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[2017] ZAGPPHC 382
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Earthlife Africa Johannesburg and Another v Minister of Environmental Affairs and Others (51505/2014) [2017] ZAGPPHC 382 (7 March 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 51505/2014
Date:7/3/2017
In the matter between:
EARTHLIFE
AFRICA
JOHANNESBURG FIRST
APPLICANT
C.T.
GARBETT SECOND
APPLICANT
and
MINISTER
OF ENVIRONMENTAL AFFAIRS
FIRST RESPONDENT
MINISTER
OF
ENERGY SECOND
RESPONDENT
NATIONAL
NUCLEAR REGULATOR THIRD
RESPONDENT
CHIEF
EXECUTIVE OFC OF THE NATIONAL
NUCLEAR
REGULATOR FOURTH
RESPONDENT
NUCLEAR
ENERGY CORPORATION OF
SOUTH
AFRICA
LIMITED FIFTH
RESPONDENT
JUDGMENT
RABIE,
J
1.
In this application the applicants seek to have an
authorisation granted by the first respondent in terms of section 22
of the Environment
Conservation Act 72 of 1989, set aside and to have
the fifth respondent interdicted from proceeding with the
installation and operation
of a test smelter and two subsequent
induction smelters until a fresh authorisation has been granted by
the first respondent.
2.
There is only one issue upon which the success or failure of
the application hinges, namely whether the said authorisation has
lapsed
because of the failure of the fifth respondent to comply with
clause 3.4 of the authorisation which reads as follows:
"If
the activity authorised by this letter does not commence within five
years from the date of signature of this letter, the
authorisation
will lapse and the applicant will need to reapply in terms of the
applicable legislation or any amendments thereto."
3.
The following may serve as a brief background: The Republic of
South Africa, being a country producing nuclear materials, is a
member
of the International Atomic Energy Agency in support of the
Nuclear Non-proliferation Treaty pursuant to which it implements and
applies the Safeguards Agreement which, inter alia, recommends and
prescribes methods for the disposal of nuclear waste material.
To
this end the Republic has passed legislation establishing the fifth
respondent, an entity established in terms of section 3
of the
Nuclear Energy Act to, inter alia, undertake and promote research
and development in the field of nuclear
energy and radiation
sciences and technology and, subject to the Safeguards Agreement, to
make these generally available. Also
to process source material,
special and restricted nuclear material and to re-process and enrich
source material and nuclear material.
During the 1990s the Republic
took a decision to decommission the uranium enrichment facilities at
Pelindaba, near Pretoria. As
a result thereof there were uranium
contaminated scrap materials comprising both ferrous and non-ferrous
metals stored at the Pelindaba
site. The significant portion of this
metal consisted of Separating Elements Assemblies which, in
accordance with non-proliferation
agreements, should be destroyed.
4.
These materials pose a safety risk and the fifth respondent
has therefore embarked upon an international study looking at
adequate
means to decontaminate the said materials on the Pelindaba
site by way of which the materials could be safely managed according
to international waste management practices.
5.
The process of disposing of the nuclear material has to be
preceded by authorisations obtained from both the first respondent
and
the third respondent. In this regard the provisions of the
Environment Conservation Act, 73 of 1989, may be mentioned. According
to section 22 no person shall undertake an activity identified in
terms of section 21(1) or cause such an activity to be undertaken
except by virtue of a written authorisation issued by the Minister or
a competent authority designated for such purpose.
6.
Section 21 of the Environment Conservation Act provides as
follows:
"21
Identification of activities which will probably have a detrimental
effect on environment
(1)
The Minister may by notice in the Gazette identify those activities
which in his opinion may have a substantial detrimental
effect on the
environment, whether in general or in respect of
certain areas."
7.
In the Regulations promulgated under section 21 the Minister
identified in Schedule 1 certain activities in general as activities
which may have a substantial detrimental effect on the environment.
Section 1(b) of Schedule 1 stipulates the following:
"1
The construction, erection or upgrading of -
(a)
...
(b)
nuclear reactors and facilities for the production, enrichment,
processing, re-processing,
storage or disposal of nuclear fuels and
wastes;
..."
8.
The first respondent consequently applied for authorisation in
terms of section 22 of the Environment Conservation Act which was
granted to it in 2003. Various appeals were lodged to the Minister
against this authorisation which eventually led to the Minister
re-issuing the authorisation on 31 August 2007. After dealing with
the background to the matter the following was stated in the
Minister's authorisation:
"Record
of decision
Record
of decision for project reference a 24/16/3/248 proposed installation
and operation of two induction smelters in area 26
at the nuclear
energy Corporation of South Africa, Pelindaba.
