order
made against the applicants as referred to above.
[4]
The present application was pursued in terms of s 17 of the
Superior Courts Act 10 of 2012 (the Act), the relevant parts of which
provide that:
'17 (1) Leave to appeal may only be
granted where the Judge or Judges concerned are of the opinion that:
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including the conflicting judgments under consideration;
(b)
…
(c)
…
(d)
…’
[5]
With regard to the word 'would' in sub section 17(1)(a)(i) above, the
Supreme Court of Appeal has found that the use of the
word in the
section imposes a more stringent threshold in terms of the Act,
compared to the provisions of the repealed Supreme
Court Act 59 of
1959. See
Notshokovu v S
[2016] ZASCA 112
at (2). In
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance in Re: Democratic Alliance v Acting National Director
of
Public Prosecutions and Others
[2016] ZAGPPHC 489 at (25) the
court endorsed the notion of a higher threshold stating: 'The
Superior Courts Act has raised the
bar for granting leave to appeal.'
In
The Mont Chevaux Trust [IT2012!28) v Tina Goosen
&
18
Others
[LCC14R/2014, an unreported judgment from the Land Claims
Court], Bertelsmann J held that:
'It is clear that the threshold for
granting leave to appeal against a judgment of a High Court has been
raised in the new Act.
The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to
a different
conclusion. See
Van Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343H.
The use of the word
"would" in the new statute indicates a measure of certainty
that another court will differ from the
court whose judgment is
sought to be appealed against.'
[my
emphasis]
[6]
The main application before me was essentially one for an
interdict. The applicants sought an order stopping Tendele from
carrying
out any mining activities at Somkele in northern
KwaZulu-Natal. The applicants' case was that Tendele's current mining
operations
are unlawful in that it:
6.1. has no environmental
authorisation issued in terms of section 24 of the National
Environmental Management Act 107 of 1998 ("NEMA");
6.2. has no land use authority,
approval or permission from any municipality having jurisdiction;
6.3. has no waste management licence
issued in terms of section 43 of the National Environmental
Management: Waste Act 59 of 2008
('Waste Act'); and
6.4. has no written approval in terms
of section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 ('KZN
Heritage Act') to damage,
alter, exhume or remove any traditional
graves from their original position.
[7]
I immediately point out that the applicants' case was very
poorly pleaded on the papers. This much was fairly and properly
conceded
by Mr Nqukaitobi in the present application. The applicants
had simply failed to make out a proper case for an interdict in their
founding papers. I considered that the factual allegations relied on
were, for the most part, incorrect and unsubstantiated. The
application was accordingly dismissed for the reasons set out in the
judgment.
[8]
Despite the difficulties in the papers and my misgivings about
the applicants' prospects, I have listened intently to the
submissions
advanced by all counsel in the present application. In
view of the various pieces of legislation involved as well as issues
of
interpretation and questions of legality that may arise I am
persuaded that an appeal would have reasonable prospects of success.
I also consider that it may also be in the public interest to have
some finality on the issues raised by the applicants. For these
reasons I am persuaded that leave to appeal should be granted.
Order
[9]
In the result, I make the following order:
(a) The Centre for Environmental
Rights is granted leave 'to intervene in these proceedings as
amicus
curiae.
(b) The applicants and the Centre for
Environmental Rights are granted leave to appeal to the Supreme Court
of Appeal.The costs
of the application for leave to appeal will be
costs in the appeal.
___________________
Seegobin
J
APPEARANCES:
COUNSEL
FOR THE APPLICANT: T Ngcukaitobi with Ms Mazibuko (instructed by
Youens Attorneys)
COUNSEL
FOR THE RESPONDENTS: P Lazarus SC (instructed by Malan Scholes Inc)
COUNSEL
FOR THE
AMICUS CURIAE:
M du Plessis SC with T Palmer & S
Lushaba (instructed by c/o Austen Smith Attorneys)
DATE
OF HEARING: 11 September 2019
DATE
OF JUDGMENT: 17 September 2019