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[2018] ZASCA 144
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Umfolozi Sugar Planters Limited and Others v Isimangaliso Wetland Park Authority and Others (873/2017) [2018] ZASCA 144 (1 October 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 873/2017
In
the matter between:
UMFOLOZI
SUGAR PLANTERS LIMITED
FIRST
APPELLANT
PAUL
VAN
ROOYEN
SECOND
APPELLANT
PETROS
MAPHUMULO
THIRD
APPELLANT
And
ISIMANGALISO
WETLAND PARK AUTHORITY
FIRST
RESPONDENT
MINISTER
OF WATER AND SANITATION
SECOND
RESPONDENT
MINISTER
OF ENVIRONMENTAL AFFAIRS
THIRD
RESPONDENT
MINISTER
OF AGRICULTURE, FORESTRY
AND
FISHERIES
FOURTH
RESPONDENT
MINISTER
OF RURAL DEVELOPMENT AND LAND
REFORM
FIFTH
RESPONDENT
Neutral
citation:
Umfolozi Sugar Planters Limited v Isimangaliso
Wetland Park Authority
(873/2017)
[2018] ZASCA 144
(1 October
2018)
Bench:
Ponnan, Mbha, Dambuza and Makgoka JJA and Mokgohloa AJA
Heard:
6 September 2018
Delivered:
1 October 2018
Summary:
Environmental law – publication of management plan –
rendering relief sought moot.
ORDER
On
appeal from
: KwaZulu-Natal Division of the High Court, Durban
(Moodley J sitting as court of first instance):
The
appeal is dismissed with costs, including those of two counsel where
so employed.
JUDGMENT
Ponnan
JA (Mbha, Dambuza and Makgoka JJA and Mokgohloa AJA concurring):
[1]
The first respondent, iSimangaliso Wetland Park Authority
(iSimangaliso), is an organ of state in the national sphere of
government.
It was established as a World Heritage Authority in terms
of
s 9
of the
World Heritage Convention Act 49 of 1999
. Under s 92(2)
of the National Environment Management: Protected Areas Act 57 of
2003, iSimangaliso is the management authority
for the iSimangaliso
Wetland Park which, in 1999, was recognised as a World Heritage Site.
It reports to the third respondent,
the Minister of Environmental
Affairs (the Minister) who, in turn, reports to the United Nations
Environmental and Social Council
(UNESCO) in compliance with South
Africa’s obligations as a signatory to the World Heritage
Convention.
[2]
The St Lucia Estuary forms the core of the iSimangaliso Wetland Park.
The estuary is by nature dynamic. It is driven, at any
given point in
time, by five rivers and sea water inflows through an estuarine
mouth. Of the rivers, the Umfolozi is the largest.
The Wetland Park
supports a range of plant, bird, fish and animal species.
Historically, the St Lucia Estuary operated as one estuarine
system,
which closed during low and drought periods, with breaching occurring
naturally during the rainy season. On occasion, the
closure of the
mouth caused back flooding into the floodplain.
[3]
Prior to 1915, when farming first commenced, the Umfolozi River
meandered through the floodplain. However, the river was canalised
and diverted by farms on the floodplain. Those drainage canals, which
were intended to assist farmers to drain their fields in
the
floodplain, changed the natural course of the river. From 1956 a
separate mouth was opened and since then the separation of
the
Umfolozi and St Lucia estuary mouths was actively maintained.
However, the benefits of freshwater from the Umfolozi River were
lost
to the St Lucia system. During dry periods, seawater flowed unimpeded
into the lake, resulting in increased salinity levels,
which
adversely impacted the lake ecosystem.
[4]
During July 2010 iSimangaliso published what it described as a
Background Information Document (BID) entitled ‘Lake St
Lucia:
understanding the problem and finding the solution’. Included
in the BID was a management strategy for 2011/12, which
focused on
restoring the ecological functioning of the St Lucia system by
allowing: (i) fresh water to continue to flow from the
Umfolozi
River; (ii) the Umfolozi and St Lucia mouths to combine and (iii) the
system to operate naturally. The management strategy,
which was based
on scientific research, recognised that back flooding of some of the
low lying sugar cane farms might occur as
a consequence of not
artificially breaching the mouth, but that this was unavoidable as
those farms were situated within the estuarine
functional area. The
scientific research confirmed that the policy of keeping the
estuarine mouth open permanently or artificially
breaching the river
mouth was having devastating effects on the bio-diversity of the Lake
St Lucia system and the iSimangaliso
Wetland Park as a whole.
[5]
By September 2012, the combined
estuary mouth opened and breached into the sea naturally. It remained
open thereafter for 27 months.
As at 3 October 2012, about 16.4
billion litres of freshwater entered the St Lucia Estuary through the
link with the Umfolozi River
and was not wasted to sea. Three months
after the natural opening of the mouth, increased freshwater inflows
to the St Lucia system
led to marked positive plant and animal
responses to the recovered, naturally functioning estuary. Poor rains
and low river flows
during the latter part of 2014 contributed to a
decrease in water levels in the system. Those conditions, in turn,
led to a closing
of the Umfolozi River mouth on 16 January 2015.
Rainfall in late March and early April 2015 caused a rise once again
in the levels
of the Umfolozi River, resulting in back flooding of
the farms of the second appellant, Mr Paul Van Rooyen and the third
appellant,
Mr Petros Maphumulo, who are shareholders of the first
appellant, the Umfolozi Sugar Planters Limited.
[1]
[6]
On 1 May 2015 and in response to representations from the first
appellant, the mouth was breached by iSimangaliso. However,
a week
later the mouth closed again naturally. When further attempts by the
first appellant to persuade iSimangaliso to once again
breach the
mouth had come to nought, the appellants approached the Kwazulu-
Natal Division of the High Court, Durban on 6 August
2015 with the
first of three urgent applications. The following relief was sought:
‘
Part A: Urgent
interdictory relief
. . .
2. That, pending the
outcome of the relief sought in Part B of the Notice of Motion, the
First Respondent is directed to open or
to allow the First Applicant
to open the Mfolozi estuary to drain down current flooding levels and
to prevent further back flooding
of the farmland of the Second and
Third applicants and other shareholders of the First Applicant.
Part B: Application
. . .
1. Declaring that the
First Respondent has failed to develop and implement the statutory
policies, protocols, procedures, rules
and plans, including the
Global Environment Facility (GEF) Project in terms of the regulatory
framework under which it holds authority
specific to the management
of the Mfolozi River mouth;
2. Directing that the
First Respondent comply with its statutory obligations and develop
the necessary policies, protocols, procedures
and plans, including
the GEF Project specific to the management of the Mfolozi River mouth
. . .’
[7]
Although the application was launched on an urgent basis the matter
was adjourned by consent to 15 October 2015. On that date
the high
court (per Moodley J) issued the following consent order in respect
of Part A of the relief sought:
‘
1. Pending the outcome of the
relief sought in Part B of the notice of motion, the parties have
agreed that the first respondent
will breach the Umfolozi River Mouth
to the sea to drain down backflooding on the applicants’
farmland whenever the cotcane
level reaches
1.2m.s.l.
and shall establish the breach within 24 hours of being notified of
the level by the first applicant.
2. The first applicant is
directed to assist the first respondent to breach the Umfolozi River
Mouth by making the long-boom excavator
available for the 24 hour
period.
3. The first applicant
shall send the cotcane levels to the first respondent on a weekly
basis and shall send the levels daily when
the level exceeds
0.95m.s.l.’
[8]
Despite the ostensible agreement between the parties, the appellants
brought two further urgent applications in December 2015
and March
2016 alleging that iSimangaliso was in contempt of the order granted
on 15 October 2015. In the event those applications,
which were
opposed by iSimangaliso, were held over for determination with Part B
of the relief sought. By the time the matter came
to be argued before
Moodley J during May 2016, the appellants no longer persisted in the
original relief sought in their notice
of motion. Instead, in heads
of argument filed on behalf of the appellants, it was intimated that
the following amended relief
would be sought:
‘
1. That the
process of developing the estuarine management plan proceeds
according to the timetable set out by iSimangaliso in its
affidavit
of 6 May 2016;
2. That, in developing
the estuarine management plan and in taking environmental decisions,
iSimangaliso is directed to take account
of its obligation to prevent
and drain down backflooding on the applicants’ farmland;
3. That, pending the
finalisation of the estuarine management plan the interim order of 15
October 2015 remains in place;
4. That it is declared
that iSimangaliso is in contempt of the court order dated 15 October
2015 in that it failed in respect of
both the 16 December 2015 and 13
March 2016 trigger events to “breach the Mfolozi River Mouth to
the sea to drain down backflooding
on the applicants’ farmland
whenever the cotca[n]e level reaches 1.2.m.s.l” and failed to
establish the breach within
24 hours of being notified of the level
by the first applicant.
5. That iSimangaliso is
directed to pay the applicants’ costs in respect of Part A,
Part B and the two urgent contempt applications,
such costs to
include the costs of two counsel.’
[9]
The appellants failed before Moodley J, who issued the following
order on 21 April 2017:
‘
1. The interim
relief as set out in the order taken by consent on 15 October 2015 is
discharged;
2. The main application
is dismissed. The following order do issue:
1.
Costs in the main application: Part A and B
The applicants are
ordered, jointly and severally, the one paying the others to be
absolved, to pay the costs of the first respondent,
the iSimangaliso
Wetland Park Authority, such costs to include all reserved costs and
the costs of senior counsel.
2.
The two Contempt Applications: 16 December 2015 and 13 March 2016
2.1 The applications are
dismissed.
2.2 Each party is
directed to bear its own costs.’
The
appellants appeal with the leave of the learned judge. In heads of
argument filed with this court, it was intimated on behalf
of the
appellants that the ‘urgent interim applications and contempt
applications are not pursued on appeal’. This
meant that
prayers 1 to 3 and 5 of the amended relief sought remained for
consideration.
[10]
The appellants adopted a scatter gun approach to the litigation in
the court below. They initially claimed that iSimangaliso
was acting
arbitrarily and without any lawful basis. That wide ranging attack
was met with a detailed analysis of the applicable
laws guiding the
actions of iSimangaliso, which were extensively described in the
answering affidavits. The court a quo concluded
that iSimangaliso’s
actions were grounded in and sanctioned by law, including the World
Heritage Convention, which was incorporated
into law in the
World
Heritage Convention Act. This
has not been challenged on appeal.
[11]
The facts demonstrate that at
all stages in the research, formulation and implementation of the
management strategy for the St Lucia
Estuary from 2008 to the present
the appellants were consulted, their views were heard and they raised
no objection. The appellants
did not challenge the strategy plan
published in July 2011, which was ‘to restore the ecological
functioning of the Lake
St Lucia System’ or any other
administrative action taken by iSimangaliso in respect of the
restoration of the St Lucia Estuary.
Further, there was no response
from the appellants to the affidavits from the experts expressing
support for the environmental
and scientific soundness of the
measures taken for the restoration of the St Lucia Estuary. Nor were
there any administrative law
challenges to any of the measures
adopted by iSimangaliso. The unchallenged findings of the court a quo
was that iSimangaliso was
not the cause of the back flooding. In that
regard, the high court was willing to accept that back flooding on a
floodplain is
a natural process.
[2]
Indeed, on 26 September 2011, the first appellant’s engineer,
Mr AM Knox, recommended in a report to the former: ‘it
is
probably pertinent to consider some sort of forced drainage from this
area or consider abandoning these cane areas in favour
of some better
placed lands.’ This observation ties in with the fact that the
appellants’ properties are: (a) in a
floodplain; (b) within a
estuarine functional zone and (c) slumping. In fact, in 2002, a
specialist engaged by the first appellant,
Mr Van Heerden, recorded
that the appellants’ farms had slumped approximately 1 metre in
26 years. The appellants did not
deal with these two reports, which
had been commissioned by them.
[12]
In motion proceedings, the
affidavits constitute both the pleadings and the evidence and the
issues and averments in support of
the parties' cases should appear
clearly therefrom.