By
virtue of the power vested in me in terms of section 33 (1)
Environment Conservation Act, (Act 73 of 1989) ("the Act"),
I hereby, in terms of section 23 (3) of the Act, authorise South
African Nuclear Energy Corporation (NECSA) to undertake the
activities
specified/detailed below subject to the indicated
conditions as stipulated in this record of decision."
9.
Paragraph 1 of the Record of Decision then, inter alia,
provides as follows:
"1.
Description, extent and location of the activity
The
project entails the installation and operation of a test smelter and
subsequent construction and operation of two induction
smelters
within the Necsa site as part of Necsa's waste management
and minimisation programme.
Part
of the programme includes the
decontamination of approximately 40,000 separating elements
that were
part of the uranium enrichment plant."
10.
Paragraph 3.4 of the Record of Decision provides as follows:
"3.4
Duration of authorisation
If
the activity authorised by this letter does not commence within five
years from the date of signature of this letter, the authorisation
will lapse and the applicant will need to reapply in terms of the
applicable legislation or any amendments thereto."
11.
It may be mentioned that although sections 21 and 22 of the
Environment Conservation Act including the notices and regulations
issued
pursuant thereto were repealed by section 50 (2) of the
National Environmental Management Act, Act 107 of 1998, all
applications
made under the Environment Conservation Act Regulations
which were not finalised before their repeal, are in terms of
Regulation
84 of the 2006 Regulations to be dispensed with under the
Environment Conservation Act Regulations. Regulation 73 of the 2010
Regulations
also adopted authorisations issued in terms of previous
Regulations. This application thus concerns the provisions of the
Environment
Conservation Act, the Regulations promulgated in terms
thereof and the authorisations granted in terms thereof.
12.
As far as the physical actions on the fifth respondent's site
are concerned, the following had, inter alia, been done as a
consequence
of the authority granted to the fourth respondent:
Preparation of an existing transformer bay which was the first
physical activity
by which the smelter construction started. This
activity started during the beginning of May 2012 and was completed
by the end
of July 2012; Placement of the new transformer for the
smelter on the modified existing transformer bay. This activity was
executed
after the transformer bay preparation was completed and was
completed within the first week of August 2012; The laying of
electrical
cables from Area 26 (the smelter site) in order to connect
the newly installed transformer to the electrical substation in Area
30. The work in this regard was completed before the end of August
2012.
The
Applicants' stance:
13.
According to the applicants the first respondent failed to
commence with the activity within five years from the date of
the
signature of the Record of Decision and consequently, so it was
submitted, the authorisation had lapsed and the fifth respondent
has
to apply afresh for such authorisation from the Minister of
Environmental Affairs.
14.
The applicants argued that the Minister elected to define the
"activity" as a single activity by using the word "and"
conjunctively. Consequently, so it was submitted, the fifth
respondent had to commence with the installation
and
the
operation of a test smelter
and
the subsequent construction of
two induction smelters
and
the operation of those smelters
within the five year period. Since the fifth respondent had,
according to the applicants, only commenced
with preparation
activities, and not with the installation of the test smelter and not
with the operation of the test smelter and
not with the construction
of the two induction smelters and not with the operation
of the two smelters, the fifth respondent
had not, according to the
applicants, commenced with the "activity" authorised in the
Record of Decision as required
by paragraph 3.4 thereof.
15.
The applicants further submitted that since the first
respondent is not entitled to proceed with the project in the
absence
of any authorisation as contemplated
in section 21 of the Environment Conservation Act, this court
should
grant the relief prayed for in the Notice of Motion.
16.
The applicants also referred to the licence to be issued
by the fourth respondent in terms of
section 21
of the
National Nuclear Regulator Act, 47 of 1999
. Such a licence was issued
by the fourth respondent but according to the applicants it was
incompetent for the fourth respondent
to do so since the
authorisation in terms of section 22 of the Environment Conservation
Act had, according to them, lapsed. It
is not necessary to deal
further with this issue since the relief claimed by the applicants
did not relate to the aforesaid licence.
The licence must
accordingly and for purposes of this application be regarded as
a valid licence.
The
Respondents' stance:
17.
The fifth respondent filed an answering affidavit dealing with
all the averments on behalf of the applicants. After emphasising the
fact that the project was undertaken in execution of the
international duties of the Republic flowing from the
aforesaid International Treaty, it was submitted that the
construction, erection and the operation of this nuclear facility for
the disposal of nuclear wastes, was identified in terms of section 21
of the Environment Conservation Act and that this meant that
the
fifth respondent required an authorisation in terms of section 22 of
the said Act from the first respondent.
