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[2018] ZAKZPHC 32
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Pietermaritzburg Pistol Club v Member of the Executive Council: Department of Economic Development, Tourism & Environmental Affairs for the Province of KwaZulu-Natal (11557/2016P) [2018] ZAKZPHC 32 (16 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No : 11557/2016P
In
the matter between:
PIETERMARITZBURG
PISTOL
CLUB
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF ECONOMIC
DEVELOPMENT,
TOURISM & ENVIROMENTAL
AFFAIRS
FOR THE PROVINCE OF
KWAZULU-NATAL
First
Respondent
MSUNDUZI
MUNICIPALITY
Second
Respondent
JUDGMENT
VAN
ZÿL, J.
[1]
In its amended form this is an application for the review and the
setting aside of the decision of 1 July 2015 of the now first
respondent, namely the Member of the Executive Council: Department of
Economic Development , Tourism and Environmental Affairs
for the
Province of KwaZulu-Natal, to approve the environmental authorisation
for a low cost housing project which the second respondent,
the
Msunduzi Municipality, wishes to embark upon on land owned by it,
together with other relief. The application is opposed by
both
respondents, separately represented.
[2]
The applicant described itself merely as the owner of a shooting
range which conducts business as a tenant upon property of
Natal
Crushers (Pty) Limited, with whom it originally concluded an
indefinite period lease which commenced with effect from 1 January
1969. The leased property is described as 3.318 acres in size forming
part of “the Quarry Farm”, described as the farm
Natal
Crushers No. 14772 situated in the County of Pietermaritzburg, KZN
and where Natal Crushers, which is not a party to the
present
application, conducts a quarry and stone crushing business. Another
portion of Quarry Farm is apparently let out and is
used for growing
sugar cane.
[3]
The applicant alleged that in terms of its lease it became entitled
to erect upon the leased property improvements, by building,
for the
sole purpose of “
conducting a pistol club or rifle range, or
for allied purposes.
”. It also claimed to be a duly
approved facility meeting all safety requirements of the South
African Police Services.
[4]
The housing development envisaged by the second respondent is
intended for municipal land adjacent to Quarry Farm and in particular
to that portion leased by the applicant. As required by the
provisions of the
National Environmental Management Act
107
of 1998 (NEMA), the second respondent applied for and obtained,
despite the sole objection of the applicant, conditional
environmental approval for the proposed housing scheme.
[5]
The applicant thereafter sought to appeal in terms of section 43(2)
of NEMA to the first respondent against that decision, at
the same
time also seeking condonation of its failure to lodge its appeal
timeously. In a written ruling dated 26 May 2016 the
first respondent
dismissed the appeal and upheld the authorisation as granted to the
second respondent on 1 July 2015.
[6]
The appeal decision is somewhat confusing because it appears that,
having considered the application for condonation, condonation
was
refused. The first respondent however then proceeded to consider the
merits of the appeal before ruling that the appeal be
dismissed and
that the authorization granted on 1 July 2015 “
is hereby
upheld.”.
As Mr Crampton, who appeared for the first
respondent in the review application pointed out, the apparent
refusal of condonation
by the first respondent became irrelevant in
view of the ruling based upon the merits of the appeal. I did not
understand counsel
for either the applicant of for the second
respondent to contend otherwise and I will approach the review on
that basis.
[7]
The conditional environmental authorisation as granted on 1 July 2015
included the requirement for the imposition of a 200 meter
buffer
zone between the area leased by the applicant and the intended
housing development, together with the construction of certain
embankments and shielding walls. In describing the buffer zone as at
a 200 meter “
radius
” from the applicant’s
site it appears that the authorisation differed from the
recommendations of the “
RCMS report (dated 26 January 2012)
”
which recommended a 200 meter wide buffer zone which extended along
and area parallel to the border with the applicant’s
leased
site and the unnamed (parallel) tar road, but much further beyond it
in a northerly direction up to the Bishopstowe Road,
as depicted in
the sketch diagram forming annexure “A”, as compared to
annexure “I”, to the applicant’s
founding
affidavit. The second respondent, whilst unhappy about this
condition, is apparently prepared to abide by it.
