Umfolozi Sugar Planters Limited and Others v Isimangaliso Wetland Park Authority and Others (7942/2015) [2017] ZAKZDHC 17; [2017] 2 All SA 947 (KZD) (21 April 2017)

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[2017] ZAKZDHC 17
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Umfolozi Sugar Planters Limited and Others v Isimangaliso Wetland Park Authority and Others (7942/2015) [2017] ZAKZDHC 17; [2017] 2 All SA 947 (KZD) (21 April 2017)

IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
REPORTABLE
CASE
NO: 7942/2015
UMFOLOZI
SUGAR PLANTERS LIMITED

FIRST APPLICANT
PAUL
VAN
ROOYEN

SECOND APPLICANT
PETROS
MAPHUMULO

THIRD APPLICANT
and
ISIMANGALISO
WETLAND
PARK
AUTHORITY

FIRST RESPONDENT
MINISTER
of WATER AND SANITATION

SECOND RESPONDENT
MINISTER
of ENVIRONMENTAL AFFAIRS

THIRD RESPONDENT
MINISTER
for AGRICULTURE, FORESTRY and
FISHERIES

FOURTH RESPONDENT
MINISTER
OF RURAL DEVELOPMENT AND LAND
REFORM

FIFTH RESPONDENT
JUDGMENT
Delivered on:
21
April 2017
ORDER
1.
Costs in the Main Application: Parts 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.
MOODLEY
J
Introduction
[1]
Sugar cane farms and the iSimangaliso Wetland Park (formerly the St
Lucia Wetland Park) are integral to the history, heritage
and
ecological diversity of KwaZulu-Natal North Coast. The cultivation of
sugar cane, which commenced on the uMfolozi floodplain
in 1911, is a
major agricultural activity in the KwaZulu-Natal coastal regions,
providing concomitant benefits to the South African
economy through
the employment of a substantial workforce and the production of sugar
and related products for domestic consumption
and export.
[2]
The iSimangaliso Wetland Park (the Park) was inscribed  on  the
World Heritage List in December 1999 and proclaimed
as a World
Heritage site in 2000 under the World Heritage Convention Act 49 of
1999 (WHCA). The Park received recognition as a
World Heritage site
because amongst the natural values found on the 332 000 hectares over
which it extends, are outstanding examples
of geomorphological and
biological processes occurring on its five ecosystems, its
geographical diversity and scenic vistas and
its exceptional
biodiversity and threatened species of African fauna for whom the
Park provides a habitat. Included in the Park
are four Ramsar
wetlands, one of which is St Lucia which is the largest estuarine
system on the African continent, covering 155
000 hectares, and forms
a critical habitat for a large number of species and several
communities. A central component of the St
Lucia Estuary is Lake St
Lucia and its associated freshwater systems which provide habitat for
diverse species of plant, animal,
bird and fish. The Park is an
international tourist attraction.
[3]
Indisputably, both sugar cane farming and the Park have made and
continue to provide constructive and laudable contributions
to the
economy and heritage of KwaZulu-Natal as well as South Africa as a
whole.
[4]
This
application
involves
the
respective
interests
[1]
and
claims
of
a
group
of
farmers who farm sugar
cane on the uMfolozi floodplain and the Park and its
management authority, in
respect of the breaching of the uMfolozi river mouth which
impacts
on
the
sugar
cane
farming
in
the
area
in
proximity
to
the
Park
and
the
ecology
in the St Lucia lake system.
The
parties
[5]
uMfolozi Sugar Planters Limited (the First Applicant), which together
with two
of
its
shareholders
acting
in
their
personal
capacities,
are
the
applicants
in
this
matter (jointly
referred to as UCOSP),
is a registered
company
[2]
with
48
shareholders,
all of whom farm sugar cane on some 9127 hectares of land adjacent
to  the  uMfolozi
river  (the  uMfolozi  floodplain),  and
have  done  so  since
1911. Amongst
the
services
the
first
applicant
provides
to
its
shareholders
is
the
maintenance of communal
drainage and flood protection infrastructure to reduce the
effects of periodic
flooding on the uMfolozi floodplain.
[6]
The first respondent is the iSimangaliso Wetland Park Authority
(iSimangaliso), an organ of state, which is vested with authority

over the iSimangaliso Wetlands Park, which includes the St Lucia lake
and estuary and the uMfolozi river mouth, under the WHCA.
[7]
The second respondent is the Minister of Water and Sanitation, who is
responsible for the administration of the National Water
Act 36 of
1998 (NWA). The third respondent, the Minister of Environmental
Affairs, is the responsible Minister in terms of the
WHCA. The fourth
respondent, the Minister for Agriculture, Forestry and Fisheries is
responsible for overseeing and supporting
South Africa’s
agricultural sector. The fifth respondent is the Minister of Rural
Development and Land Reform. No  relief
is  sought
against  the  second  to  the  fifth
respondents.  Only the  third
respondent has filed a
confirmatory affidavit in the main application and a supporting
affidavit in the second contempt application
by UCOSP.
The
main application and the two contempt applications
[8]
The main application comprises of two parts:
8.1
In Part A, UCOSP sought urgent interdictory relief, pending the
outcome of the
relief sought in part B of the notice of motion, to
the effect that iSimangaliso open or allow UCOSP to open the uMfolozi
Estuary
to drain down current flooding levels, and to prevent
backflooding, of the farmland of the second and third applicants and
other
shareholders of the first applicant. UCOSP contended that the
interim relief was urgent and necessary to prevent harm to the
sugarcane
farms which were already flooded and more of which were at
imminent risk of being flooded if the uMfolozi river mouth were not
opened urgently. UCOSP asserted three interrelated rights to claim
this relief: its entitlement or right to breach the uMfolozi
river
mouth to alleviate backflooding through the Water Use Certificate
issued by the Department of Water Affairs (DWAF) to UCOSP
in 2012,
the failure of iSimangaliso to give effect to the constitutional
principles of co- operative governance, and the ‘established

practice/custom’ of artificially breaching the uMfolozi river
mouth.
8.2
In Part B UCOSP sought declaratory relief premised on its allegation
that iSimangaliso
has failed to develop and/or implement the
statutory policies, protocols, procedures, rules and plans including
the Global Environmental
Facility (GEF) project, in terms of the
regulatory framework under which iSimangaliso holds authority,
specific to the management
of the uMfolozi mouth which has a direct
impact on the neighbouring farmland, and consequential relief.
[9]
iSimangaliso
opposed
Parts
A
and
B
of
the
application,
contending
that
the
urgency alleged by UCOSP
was without merit and that the interim relief sought was
not
an
issue
that
could
be
resolved
urgently.
iSimangaliso
pointed
out
that
backflooding
was
a
natural
process
and
contended
further
that
the
relief
sought
by
UCOSP
would
violate
iSimangaliso’s
policies
and
management
efforts,
which
have
already been implemented
in accordance with its Integrated Management Plan
(IMP),
[3]
and reverse the gains of
the Park since 2011/2012 towards the restoration of
a
single system on the St Lucia Estuary.
[10]
It also pointed out that the applicants were aware that iSimangaliso
was in the process of undertaking the GEF project, which
involves
research into medium and long term solutions for the Lake St Lucia
system. iSimangaliso submitted that the reliance of
UCOSP on custom
and the water use certificate issued by the DWAF to assert its right
to have the uMfolozi river mouth breached
to prevent backflooding of
their farms was without merit, as custom cannot supplant statutory
law and the water certificate is
deficient in that it does not extend
to the river mouth. iSimangaliso contended further that UCOSP had
itself failed to comply
with its obligations to ensure adequate flood
protection against backflooding and drainage infrastructure for its
shareholders’
farms and was therefore ‘the author of its
own misfortune’.
[11]
Although the application was launched on an urgent basis on 4 August
2015, no interim relief was granted as sought in Part
A and the
matter was adjourned to 15 October 2015. When Part A of the
application served on the opposed roll before me, after discussions

between the parties, the following consent order in respect of Part A
was formulated, which I subsequently made an order of this
Court:
‘
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.’
[12]
However, despite the agreement by the parties on the interim measures
pending finalisation of Part B, UCOSP brought two urgent
applications
in December 2015 and March 2016, alleging that iSimangaliso was in
contempt of the order granted on 15 October 2015
as it had flagrantly
disregarded the order it had consented to; and the interpretation of
the order advanced by iSimangaliso to
justify its conduct, was absurd
and unsustainable.
[13]
Both ‘contempt’ applications were opposed by
iSimangaliso, which denied being in contempt as alleged by UCOSP and

submitted that it had acted in accordance with what was required of
it by the court order, in respect of the situation prevailing
at the
time. However UCOSP had remained dissatisfied and persisted with the
applications.
[14]
The two contempt applications were not argued and no interim relief
was ordered; they were held over for determination with
Part B.
[15]
Prior to the hearing of the matter, I invited the parties to file
supplementary affidavits should they deem it necessary, as
several
months had passed since the interim order was granted and two urgent
applications had been brought by UCOSP in the intervening
period.
iSimangaliso filed a supplementary answering affidavit (SAA) on 6 May
2016 in response to my invitation.
[16]
Although UCOSP did not file a response, when this matter served
before me on the special opposed roll on 19 and 20 May 2016,
it was
contended by Mr
Kemp
SC
who represented UCOSP assisted
by Ms
Pudifin
, that the SAA had simplified the adjudication of
Part B because iSimangaliso had admitted that it did not have
requisite policies
in place when the application was launched in
August 2015, but was currently in the process of developing them, in
particular in
terms of the Estuarine Management Protocol, and had
also disclosed its progress in the implementation of the GEF project.
[17]
While UCOSP acknowledged that the GEF project will, by re-joining
the artificial diversion of the uMfolozi River into
a single
natural estuarine system, ameliorate the backflooding onto the sugar
cane farms on the floodplain, UCOSP persisted that
it had the right
to require iSimangaliso to take interim measures to avoid
backflooding until the GEF was brought to fruition.
UCOSP therefore
sought the following amended relief in respect of Part B:
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
[4]
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.
[18]
Ms
Gabriel SC
, who represented iSimangaliso, disputed Mr
Kemp’s
submissions on the SAA and contended that the
amended relief sought by UCOSP was as unsustainable as the original
relief. She submitted
that iSimangaliso had consistently averred that
it had developed and implemented the management efforts under the IMP
and GEF project,
and its allegations that the GEF project was ongoing
from 2010 and the management strategy had been adopted and
implemented, as
required, within three years. There was therefore no
retraction or change in iSimangaliso’s response, as expressed
in its
answering affidavits, to the allegation that it had failed to
comply with its statutory obligations to develop and implement
appropriate
management strategies, statutory policies, protocols
procedures, rules and plans, including the GEF project, in respect of
the
uMfolozi river mouth.
[19]
There was also no basis for the complaint that the process to remove
the dredge spoil had not commenced as the intended removal
of part of
the dredge spoil had been addressed by iSimangaliso and remained
undisputed. The SAA merely provided an update of the
progress made by
iSimangaliso since August 2015 when it filed its first answering
affidavit. iSimangaliso persisted further that
UCOSP had no right to
the relief sought because there was no ‘customary’ or
statutory obligation on iSimangaliso to
breach the uMfolozi river
mouth in order to prevent backflooding onto the sugar cane farms on
the floodplain and UCOSP’s
water use certificate did not extend
to the river mouth. iSimangaliso therefore denied that UCOSP had any
right to the relief sought
and sought an order refusing the
application and the contempt applications with costs on a punitive
scale.
[20]
Having heard argument on the main application and the two contempt
applications on 19 and 20 May 2016, I was satisfied that
the interim
relief had run its course and that the interests of the parties and
of justice required an order be made without further
delay. I
therefore issued the following order:
‘
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;
3
the costs in the main application and the judgment on the 2 urgent
applications in December
2015 and March 2016 are reserved’
I
further undertook to hand down reasons for my order in due course.
The reasons, the legal principles applied and the relevant
statutes
considered follow.
Factual
Matrix
[21]
The following is undisputed or common cause:
[5]
1.
Sugarcane farmers have
been farming on the
uMfolozi
floodplain for over
a
century.
[6]
2.
The St Lucia Estuary which falls within the iSimangaliso Wetland Park
World Heritage site relies on freshwater
inflow from five rivers, the
most important of which is from the uMfolozi river.
3.
Until
the
1950s,
the
uMfolozi
and
St
Lucia
mouths
were
naturally
combined and formed one
estuarine system.
[7]
4.
The uMfolozi swamp which was once the largest fluvial plain in South
Africa has been significantly reduced
through agricultural
development. The hydrology of the uMfolozi floodplain portion has
been significantly altered by the establishment
and maintenance of
several artificial canals.
5.
In 1952 a separate mouth for the uMfolozi river was constructed to
the south of the St Lucia estuary. The uMfolozi
river was diverted
directly into the sea instead of joining up with the St Lucia estuary
and separate river mouths  were  maintained
for  the
uMfolozi  river  and  St  Lucia  system,
‘
ostensibly
to
prevent
the
input
of
suspended
sediments
into
the
main
St
Lucia system’.
[8]
6.
The mouth of the uMfolozi River closes periodically when there is
limited rainfall in the area, which causes
the water to flood back
onto the sugarcane farms instead of flowing into sea. The solution
practised until about 2010 was to dig
a trench to breach the mouth of
the uMfolozi River and reconnect it to the sea so that the water
level would be reduced and the
flooding of the farms avoided.
7.
Since 2008 iSimangaliso as the authority responsible for the St Lucia
Estuary realised that the environmental
degradation of the St Lucia
Estuary had to be reversed because of the adverse impact on the
entire World Heritage Site.
8.
iSimangaliso commenced with the GEF Project from about 2008. The
research and studies carried out in the GEF
project yielded results
that showed that the artificial separation of the uMfolozi river
mouth was detrimental to the health of
the World Heritage Site and
the single estuarine system had to be restored and maintained. It was
also noted in January 2010 that
the uMfolozi mouth was migrating
northwards.
9.
The
management
strategy
for
2011/2012
to
be
utilised
by
iSimangaliso
was
initially set
out in the
Background
Information
Document (BID)
which
focussed on restoring the
ecological functioning of the Lake St Lucia
system
and
subsequently in
the
IMP
for
2011-2016,
which
was
approved
by
the third respondent, in terms of Chapter IV of the WHCA. The IMP is
a
five year
plan which is implemented through subsidiary plans, policies and
programmes
and
is
the
statutory
tool
which
iSimangaliso
utilizes
to
develop
and
manage
the
Park
and
provides
a
framework
for
decision making
[9]
and
complies
with
the
obligation
placed
on
iSimangaliso
by
s
13(2)(h) of the WHCA.
10.
Since 2011/2012 iSimangaliso has implemented this management approach
to restore the St Lucia Estuary through natural processes
and with
minimal artificial intervention, which has had a demonstrable and
significant beneficial impact on the St Lucia Estuary
and the World
Heritage Site, but has not alleviated backflooding onto the farms on
the floodplain, which was recognised as a consequence
of the strategy
in the BID.
11.
After the uMfolozi river
was joined to the St Lucia estuary via the spillway
which
followed
the
natural
and
historic
course
of
the
river
in
July
2012,
[10]
the combined mouth opened
after the September rains linking the St Lucia
system
with the sea and remained open for approximately 28 months until
January 2015.
12.
In January 2015 due to the severe drought the combined mouth closed
and subsequent rainfall led to the accumulation of water
in the
uMfolozi basin.
13.
In February 2015 iSimangaliso began work to reactivate a short
section of the spillway along the raised area of about 60 metres
on
the beach which acted as an obstacle to the uMfolozi river flowing
into Lake St Lucia. On 11 February 2015 the spillway was
reactivated.
14.
iSimangaliso has refused to breach the uMfolozi river mouth as
previously effected and at the location requested by UCOSP since

2015.
Disputes
of Fact
[22]
There
are
numerous
disputes
of
fact
evident
in
the
affidavits
filed
by
the
parties.
However
UCOSP
submitted
that
the
facts
which
underpin
its
case
were
largely common cause and
the disputed facts were not material to the relief sought,
[11]
and
sought
final
relief
without
resort
to
oral
evidence.
In
response
to
Ms
Gabriel’s
contention that there
were
multiple
factual disputes which
should
be
resolved
according
to
the
principle
espoused
in
Plascon-Evans
Paints
Ltd
v
Van
Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A), Mr
Kemp
submitted
that the disputes in Part B
ought
to
be
determined
with
due
consideration
of
the
relevant
statutes,
and
not
in
accordance with the
principles set out in
Plascon-Evans
.
[23]
As a general rule, final
relief may be granted if the facts averred in an
applicant’s
affidavits, which have been admitted by the respondent, together with
the
facts
alleged
by
the respondent,
justify
such
an
order.
Where
the
respondent’s
affidavits
raise
real
and
bona
fide
disputes
of
fact,
the
Court
is,
in
terms
of
the
general
rule,
bound
to
accept
the
respondents’
version
of
the
facts,
[12]
unless
the
respondent’s
version is ‘so far-fetched or clearly untenable that it can
confidently be
said,
on
the
papers
alone,
that
it
is
demonstrably
and
clearly
unworthy
of
credence’.
[13]
[24]
Therefore the
Plascon-Evans
principle informed my conclusions
on the relevant factual disputes but did not preclude a consideration
of the relevant statutes
as well as the reports and other documents
furnished by iSimangaliso, where necessary, particularly in respect
of Part B.
[25]
It is also appropriate to
note that substantial sections of the answering
affidavits
filed
by
iSimangaliso
dealing
with
the
GEF
project,
the
IMP
implemented by iSimangaliso and its current approach to the St Lucia
Estuary and the Park, and
the
lawful basis for iSimangaliso’s activities remained undisputed
by UCOSP despite
its
‘
catch-all’
denial.
[14]
[26]
It
is
trite
that
the
applicant
in
motion
proceedings
must
make
its
case
in
its
founding affidavit
[15]
so that the respondent
will know what case it has to meet and to
facilitate
the identification of the issues for determination.
[27]
Although
UCOSP
did
not
seek
judicial
review
of
administrative
action
under
the
Promotion
of
Administrative
Justice
Act
3
of
2000
(‘PAJA’), Mr
Kemp
submitted
that
the
relief
the
applicants
seek
is
premised
on
their
right
to
administrative
action
which is rational and
reasonable under PAJA ….’
[16]
[28]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism &
others
[17]
the
Constitutional
Court
confirmed
that
there
is
only
one
system
of
law
grounded
in
the
Constitution
which
regulates
administrative
action.
A
court’s
power
to
review
administrative
action
is
therefore
founded
in
PAJA
and
the
Constitution.
But there was no reliance
on PAJA in the founding papers.
I
was therefore satisfied
that
Ms
Gabriel
had
properly argued that the assertion of non-compliance with s 6 of
PAJA for the first time
in the second set of heads of argument filed by UCOSP was
impermissible, and
consequently the
arguments
premised on PAJA required no
consideration.
[29]
UCOSP bore the onus in respect of all issues for determination in
this matter arising from its allegations in its founding
affidavit
that iSimangaliso failed to comply with its statutory obligations
which has impacted adversely on its management of the
uMfolozi river
mouth and caused it to make
ad hoc
and arbitrary decisions in
respect of UCOSP’s attempts to assert its rights to breach the
mouth, thereby failing to act in
accordance with its obligations to
assist UCOSP.
[30]
Much paper was exchanged and filed in this application.  Although
iSimangaliso may have been overzealous in the number
of media reports
it annexed to its comprehensive answering affidavits, it was
necessary for iSimangaliso to set out in detail the
scientific
studies that have informed its management of the park and the St
Lucia Estuarine system, its consultations with stakeholders,

including UCOSP, prior to the formulation and implementation of its
management approach and its compliance with its legislative

obligations, in order to counter the widely cast allegations and
relief sought by UCOSP.
[31]
In its replying affidavit (RA), UCOSP identified ‘the
only
question for determination in Part B of the application’ is
whether or not iSimangaliso has fallen short of its obligations
as
set out in the order sought. If it had, then UCOSP must succeed; but
if the court found that iSimangaliso had complied with
the
requirements of the various statutes and regulations under which it
holds its authority to manage the uMfolozi river mouth,
then the
application must fail.
[32]
UCOSP also submitted that
the relief sought in Part B is declaratory in nature
and is not dependent on
UCOSP establishing a right; therefore the court was
required
only
to
analyse
whether
iSimangaliso
has
complied
with
its
statutory
and
regulatory
obligations.
[18]
This
submission
is contrary to
the
legal
principle
that
when
declaratory relief is
sought, it is incumbent upon the applicant
to
demonstrate that it
has
a
legal
interest
in
the
relief
and
set
out
the
facts
to
sustain
the
legal
interest
asserted. I shall revert
to this later.
[33]
The argument advanced on behalf of UCOSP at the hearing was that
iSimangaliso had made contradictory submissions in its CAA
in respect
of the estuarine management plans it had allegedly implemented prior
to the application but had, in its SAA, admitted
that it was
currently in the process of developing its estuarine management plan,
which was the relief sought by UCOSP, and had
also undertaken to
consult with the relevant stakeholders.
[34]
Consequently it became
necessary to consider the allegations relevant to the
issues arising from
amended relief sought in the founding affidavit (FA), the CAA and
the SAA, which did not,
in my view, require a trawling through of all the allegations or
responses by the
parties
in this judgment.
I have
therefore restricted
myself
only
to
what I
considered relevant to a reasoned determination of the issues,
[19]
commencing
with
the
allegation
that
iSimangaliso
had
made
certain
admissions
which
caused
UCOSP to amend the relief
it sought and facilitated the adjudication of Part B.
Did
iSimangaliso
admit
in
its
SAA
that
it
did
not
have
estuarine
management
plans and intended to embark on establishing a
co-operative relationship and
agreements with UCOSP?
[35]
In its FA, UCOSP alleged that:
‘
a
number of the milestones set in the IMP for undertaking such studies
and taking
action
have
not
been
met
by
ISimangaliso
……
in
particular,
relevant
to
this
application, iSimangaliso
has failed to develop the requisite cooperative relationship
and
agreement
with
UCOSP
in
terms
of
the
management
of
the
uMfolozi
estuary.
This too is one of the
aspects which will be required to be complied with in Part B of
this application, and in
particular the implementation of the GEF project,….’
[20]
[36]
UCOSP’s specific complaint was that iSimangaliso failed to
develop the requisite cooperative relationship and agreement
with it
in respect of the management of the uMfolozi estuary, although the
IMP was in place.
[37]
In
its
CAA
[21]
iSimangaliso
responded
that
UCOSP
had
been
aware
from
at
least
2011
that,
in
compliance
with
its
statutory
obligations,
it
had
a
management
strategy
for
the
St
Lucia
Estuary
and
Lake
St
Lucia
system
in
place
which
was
implemented even prior to
the issue of the UCOSP’s water use certificate
in
November 2012. This IMP
was informed by extensive scientific research undertaken
prior to and during
Component 1 of the GEF project, and UCOSP participated in the
extensive public
consultation processes in respect of the IMP for the Park which was
ongoing and has been and continues to be consulted
over the
management plan for
the
St Lucia Estuary.
[22]
[38]
UCOSP
was
also
aware
that
input
from
extensive
stakeholders
and
public
meetings
held
in
2011
was
incorporated
in
the
BID
entitled
‘
Lake
St
Lucia:
understanding
the
problem
and
finding
the
solution
’
[23]
prepared
by
iSimangaliso
in
2011,
which set out the following historical and current reasons for the
management
strategy
adopted by iSimangaliso with respect to the St Lucia estuary in
2011/2012:
‘
66
When the BID was put together the Park had already been declared as
a
World Heritage site and Protected Area and it was recognised that the
policy of artificially keeping the uMfolozi River mouth
open
permanently was at the expense of the entire estuarine system (page
14).
67
It was recognised that management interventions had to be guided by

the international and statutory obligations to conserve the world
heritage site and values and to protect this important RAMSAR
site
for all South Africans and the world.
68
Agricultural development in the uMfolozi floodplain involved

canalization of the uMfolozi River and the removal of the wetland
vegetation that slowed flood water and filtered out sediment
which
meant that more sediments were delivered to the mouth without the
trapping effects of the floodplain (page 15).
69
Furthermore, previous artificial methods to keep the uMfolozi mouth

open had a demonstrably negative effect on the lake system and this
was scientifically determined to be an unsustainable solution,
which
did not support estuarine functioning, and which in fact, led to a
loss of estuarine function such as loss of shallow water
prawn and
other fish species (pages 15-18).
70
The BID then set out the management strategy for 2011/12 which
focused
on restoring the ecological functioning of the Lake St Lucia
system which entailed the following (pages 19-20):
(a)
Allowing fresh water to continue to flow from the uMfolozi through
the Back Channel;
(b)
Allowing the uMfolozi and the St Lucia mouths to combine and the
system to operate naturally; and
(c)
continuous review of the salinity levels and water levels and
estuarine health and the taking of actions in line with
adaptive
management.’
[39]
iSimangaliso stated
further that this adaptive management approach was
adopted in 2011/2012 and
continued to inform the current management approach
to
the iSimaganliso World
Heritage site, which includes the St Lucia estuary.
[24]
[40]
It
was
acknowledged
in
the
BID
that
the
artificial
breaching
of
the
mouth
strategy
would
serve
the
interests
of
the
farmers
because
it
would
alleviate
backflooding but
adversely affect the St Lucia system by preventing freshwater from
entering
the
St
Lucia
system.
Therefore
artificial
breaching
of
the
uMfolozi
river
mouth would not be
automatic or happen as a
matter of course, although the
combined
mouth
operating
naturally
would
more
likely
be
open
more
often
than
closed.
[25]
[41]
In
Section
G
of
the
CAA
[26]
iSimangaliso
set
out
details
of
the
IMP
for
2011-
2016.
It was also required to draft a five year corporate strategy and an
annual plan
which
is also approved by the third respondent. Although UCOSP complained
that it
was
not
furnished
with
some
of
these
documents,
the third
respondent
did
not
dispute iSimangaliso’s
allegations that it complied with its obligations and submitted
the requisite plans for
approval by him.
[27]
[42]
I therefore found no reason to hold that iSimangaliso had failed to
comply with its obligations in respect of the plans and
policies
formulated in compliance with the IMP.
[43]
Although UCOSP’s
only specific complaint was that iSimangaliso had failed to
develop the requisite
cooperative relationship and agreement with it in respect of the
management of the
uMfolozi estuary, iSimangaliso addressed the general complaint
that
it
had
failed
to
meet
milestones
set
out
in
the
IMP
for
finding
solutions
to
the
Lake St Lucia system.
[28]
[44]
In particular iSimangaliso pointed out that the objective in
paragraph 2.3.4 of the IMP was to ‘conduct a feasibility
study
to determine the optimal solution for the management of the St Lucia
Lake System, and initiate the implementation of the
preferred
solution’ and the time frame set for the objective was
2011-2013. The feasibility study was undertaken within component
1 of
the GEF project. iSimangaliso had announced the management strategy
in 2011 and implemented it in 2012.
[45]
The time frame for
establishing and developing cooperative relationships was
2011- 2016. But UCOSP had
been consulted from 2008, and in particular, in
connection with the GEF
studies, outcomes and management plans. In Section H of
the
CAA,
iSimangaliso
also
furnished
details
of
its
consultation
with
stakeholders,
including UCOSP on the
BID and the
research
underpinning its management
approach,
[29]
and a summary of its
consultation process.
[30]
[46]
iSimangaliso therefore asserted that it had met all the milestones
set in the current IMP and that consequently the necessary
estuarine
management plans were in place and implemented by 2012.
[47]
While UCOSP acknowledged that it had sight of the BID, in its RA it
denied that it had any participation in the BID. However
it was
apparent from ‘Annexure EC8’ to the CAA that the
consultation process undertaken by iSimangaliso which commenced
in
2008 involved UCOSP, while the BID was only finalised in 2011. It
also specifically recorded the name of UCOSP’s representative,

and that on 22 April 2008 at the first stakeholder meeting the
project BID was circulated and that ‘the problem associated

with farming practices and the impact on the estuary was highlighted
at this meeting’.
[48]
The
contents
of
the
BID
were
fully
referenced
by
the
attached
bibliography,
which provided the
scientific basis for the assessments, conclusions and
management strategy
for 2011/12
in the
document. The
first document listed
in the
bibliography,
‘
A
Review
of
Studies
on
the
uMfolozi
Estuary
and
Associated
Flood
Plain, with Emphasis
on Information
required
by Management for Future
Reconnection
of
the
River
to
the
St
Lucia
System
’
[31]
concluded
with
a
proposed
management strategy for
the uMfolozi Flats and Estuary, which specifically dealt with
the use of spillways to
ensure that relatively sediment-free water reaches the Estuary and
other measures to be implemented in the
area, which includes sugar
cane farms
which
lie below or close to sea level.
[49]
I found it noteworthy that the strategy proposed that the canelands
which lie below or close to sea level should be appropriated
and
allowed to convert to wetlands for use as overflow pathways. The
question of appropriation of the applicants’ farms which
fall
into that category was not raised by UCOSP although the GEF project
was based on the management strategy emanating from the
BID, and
UCOSP complained that there has been no progress with the GEF,
specifically in relation to its interests.
[50]
The IMP included
conclusion of land agreements. In Table 5
[32]
which set out
the
prioritised
areas
of
intervention
for
the
next
five
years,
one
of
the
key
priority
areas
and
objectives
listed
under
‘
Strategic
Driver
2:
Park
operations
and
conservation management’
was to:
‘
2.1
to re-establish and manage the iSimangaliso Wetland Park as one open
and integrated ecological area.’
The
‘Key Action’ for 2016 included:
‘
2.1.2
identification, re-establishment and protection of key ecological
corridors and linkages within
and
adjacent to the Park
.
(My emphasis)
2.1.3
incorporation of additional key ecologically important land into the
Park by initiating and concluding Land incorporation
Agreements with
the relevant landowners.’
[51]
This application was launched in August 2015 and therefore predated
the proposed action for 2016. But the time frame set out
by
iSimangaliso for the completion of the removal of the dredge spoil as
part of Component 1 of the GEF project is consistent with
the time
frame in the IMP. UCOSP complained about the removal of the dredge
spoil but not that discussions had not been initiated
about the land
incorporation agreements which were included within the same time
frame, although the affected farms were adjacent
to the Park and fell
within the land identified as appropriately situated for conversion
into wetlands in the BID.
[52]
In my view, this ‘omission’, together with the unproven
claims that shareholders suffered damages for which they
were not
compensated by iSimangaliso, called into question what UCOSP intended
to achieve by this application and its motive.
[53]
A
further
criticism
levelled
at
iSimangaliso
by
UCOSP
was
that
iSimangaliso
had
failed
to
develop
an
Estuarine
Management
Plan
as
required
by
the
National
Estuarine Management
Protocol (the Protocol) published
[33]
in terms of s 33(2) of
the
National
Environmental
Integrated
Management:
Coastal
Management
Act
24
of
2008
(ICMA),
which impacted adversely
on
its
ability
to
take
a
reasoned
lawful and
rational
decision
about
the
opening
of
the
uMfolozi
river
mouth
instead
of
taking
decisions on an
ad
hoc
basis.
[54]
In response iSimangaliso admitted that it was required to develop an
estuarine management plan but disputed that it had failed
to develop
such a plan or comply with the requirements of the Protocol because
no dates are prescribed for the plans to be in place
or published. It
intended to publish its estuarine management plan in accordance with
the Protocol once it had finally settled
on its medium to long term
plans.  In the interim the estuarine management plans
implemented in the context of the IMP and
Component 1 of the GEF
project, after wide consultation, provided a rational and lawful
basis for its management of the Park and
the St Lucia Estuary.
[55]
It was correctly submitted by iSimangaliso that the Protocol does not
stipulate dates for the publication of estuarine management
plans.
The Protocol states that the Estuarine Management Plans (EMP) should
‘seek to achieve greater harmony between ecological
processes
and human activities while accommodating orderly and balanced
estuarine resource utilization.’
[56]
The strategic objectives of the Protocol include:
‘
3.2.1
To conserve, manage and enhance sustainable economic and social use
without compromising the
ecological integrity and functioning of
estuarine ecosystems;
3.2.2
To maintain and/or
restore the ecological integrity of
South
African estuaries
by
ensuring  that  the  ecological  interactions
between  adjacent  estuaries; between
estuaries
and
their
catchments;
[34]
and
between
estuaries
and
other
ecosystems, are
maintained;
3.2.3
To manage estuaries co-operatively through all spheres of government;
and to engage the private
sector/entities and civil society in
estuarine management.’
[57]
Therefore although iSimangaliso had not yet published an EMP as
required by the Protocol, the estuarine management plan which
it had
developed and implemented since 2012 was consistent with the
objectives of the Protocol as the management is intended to
restore
and maintain optimum estuarine function in the Lake St Lucia Estuary
in accordance with the fundamental principles of the
WHCA and
obligations placed on iSimangaliso by s 13(2) of the WHCA.
[58]
Similarly the IMP for
2011-2016
[35]
which was established and
implemented in
compliance
with s 13(2)(h) of the WHCA, noted:
1
Under ‘Conservation significance’ for Maphelane:
‘
Important
linkage with the Park system. Role of the uMfolozi mouth in
maintaining the health of the lake system.’
2
Under ‘Conservation threat’:
‘
Negative
impact of sugar farming and other cultivation on the uMfolozi
floodplain (situation, closure of the mouth, artificial separation
of
uMfolozi from estuary mouth).
3
Under ‘Essential and desirable interventions’:
‘
Cost
benefit studies undertaken to resolve the dilemma of the management
of the estuary mouth and the possible reclamation of the
uMfolozi
swamps.’
[59]
As pointed out by iSimangaliso, the ICMA has imposed a statutory
imperative
on
it to manage the Lake St Lucia Estuary in
the
‘interests of the whole community’
as
defined
in
the
ICMA
and
not
to
prefer
some
over
others;
it
was
also
obliged
to
protect
sensitive
coastal
systems
and
to
secure
the
natural
functioning
of
dynamic
coastal processes.
[36]
[60]
An
assessment
of
the
outcomes
of
the
studies
done
during
Component
1
of
the
GEF
was
tabulated
in
a
document
entitled
‘
The
Social
and
Economic
Value
of
the iSimangaliso Wetland
Park with specific reference to the restoration of the Lake
St
Lucia
system’
[37]
which
described
the
socio-economic
benefits
derived
from
the
management
strategy
implemented
by
iSimangaliso.
iSimangaliso
therefore
submitted that it had
achieved its obligation to the
collective
community as required under the Act. iSimangaliso recorded that the
affected parties were:
‘
640
000 people, 12 traditional authorities, 12 land claimants, 5 local
municipalities, 2 district municipalities, subsistence users,
NGOs
and residents and business owners around the Park.’
[61]
It was specifically
significant
that
the third respondent, who is
responsible
for
developing
government
policy and
implementation
of
estuarine
management
as set
out
in the ICMA and the Protocol, did not complain that iSimangaliso
failed to comply
with
its
obligations under the
ICMA and
Protocol but
supported
the
management
of
the
estuarine systems by
iSimangaliso,
in particular its policy of
least
human
interference.
[38]
[62]
Although iSimangaliso had not published an EMP in terms of the
Protocol, its management of the estuary and surrounding area
has the
approval of the third respondent, because it is consistent with the
objectives of the ICMA and the Protocol.
[63]
UCOSP submitted in its RA that s 17 of ICMA states that the purpose
of the coastal protection zone is to protect land adjacent
to coastal
property which included UCOSP land. Section 17 provides that the
coastal protection zone is established for enabling
the use of land
that is adjacent to coastal public property or that plays a
significant role in a coastal ecosystem to be maintained,
regulated
or
restricted
in
order inter alia to protect
ecological
integrity
, (my emphasis), but also to protect
the economic and social value of the coastal public property.
[64]
I
was
therefore
unable
to
find
merit
in
the
contention
by UCOSP
that
iSimangaliso was unable
to take reasoned, rational and lawful decisions in respect of
the
management
of
the
St
Lucia
Estuary
and
the
breaching
of
the
uMfolozi
river mouth
because
it
did
not
have
an
EMP
in
terms
of
the
ICMA
or
which
had
been
developed
under
the
BID,
[39]
although
the
impugned
decisions
did
not
favour
the
interests of UCOSP’s
shareholders who farm on the floodplain.
[65]
Clause 1.3.3 of the 2011-2016 IMP states that the focus of the
management and development of the iSimangaliso Wetland Park
to date
has been on its legal and functional consolidation and this would
continue to be the focus of the IMP for the next five
years while
iSimangaliso is considered to be in its “establishment”
phase. Given the complex statutory framework within
which
iSimangaliso has to function and the policies and plans that have to
be formulated within that framework in accordance with
the results of
scientific investigation and review, this projected time frame did
not appear, in my view, to be an unduly prolonged
or unreasonable
period of time. The application was launched in August 2015, which
predated the period projected in the IMP.
The
GEF Project
[66]
In its founding affidavit, UCOSP admitted that iSimangaliso announced
the GEF study outcomes in 2012 and its plans to ‘re-connect’

the uMfolozi river with the St Lucia System by removing the
previously dredged material separating the systems and allowing the

uMfolozi river to flow directly into the St Lucia estuary without any
restrictions and that it:
‘
welcomes
the step as it is generally recognised that the ultimate reconnection
of the two water systems without any restrictions
to the pre 1937
natural condition will :
32.1
allow  adequate  drainage  of  the  uMfolozi
river  flats  into  the
estuary  and
ultimately the sea; and
32.2
Ensure that the St Lucia estuary has an additional source of water
from the uMfolozi River.
32.3
Furthermore  it  is
also  understood  that  with  the  St
Lucia  system  receiving
uMfolozi
water carrying silt, it is more likely that the combined mouth will
remain open and
/or
be
encouraged
to
remain
open
to
allow
the
tidal
changes
to
flush
out
any
increased build–up
of uMfolozi river silt deposits.’
[40]
[67]
UCOSP alleged further that the implementation of the GEF project
would prevent backflooding of the farms on the floodplain
and that
iSimangaliso was under an obligation to prevent such backflooding. It
therefore complained that the removal of the dredge
spoils had not
yet been undertaken three years after the GEF project was announced
and there was ‘no fixed/formal indication
from iSimangaliso
when it might be completed or finished or even commenced.’ The
amended relief sought by UCOSP was also
premised on iSimangaliso’s
‘obligation to prevent and drain down backflooding on the
applicants’ farmland’.
[68]
The GEF project, which is entitled ‘Development, Empowerment
and Conservation in the iSimangaliso Wetland Park and Surrounding

Region Project’ commenced in 2010 when it received funding from
the World Bank which is the management agent for the GEF.
The GEF,
which has three components, investigated and proposed medium and long
term solutions for restoring the ecological and
hydrological health
of the Park and the St Lucia Estuary and lake. The time frame for
Component 1, which deals with the hydrology
and ecosystem functioning
of the Lake St Lucia system for biodiversity conservation, prescribed
that the relevant research had
to be completed and the solution
implemented within three years from the date of the GEF agreement
with the World Bank in 2010.
[69]
It
was
undisputed
that
the
research
for
this
aspect
of
Component
1
was
completed
and
the
solution
was
implemented
in
2011/2012.
[41]
iSimangaliso
stated
that the research
conducted formed the basis of the management approach outlined
in the BID, and which
informs its current approach.
[70]
It was noteworthy that the review of scientific studies conducted on
the uMfolozi Estuary at a workshop organised by the Consortium
for
Estuarine Research and Management in 2010 recorded:
‘
The
end
result
is
an
endorsement
for
the
relinkage
of
the
UMfolozi
and
St
Lucia
estuaries and the
implementation of measures that will reduce any excessive input of
sediment from the former
into the latter system.’
[42]
[71]
iSimangaliso contended that UCOSP did not understand the GEF project,
because studies and scientific reviews which were conducted
under
Component 1 of the GEF confirmed the implementation of the 2011/2012
management plan described in the BID.  The uMfolozi
river had
always been a source of fresh water for the St Lucia estuary although
the flow of fresh water was impeded by the artificial
diversion. With
the implementation of the management plan in 2011/2012 the natural
system was restored and freshwater flowing naturally
through the
spillway in July 2012, gave effect to the outcomes of the studies in
Component 1 of the GEF project. Phase 2 of component
1 of the GEF
project was also underway by 2012: scientific studies and tests were
undertaken in accordance with Phase 2 and reported
on to the public
during 2014.
[72]
iSimangaliso
admitted
that
one
further
aspect
of
Component
1
had
yet
been
implemented
viz:
the
removal
of
part
of
the
dredge
spoil
caused
by
the
practice
of
separating the Umfolozi
river mouth from the estuary and keeping it separate.
However
the
tenders
could
only
be
formulated
after
further
scientific
studies
were
conducted in 2013-2014 in
accordance with Component 1 of the GEF project and the
initial
tenders
to
remove
part
of
the
dredge
spoil
were
published
in
April
2015.
Its
statement
that
‘
The
tenders
received
were
beyond
budget
(and
beyond
the
GEF allocation for this)
and a revised procurement process approved by the World Bank
is underway’
[43]
was undisputed.  This
aspect was updated in the SAA.
Supplementary
Answering Affidavit filed by ISimangaliso on 6 May 2016
[73]
In
the
SAA
[44]
filed
by
iSimangaliso,
the
deponent
stated
that
the
objective
of
the
SAA was to place limited new information before the court relating
to:
‘
5.1
ongoing consultative processes being undertaken by the first
respondent in fulfilment of
its legislative mandate and duties; and
5.2
progress on the GEF project since August 2015.’
[74]
In amplification of clause 5.1, after stating that it has already
dealt with its policies, plans, protocols, procedures and
the St
Lucia Estuary Management strategy in its previous affidavits,
iSimangaliso provided an updated schedule reflecting consultations
on
updated estuary management plans spanning the period 2008 to 8 April
2016 and the meetings scheduled thereafter, and specified
the
meetings attended by representatives of UCOSP. iSimangaliso also
furnished a draft advertisement inviting public comment and

attendance at a Public Open day on 21 June 2016 on the draft
Integrated Management Plan (IMP) and the Estuary Management Plans.
[75]
I was unable to find any confirmation or admission by iSimangaliso in
the SAA that it had failed to develop estuarine management
plans or
to create cooperative relationships and to consult with other
stakeholders, which it undertook to do in the SAA. To the
contrary I
was satisfied that the SAA was consistent with the allegations in
those sections of its CAA to which I have referred
in the preceding
paragraphs of this judgment.
[76]
I
also
noted
that
‘
Annexure
EC65’
to
the
SAA
was
an
updated
version
of
‘
Annexure
EC8’
to
the
CAA,
reflecting
the
further
consultations
up
to
20
April
2016
and
two proposed meetings, the dates of which have not yet been scheduled
and did
not
constitute an admission of any shortcoming on the part of
ISimangaliso or failure
to
consult
with
UCOSP.
I
was
therefore
also
satisfied
that
there
was
merit
in
Ms
Gabriel’s
submission
that there was nothing new that UCOSP could have learnt from the
SAA.
[45]
[77]
It was also significant that the further consultations and the draft
plans mentioned in the SAA on which UCOSP relied to assert
that
iSimangaliso had admitted its shortcomings in the development of
estuarine management plans, were consistent with the obligations

placed on iSimangaliso by the WHCA, which provides:
‘
26.
Duration of integrated management plan.
(1)
Every integrated
management plan must cover a period of at least five years or
such
longer
period
as
the
Minister
may
determine
but
where
new
opportunities
or
threats
arise,
or
in
the
case
of
changed
circumstances,
an
integrated
management
plan
may
be
reviewed
and
amended
as
and
when
necessary
by
an
Authority,
and
submitted to the Minister
for approval in accordance with
section
25
(4)
.
(2)
An Authority must submit
subsequent integrated management plans to the
Minister
to
be
dealt
with
in
accordance
with
section
25
(4)
before
the
end
of
the
second
last year of the operation of a current integrated management plan.’
[78]
It was common cause that the IMP that has been referred to in this
application as the 2011-2016 IMP. Therefore subsequent IMPs
and
management plans would have to be consulted on in 2016 in draft form
before submission to the Minister for approval. The advertisements

were therefore not inconsistent with this obligation on iSimangaliso.
[79]
In amplification of clause 5.2 of the SAA viz the progress on the GEF
project since August 2015, the nature of the work to
be undertaken,
the contract, the budget and timeline for the removal of the dredge
spoil was set out in paragraphs 12 -18 of the
affidavit. The scope of
the work had been increased by additional funding, and 500 000 cubic
metres of dredge spoil would be removed
in terms of this contract. It
was not disputed that UCOSP attended presentations where Phase 1 of
the contract was discussed in
February and March 2016.
[80]
It was also undisputed that the GEF project is funded by the World
Bank which is also the management agent for the GEF. It
was not
disputed by UCOSP that certain studies had to be carried out in
2013-2014 before the tender could be finalised and advertised.
It was
also not disputed by UCOSP that the initial tender was advertised in
April 2015, prior to the launch of the application
in August 2015.
Consequently UCOSP could not reasonably have anticipated or expected
that the process of finalising the award of
the contract within the
budget and the commencement of the removal of the dredge spoil or the
sand dune would take place within
five months.
[81]
It was therefore my view that UCOSP’s complaint that no action
had been taken by iSimangaliso since 2012 in respect of
the removal
was unfounded and was satisfactorily answered by iSimangaliso, which
could not act or proceed with the removal without
the necessary
approvals or funding. Further as already noted above, the
re-establishment of the linkages within and adjacent to
the Park had
been scheduled for 2016.
[82]
In the premises I remained unpersuaded that the SAA had facilitated
the adjudication of Part B of the application through admissions
made
by iSimangaliso, and that the amended relief sought by UCOSP should
be ordered on the basis of the SAA. Nor would the amended
relief have
been merited when the application was launched in August 2015. To the
contrary, the wide cast allegations by UCOSP
in its founding papers
of statutory non-compliance by iSimangaliso on which the relief it
originally sought premised, were considerably
narrowed by the amended
relief. This was, in my view, an acknowledgement by UCOSP that it
could not sustain all its criticism of
iSimangaliso.
The
Removal of the Dredge Spoil
[83]
It was necessary to consider the consequences of the removal of the
dredge spoil as UCOSP alleged that such removal would afford
relief
from the backflooding on the farms in the floodplain.
[84]
This was disputed by iSimangaliso which reiterated several times that
the removal would not be a solution to UCOSP’s
woes. It was
recognised in the 2011/2012 strategy implemented by iSimangaliso that
backflooding of some of the low lying sugar
cane farms would occur as
a consequence of not artificially breaching the  uMfolozi river
mouth; but the affected farms lie
on the estuarine functional area
and within the tidal reaches of the
uMsunduze
River (my
emphasis) even when the mouth is open and not all the farms in the
tidal area had implemented flood protection measures.
Therefore the
backflooding of the farms on the floodplain was natural and not a
result of any action or inaction on the part of
iSimangaliso. In the
Shorter Oxford English Dictionary floodplain is defined as ‘a
tract of low lying ground which is often
flooded by a river etc’;
‘an area of low-lying ground adjacent to a river, formed mainly
of river sediments and subject
to flooding.’
[85]
It
was
common
cause
that
flood
protection
measures
were
the
responsibility
of UCOSP. iSimangaliso
contended that the drainage systems installed on the farms on the
floodplain were not adequate or proper
flood protection measures.
It referred
to a meeting
on 6
May
2010 between parties
where UCOSP admitted that its
infrastructure
was
not
designed
to
manage
sustained
backflooding
(which
was
a
regular
problem), as a result of which certain farms were adversely affected.
UCOSP
had
stated
that
upgrading of
its
infrastructure would take
time
as studies needed
to
be
completed
and
budgets
had
to
be
sourced
and
allocated,
but
it
had
agreed
to develop and implement
short term measures and long terms interventions subject to
affordability
and
the
necessary
environmental
processes.
[46]
UCOSP’s
undertaking
and the agreement reached
was confirmed in a joint
media statement subsequently
issued
by the parties.
[86]
However in response,
[47]
although it provided no
details of the flood protection
measures
it has implemented or of changes, if any, which were effected
subsequent
to
the 2010 meeting, UCOSP contended that the problem was not that its
own flood
protection
measures
were
inadequate, but its
measures could not protect the farms
from
backflooding
when
the
river
mouth
was
closed
as
its
flood
protection
system
was
designed only for
yearly
flooding
(my
emphasis). Further UCOSP did not rely on
the
drains and spillways to protect the affected farms, but relied on its
right to breach
(or
have
breached)
the
artificially
closed
uMfolozi
mouth
to
achieve
adequate
drain
down
of
the
waters.
It
also
contended
that
since
2012,
iSimangaliso
had
become
more obstructive
regarding UCOSP’s exercise of its water entitlement to breach
the
uMfolozi
river
mouth
to
avoid
backflooding
and
drain
down
flooded
caneland
and
vetoed
UCOSP’s decision to breach the mouth or required the location
of the breach to
be
sited
at
non-optimal locations instead of
on
the beach
within the
iSimangaliso
Wetland Park.
[48]
[87]
Several points requiring consideration arose from UCOSP’s
contentions.
[88]
The
first
was
that
UCOSP
did
not
acknowledge
that
two
reports
commissioned
by
sugar
cane
farmers
in
2000
[49]
(the
Van
Heerden
report)
and
by
UCOSP
in
2011
[50]
(the
Knox
report)
referred
to
the
subsidence
or
slump
in
the
floodplain
which
would
have
a
marked
impact
on
the
backflooding
onto
the
farms situated on the
floodplain. UCOSP denied that there was any decrease in the
elevation
of
the
affected
canefields
as concluded
in the Van Heerden
report,
although the report was
compiled consequent upon a comparison of the elevation of
sugar
cane
farms
along
the
eastern
edge
of
the
farmlands
which
were
constantly
flooded by tidal action
in 1974, 1990 and 2000, and after any survey datum error had
been
ruled
out.
Van
Heerden
demonstrated
that
the
elevation
in
the
wetlands
in
2000
was
the
same
as
in
1974
while
the
drained
and
leveed
canefields
were
0,3
meters lower than the
wetlands, which was the same deflation that the 1974 to 1990
comparison revealed. He
therefore concluded that subsidence of the canefields was
still
occurring. Although UCOSP
disputed
the
finding
of
subsidence, which is
a
recognised
consequence
of
human
activity on
a
floodplain,
it did not undertake
any
investigations or
resurveys to back up its denial.
[89]
The Knox report dealt with the effect of the slump of the land on
the floodplain. In this report the estimated areas
of
inundation at various contour levels for Cotcane were found to be 135
hectares at 1.0 gmsl, 260 hectares at 1.5 gmsl and 345
hectares at 2
gmsl. Even with the
caveat
that the survey data used was dated
and did not cover the full area of the lower flats, the Knox report
stated ‘Given that
the area is so flat and that a 0.2 to 0.5 m
change in elevation could affect a far greater area than what is
estimated….’
[90]
Mr Knox stated that tidal levels impact on feasible levels of farming
‘when considering an
open
mouth
scenario’
(my emphasis). After considering the tidal variations in the river
when the mouth was open, he concluded that a minimum level of
farming
at Cotcane should be 1.3 gmsl without a forced drainage system, which
would exclude approximately 210 hectares of Cotcane
and suggested
that it was ‘probably pertinent to consider some sort of forced
drainage from this area or consider abandoning
theses cane areas in
favour of some better placed lands.’
[91]
The
confirmation
of
the
subsidence
of
the
cane
farms
and
the
conclusion
in
the
Knox report that forced drainage measures were necessary even when
the river
mouth
was open, sustained the contention by iSimangaliso that the breaching
of the
uMfolozi
river
mouth
or
the
removal
of
the
dredge
spoil
that
currently
blocked
the
mouth would not resolve
the backflooding of the applicants’ farms as backflooding is a
natural process and the affected farms
lie in the estuarine
floodplain  where
flooding
would occur naturally.
[51]
[92]
The
reliance
by
iSimangaliso
on
David
Willoughby
v
Overstrand
Municipality &
others
[52]
on this point was well
placed. The appellant (applicant in the court
a
quo
)
had
erected
buildings
including
a
house
on
the
bank
of
the
Klein
River
about
16
kilometers upstream from
the Klein River estuary, which seasonally opens and
closes
on
normal
river
flow
regimes.
When
the
mouth
of
the
estuary
is
closed
it
is
separated from the sea by
a sand-berm (the berm). To establish connectivity with the
sea
the
berm
needed
to
be
eroded
by
water
from
the
estuary
or
sea,
or
to
be
artificially breached.
The appellant alleged that his house had been damaged by the
flooding
of
the
Klein
River
where
the
municipality
was
obliged,
but
failed,
to
take
steps
to
prevent
such
damage.
In
the
court
a
quo
,
the
appellant
sought
the
review
and
setting
aside,
in
terms
of
PAJA,
alternatively
in
terms
of
the
common
law,
the
municipality’s
decision
to
refuse
to
take
steps
to
prevent
damage
caused
to
his
house
by
the
flooding
of
the
Klein
River.
He
sought
in
the
alternative,
declaratory
relief,
premised
on
an
established
practice
whereby
the
berm
was
breached
whenever low-lying
properties
were
at
threat
of
damage
by flooding,
that
the
municipality could only
depart from this practice if it took reasonable steps to protect
the appellant’s
house from damage and directing the municipality to take reasonable
steps to prevent the
flooding of the appellant’s house as it had done in the past.
[93]
The appellant’s complaint was that the municipality had
upwardly adjusted the mean water level at which the berm would
be
breached to 2.6m amsl from the level at which the breaching had
previously taken place, which caused the damage to his house.
His
relief was not directed at compelling the artificial breaching of the
berm.
[94]
In his introductory remarks in the judgment Blommaert AJ noted that:
‘
7.
When an estuary mouth is closed the inflow from the River gradually
fills the estuary. This occurs when the River inflow exceeds
the
level of losses due to evaporation and seepage. Under natural
conditions, and at a time before human settlement took place,
the
water levels in the Klein River estuary would eventually exceed the
height of the berm and a breaching would occur naturally
at levels
often exceeding 3 to 3.5 MSL (metres above sea-level).’
[95]
Blommaert AJ approached the matter on the basis that the appellant
had to prove that the impugned conduct of the municipality
was the
cause of the damage. In view of the disputes of fact in the papers on
the cause of damage, he held that the matter had
to be decided on the
municipality’s version. He found that the municipality had
furnished reasons with a factual basis for
its view on the cause of
the flooding of the appellant’s house, and substantiated the
reasons by means of documentation and
expert reports thereby
furnishing ‘a perfectly reasonable answer’ to the
appellant’s allegations which the appellant
failed to dispute
convincingly in reply, and accordingly refused the application.
[96]
The appeal against the refusal by the court a quo was dismissed by
the SCA. Although Fourie AJA followed a different route
from the
court a quo in reaching the same conclusion, he too noted that the
municipality’s contention that flooding which
might occur at
the appellant’s property was in all probability related to the
occurrence of major river floods, rather than
to high water levels in
the vlei, was based on expert opinion that the flooding of the
appellant’s property would occur regardless
of whether the
mouth was open or closed. Fourie AJA held that the municipality’s
version could therefore not be rejected
out of hand as being so
farfetched and clearly untenable that it could confidently be said,
on the papers alone, that it is demonstrably
and clearly unworthy of
credence and that on that basis (amongst others) the review
application was doomed to failure.
[97]
Similarly, UCOSP’s reliance on the necessity and urgency
attached to the removal of the dredge spoils in the GEF project
was
also undermined by the conclusion that backflooding would occur on
the applicants’ farms even if the dredge spoils were
removed in
a few months.
[98]
Secondly
UCOSP
did
not
attach
any
credence
or
significance
to
the
photographs and documents
furnished by iSimangaliso
which indicated that the
uMfolozi
river
mouth
has
migrated
approximately
400
metres
northwards
from
the
artificial Maphelane
mouth and one combined mouth has been restored since 9 July 2012
[53]
.
iSimangaliso
submitted
that
the
artificial
mouth which
was
actively
maintained from 1956
after the canalization of the uMfolozi river to assist the farmers
drain
their
farms
and
where
breaching
previously
took
place
was
therefore
not
the
appropriate or optimal
site for breaching. UCOSP did not submit any scientific basis
for
its
allegations
in
respect
of
the
breaching
it
required
at the
uMfolozi
river
mouth
but relied on custom and
its water entitlement under the water use certificate issued
by DWAF.
[99]
Thirdly UCOSP had since
2008 been aware of the impact problems related to
the
artificial breaching of the uMfolozi river mouth and that the
management strategy
implemented
from
2012
was
to
allow
a
natural
joint
mouth
dynamic
to
re-establish
and
to
allow
the
joint
mouth
to
operate
as
naturally
as
possible
including
closure
during the low periods.
[100]
In the Knox report which was delivered in 2011, having considered the
outcomes of a hydrological balance model developed of
the linkage
between the uMfolozi/uMzunduze estuary and Lake St Lucia, in
particular that the single narrow outflow point through
the Back
Channel was inadequate, and the proposal to double the capacity of
the Back Channel and to divert the flows into the Lake
via different
routes at different stages and including sections other than the Back
Channel, Mr Knox supported the proposals and
recommended that UCOSP
support iSimangaliso in doubling the capacity of the linkage as it
would ‘assist with the drainage
and provide fresh water to a
stressed Lake St Lucia.’ But Mr Knox also noted that in order
to achieve iSimangaliso’s
objective of transferring 1 million
cubic meters of water per day with the proposed model, water levels
in the estuary would have
to reach 1.49 gmsl, which would result in a
substantial area of cane being flooded which would not be in the
interests of UCOSP.
[101]
However
even
during
2014
when
meetings
were
held
with
UCOSP
on
the
findings of the
GEF project
which confirmed that
iSimangaliso’s
strategy adopted in
2011
(as set out in the BID) to facilitate a joint mouth for the Lake St
Lucia ‘as natural
breaching
at a high water level ensures better flushing of sediment and the
creation
of
a
relatively
large
mouth’,
[54]
UCOSP
raised
no
objection.
It
was
also
not
disputed that at a
meeting held on 24 April 2015 UCOSP had acknowledged that the
solutions
they
proposed did not take environmental considerations into account.
[55]
[102]
Nevertheless UCOSP persisted with its demand that breaching take
place where it would serve only the interests of its shareholders

instead of the environmentally sound solution proposed by
iSimangaliso, in accordance with its objectives and statutory
obligations,
in particular under s 13(2) of the WHCA which provides:
‘
(2)
An Authority has, unless the Minister prescribes otherwise, the
following duties in connection with a World Heritage Site
under its
control, namely to-
(a)
develop measures for the cultural and environmental protection and
sustainable
development of, and related activities within, World
Heritage Sites and to ensure that the values of the Convention are
given effect
to;
(b)
promote, manage, oversee, market and facilitate tourism and related
development
in connection with World Heritage Sites in accordance
with applicable law, the Convention and the Operational Guidelines in
such
a way that the cultural and ecological integrity are maintained;
(c)
identify cultural and natural heritage that must be transmitted to
future
generations;
(d)
take effective and active measures for the protection, conservation
and
presentation of the cultural and natural heritage;
(e)
facilitate steps that encourage investment and innovation; (
f
)
facilitate programmes that encourage job creation;
(g)
take measures that ensure that the values of the Convention are
promoted;
(h)
establish and implement the Integrated Management Plan;
(i)
initiate steps regarding research, education, training, awareness

raising and capacity building; and
(j)
liaise with, and be sensitive to, the needs of communities
living in
or near World Heritage Sites.
[103]
UCOSP simply placed emphasis on s 13(2)(j) with which it alleged
iSimangaliso failed to comply in respect of its shareholders.
This
attitude failed to recognise that iSimangaliso is obliged to comply
with all of its obligations and therefore  has  to
balance
individual  interests  against  the  collective
interest  and against its obligation
to protect, conserve
and enhance the world heritage values of the Park.
[104]
Section 13(2)(h) of the WHCA also requires iSimangaliso to establish
and implement an IMP. The implementation of the 2011-2016
IMP has
already been dealt with. iSimangaliso also pertinently pointed out
that neither the second nor the third applicant lived
near the world
heritage site as contemplated in s 13(2)(j) and UCOSP and its
shareholders do not constitute a community ‘living’
near
the site – they farm there. iSimangaliso contended that it did
take their interests and concerns into account but it
had also
considered the collective interests of the community.
[105]
But
the
same
demand
was
incorporated
in
the
amended
relief
sought
by
UCOSP.
However I
was
satisfied
that
the
basis for the
demand
was
unsustainable.
UCOSP
had
failed
to
demonstrate
that
it
had
fulfilled
its
own
mandate
to
provide
proper
and
adequate
drainage
measures
on
the
affected
farms and
that
it
was
iSimangaliso’s
management policy, which was contrary to its obligations under
WHCA, which caused
backflooding. UCOSP did not explain
why
its flood protection
measures
were only adequate for ‘yearly’ flooding, which
allegation was inconsistent
with
the
statement
made
by
its
General
Manager
in
its
joint
press
statement
with
iSimangaliso
in
2010
that
‘
The
UCOSP
infrastructure
has
been
designed
for
flood
water and tidal back-up
water and cannot accommodate back-up water levels above ‘mean
sea level’ for extended periods
of time.’
[56]
[106]
In an email to iSimangaliso sent on 14 April 2015 UCOSP’s
General Manager confirmed that there were no improvements
to flood
protection measures. No updated survey data had been obtained which
could confirm that subsidence was not occurring as
alleged by the
applicants. Levees had been lowered and the pumping that had operated
on the property leased by the third applicant
had been discontinued,
which was contrary to the recommendations of Mr Knox in September
2011.
[107]
Further UCOSP did not explain why it had not taken any action to
resist or delay the implementation of the plan to allow the
river
mouths to rejoin naturally although it was involved in stakeholder
meetings and public consultations from 2008, and the 2011/2012

management plan specifically recognised that farms on the estuarine
functional area were at risk even when the uMfolozi river mouth
was
open.
[108]
Consequently I was satisfied that iSimangaliso’s version that
the relief sought would serve no practical purpose nor
would it
provide a permanent solution to the problem of backflooding nor could
it be ‘rejected out of hand as being so farfetched
and clearly
untenable that it could confidently be said, on the papers alone,
that it is demonstrably and clearly unworthy of credence’.
Conclusion
[109]
UCOSP had failed to discharge its onus to show that iSimangaliso had
failed to develop and/or implement the statutory policies,
protocols,
procedures, rules and plans including the GEF project, in terms of
the regulatory framework under which iSimangaliso
holds authority,
specific to the management of the uMfolozi mouth.
[110]
It remained nevertheless necessary for me to consider whether UCOSP
had a right to the declaratory and interim relief sought,
which would
also impact on the issue of costs.
Declaratory
Relief
[111]
As set out earlier, UCOSP
submitted that the relief sought in Part B is
declaratory
in
nature
and
is
not
dependent
on
UCOSP
establishing
a
right.
[57]
This
submission
is contrary to
the
established
legal principle
that when
declaratory relief
is
sought,
it
is
incumbent
upon
the
applicant
to
demonstrate
that
it
has
a
legal
interest in the relief
and set out the facts to sustain the legal interest asserted.
[112]
Section 19(1)
(a)
(iii) of the Supreme Court Act 59 of 1959,
insofar as it is relevant provides:
'(1)
(a)
A provincial or local division shall have jurisdiction over all
persons residing or being in and in relation to all causes arising

and all offences triable within its area of  jurisdiction and
all other matters of which it may according to law take cognizance,

and shall, subject to the provisions of subsection (2), in addition
to any powers or jurisdiction which may be vested in it by
law, have
power -
(i)
. . .
(ii)
. .
(iii)
in its discretion, and at the instance of any interested person, to
enquire into and determine any
existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon
the determination.'
[113]
In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[58]
the
SCA
confirmed
that
the
two-stage
approach
under
the
subsection
consists
of
the
following.
During
the
first
leg
of
the
enquiry
the
Court
must
be
satisfied
that
the
applicant
has
an
interest
in
an
'existing,
future
or
contingent
right
or
obligation'.
At
this
stage
the
focus
is
only
upon
establishing
that
the
necessary
conditions
precedent for the
exercise of the Court's discretion exist. The consideration of
whether or not to grant
the order constitutes the second leg of the enquiry. Once the
applicant has satisfied
the
Court
that he/she/it
has
an
interest
in an
'existing,
future
or
contingent right or obligation', the Court is obliged by the
subsection to exercise its
discretion.
This does not, however, mean that the Court is bound to grant a
declarator, but that it
must consider and decide whether it should refuse or grant the
order, following an
examination of all relevant factors.
UCOS
P’s asserted rights
[114]
In its FA, UCOSP asserted the following three interrelated rights:
1.
its entitlement or right to breach the uMfolozi River mouth to
alleviate backflooding through the Water Use
Certificate issued by
the Department of Water Affairs (DWAF) to UCOSP in 2010 and DWAF’s
subsequent directive to iSimangaliso
to ensure a proper drain down of
the flood plain;
2.
the integrated approach between ‘all spheres of government and
all organs of state within each sphere’
required by the
constitutional principles of co-operative governance to which
iSimangaliso failed to give effect by refusing to
permit UCOSP to
exercise it water right which was granted by DWAF; and
3.
the ‘established practice/custom’ of artificially
breaching the uMfolozi River mouth by iSimangaliso
and its
predecessors which had endured for a period in excess of 60 years.
[115]
In argument Mr
Kemp
submitted that UCOPS’s rights arose
from two sources:
1.
the existing custom of artificially breaching the uMfolozi river
mouth and the recognition by DWAF of UCOSP’s existing
water
entitlement/custom in 2012 in the form of the certificate which
authorised UCOSP to ‘impede or divert the flow of water’