18.
It was submitted that the authorisation issued by the first
respondent gives particulars of the project and stated in paragraph
3.1 thereof that the authorisation applies in respect of the
installation and operation of a test smelter and subsequent
installation and operation of two induction
smelters. The question of the operation of these facilities results
from paragraph 9 of the said Schedule 1 which identifies scheduled
processes listed in the second schedule to the Atmospheric Pollution
Prevention Act, 1965. It was submitted that it is clear from the
answering affidavit that the commissioning of the smelters, once
constructed, would take place over a matter of years into the future.
The commissioning is an activity which only follows upon
the
construction of the facilities somewhere in the future.
19.
It was submitted that the project is consequently one
composite activity consisting of the construction and erection of the
facility
and once so constructed, the commissioning and operation
thereof. It was submitted that the argument by the applicants that
the
fifth respondent had to commence with all the elements of the
project within five years, is based upon a highly impractical and
artificial interpretation of the section 21 authorisation by
stressing the word "and", and thus by breaking up the
activity
into various elements which all have to be commenced with
within the five year period.
20.
I agree with the submissions on behalf of the fifth
respondent. On the applicants' interpretation the authorisation
required the
completion of every element of the composite activity
preceding the operation thereof in order to arrive at the last
element of
commissioning and operation, which, according to the
applicant, also had to commence within the five year period. This is
not what
was required. Only the commencement or the starting of the
execution of this composite activity was required within five years.
21.
Paragraph 3.4 of the Record of Decision requires the
"activity" authorised by the authorisation, to
commence
within five years. According
to paragraph 1 of the Record of Decision the
"activity"
is described by reference to the project which
entails the installation and operation of a test smelter and the
subsequent construction
and operation of two induction smelters. On
the applicants' interpretation the construction and the operation of
the test smelter
as well as the construction as well as at least the
commencement of the operation of the two induction smelters would
have had
to be done within the five year period. This is so
because the one element of the activity follows upon the other. If
this
was the intention of the first respondent in the Record of
Decision, he would simply have required that the last element or
stage,
namely the operation of the two test smelters, had to commence
within five years. This was not done and instead reference was made
to the "activity" which was identified in paragraph 1.
22.
It is also not without significance that the "activity"
identified in Schedule 1 of the Regulations is "the
construction,
erection or upgrading of...nuclear...facilities for
the... disposal of nuclear fuels and wastes". The activity
clearly primarily
refers to the construction of the relevant facility
and adds its operation to complete the reference to one composite
activity.
The activity logically commences with the construction
process. In my view it would be artificial and wrong to break up the
project
into its different elements or into different parts and to
interpret the Record of Decision in a manner requiring each such
element
or part to commence (and finalised in most cases) within the
five year period.
23.
The activity referred to by the first respondent in the
Regulations is the activity of constructing or erecting or upgrading
certain
facilities for certain purposes. That is the activity the
first respondent referred to and which had to be commenced with
within
the five year period.
It is clear from the Record of
Decision that the installation and operation of the test
smelter would have preceded the installation and operation of the
two
induction smelters. In fact, the results of the test smelter would
have been considered by the relevant Department. Similarly
the
operation of the induction smelters would only have commenced after
its complete installation. As mentioned above, if the first
respondent intended the operation of the induction smelters, which
constitutes the last stage of the project, to have been commenced
with within a five-year period, he would simply have said so. The use
of the word "and" is simply used to describe the
broader
activity or the whole project and does not detract from the fact that
one activity was authorised and that it commenced
at the installation
stage.
24.
In the affidavit filed on behalf of the first respondent it
was stated that they understood the commencement of an activity as
comprising
any physical activity, including site preparation and any
other activity on site in furtherance of a listed activity or
specified
activity as commencing with a project as intended in the
authorisation. This view accords with my interpretation.
25.
Lastly, as far as the installation or construction is
concerned, little needs to be said. There can be no doubt that the
work done
on the site constitutes construction of the envisaged
facilities and not mere preparation as the applicants would have it.
According
to the first respondent substantial work had been
undertaken and according to him the project was in the middle or
about to be
completed.
26.
In the result I am of the view that the authorisation granted
to the fifth respondent on 31 August 2007 has not lapsed and
consequently
that the relief prayed for cannot be granted.
27.
As far as costs are concerned, there is no reason why costs
should not follow the event. Senior counsel who appeared on behalf of
the fifth respondent did not insist on costs on the tariff of senior
counsel.
28.
In the result, the following order is made:
1.
The application is dismissed with costs.
_________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT