Member of the Executive Council for Local Government, Environmental Affairs and Development Planning, Western Cape and Another v Plotz NO and Another (495/2017) [2017] ZASCA 175 (1 December 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 175
|

|

Member of the Executive Council for Local Government, Environmental Affairs and Development Planning, Western Cape and Another v Plotz NO and Another (495/2017) [2017] ZASCA 175 (1 December 2017)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 495 /2017
In the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
LOCAL
GOVERNMENT, ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING,
WESTERN
CAPE

FIRST

APPELLANT
DIRECTOR
ENVIRONMENTAL GOVERNANCE
DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING,
WESTERN
CAPE

SECOND

APPELLANT
and
HANS
ULRICH PLOTZ
NO

FIRST RESPONDENT
CITY
OF CAPE
TOWN

SECOND RESPONDENT
Neutral
Citation:
MEC
for Local Government, Environmental Affairs and Development Planning,
Western Cape & another v Hans Ulrich Plotz NO &
another
(495/2017)
[2017] ZASCA 175
(1 December 2017)
Coram:
Shongwe
AP, Swain and Mathopo JJA and Meyer and Mokgohloa  AJJA
Heard:
14
November 2017
Delivered:
1 December 2017
Summary:
Administrative law –
Review of decision of director determining administrative penalty
payable in terms of s 24G(4) of the
National Environmental Management
Act 107 of 1998 (NEMA) – Duty to exhaust internal remedies
before instituting legal proceedings
–
s 7(2)
of the
Promotion
of Administrative Justice Act 3 of 2000
- duty absolute except where
court grants exemption upon being satisfied that there are
‘exceptional circumstances’
and that it is in the
interest of justice that exemption be given -
s 43(2)
of NEMA affords
internal remedy of appeal to MEC against decision of director -
submission of procedurally defective internal appeal
out of time –
failure to seek condonation – failure to take reasonable steps
to exhaust available internal remedy –
exemption not justified
– appeal succeeds.
ORDER
On
appeal from:
Western
Cape Division, Cape Town (Van Staden AJ sitting as court of first
instance):
(a)
The appeal succeeds with costs, including those of two counsel, which
costs are to be paid by
the first respondent.
(b)
The order of the court a quo is set aside and replaced with the
following:
‘
The
application is dismissed with costs, including those of two counsel.’
JUDGMENT
Meyer
AJA (Shongwe AP, Swain and Mathopo JJA and Mokgohloa AJA concurring)
[1]
This appeal, with the leave of the court a quo, is against all but
one part of the order made by the Western Cape Division,
Cape Town
(Van Staden AJ), on 20 May 2016.  It concerns the administrative
fine payable in terms of s 24G(4) of the National
Environmental
Management Act 107 of 1998 (NEMA) prior to the relevant Minister or
MEC (Member of the Executive Council to whom
the Premier has assigned
responsibility for environmental affairs), as the case may be,
considers an application by a person who
had commenced with a listed
or specified activity without an environmental authorisation in
contravention of s 24F(1) of NEMA,
for rectification of the unlawful
commencement of the activity.
[2]
The first respondent, Mr Hans Ulrich Plotz N.O., is a trustee of the
McGregor Trust (the trust), which owns adjoining erven
2270, 2392 and
626 in Bakoven, Cape Town (the trust property).  The trust
carries on the business of the Ocean View Guesthouse,
on its
property.  The trust property abuts erven 1341 and 1884, which
are owned by the second respondent, the City of Cape
Town, and zoned
as public open space (the City of Cape Town’s property).  The
Kasteelspoort River flows as a mountain
stream within a steep-sided
valley through the residential areas of Bakoven (the stream).  It
rises on the north-western slopes
of the Table Mountain range and
initially flows as a high-gradient mountain stream and then a
transitional stream through a steep-sided
narrow valley to the sea,
which it enters via a culvert beneath Victoria Road, Bakoven.  The
stream passes across the City
of Cape Town’s property along the
southern edge of the trust property.
[3]
Extensive manipulation of the stream bed through the suburban areas
of Bakoven has resulted in significant modification to its
bed and
banks.  Properties adjacent to the stream - upstream of the
trust and City of Cape Town’s properties - have
encroached into
the macro channel with fences and other structures.  These
transgressions are the cause of significant ongoing
negative impact
to the riverine eco system function.  This includes significant
ongoing vertical and bankside erosion in the
downstream reaches of
the stream and the invasion of alien vegetation in the stream channel
and valley slopes.
[4]
In order to address the significant erosion in the downstream reaches
of the stream channel and to improve the amenity value
of the Ocean
View Guesthouse, the trust, over time, undertook certain activities
within and adjacent to the stream channel.
These include the
construction of four concrete weirs across the stream width, lining
of sections of the stream banks,  paving
and the construction of
wooden boardwalks and decks along and overhanging the stream edge and
the ponded areas upstream of each
weir.  The trust also
periodically removed small cobbles and rocks washed into the ponded
areas from the stream upstream of
its property.  These
activities, it is common cause, contribute to the ongoing extensive
degradation of the riverine environment
and the ongoing erosion.
[5]
The Department of Environmental Affairs and Development Planning,
Provincial Government of the Western Cape (the DEADP), decided
that
these activities of the trust were listed or specified activities in
terms of s 24(1) of NEMA, and could not be commenced
without prior
environmental authorisation.  Section 24(1) reads thus:
‘
In
order to give effect to the general objectives of integrated
environmental management laid down in this Chapter, the potential