[8]
The applicant also put up a supporting affidavit by one A R Radloff,
a member of RCMS Consultants CC and who authored the letter
dated 26
January 2012 annexed marked “C” to the applicant’s
founding affidavit. It appears from its letterhead
that the business
of RCMS concerns risk control management systems. According to Mr
Radloff it was appointed during March 2011
by Janet Edmonds
Consulting CC, which in turn had been retained by the second
respondent, to conduct a risk assessment and identify
potential
safety, health and environmental risks in relation to the situation
of the proposed housing development adjacent to the
premises occupied
by the applicant. It recommended a 200 meter wide buffer zone between
the unnamed tar road extending for about
2500 meters up to the
Bishopstowe Road. Mr Radloff, in his affidavit, came to the
conclusion that Janet Edmonds Consulting CC,
as well as the first
respondent, both misunderstood his report and as a result limited the
buffer zone to a “
radius
” of 200 meters as
depicted in annexure “I”.
[9]
Based upon the RCMS report applicant contended in its supplementary
founding affidavit that the crux of its complaint was that
the first
respondent had failed to apply his mind properly to this aspect and
as a result his decision was irrational. In this
regard Mr Snyman SC,
who appeared for the applicant, submitted that the decision fell foul
of the provisions of sections 6
(2)
(e)(iii)
and 6(2)(h) of the
Promotion
of Administrative Justice Act
39 of 2000 (PAJA). It was submitted that the first respondent’s
decision of 1 July 2015 was an administrative
act based upon
irrelevant considerations, or the failure properly to consider
relevant considerations, as well as a decision which
was so
unreasonable that no reasonable person would so have exercised the
power, or performed the function, so that it should be
set aside upon
review.
[10]
Effectively the approach of the applicant was that the failure of the
first respondent to approve the proposed development
without making
it subject to the RCMS recommendation for a 200 meter wide buffer
zone extending some 2 500 meters up to the Bishopstowe
Road, was
unreasonable and irrational and should be set aside upon review. This
was because the alleged lawful activities of the
applicant upon its
leased premises would create a danger to occupants of the adjoining
municipal land intended for housing development
by the second
respondent.
[11]
In elaborating upon the potential dangers flowing from the
applicant’s activities it pointed out that although its name
signifies a “Pistol Club”, it in fact operated as a
shooting range and law enforcement tactical training centre “
approved
and accredited by the SABS/SANS
” and that it also met all
safety requirements of the South African Police Services. It alleged
that the types of firearms
used on the premises include, but are not
limited to 9mm pistols, 12 bore shotguns, 0,223/0,308 rifles, 0,22
long rifles, R4 and
R5 assault rifles, together with smoke grenades
and teargas, used for training purposes. It claimed to have “
built
extensively
” on the leased premises so that it could
operate a professional shooting range in conjunction with a tactical
training centre
with full amenities.
[12]
The applicant did not provide details of the terms and conditions
relevant to its claimed lease. The first respondent, in its
answering
affidavit, alleged that the applicant’s claimed activities were
not authorised in terms of its lease and put up
as annexure FR2 a
copy of the applicant’s lease agreement with Natal Crushers
(Pty) Limited. It pointed out that in terms
of Clause 6 the
activities of the applicant as lessee were limited to conducting
thereon “
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 alleged that conducting the
businesses of a “
professional shooting range
” and
“
tactical training centre
” were clearly in
contravention of the terms of the lease. The applicant in reply
sought to meet the challenge by advancing
a bare denial amplified by
the claim that the issues pertaining to its authority were entirely
irrelevant.
[13]
The second respondent alleged in its answering affidavit that the
applicant, despite its claims to having been duly authorised
to
conduct its activities on the leased site, did not comply with its
authority and was unlawfully creating a danger upon the second
respondent’s adjoining property earmarked for housing
development. In this regard the second respondent also put up as
annexure
SH.5 a document headed “Compulsory Specifications for
Small Arms Shooting Ranges” (the Compulsory Specifications) and
alleged with reference thereto that applicant’s conduct was not
in compliance therewith. The Compulsory Specifications
were
originally promulgated in terms of the
Standards Act 29 of 1993
by
proclamation under government notice R643 of 28 May 2004 and remained
in force by virtue of the provisions of
section 34(2)(b)
of the
Standards Act 8 of 2008
which repealed to 1993 Act. They were amended
by Government Notice R518, as contained in Government Gazette 38877
on 19 June 2015
and issued in terms of the National Regulator for
Compulsory Specifications Act 5 of 2008.
[14]
The Applicant, in reply, alleged
inter alia
that “
This
review does not concern the safety of the applicant’s rifle
range, but the decision of the MEC to approve the housing
project
.”.