[3]
The discipline of the law requires an assessment of established
facts, through which legal issues are crystallised, for a proper
assessment of claims. As the court below noted, large portions of the
iSimangaliso’s answering affidavits remained undisputed
by the
appellants. It is well settled that an applicant who seeks final
relief on motion must, in the event of conflict, accept
the version
set up by his opponent unless the latter's allegations are not such
as to raise a real, genuine or bona fide dispute
of fact or are so
far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers.
[4]
Here, it could not be said that iSimangaliso’s allegations were
such as to justify their rejection on the papers. It follows
that
such disputes, as there were, had to be resolved in favour of
iSimangaliso. This is precisely how the court a quo approached
the
matter. In that, it cannot be faulted.
[13]
It must also weigh against the
appellants that the amended relief sought in the court below was not
foreshadowed in the affidavits.
Rather, it came to be raised for the
first time in heads of argument, after the filing of all of the
affidavits. The failure by
the appellants to properly put up a case
in support of the amended relief meant that iSimangaliso was denied
the opportunity to
deal issuably with those matters. Prayer 1 of the
amended relief sought an order: ‘[t]hat the process of
developing the estuarine
management plan proceeds according to the
timetable set out by iSimangaliso in its affidavit of 6 May 2016’.
It is to be
noted that the ‘estuarine management plan’
relied upon by the appellants as the basis for the relief, had been
overtaken
by the approval and publication of a new plan. At the
hearing of the application for leave to appeal, the approval of a new
management
plan was known. On 20 January 2017 iSimangaliso had
submitted to the Minister a final Integrated Management Plan (IMP)
for the
iSimangaliso Wetland Park for the period 2017 – 2021.
The IMP, which includes the Estuarine Management Plan (EMP) for the
St. Lucia Estuary, was approved by the Minister on 21 May 2017 (after
judgment by the court below but prior to the hearing of the
application for leave to appeal on 28 July 2017) in accordance with
s
25(1)
of the
World Heritage Convention Act. The
IMP was gazetted on
22 September 2017.
[5]
[14]
iSimangaliso submitted that the
publication of the IMP has rendered the appeal moot because, so the
submission goes, absent any
legally appropriate challenge to that
plan, no practical relief can follow for the appellants from this
appeal.
[6]
Indeed, when the application for leave to appeal was argued before
Moodley J on 28 July 2017, counsel for iSimangoliso asserted:
‘
The first is the obvious point,
is what relief would an appeal court now be asked to give and the
relief as we know from the amended
relief in part B was for the
timetable for the estuary management plan to continue and for interim
relief to follow. Now, we know
that the estuary management plan was
in fact passed on 21 May. So the question of mootness arises and the
question becomes what
practical relief will follow if M’Lady
grants leave to appeal, and it is out submission, none.’
[15]
In response, counsel for the appellants submitted:
‘
Moodley J
: Mr Kemp, can
I just stop you there? Basically – let us just go back to the
relief that was sought, the amended relief that
was sought.
Mr Kemp
: Yes.
Moodley J
: The first one was
the process of developing the estuary management plan proceeds
according to the timetable, now that basically
has fallen away
because this plan is now passed, it is now law.
Mr Kemp
: Yes.
. . .
And M’Lady is quite right,
paragraph 1 does not matter anymore but paragraph 2 matters and
paragraph 3 also matters because
if that estuarine plan does not meet
the requirements and does not recognise those rights of protection of
land, then they would
be a request for interim relief.
M’Lady refused interim relief
and I understand why M’Lady refused interim relief. Once you
came to the conclusion that
we did not have the rights that we
contended to, it followed that we could not get any interim relief
because you held that we
did not have these rights and that is the
issue that we want to take to court and that is the issue that is a
very important and
alive one.
It is whether we do not have any of
those rights or whether we do and that is a very live issue. We do
not want the relief in full.’
[16]
The effect of the concession
that ‘paragraph 1 does not matter anymore’, as was
rightly accepted from the bar in this
court, is that the appellants
cannot, on appeal, seek to advance a case that was specifically
abandoned before the court below.
[7]
That leaves prayers 2 and 3 of the amended relief. As originally
framed, both were inextricably linked to and dependent upon the
grant
of prayer 1, because all three took as their starting point the
development of an estuarine management plan. But, that has
since been
overtaken by the IMP. Prayer 1 having fallen away, prayer 2 stood
logically to suffer the same fate. However, insofar
as prayer 2 is
concerned, so it was contended in this court, the appellants were at
the very least entitled to an order in these
terms: ‘That in
taking environmental decisions, iSimangaliso is directed to take
account of its obligations to prevent and
drain down back flooding on
appellants’ farmland.’
[17]
In my view, there are several
obstacles in the path of the appellants to the grant of such an
order. First, even if this court is
of the view that the judgment in
the court below was wrong, the immediate difficulty is that it would
not as a matter of course
issue the declarator the appellant
seeks.
[8]
Generally speaking, this court does not act in an advisory capacity
by pronouncing upon hypothetical, abstract or academic issues.
Second, absent properly brought challenges to set aside either the
contents of the IMP or the EMP or any administrative actions
based on
these plans, it is not clear what is contemplated by the expression
‘in taking environmental decisions’. What
is equally
unclear is whether the taking of those decisions pertains only to the
St Lucia Estuary. This is because the EMP for
the St Lucia Estuary is
a separate but subsidiary plan to the IMP for the period 2017- 2021.
In this appeal, the appellants leave
intact all of the measures
undertaken by iSimangaliso for the St Lucia Estuary up to now. They
base their relief on an alleged
historic obligation on the part of
iSimangaliso to drain down back flooding of the farms. And, they want
that obligation incorporated
into the already complete EMP and in the
taking of environmental decisions. The legal bases for their asserted
claim to the relief
was said to lie in custom, the law of neighbours
and a water use certificate. They say that iSimangaliso must give
effect to those
rights. But, those have been overtaken by the passage
of time and subsequent administrative decisions.
[18]
Third, it is not proper for a
party in motion proceedings to base an argument on matter not
canvassed in the affidavits. The reason
is manifest - the other party
may well be prejudiced because evidence may have been available to it
to refute the new case on the
facts.
[9]
The position is worse where the arguments are advanced for the first
time on appeal.
[10]
Fourth, the declarator sought is indeterminate, open ended and
irredeemably vague.
[11]
Impermissibly vague provisions violate the rule of law, which is a
founding principle of our Constitution.
[12]
An order or decision of a court binds all those to whom, and all
organs of state to which, it applies.
[13]
Litigants who are required to comply with court orders, at the risk
otherwise of being in contempt if they do not, must know with
clarity
what is required of them.
[14]
It goes without saying that in order to comply with that order,
iSimangaliso has to know not just where its obligations start and
end, but also what it is obliged by the order of court to do. It does
seem to me that if such an order were to issue, it would
be difficult
in the extreme for iSimangaliso to know with any measure of
confidence precisely what steps it would be required to
take to
comply therewith.
[19]
Fifth, in considering whether
to grant a declaratory order, a court exercises a discretion with due
regard to the circumstances.
And, whilst the absence of an existing
dispute is not an absolute bar to the grant of a declaratory
order,
[15]
as Navsa JA pointed out in
West
Coast Rock Lobster Association v The Minister of Environmental
Affairs and Tourism
[16]
para 45:
‘
The court must be satisfied
that the applicant has an interest in an existing, future or
contingent right or obligation. If the
court is so satisfied it must
consider whether or not the order should be granted. In exercising
its discretion the court may decline
to deal with the matter where
there is no actual dispute. The court may decline to grant a
declaratory order if it regards the
question raised before it as
hypothetical, abstract or academic.’
It
follows, for these reasons that the appellants’ quest for a
declarator could not succeed.
[20]
Turning to prayer 3: The
appellants persist on appeal in their call that ‘the interim
order of 15 October 2015 remains in
place’. The legal basis for
the re-assertion of interim relief is not understood. As Nugent JA
put it in
National Director
of Public Prosecutions v Rautenbach and Others
[17]
para 12:
‘
That is to misconstrue the true
nature of the orders. As pointed out by Goldblatt J in
Chrome
Circuit Audiotronics (Pty) Ltd v Recoton European Holdings Inc and
Another
2000 (2) SA 188
(W) E at 190B-E, orders of this kind are
not independent of one another. An interim order that is made
ex
parte
is by its nature provisional—it is “conditional
upon confirmation by the same Court (albeit not the same Judge) in
the
same proceedings after having heard the other side” (per
Harms JA in
MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA) in para [6]), which is why a litigant who
secures such an order is not better positioned when the order is
reconsidered on
the return day (
Pretoria Portland Cement Co Ltd
and Another v Competition Commission and Others
2003 (2) SA 385
(SCA) in para [45]). It follows that when an appeal is sought to be
brought against the discharge of such an order there is nothing
to
revive for it is as if no order were made in the first place.’
In
any event, the interim relief is not self-standing. It was dependent
upon the grant of the declaratory order under prayer 2.
The
declaratory relief having failed, the interim order sought under
prayer 3, likewise must fail.
[21]
There remains the costs of the two contempt applications: Having
elected not to appeal the decision of the court below to dismiss
the
two contempt applications, it is entirely unclear upon what basis the
appellants claim the costs of those applications on appeal.
[22]
In the result, the appeal is dismissed with costs, including those of
two counsel where so employed.
_________________
V
M Ponnan Judge of Appeal
APPEARANCES:
For
Appellants: K J Kemp SC (with him SF Pudifin-Jones)
Instructed
by: Shepstone & Wylie Attorneys, Umhlanga Rocks Matsepes Inc.,
Bloemfontein
For
First Respondent: A A Gabriel SC
Instructed
by: D’Arcy-Herrman Raney Attorneys, Johannesburg Webbers,
Bloemfontein
[1]
The Umfolozi Sugar Planters Limited has 48 shareholders, who farm on
land adjacent to the Umfolozi River. It was originally founded
in
1923 as a co-operative of sugar cane farmers. The co-operative was
converted to a company and registered as such on 13 May
2008.
[2]
Abbott v Overstrand Municipality and Others (16599/2013)
[2014]
ZAWCHC 184
(1 October 2014) para 7; Abbott v Overstrand Municipality
and Others (99/2015)
[2016] ZASCA 68
(20 May 2006).
[3]
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA);
[2005] 3 All SA 425
para 28.
[4]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C; Wightman t/a JW Construction v Headfour (Pty)
Ltd and Another
[2008] ZASCA 6
;
2008 (2) All SA 512
(SCA);
2008 (3)
SA 371
(SCA) para 12.
[5]
Government Gazette No. 41129 dated 22 September 2017.
[6]
Minister of Water and Environmental Affairs v Kloof Conservancy
[2015] ZASCA 177
;
2016 (1) All SA 676
para 23.
[7]
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd & others
[2013] ZASCA 5
;
2013 (2) All SA
251
(SCA) para 17.
[8]
Rumdel Cape v SA National Roads Agency (234/2015)
[2016] ZASCA 23
(18 March 2016) (unreported case) para 15.
[9]
Minister of Land Affairs and Agriculture and others v D & F
Wevell Trust and others
2008 (2) SA 184
(SCA) para 43.
[10]
Id.
[11]
Minister of Water and Environmental Affairs v Kloof Conservancy
[2015] ZASCA 177
;
2016 (1) All SA 676
para 13; Mazibuko NO v Sisulu
NO and Another [2013] ZACC 28; 2013 (6) SA 249 (CC).
[12]
National Credit Regulator v Opperman and Others
[2012] ZACC 29
;
2013
(2) SA 1
(CC) at para 46.
[13]
Section 165(5) of the Constitution.
[14]
Minister of Home Affairs v Scalabrini Centre, Cape Town & others
[2013] ZASCA 134
;
2013 (6) SA 421
(SCA) para 77.
[15]
Ex Parte Nell 1963 (1) SA 754 (A).
[16]
West Coast Rock Lobster Association v The Minister of Environmental
Affairs and Tourism
[2010] ZASCA 114
;
2011 (1) All SA 487
(SCA).
[17]
National Director of Public Prosecutions v Rautenbach and Others
2005 (4) SA 603
(SCA).