consequences for or impacts on the environment of listed activities
or specified activities must be considered, investigated, assessed

and reported on to the competent authority or the Minister
responsible for mineral resources, as the case may be, except in
respect
of those activities that may commence without having to
obtain an environmental authorisation in terms of this Act.’
[6]
Section 24(2)
(a)
of NEMA empowers the relevant Minister, or MEC with the concurrence
of the Minister, to identify activities which may not commence

without environmental authorisation from the competent authority.
Section 24F(1)
(a)
provides that ‘. . . no person may . . . commence an activity
listed or specified in terms of s 24(2)
(a)
or
(b)
unless the competent authority or the Minister responsible for
mineral resources, as the case may be, has granted an environmental

authorisation for the activity’.
[7]
The activities which may not commence without environmental
authorisation are currently listed in the Environmental Impact
Assessment Regulations Listing Notice 1 of 2010 (R.544 of 18 June
2010) (R.544).  The listed activities include the construction

of canals, channels, bridges, dams, weirs, bulk storm water outlet
structures, marinas, jetties and slipways exceeding 50 square
metres
in size, buildings exceeding 50 square metres in size, and
infrastructure or structures covering 50 square metres or more,
where
such construction occurs within a watercourse or within 32 metres of
a watercourse, measured from the edge of a watercourse,
excluding
where such construction will occur behind the development setback
line (item 11).  They also include the ‘.
. . infilling or
depositing of any material of more than five cubic metres into, or
dredging, excavation, removal or moving of
soil, sand, shells, shell
grit, pebbles or rock from . . .  a watercourse . . . but
excluding where such infilling, depositing,
dredging, excavation,
removal or moving . . . is for maintenance purposes undertaken in
accordance with a management plan agreed
to by the relevant
environmental authority . . . or . . . occurs behind the development
setback line’.
[8]
Section 24G(1) of NEMA provides that the Minister or MEC concerned
may, on application by a person who has commenced with a
listed or
specified activity without an environmental authorisation in
contravention of s 24F(1), direct such applicant, inter
alia, to
immediately cease the activity pending a decision on the application
submitted in terms of that subsection;  to investigate,
evaluate
and assess the impact of the activity on the environment;  and
to remedy any adverse effects of the activity on the
environment.
Section 24G(2) enjoins the Minister or MEC to consider any
report or information submitted in terms of s 24G(1),
whereafter the
Minister or MEC may refuse to issue an environmental authorisation,
issue one subject to such conditions as the
Minister or MEC may deem
necessary or direct the applicant to provide further information or
to take further steps before a decision
is taken.  Subsection
24G(4) then provides as follows:
‘
A
person contemplated in subsection (1) must pay an administrative
fine, which may not exceed R5 million and which must be determined
by
the competent authority, before the Minister, Minister responsible
for mineral resources or MEC concerned may act in terms of
subsection
(2)
(a)
or
(b)
.’
[9]
The trust appointed Enviro Dinamik as its environmental assessment
practitioner (the EAP) to make application to the DEADP in
terms of s
24G of NEMA for rectification and authorisation of its unlawful
activities on the City of Cape Town’s property,
which
activities it admitted were listed activities in terms  of items
11 and 18 of R.544.  On 10 July 2012, the EAP
submitted the
trust’s final s 24G application for the ‘Rectification of
Unlawful Activities undertaken on Public Open
Space erven 1341 and
1884’, including its final ‘River Rehabilitation and
Management Plan’ report.  The
EAP submitted its
‘Operational Environmental Management Programme’ later,
on 30 November 2012.
[10]
A s 24G applicant for the rectification of an unlawful activity is
also required to give consideration to alternatives that
are or may
have been possible had an environmental impact assessment been
undertaken prior to the commencement of the activity.
In this
regard the following is stated in the trust’s application:
‘
Ideally,
removal of all of the impoundment structures on the stream assessed
in this study, as well as removal of all areas of hardened
surface
that have been constructed abutting the stream, ought to take place,
and the stream should be restored to its natural,
unimpacted
condition.  However, there are a number of practical
considerations that prevent the recommendation of this approach
in
the present study.  These are summarised as follows:
·
the extent of change to the
stream banks and bed that has occurred in the stream reaches within
the study area, including the construction
of the rock weir
structures and the terracing of the right hand bank through the
construction of retaining walls is considered
too great for
restoration to be achievable;
·
the extent of encroachment of
buildings and other structures up to the edge of the low flow channel
in reaches upstream of the present
study area (see Section 5) mean
that the high-gradient channel is already prone to downcutting and
erosion in its lower reaches
as a result of channelization and
concentration of flows – the installation of erosion control
measures in the lower reaches
of the stream is thus recommended, and
the removal of existing structures would precipitate large-scale
disturbance, potentially
increasing erosion;
It
is FCG’s [Dr Liz Day of Freshwater Consulting CC t/a the
Freshwater Consulting Group] opinion that removal of the existing

weir structures and retaining walls will not contribute to
restoration of a natural channel, and that the impacts that have
occurred
to date, though of high negative significance from an
ecological perspective, are permanent and largely irreversible.  The

implications of this for the stream ecosystem are that natural
corridor function along the stream is now restricted in the reaches

through the study area to the left hand bank – this is the case
in the reaches upstream of the site as well (see Section
5).  In
addition, increases in surface hardening in the vicinity of the
stream increase the rate of runoff into the stream
during rainfall
events, exacerbating the impacts of channelization and concentration
of flows through an incised, encroached-upon
river corridor.
In
light of the above, the following recommendations have been made with
a view to remediating where possible some of the damage
that has been
inflicted on the stream system in the study area, although the
objective of actual restoration is not pursued.  It
should be
noted that some of the measures outlined are intended to address
impacts resulting from upstream land use as well as
those incurred
through activities in erf 1341 abutting the Ocean View site itself.’
[11]
On 4 September 2012, the DEADP undertook a site visit in order to
determine what administrative fine should be imposed on the
trust as
contemplated in s 24G(4) of NEMA.  On 15 November 2012, the
DEADP held a s 24G fines committee meeting.  The
committee
recommended an administrative fine of R475 000.  On 11
January 2013, the second appellant, in his capacity
as Director:
Environmental Governance, DEADP (the director), considered the matter
and determined the administrative fine to be
the amount of R475 000.
The decision of the director and the reasons for that decision were
communicated to the trust
in a letter from the director, dated 11
January 2013.  Therein the trust was also advised that should it
or any interested
and affected person intend to appeal the
administrative fine decision, a notice of intention to appeal the
fine had to be submitted
to the first appellant, the Western Cape
Member of the Executive Council for Local Government, Environmental
Affairs and Development
Planning (the MEC), within 20 calendar days
of the date of the decision.  It was stated that the
‘administrative fine
is determined by the type of activities
undertaken and the impacts it has on the environment’.
Comprehensive reasons
for the director’s decision were attached
to the letter.  The last paragraph reads thus:
‘
In
terms of the calculated fine it was determined the activity provides
no direct social services to the affected area.  The
unlawful
activities could give rise to significant biodiversity impacts within
and around the POS [public open space] erven.
Furthermore, the
activity is not in keeping with the surrounding environment and will
have a significant impact on the area’s
sense of place.
Based on the abovementioned impacts, an administrative fine of
R475 000 (four hundred and seventy five
thousand rand) was thus
imposed.’
[12] It is not clear when
the trust received the decision of the director, but the DEADP
submitted the letter to the Post Office
for delivery via registered
post on 18 January 2013.  The DEADP addressed a second letter,
dated 25 February 2013, to the
trust regarding the administrative
fine decision.  Therein the trust was again advised of its right
and that of each registered
interested and affected party to appeal
the director’s decision to the MEC, and of the requirement to
submit a notice of
intention to appeal to the MEC, this time within
20 calendar days of the date of this letter.
[13]
Section 43(2) of NEMA afforded the trust an internal remedy of appeal
to the MEC against the administrative fine decision taken
by the
director.  Such an appeal, in terms of section 43(4), ‘. .
. must be noted and must be dealt with in the manner
prescribed and
upon payment of a prescribed fee’.  Chapter 7 of the
Environmental Impact Assessment Regulations, 2010
(R.543 of 18 June
2010, GG33306) (the EIA Regulations) governs administrative appeals
to the MEC inter alia under s 43(2) of NEMA.
Regulation 60(1)
requires the submission of a notice of intention to appeal to the MEC
within 20 days after the date of the decision.
The MEC may, in
terms of reg 60(4), in writing, on good cause, extend the period
within which a notice of intention to appeal
must be submitted.
If the appellant is an applicant, such as the trust in this instance,
it must, in terms of reg 60(2),
provide each person and organ of
state that was a registered interested and affected party in relation
to the applicant’s
application, within 10 days of having
submitted the notice of intention to appeal, with a copy of the
notice of appeal and a notice
indicating that the appeal submission
will be made available on the day of lodging it with the MEC and
where, and for what period,
the appeal submission will be available
for inspection by such a person or organ of state.
[14]
Regulation 61 governs the submission of an appeal.  It must be
submitted to the appeal authority as indicated in s 43
of NEMA (reg
61(1)).  It must be accompanied by a statement setting out the
grounds of appeal, supporting documents which
are referred to in the
appeal and which are not in the possession of the MEC and a statement
by the appellant that reg 60(2) or
(3) has been complied with
together with copies of the notices referred to in that regulation
and the prescribed appeal fee, if
any (reg 61(2)).  An appeal
must, in terms of reg 62(1), be submitted within 30 days after the
lapsing of the 20 days contemplated
in reg 60(1) (the submission of a
notice of intention to appeal within 20 days after the date of the
decision).  The MEC may,
in writing, on good cause, extend the
period within which an appeal must be submitted (reg 62(2)).
[15]
On 2 May 2013, the EAP submitted a letter on behalf of the trust,
which constituted an appeal for the purposes of reg 62(1)
of the EIA
Regulations.  On 8 July 2013, the MEC issued his decision not to
consider the appeal and his reasons for that decision.
The MEC
stated:
‘
In
terms of Regulation 60(1) of the EIA Regulations, 2010 a person
affected by a decision referred to in these regulations, who
wishes
to appeal against the decision, must submit a notice of intention to
appeal with the Minister within 20 days after the date
of the
decision.  In order for an appeal to be considered, the
appellant must comply with Regulation 60(1) of the EIA Regulations,

2010.  The requirement that the appellant submit a notice of
intention to appeal within 20 days after the date of the decision
is
a peremptory requirement in terms of Regulation 60(1) of the EIA
Regulations, 2010.
The
decision in this matter was taken on 11 January 2013.  The
appeal procedures were duly spelled out in this decision letter
as
well as in a letter from the Department of Environmental Affairs and
Development Planning dated 25 February 2013.
The
Notice of Intention to Appeal against the above decision had to be
filed by 31 January 2013.  You however failed to submit
a Notice
of Intention to Appeal within 20 days after the date of the decision.
In
terms of Regulation 61(2)
(b)
(iii) of the EIA Regulations, 2010
“an appeal must be accompanied by a statement by the appellant
that Regulation 60(2) or
(3) has been complied with together with
copies of the notices referred to in that regulation”.
The
appeal letter dated 30 April 2013 on your behalf did not comply with
Regulation 61(2)
(b)
(iii) of the EIA Regulations, 2010 in that
it was not accompanied by a statement by you that Regulation 60(3) of
the EIA Regulations,
2010, as is applicable, had been complied with,
together with copies of the notices referred to in such regulation.
An
appeal which is submitted to the appeal authority must fulfil those
requirements as set out in the Regulations.  Unfortunately,
you
have failed to comply with the requirements in terms of Chapter 7 of
the Regulations of the National and Environmental Management
Act, Act
107 of 1998, published in June 2010.  In the light of the above,
I regret to inform you that your appeal can, however,
not be
considered by me and the matter has been referred to the Director:
Environmental Governance of the Department of Environmental
Affairs
and Development Planning for further action.’
[16]
A year later, on 21 July 2014, the trust launched the present review
application in terms of s 6 of the Promotion of Administrative

Justice Act 3 of 2000 (PAJA).  The trust sought condonation for
its failure to institute the application within the time period

allowed in terms of s 7(1) of PAJA, the review and setting aside of
the MEC’s decision on 8 July 2013 refusing to consider
the
trust’s internal appeal in terms of s 43(2) of NEMA and the
review and setting aside of the director’s decision
on 11
January 2013 imposing the administrative fine in the amount or
R475 000 in terms of s 24G(4) of NEMA.  The trust
further
sought repayment from the director of the administrative fine paid by
it pursuant to the decisions of the director and
of the MEC, plus
interest.
[17]
On 20 May 2016, the court a quo granted condonation for the trust’s
launching the review application.  It dismissed
the application
to review and set aside the decision of the MEC.  It however
granted condonation for the trust’s failure
to successfully
exhaust the internal remedy of appeal and reviewed and set aside the
decision of the director to impose the administrative
fine in the
amount of R475 000.  The court a quo substituted an
administrative fine in the amount of R75 000 and
ordered that an
amount of R400 000 plus interest, be repaid to the trust.
Finally, the court a quo ordered that each
party should bear
its own costs of the application.  There is no appeal to this
court against the dismissal of the trust’s
application to
review and set aside the MEC’s refusal to consider the trust’s
appeal in terms of section 43(2) of NEMA.
[18]
It is to the question of the trust’s failure to exhaust its
internal remedies that I now turn.  The court a quo
mero motu
condoned the trust’s failure to ‘successfully’
exhaust the internal remedy of appeal that was available to it under

s 43(2) of NEMA.  In doing so, it held as follows:
‘
80.
An important factor in this instance is the fact that the
trust attempted to exhaust internal remedies by noting
an appeal.
81.
I believe that the trust’s prospect in respect of the review
application is also a relevant consideration to determine
whether the
trust should be exempted from the obligation to exhaust internal
remedies in the interest of justice.
82.
In all the circumstances I conclude that the trust’s failure to
successfully exhaust internal remedies should be
condoned.’
[19]
Section 7(2)
(a)
of PAJA provides that ‘[s]ubject to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted’.  Section 7(2)
(b)
provides that a court or tribunal must, ‘if it is not satisfied
that any internal remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or

tribunal for judicial review in terms of this Act’.  This
provision is subject to s 7(2)
(c)
which provides that ‘[a] court or tribunal may,
in
exceptional circumstances
and
on
application
by the person concerned, exempt such person from the obligation to
exhaust any internal remedy if the court or tribunal deems it
in
the interest of justice
.’
(Emphasis added.)
[20]
It is compulsory for the aggrieved party in all cases to exhaust the
relevant internal remedies before approaching a court
for review,
unless exempted from doing so by way of a successful application
under s 7(2)
(c)
PAJA.
The person seeking exemption must satisfy the court, first that
there are exceptional circumstances, and, second, that
it is in the
interest of justice that the exemption be given.  (See
Nichol
& another v Registrar of Pension Funds & others
2008
(1) SA 383
(SCA) para 15;
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd
& others
2014
(5) SA 138
(CC) para 115.)
[21]
Section 7(2)
(c)
of PAJA postulates an application to the court by the aggrieved party
for exemption from the obligation to exhaust any internal
remedy.
(See
Dengetenge
Holdings
para 116.)  The trust did not apply for exemption from the
obligation to exhaust the internal remedy of appeal that was
available
to it in terms of s 43(2) of NEMA.  I nevertheless
proceed to consider the court a quo’s reasons for having
granted
the exemption to the trust.
[22]
The court a quo appears to have been satisfied that the required
‘exceptional circumstances’ were present since
‘the
trust attempted to exhaust internal remedies by noting an appeal’
and that it was in the interest of justice that
the exemption be
given, because of ‘the trust’s prospect in respect of the
review application’.  These do
not, for the reasons that
follow, establish exceptional circumstances within the meaning of s
7(2)
(c)
of PAJA nor has it been established that it was in the interest of
justice that the exemption be given.
[23]
There is no definition of ‘exceptional circumstances’ in
PAJA, but this court, in
Nichol
para 16, interpreted
exceptional circumstances to mean-
‘
.
. . circumstances that are out of the ordinary and that render it
inappropriate for the court to require the s 7(2)(c) applicant
first
to pursue the available internal remedies.  The circumstances
must in other words be such as to require the immediate
intervention
of the courts rather than to resort to the applicable internal
remedy’.
Van
Heerden JA, who wrote the unanimous judgment of this court, referred
with approval to the following words of Sir John Donaldson
MR in
R
v Secretary of State  for the Home Department, Ex parte Swati
[1986] 1 All ER 717
(CA) at 724a-b:
‘
By
definition, exceptional circumstances defy definition, but, where
Parliament provides an appeal procedure, judicial review will
have no
place, unless the applicant can distinguish his case from the type of
case for which the appeal procedure was provided.’
[24]
In
Koyabe & others v Minister for Home Affairs & others
(Lawyers for Human Rights as Amicus Curiae)
2010 (4) SA 327
(CC)
para 39, Mokgoro J said the following about what constitutes
exceptional circumstances:
‘
What
constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue.  Thus, where an internal remedy would not be effective
and/or where its pursuit would be futile, a court
may permit a
litigant to approach the court directly.  So too where an
internal appellate tribunal has developed a rigid policy
which
renders exhaustion futile.’
(Footnotes
omitted.)
[25]
The trust’s case, on the facts presented to the court a quo, is
indistinguishable from the type of case for which the
internal appeal
procedure under s 43(2) of NEMA was provided.  The internal
appeal remedy would have provided the trust with
effective redress
for its complaint.  In terms of s 43(5), the relevant Minister
or MEC, as the case may be, considers and
decides an appeal or
appoints an appeal panel to consider and advise the Minister or MEC
on the appeal.  After considering
the appeal, the Minister or
MEC may, in terms of s 43(6), confirm, set aside or vary the
decision, provision, condition or directive,
or may make any other
appropriate decision, including a decision that the prescribed fee
paid by the appellant or any part thereof,
be refunded.  The MEC
would thus have been able to give effect to the trust’s
constitutional right to fair administrative
action and his powers on
appeal are extensive enough to have afforded the trust the same
relief (if justified) as that sought by
it in this review
application, namely an order reviewing and setting aside the decision
of the director imposing on the trust an
administrative penalty of
R475 000. (See
Nichol
paras 16-22.)  Furthermore, there is not a suggestion that
pursuing the internal appeal remedy would have been futile.
It
is also not suggested that the MEC has developed a rigid policy which
would have rendered exhaustion futile.
[26]
The trust’s attempt at internally appealing to the MEC also
does not in itself establish ‘special circumstances’
as
contemplated in s 7(2)
(c)
of PAJA.  Earlier case law was
indeed to the effect that the obligation to exhaust an internal
remedy lasts for as long as
the corollary right to utilise the remedy
exists.  In
Kiva v Minister of Correctional Services &
another
(2007) 28
ILJ
597 (E) para 15, Plasket J said that
‘. . . s 7(2) merely
defers
a person’s right of
access to court until the internal remedy has been exhausted, or
until the right to utilise it has lapsed’.
And in
Mamlambo Construction CC v Port St Johns Municipality & others
[2010] ZAECMHC 21 (24 June 2010) para 31, Petse ADJP said that-
‘
[i]f
there exists no right to appeal because such right has, so to speak,
been extinguished by lapse of time that is to say, it
has for
whatever reason not been asserted within the period stipulated in
terms of the relevant Act the question may well be asked
– why
should it then still be necessary to seek exemption from “complying”
with an obligation that in reality
does not exist. It is illogical
and incongruous to expect an aggrieved party to seek to be absolved
from an obligation that does
not in any event exist.’
In
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd & others
[2016]
3 All SA 577
(SCA) para 24, Mpati P held that because the first
appellant in that case had abandoned the internal remedy of appeal
that it had
initiated in terms of
s 96
of the
Mineral and Petroleum
Resources Development Act 28 of 2002
,
s 7(2)
(c)
of PAJA ‘possessed no significance because there was no
obligation in existence from which it could be exempted.’
[27]
But, the Constitutional Court has since made it clear in
Koyabe
that the mere lapsing of the period within which the internal remedy
remains available will not satisfy
s 7(2)
of PAJA, for it would
undermine the rationale of the duty if aggrieved parties could simply
wait out the period.  In this
regard Mokgoro J said the
following:
‘
[47]
Although the duty to exhaust defers access to courts, it must be
emphasised that the mere lapsing of the time-period
for exercising an
internal remedy on its own would not satisfy the duty to exhaust, nor
would it constitute exceptional circumstances.
Someone seeking
to avoid administrative redress would, if it were otherwise, simply
wait out the specified time-period and
proceed to initiate judicial
review.  That interpretation would undermine the rationale and
purpose of the duty.  Thus,
an aggrieved party must take
reasonable steps to exhaust available internal remedies with a view
to obtaining administrative redress.
The applicants relied in
this regard on the decision in
Kiva
v Minister of Correctional Services
.
To the extent that this decision indicates otherwise, it cannot
be endorsed.
[48]
This is not to say, however, that if an aggrieved party had made an
attempt in good faith to exhaust internal remedies,
but had been
frustrated in his or her efforts to do so, a court would be prevented
from granting the exemption.  It is for
the court to determine,
on a case-by-case basis, whether circumstances exist for judicial
intervention.’
[28]
The same holds true for an aggrieved person who merely submits a
procedurally defective internal appeal or other internal remedy
after
the time-period for exercising the internal remedy has lapsed,
without seeking condonation for its late submission, and then

proceeds to launch judicial review proceedings because the internal
remedy has lapsed.  Such conduct undermines the rationale
and
purpose of the strict duty to exhaust internal remedies.  The
MEC did not grant condonation to the trust because it was
never
sought and the trust’s futile attempt to appeal under
s 43(2)
of NEMA was of no consequence.  The trust, therefore, did not
exhaust the internal remedy of appeal that was available to
it in
terms of
s 43(2)
of NEMA.  Non-compliance with the 20-day and
30-day periods provided for in regulations 60 and 62(1) of the EIA
Regulations
will not necessarily lead to an appeal being a nullity if
the non-compliance has been condoned.  For as long as the
director’s
decision was not set aside, it existed in fact and
had legal consequences.
[29]
It was not suggested that the trust was frustrated in its efforts to
obtain administrative redress, nor was it established
that it took
reasonable steps to exhaust the internal remedy of appeal available
to it.  The trust failed to comply with the
time periods
prescribed in terms of the EIA Regulations for an internal appeal and
its appeal was defective.  The internal
appeal was submitted 44
days out of time.  The trust’s explanation for its default
is terse and wholly unsatisfactory.
The high-water mark of the
explanation it proffered is that Mr Plotz, in his capacity as
trustee, ‘. . . understood that
Enviro Dinamik
would
attend to all the required aspects of the submission of an appeal’.
[30]
Insofar as the trust sought to attribute blame to its EAP, there was
no evidence that its predicament was solely due to the
EAP’s
ineptitude.  In fact, the evidence points to the opposite.
The trust had full knowledge of the time constraints
for submitting a
notice of intention to appeal.  In terms of the director’s
letter dated 11 January 2013, the due date
for submitting a notice of
intention to appeal was 31 January 2013 and for submitting an appeal,
4 March 2013.  The letter
from the DEADP dated 25 February 2013
extended the due dates to 18 March 2013 and 22 April 2013
respectively.  Yet, the trust
only instructed its EAP to notify
interested and affected parties as prescribed and to submit an appeal
on its behalf on 9 April
2013 when it was already out of time to
submit its notice of intention to appeal.  The trust failed to
proffer any acceptable
explanation for its delay.  Furthermore,
the inescapable inference is that once it had instructed its EAP to
proceed with
the internal appeal, the trust divested itself of its
responsibility in relation to the internal appeal.  It is not
suggested
that it kept in touch with its EAP as to the progress of
the matter.  The trust also did not pursue its attempt to appeal
any further once the MEC had notified it of the procedural
shortcomings in its internal appeal.
[31]
The court a quo’s finding that it was in the interest of
justice that exemption be granted because on the merits the
prospects
for a successful review of the director’s decision were strong,
is in conflict with this court’s decision
in
Nichol
,
para 24.  There Van Heerden said the following:
‘
Moreover,
as was pointed out by counsel for both sets of respondents, Nichol’s
contention in this regard ‘puts the cart
before the horse’.
It is based on the proposition that Nichol is entitled to be
exempted from complying with the requirements
of section 7(2)
(a)
of PAJA and exhausting his internal remedies
merely
because – so it is
contended – his case on the merits of the main application is
strong.  This cannot be so.  Taken
to its logical
conclusion, such an approach would defeat the purpose of section
7(2), which requires an applicant for judicial
review to have
exhausted his or her internal remedies
before
resorting to review
proceedings.  Allegations of procedural or substantive
administrative irregularities per se are not ‘exceptional’

in review proceedings.’
[32]
I conclude, therefore, that a meaningful internal appeal to the MEC
in terms of s 43(2) of NEMA was well within the reach of
the trust,
but it failed, without justification, to submit a notice of appeal
and an appeal timeously.  It also failed to
submit an appeal
which complied with the requirements of section 43(4) and the EIA
Regulations.  The trust failed to place
any facts before the
court a quo that warranted a finding that it was entitled to be
exempted from the obligation to have exhausted
the internal remedy of
an appeal available to it.  This conclusion is dispositive of
the appeal rendering it unnecessary to
deal with the other grounds of
appeal.
[33]
Finally, the matter of costs.  A review under PAJA constitutes a
constitutional issue. (See
Niekara
Harrielall v University of KwaZulu-Natal
[2017]
ZACC 38
paras 17-19.)  It is a well-established rule that
unsuccessful litigants who have sought, in good faith, to vindicate
constitutional
rights, should not have costs awarded against them.
(See
Affordable
Medicines Trust & others v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 138 and
Biowatch
Trust v Registrar, Genetic Resources & others
2009 (6) SA 232
(CC) paras 21-25.) I am, however, unable to hold that
the litigation was undertaken to assert constitutional rights.  It
was
undertaken rather to assert a commercial interest of the trust.
I am therefore not persuaded that the rule should find
application
in this case.
[34]
In the result the following order is made:
(a)
The appeal succeeds with costs, including those of two counsel, which
costs are to be paid
by the first respondent.
(b)
The order of the court a quo is set aside and replaced with:
‘
The
application is dismissed with costs, including those of two counsel.’
_______________________
P A Meyer
Acting
Judge of Appeal
APPEARANCES
For
the Appellants:

J Newdigate SC (with him S Mahomed)
Instructed
by:

State Attorney, Cape Town
Office
of the State Attorney, Bloemfontein
For
the Respondents:

L Ferreira
Instructed
by:

Cullinan & Associates, Cape Town
Bezuidenhouts,
Bloemfontein