It claimed that these considerations were irrelevant to the review
application, an allegation which is difficult to understand
since the
review is based upon the allegation that the first respondent
impermissibly ignored the recommendations by RCMS and Mr
Radloff for
a 2 500 metre long buffer zone required for safety reasons.
[15]
In opposing the relief sought the respondents at the outset raised a
number of issues
in limine.
By the time the matter was argued
the real issue raised in
limine
was whether the applicant had
demonstrated that it had the requisite
locus standi in judicio
to have brought the review application. The standing of the applicant
was attacked on two fronts. Firstly on the basis that it
sought to
impose restrictions upon the use by the second applicant of its
property in order to enable the applicant to continue
pursuing its
own unlawful activities. Secondly it was alleged that the
applicant had not shown that it had a sufficient legal
interest
within the ambit of PAJA to succeed in an administrative review.
[16]
The position of the applicant with regard to its permitted usage in
terms of its lease of the premises have already been set
out above.
With regard to its claim to compliance with the legal requirements
for the conduct of its shooting range the applicant
in reply provided
as annexure RA.4 what it claimed to be its certificate of compliance
issued by the National Regulator during
February 2017. It is
interesting to note that annexure RA.4 is in fact a copy of an
inspection record by Mr Joseph Lefifi, an inspector
attached to the
Office of the National Regulator for Compulsory Specifications and
was issued on 15 February 2017 to “the
Lamberti-Bhika Shooting
Range”. Assuming that this was a reference to the
applicant operating under a different name,
it is significant that it
required the shooting range at all times to comply fully with the
Compulsory Specifications contained
under reference “VC9088:2015”
as is also reflected annexure SH.5.
[17]
The inspection record (RA.4) was put up by the applicant in response
to a challenge from the second respondent who put up a
series of
email communications between inspector Lefifi and its consultant land
surveyor Mr O Greene. In the supporting affidavit
of Greene he
confirmed that he had been in contact with Inspector Lefifi and had
established that the inspection of 15 February
2017 had confirmed
that the shooting range was licenced under number AZC2005/350 and
classified as an “
Outdoor no danger zone
” shooting
range. Such a range is defined in paragraph 3.1(b) of the Compulsory
Specifications “
Outdoor no danger area ranges (see Annex C)
”
and is explained in paragraph 3.3 as being an outdoor range designed
and constructed in such a way that no misdirected shot
which could
reasonably be expected to be fired towards the targets, would leave
the range.
[18]
In section C.5 of annexure C to the Compulsory Specifications and
dealing with the requirements for shooting range boundaries
in
relation to “
no danger area
” ranges, it is
required that the range should merely be fenced so that the fence
passes not less than 5 metres behind the
stop butt and that warning
signs should be displayed along the fence.
[19]
In the light of the above the respondents submitted that on the
applicant’s own version it had shown, at best, that it
had
authority to conduct a no danger area shooting range which
presupposed no realistic danger to life beyond the perimeter of
the
range from any misdirected shots leaving the range. Also, on its own
version and supported by its witness Mr Radloff, it was
actually
conducting activities which contravened its authority to operate and
was therefore unlawful. Insofar as any factual dispute
may be found
to exist, the respondents drew attention to the fact that at the
commencement of the proceedings the Court enquired
from the applicant
whether it wished any factual disputes to be referred for the hearing
or oral evidence and that counsel for
the applicant had indicated
that no such referral would be sought. Accordingly the respondents
submitted that in relation to any
factual disputes their versions
should be relied upon in deciding the issues.
[20]
The respondents therefore submitted that it had been shown that the
applicant in pursuing its activities at its leased property
acted
beyond the scope permitted in terms of its lease and contravened the
express requirements of the Compulsory Specifications
as well. Its
conduct, which it seeks to protect by the bringing of this review
application, is therefore unlawful and by reason
thereof it has no
locus standi
in the present proceedings.
[21]
The second respondent in particular submitted that if the applicant
operated strictly within the constraints of its lease and
shooting
range authority, then no need existed for any “
buffer zone”
,
which detracted substantially from the area available for low cost
housing, to be imposed. Alternatively, if a buffer zone was
required
between any shooting range conducted by the applicant and the second
respondent’s land earmarked for housing, then
such buffer zone
should be situated, not upon he property of the second respondent,
but on the leased property itself.
[22]
It was submitted that there was no justification for requiring the
second respondent to sacrifice the use of some of its property
in
order to facilitate the activities of the applicant upon its leased
land. In this sense the second respondent was in agreement,
but for
reasons different to those advanced by the applicant, that the buffer
zone condition imposed by the first respondent upon
the second
respondent’s proposed development was unjustified.
[23]
The second ground for attack upon the applicant’s
locus
standi
was that the applicant had not shown that it had a
sufficient legal interest, within the ambit of PAJA, to succeed in an
administrative
review of the first respondent’s decision.
[24]
PAJA defines “
administrative action
” as any
decision taken by an organ of state, when exercising a public power
or performing a public function in terms of any
legislation and which
adversely affects the rights of any person and which has a direct,
external legal effect.
[25]
In
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Ors
2013
(3) BCLR 251
(CC) it was held at paragraph 43 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. In the present matter the applicant is clearly an
own-interest
litigant.
[26]
The proper approach to determining the standing of an own-interest
applicant requires that it be assumed at the outset that
its
challenge is justified because the issue of standing is divorced from
the substance of the complaint. Standing needs to be
decided
in
limine
before the merits are considered. However, the interests
of justice may require that the matter not be decided upon standing
alone,
such as where the interests of justice or the public interest
might compel a broader investigation, even if the applicant’s
standing were questionable. Hence, where a litigant acts solely in
its own interest, there is no broad or unqualified capacity
to
litigate against illegalities and something more needs to be shown
(
Giant Concerts
(
supra
) at para 35).
[27]
In
Roodepoort-Maraisburg Town Council v Eastern Properties (Pty)
Limited
1933 AD 87
at 101 Wessels, CJ held that “..
by
our law any person can bring an action to vindicate a right which he
possesses (interesse) whatever that right may be and whether
he
suffers special damage or not, provided he can show that he has a
direct interest in the matter and not merely the interest
which all
citizens have.
” The question arising in the present matter
is whether the applicant has shown a sufficient legal interest for
the purposes
of the present review application.
[28]
As already indicated above, if the applicant kept it activities
within the limits of its authority, both in terms of its lease
as
well as the Compulsory Specifications, then it would not be
materially affected by the condition imposed upon the environmental
authority granted to the second respondent and would have no cause
for complaint. Certainly there would be no logical reason to
require
the imposition of a 2 500 metre long buffer zone between the unnamed
road and the applicant’s leased property extending
all the way
to the Bishopstowe Road.
[29]
If the first respondent, as a matter of precaution, still required a
buffer zone of 200 metres and decided instead of extending
it all the
way to the Bishopstowe Road, rather to curve it round to meet the
quarry property 200 metres distant from the applicant’s
leased
property, then the second respondent may have cause for complaint,
but not the applicant. In fact, the applicant has no
right at all to
require the second respondent to sacrifice the use of its land,
otherwise intended for the laudable public purpose
of low cost
housing, to serve as a buffer zone for the applicant’s
commercial activities, legal or otherwise.
[30]
Both respondents submitted that, in any event, the environmental
authority granted by the first applicant to the second applicant
did
not by itself entitle the second applicant to proceed with the
intended low cost housing development. It merely represented
a
preliminary prerequisite for such a development and as such did not
materially affect the rights of the applicant with regard
to the use
of its leased property. Such rights would only come into play, so it
was submitted, at a later stage when, as counsel
put it, it became a
dispute between neighbours while the decision under review related
solely to environmental issues concerning
the intended use to which
the second respondent wished to put its property. Therefore, so it
was submitted, the applicant had not
shown that any of its direct
external legal rights have been affected by the first respondent’s
decision which it sought
to impugn. Differently put, at most it had
shown only an interest which all citizens have, which did not confer
the necessary
locus standi
upon it to succeed in the review.
[31]
In any event, the respondents contended that the applicant had failed
to show, upon a balance of probabilities that decision
of the first
respondent had been based upon irrelevant considerations, or the
failure properly to consider relevant considerations,
or that it was
so unreasonable that no reasonable person could so have exercised the
power, or performed the function, so that
the decision should be set
aside upon review.
[32]
The first respondent was criticised for not adhering to the views and
recommendations of Mr Radloff by limiting the buffer
zone to 200
metres from the applicant’s leased property, instead of
extending it all the way to the Bishopstowe Road as recommended.
Mr
Radloff’s expertise is not disclosed in the application papers,
save for stating that the main business of his firm RCMS
Consultants
CC is occupational health, safety and environmental consulting. In
assessing and evaluating the evidence, views or
recommendations of an
alleged expert it is necessary to determine whether and to what
extent their views are founded upon logical
reasoning (
Michael v
Linksfield Park Clinic (Pty) Ltd
2001 (3) SA 1188
(SCA) at para
36). In the present matter the nature, depth and detail of Mr
Radloff’s investigations are not readily apparent,
nor the
reasons for his recommendation of a buffer zone 200 metres wide, but
some 2 500 metres in length. It also appears that
the main source of
Mr Radloff’s information was the applicant’s Mr Bhika,
who deposed to its founding affidavit. Mr
Radloff appears to have
been unaware of the nature or limitations relevant to the applicant’s
activities arising from its
lease or from the Compulsory
Specifications.
[33]
On behalf of the first respondent it was contended that the decision
was a well considered one. It is clear from the reasons
contained in
the appeal decision and the reference therein to the reported
decision of
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
2010
(6) SA 182 (CC)
,
that the first respondent 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 second respondent’s rights with
regard to land use and land use management, including municipal
planning.
[34]
In this regard the first respondent’s reasons in the appeal
also referred to the decision in
Fuel Retailers Association of SA
v Director-General: Environmental Management, Dept of Agriculture,
Conservation & Environment,
Mpumalanga Province and Others
2007 (6) SA 4
(CC) at para 85 where the following passage from the
judgment of Ngcobo, J was quoted, namely:-
“
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.
”
[35]
Seeking to balance these constitutional imperatives, the first
respondent nevertheless expressed concern, in the light of the
allegations made by the applicant (as appellant) regarding the public
safety and upheld the decision to grant environmental authority
in a
form which contained the provision of a buffer zone, but extending
for a lesser distance towards the Bishopstowe Road than
recommended
by Mr Radloff.
[36]
Counsel for the applicant called in aid the decision in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Tourism
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
at paragraphs 44 to 45 in submitting that the first respondent’s
decision was so unreasonable that it showed no rational
basis and
should be set aside. But when reference is had to the judgment of
O’Regan, J then it is apparent that the court
qualified the
approach to review by emphasising that a reasonable administrative
decision would depend upon the circumstances of
each case and that
relevant considerations would include the nature of the decision, the
identity and expertise of the decision-maker,
the reasons given for
the decision, the nature of the competing interests involved and the
impact of the decision upon those
affected thereby and concluded
in paragraph 45 with the remark that “
The
Court should take care not to usurp the functions of administrative
agencies. Its task is to ensure that the decisions taken
by
administrative agencies fall within the bounds of reasonableness
as required by the Constitution.
”.
[37]
In my view it cannot be said that the first respondent, in arriving
at his decision, had based it upon any identifiable materially
irrelevant considerations, or that the decision was motivated by a
failure properly to consider relevant considerations as urged
by the
applicant. In my judgment the decision was also not unreasonable in
the light of the information before the first respondent
at the time.
In short, in my view no sufficient grounds have been shown upon which
the decision of the first respondent should
be set aside upon review,
even if the applicant had established its
locus standi
to
bring and pursue the application for review.
[38]
In my judgment the review application must inevitably fail. I see no
reason to depart from the usual approach to costs.
In the
result I make the following order:-
a.
The application for review is dismissed.
b.
The applicant will pay the costs of the
respondents, including any costs previously reserved and such costs
to include the costs
of senior counsel, where employed.
________________
VAN
ZÿL, J.
REPRESENTATION
OF THE PARTIES:
For
the Applicant:
Adv
C J Snyman SC
Instructed
by Messrs Siva Chetty & Company
378
Langalibalele Street
PIETERMARITZBURG
3201
Tel
No.: 033 342 9636
Fax
No.: 033 342 9639
Email:
sivachetty@mweb.co.za
(Ref:
Mr S Chetty/Shalina/P1650)
For
the First Respondent:
Adv
D P Crampton
Instructed
by Messrs PKX Attorneys
Suite
36
3
on Cascades Crescent
Montrose
PIETERMARITZBURG
3201
Tel
No.: 033 347 5354
Fax
No.: 033 347 3572
Email:
mail@pkx.co.za
(Ref:
Mr M Potgieter)
For
the Second Respondent:
Adv
A J Dickson SC
Instructed
by Messrs Diedricks Attorneys Inc
90C
Roberts Road
Clarendon
PIETERMARITZBURG
3201
Tel
No.: 033 342 9808 / 079 054 1307
Fax
No.: 086 219 1672
Email:
admin@diedricksattorneys.co.za
(Ref:
1M4560/JD/CS)
Date
Argued: 3 August 2018
Judgment
delivered: 16 August 2018