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[2018] ZALMPPHC 31
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Boskor Beleggings CC t/a Northam Filling Station v MEC of Economic Development, Environment and Tourism Limpopo Provincial Government and Others (629/2017) [2018] ZALMPPHC 31 (22 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 629/2017
In
the matter between:
BOSKOR
BELEGGINGS CC
T/A
NORTHAM FILLING
STATION
APPLICANT
and
THE
MEC OF ECONOMIC DEVELOPMENT, ENVIRONMENT
AND
TOURISM LIMPOPO PROVINCIAL GOVERMENT
1
ST
RESPONDENT
GENERAL
MANAGER: ENVIRONMENTAL TRADE
AND
PROTECTION, LIMPOPO
PROVINCE
2
ND
RESPONDENT
MP.
JF INVESTMENTS
CC
3
RD
RESPONDENT
JUDGMENT
M.G.
PHATUDI J
[1]
This
is a review application brought in terms of Rule 53 and 6 of the
Uniform Rules of court ("the rules") read with the
provisions of sections 6 and 8 of the Promotion of Administrative
Justice Act 200 ("PAJA")
[1]
.
The application is opposed by the three respondents.
[2]
The relief sought is directed at the review of two separate and
distinct administrative decisions, and one for a Declaratory
Order.
The first decision relates to the reviewing and setting aside of the
First Respondent's decision dated 12 April 2016 in
which the
Applicant's appeal against the Second Respondent's decision dated 26
April 2012 to extend the
Environmental Authorization
("EA")
of the Third Respondent for further period of two years, is sought.
The
second decision sought to be reviewed and set-aside is one of the
Second Respondent dated 26 April 2016 to extend the "EA"
of
the Third Respondent dated 24 June 2009 for a further period of two
years. An order is also sought declaring the Third Respondent’s
“ EA" dated 24 June 2009, to have lapsed on 24 June 2009.
BRIEF
BACKROUND OF APPLICATION:
[3]
On
24 June 2009, the Third Respondent was granted an "EA" for
the Construction of a fuel filling station the validity
period of
which was for 3 years construction complex was in terms thereof,
required to have been completed within 3 years from
the approval
date, failing which the "EA” would lapse
[2]
. I shall revert to the details of and the importance of this
annexure shortly in the course of this judgment to illustrate its
relevance.
3.1
It suffices to mention in passing that this "EA” called
upon the Third Respondent in terms of condition 1.5 to have
commenced
with building activity within 3 years from the date of authorization,
failing which it lapses.
3.2
The Applicant alleges that the Third Respondent failed to meet the
terms and conditions of the relevant "EA'' as required.
The
Second Respondent was advised of this default. Further investigation
of the alleged non compliance by the Second Respondent
officials
yielded no desired results.
3.3
In the course of 2013, it appears
that despite the lapsed "EA", The Third Respondent
proceeded with part of the construction
phase of the filling station
and other businesses adjacent to it. On or about 2014, the Applicant
was apparently informed for the
first time of the extended life span
of the ":EA" granted on 26 April 2012.
3.4
The
Applicant, unconvinced, thought that the alleged extension of the
"EA" on 26 April 2012 was not in line with the
Environmental Impact Assessment Regulation of 18 June 2010 ("EIA"),
took the alleged extension of an internal appeal pursuant
to the
provisions of the
National Environmental Management Act, 1998
[3]
,
("NEMA") to the First Respondent, who then rejected
or dismissed the appeal following its decision on 12 April
2016.
[4]
I now proceed to analyse the rationale behind the First Respondent's
decision sought to be reviewed. Before I delve on it, I
consider it
apposite to take a general scan of the relevant paper trail forming
part of the subject matter of this application.
4.1
It is common cause that the Second Respondent on 24 June 2009
approved an "EA" for the Third Respondent to develop
a
filling station and other infrastructure on ERF 1802 Northern
Extension 6, within Thabazimbi Municipal area in Limpopo Province.
(Annexure "BB 3")
4.2
The said "EA" detailed stringent terms and conditions as
stipulated in NEMA and the regulations promulgated thereunder
for
compliance. Of particular importance is condition 1.5 which provides:
"this
activity (building) must commence within a period of 3 years from the
date of this authorization. If commencement of
the activity does not
occur within this period, the authorization must be lodged with the
competent authority in order for the
activity to be undertaken."
[5]
The
Applicant's contention is that the Third Respondent failed to comply
with stipulation in condition 1.5 of the "EA"
in question
as a result it lapsed on 24 June 2012. For its failure, the Applicant
informed the Second Respondent about the default
in terms of the
letter issued by its attorneys dated 31 July 2012
[4]
. In it, the Second Respondent was advised of the respondent's non
adherence to the time lines set for building to have commenced,
and
the lapsed "EA".
[6]
Meanwhile the internal investigations were in progress during 2013,
the Third Respondent allegedly commenced with the development
of the
fuel filling station, notwithstanding the lapsed "EA".
During October 2014, applicant heard on grapevine that
the Third
Respondent's "EA" had been extended effectively on 26 April
2012. This information was taken with a pinch of
salt by the
Applicant. Despite that, the Applicant launched an internal appeal in
terms of NEMA to the First Respondent which appeal
was dismissed on
12 April 2016. The "EA", it appears was, extended by the
Second Respondent on 26 April 2016 as per annexure
"BB 2".
[7]
In dismissing the internal appeal, the First Respondent advanced as
reasons the following response:
"
3.2
Having regard to the application of Regulations 39, 40 and 41 of the
EIA Regulations 2010 in the decision to extend the validity
period of
the environmental authorization,
I
find that such regulations
intended to apply to the amendment of environmental authorizations
and not to the extension of environmental
authorizations.
3.4
As a result, the decision to extend the environmental
authorization did not have to comply with the said regulations and as
such
remains valid.
3.5
Your
appeal is therefore dismissed
[5]
.
"
[8]
It was the dismissal of the applicant's appeal that triggered the
present judicial review proceedings .
[9]
The questions that calls for consideration are two pronged:-
(a) whether
the decision of the Second Respondent on 26 April 2012 in extending
the validity period of the Third Respondent's
"EA" was
lawful and validly taken, and furthermore whether the "EA"
issued on 24 June 2009 to the Third Respondent
had lapsed.
[10]
I shall for considerations of convenience and expediency, deal with
each enquiry in that chronological order.
10.1
First, the inquiry is to determine the lawfulness and the validity or
otherwise of the Second Respondent's decision on 26 April
2012 to
have extended the validity period of the Third Respondent's "EA"
issued to it on 24 June 2009 for a further period
of 2 years.
10.2
The "EA" in condition 1.5 expressly stated that "this
activity (construction) must commence within a period of 3 years
from
the date of this authorization. It went further to expressly state
that if commencement of the activity does not occur within
this
period, the authorization lapses and a new application for
environmental authorization must be lodged with the competent
authority in order for the activity to be undertaken".
This
then focus attention on the question whether the Third Respondent had
already commenced with the development of the relevant
activity
before the period referred to in the "EA".
10.3
According to the Applicant, and in terms of annexure "BB 5"
dated 31 July 2012 this was when the Second Respondent
was notified
of the alleged default and the lapsed "EA".
10.4
In solidifying its allegation in the report mentioned, Applicant
attached photographs
[6]
,
depicting green fields evincing no construction or development as
required by the conditions set in the "EA" in dispute.\
10.
It is further common cause that the only known "EA" issued
by the Second Respondent to Third Respondent under Ref
No:12/1/9-7/3-WS, was issued on 24 June 2009, for a validity period
of 3 years from date of authorization (annexure "BB").
10.6
It appears that in considering the purported extension, the Second
Respondent placed reliance on an undated letter to it issued
by Rock
Environmental Consulting (Pty) Ltd ("Rock") on behalf of
its client, the Third Respondent. In the said letter
Rock, indicated
that: "the applicant indicated that they are still planning on
building the filling station
and it was left because of financial
difficulties..... they would like to extent (extend) the Rod (Renewal
of _Decision) for 1 year."
10.7
In contradistinction to the ROD referred to above, section 38 of the
2010 Regulations determines that the "EA" maybe
amended on
application by holder of the authorization in which event, the
requirements of Part 1 of Chapter 4 thereof apply with
reference to
section 39, 40 and 41 of the said Regulations. In their own version,
the Third Respondent allege that Rock's request
for an extension of
ROD alluded to is an "application" for an amendment. This
submission cannot be correct in that it
is at variance with the
language of Regulation 38 (2) of the NEIA Regulations 2010 which
provides that:
"38
(2) - An environmental authorization may be amended-
(a)
On application by the holder of the Authorisation in accordance with
part 1 of this chapter."
38
(3) An environmental Authorization may be amended by
(a)
Attaching an additional condition or requirement;
(b)
Substituting a condition or requirement;
(c)
Removing a condition or requirement;
(d)
Changing the condition or requirement
(e)
Updating or changing any detail on the authorisation;
(f)
Correcting a technical or editorial error."
10.8
On closer examination of the extension of the "EA" dated 26
April 2012, (annexure "BB 2"), the Second Respondent
made
no reference to any legally enabling provision to either Regulation
38 (2), 38 (3) nor 39 (1), which regulates matters of
amendments of
an authorization. Furthermore, no regard, it appears, was ever had to
the provisions of NEMA nor National Environmental
Impact Assessment
(NEIA) 2010 Regulations to validate its purported decision on
extension. In any event, the letter by Rock which
was relied upon in
considering the decision, was inherently faulty and therefore adverse
to the extension for three reasons;
10.8.1
The letter by Rock (undated) submitted on behalf of the Third
Respondent was, in my opinion, not an "Application"
within
the meaning of Regulation 38 (2) (a), 38 (3) and 39 (1);
10.8.2
The Rod letter seeking an extension was not accompanied by. an
official designated pro-forma (regulation 39 and 40), duly
completed
and signed for that purpose, and that;
10.8.3
The disputed letter of extension ("BB 2") alluded to,
purports to extend the"EA" issued on
24 September 2009
to MPJF investments CC
for a further period of 2 years, once
again, reviving "all the conditions in
the EA already issued
to MPJF investments CC (Ltd) on 24 September 2009 for this project"
to be still "legitimate and
adhere to." A
closer
scrutiny of the "EA" clearly shows that the "EA"
has been issued to the Third Respondent on 24 September
2009 under
Ref No: 12/1/9-7/3-WS. To attempt to extend a non-existent "EA"
for the reasons proffered by the Second Respondent,
is an anomaly.
10.9
For the aforegoing considerations, and on a balance of probabilities,
I am not persuaded that the "EA" issued to
the Third
Respondent on 24 June 2009 has been lawfully and validly extended by
the Second Respondent on 26 April 2012. To that
extent, I find the
conduct of the Second Respondent in amending the original "EA"
not only a gross irregularity, but
also unlawful. Even if one were to
assume, for a moment, that Rock's letter was an extension of ROD, the
period of "extension"
sought was not 2 years, but only 1
year. There, once again, the Second Respondent acted
ultra vires
its powers.
10.10
In the circumstances, and in addition to the above findings, I hold
that the said extension was materially influenced by an
error of law
within the provisions of section 6 (2) of PAJA, and that it is
also·not rationally connected to the reasons
given (sec 6 (2)
(f) (ii) (dd)), PAJA. In consequence, the Second Respondent's
decision to extend the "EA" on the 26
April 2012 is
reviewed and set aside. That, disposes of the "second"
decision on extension.
[11]
There
remains the decision of the First Respondent. (First decision)
Aggrieved by the decision of the Second Respondent as already
shown-,
the Applicant escalated the matter on internal appeal to the Fist
respondent
[7]
. The notice of
appeal attaching grounds thereof is dated 31 March 2015. The internal
appeal as it were, was dismissed by the First
Respondent on 12 April
2016. ("BB 1"). I have already dealt with the reasons for
the dismissal in Paragraph 7, above.
These reasons attracts closer
examination.
[12]
Regard being had to the reasons advanced for the dismissal of the
internal appeal, the impression I gained is that the First
Respondent
misconstrued the issues before it. This misconstruction is even
conceded in its answering affidavit ("AA")
as follows:
12.1
"9.8.1 Save to concede that the First Respondent may have
misconstrued the issue of extension and amendment ......."
This misconstruction, in my view, detrimentally influenced the
decision dismissing the appeal.
12.2
Furthermore, the First Respondent in relation to the paragraph
relating to the non-compliance with material procedure or conditions
precedent laid down by the empowering provisions (Section 6 (2) (b))
PAJA, again it was conceded that:
"9.9.1
Save to admit that the material procedure in regulation 39-41 of the
NEMA was not complied with as set out in paragraph
9.7.2 herein
above".
[13]
On a holistic reading of the First and Second Respondent's answering
affidavit, even though delivered out of time with no indulgence
sought for an extension, or condonation no plausible defense or
explanation has been offered to redeem its misconstrued decision
under review. The same could safely be said of the Third Respondent's
purported answer to the review application. I shall dedicate
space to
enlarge on this observation towards conclusion of this judgment.
[14]
Be that as it may, the misconstruction referred to in paragraph 12
above, was clearly a gross error of law, so material that
it calls
for a review of the First Respondent's decision. With the First
Respondent having admitted the materiality of the error,
it stands to
reason that Regulation 38 (2) demands that the amendments, if any, of
"EA" is obliged to comply with Regulation
40. It is
abundantly clear, as already indicated that the Third Respondent,
with it’s letter by Rock "EAP", (its
consultant) did
not meet the requirements under Regulation 40, to constitute a valid
application. It is fundamentally defective.
I agree with the
submissions by the Applicant's counsel, Mr. du Plessis SC, in his
heads of argument, and during argument that
the purported letter did
not equate a formal application. The defects are, in any event,
conceded by the First and Second Respondents.
[15]
The concessions made on behalf of the First and Second Respondents in
their answering affidavit ("AA"), viewed cumulatively
are
mutually fatal to their possible defense, if any, which is at any
rate far-fetched. One example of such concession, which is
self-speaking, namely, that in paragraph 9 of their "AA",
they admit that they were wrong and that Regulation 39, 40
and 41 of
the EIA Regulations of 2010, are indeed applicable. This as already
shown, was a misconception on the difference between
an extension and
amendment of the "EA". There was therefore no application
for extension of the "EA" sought.
The amendment, sought,
naturally triggered in the invocation of Regulation 10 (2) which
places an obligation of the Third Respondent
to notify interested and
affected parties of the outcome of its application and the reasons
therefor.
[16]
In view of these inherent challenges, the conclusion becomes
inescapable that the First Respondent's decision in dismissing
the
appeal because Regulation's 39 to 41 of the EIA Regulations 2010,
does not apply to an extension of the "EA", but
only to
amendment of authorization, is manifestly flawed. In the result, the
dismissal of the appeal was actuated by a material
error of law. That
being the position, it is liable to be reviewed as it offends the
spirit of section 6 (2) (b) of PAJA which
in essence, the mandatory
empowering provisions (the Regulations and the Act) were ignored for
no plausible considerations.
[17]
Once the decision is found offensive as stated, the consequences
flowing there from are tainted with procedural unfairness
as
envisaged in section 6 (2) (c) of PAJA. In short, the First
Respondent's decision, by and large, is repugnant to and in conflict
with the general purport and spirit of section 6 (2) of PAJA.
[18]
For the reasons stated, like the "first decision" the
"second decision" (the dismissal of appeal) likewise,
ought
to be reviewed and set aside. This conclusion then disposes of the
two decisions.
[19]
I am also called upon to determine by way of a declaratory order, the
status of the "EA" dated 24 June 2009 with
Ref No:
12/1/9-7/3-W6. (Annexure "BB 3"). This fits into the latter
part of the legal issues raised in paragraph 9, above.
[20]
In the light of the findings I have made above, (paragraphs 14, 15
and 16) it again follows that the "EA" dated 24
June 2009
with reference to Ref No: 12/1/9-7/3-W6, ("BB 3") had
lapsed on 24 June 2012, and thus rendered invalid as
and from that
date.
[21]
Now, a brief comment on the First and Second Respondents' failure to
have timeously delivered an answering affidavit within
the time
prescribed in terms of the rules. Their "AA" was however
belatedly served on 04 May 2017. The reasons advanced
in the "AA"
(P 235 , para 4.1-4.4 Bundle 3) for their default are at any rate
gravely inadequate. The record sought in
terms of Rule 53 for purpose
of review were at all material times in the custody and control of
the two respondents. The position
would be somewhat different if the
Applicant kicked dust about the unavailability of the documents
forming part of the record.
All what the two respondents would have
done was to timeously deliver an answering affidavit, only to be
supplemented later, if
at all necessary. The reasons provided for the
delay do not in my view, show
"good cause"
to grant
condonation sought. (P262, Para 17, Bundle 3). Condonation is
refused.
[22]
The Third Respondent also chose to deliver a much belated "AA"
on 09 June 2017. Nowhere in its "AA" did
the Third
Respondent seek an indulgence for non-compliance with the rules, and
furthermore, no condonation was sought not even
from the bar. Despite
these deficiencies, counsel for both respondents were allowed in the
court's discretion to argue the matter,
and a ruling on condonation
or otherwise for the default was kept in abeyance for decision
together with the reasons for judgment
in due course.
[23]
For the reasons outlined herein, in refusing condonation in respect
of the First and Second Respondent, and for none sought
in respect of
the Third Respondent, I have accordingly opined, in the courts
discretion, to decide the matter on paper and on the
totality of the
evidence before me, there being no prejudice suffered by either of
the parties. The order that follows hereunder
derives purely on the
merits.
[24]
In the circumstances, I make an order as follows:
ORDER:
(a)
The First Respondent's decision dated 12 April 2016, to dismiss the
Applicant's internal appeal against the decision of the
Second
Respondent made on 26 April 2012, to extend Environmental
Authorisation "EA" dated 24 June 2009 (Ref
No:12/1/9-7/3/-W6)
for the proposed construction of a filling station
and associated infrastructure on Erf 1802, Northam Extension 6,
Thabazimbi,
for a further period of 2 years, under extension of the
said "EA" is reviewed and set side;
(b)
The Second Respondent's decision dated 26 April 2012 to extend the
said "EA" dated 24 June 2009 (Ref No:12/1/9-7/3/-W6)
referred to in (a) above, for a further period of 2 years, under
extension of the said "EA", is reviewed and set aside;
(c)
The Environmental Authorisation ("EA") dated 24 June 2009
referred to in (a) and (b) above, is declared to have lapsed
on 24
June 2012;
(d)
The First, Second and Third Respondents are ordered to pay the costs
of this application jointly and severely, the one paying
the others
absolved, such costs are inclusive of and consequent upon employment
of Senior Counsel.
________________
MG
PHATUDI
Judge
of the High Court
Limpopo
division
REPRESENTATIVES:
1.
Counsel for Applicant: Adv J du Plessis SC
Instructed
by: DBM Attorneys
Centurion,
Pretoria
2.
For 1
st
& 2
nd
Respondents : Adv. Masilo
Instructed
by: State Attorney
Polokwane
3.
For 3
rd
Respondent : Adv. E Furstenburg
Instructed
by: VZLR Incorporated
Monument Park
Pretoria
4.
Date heard: 22 October 2017
5. Date
delivered: 22 February 2018
[1]
Act 3 of 2000 (“PAJA”)
[2]
Annexure "BB 3", Bundle
1, PP 58-63
Founding Affidavit
("FA")
[3]
Act 107 of 1998,(“NEMA”)
[4]
Annexure "BB 5" paginated pp 66-69, Bundle 1.
[5]
Paginated pp 56-57, Bundle 1, "FA"
[6]
Paginated index pp 70-75, Bundle 1, "FA"
[7]
Annexure "BB 21" paginated 461-465, Bundle 5.