and to ‘alter the bed, banks, course or characteristics of a
watercourse’ within a specifically defined area of about
30 km
along the coast, which included the ‘Mapalane artificial river
mouth’, which iSimangaliso failed to acknowledge
was binding on
it and consequently had unlawfully refused to breach the river mouth.
1.
UCOSP’s right in terms of the law of delict/neighbours/things
to take steps to avoid backflooding on the applicants’
land.
[116]
The
argument on
the
second
source of
UCOSP’s rights
arose
from
recourse
to
common law
by
UCOSP in its RA,
which was clearly
conceived and raised
belatedly, as it was not
raised in its founding papers. It is trite that new claims based
on
facts
not
alleged
in
the
founding
papers
cannot
be
raised
in
reply,
[59]
and
like
UCOSP’s belated
reliance
on
PAJA, did not merit any
further consideration
as
they
were
not part of the case that
iSimangaliso
was called to meet, and I could not find any justification for UCOSP
to be allowed to raise them at a late stage.
[117]
Ms
Gabriel
submitted that UCOSP had failed to establish a
right to the declaratory order originally sought, or as is implicit
in the amended
relief, or for the court to order the relief
consequential to the declarator, as iSimangaliso had demonstrated
convincingly that
it had not failed to comply with its statutory
obligations, while the water use entitlement claimed by UCOSP was
flawed and unenforceable.
She argued further that the new relief
sought by UCOSP would effectively be a recognition of UCOSP’s
rights over the rights
of all other parties who had been involved in
the consultative processes in respect of the Park and the Lake St
Lucia Estuary and
who were affected by the management strategy
employed by ISimangaliso consequent thereto. These parties were
therefore interested
parties whose rights would be affected by the
relief sought but they had not been joined in the application.
Water
Use Certificate
[118]
The
NWA
allows
for
the
continuation
of
the
existing
uses
that
were
lawful
under the old
Water Act 54 of 1956. But
the regulations promulgated under s
26(1)(c)
of
NWA
require
that
a
water
use
be
registered.
It
was
common
cause
that
DWAF conducted a
verification process in terms of s 35(1) of the NWA in respect of
the
historical
water
use
claimed
by
UCOSP.
[60]
After
a
consideration
of
‘
existing
documentation’
and
‘
proof’
in
the
form
of
a
verification
report
and
a
legal
opinion
provided by UCOSP, DWAF
accepted the lawfulness of water works on the uMfolozi
floodplain, and issued a
water use certificate
[61]
to UCOSP on 20 November
2012.
[119]
The water uses registered in the certificate are:
1.
21(c)  impeding or diverting the flow of water in a watercourse,

and
2.
21(i)     altering the bed, banks, course
or
characteristics of a watercourse.
[120]
The ‘water works’ which were verified comprised of the
flood protection infrastructure which had been developed
on 158
sub-divisions (not just Lot 74 Umfolozi) and extended to the
Maphelane artificial river mouth.
[121]
It was common cause that
the water use certificate conferred no right insofar
as
it affected the St Lucia Estuary or the breaching of the uMfolozi
river mouth, which
falls
under the authority of
iSimangaliso.
UCOSP’s grievance was that iSimangaliso
refused
to recognise this lawful water use entitlement, and
chose to ‘veto’
UCOSP’s right
to
open
the
mouth
without
furnishing
reasons,
‘
not
only
demonstrating
but
expressly admitting that
it quite unable to take a rational decision’.
[62]
[122]
iSimangaliso submitted that the verification letter dated from DWAF
furnished by UCOSP has no legal force apart from the water
use
certificate and the disclaimer on the certificate stated that it is
not an entitlement to water use. Therefore UCOSP could
not have any
rights flowing from the certificate.
[123]
iSimangaliso also contended that the verification process utilised by
DWAF was flawed as the s 35(3) of the NWA does not permit
the
verification of a water use entitlement without inviting written
comments from any person who has an interest in the matter
or proper
investigation into the submissions by an applicant who claimed a
lawful water entitlement, and it had not been consulted.
Further
neither the report nor the legal opinion took into consideration
iSimangaliso’s management plan which had already
been
implemented before the water use certificate was issued in November
2012, or the role and powers of iSimangaliso as the management

authority for the Park. The report failed to substantiate UCOSP’s
existing water uses under the test set out in s 32 of the
NWA, and
the actions taken by affected parties for flood protection or
rehabilitation were incorrectly elevated to lawful measures.
The
report also did not refer to the uMfolozi mouth. Therefore the report
fell short as a proper basis for verification.
[124]
The Second Respondent did
not deliver any affidavits in this matter. Given the
significance
of
the
water
use
certificate
to
the
disputes
in
this application, it
was,
in
my view, incumbent upon
the Second Respondent to clarify the issues relating to the
verification process and
the reasons for not consulting with or inviting comment from
iSimangaliso
during
the
process.
The
duty
of
members
of
the
Executive
when
an
administrative
act
they
are
responsible
for
is
in
dispute
was
concisely
stated
in
Merafong
City Local Municipality v AngloGold Ashanti Limited:
[63]
‘
[166]
The Minister was cited as a party in the proceedings but this
notwithstanding she declined to participate. The stance taken
by the
Minister was indeed unusual. Legislation she was given the
responsibility to administer was being challenged and yet she
chose
not to get involved. Despite the fact that it was her decision that
was under attack.  This was not in line with the
duty members of
the executive have towards courts when the validity of legislation
they administer is impugned. That duty arises
even when a Minister
concedes invalidity. They are obliged to furnish the court with any
information which may help it adjudicate
the claim of constitutional
invalidity. It is through Ministers that information on impugned
legislation passed by Parliament reaches
the courts. An applicant
does not have to cite Parliament every time legislation is impugned.
After all, Ministers enjoy the right
to introduce legislation in
Parliament.’
[125]
However UCOSP correctly pointed out s 35(3)(c) of the NWA provides
that a responsible authority
may
invite comments from any
person who has interest in the matter. DWAF explained to iSimangaliso
that because of the significant
backlog in terms of the water
licencing under the NWA, it had accepted that all existing water uses
stood. Therefore while DWAF
may have fallen short in its obligations
under the verification process, whether in respect of its failure to
consult with iSimangaliso
or to interrogate the report and opinion on
which it based its verification of UCOSP’s claimed  water
entitlement,  the
certificate  remained  ‘a
recordal  of  claimed  water
activities’
[64]
by UCOSP which had been
registered in terms of the NWA.
[126]
It
was
common
cause
that
iSimangaliso
had
not
sought
to
have
the
recognition of UCOSP’s
water use by DWAF set aside through judicial review
although
the
recognition
of
UCOSP’s
rights
by
DWAF
constituted
an
administrative
action
which
remains
valid
and
binding
unless
or
until
set
aside.
Relying
on
Merafong
City v Anglogold Ashanti Ltd
[65]
Mr
Kemp
contended that
iSimangaliso could not
set
aside
the
recognition
by
DWAF
through
collateral
challenge
and
the
water
use
certificate
therefore
existed
in
fact
and
in
law
.
On
appeal
to
the
Constitutional
Court
the
orders
of
the
High
Court
of
South
Africa,
Gauteng
Division,
Pretoria
and
the
Supreme Court
of
Appeal
in
Merafong
were
set
aside.
[66]
The
SCA
had
taken
a
‘
category-approach’
to
who
can
raise
a
collateral
challenge
and
held
that
only
an individual whom
a
public
authority threatened
with
coercive
action could do
so, and no
one
outside
the
category,
including
a
public
authority.
The
Constitutional
Court
held
that neither doctrine nor practical reason warranted such a rigid
format, and the
Court
recognised
that a
range
of
reactive
or
collateral
challenges
exists
and
that
in
some, delay is
axiomatically irrelevant, while in others, it counts. Therefore
instead of
shutting
the door in Merafong’s face because of the delay in challenging
the
impugned
administrative
decision,
as
the
courts
a
quo
had
done,
by
upholding
the
appeal
and
remitting
the
matter
for further
consideration
to
the
High
Court
after the
filing of further
affidavits, the Constitutional Court conditionally permitted
Merafong’s
challenge
to proceed. Cameron J, writing for the majority also endorsed the
dictum in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
:
[67]
‘
[36]
Hence the central conundrum of
Oudekraal
that “an unlawful act can produce legally effective
consequences”, is constitutionally sustainable, and indeed
necessary.
This is because, unless challenged by the right challenger
in the right proceedings, an unlawful act is not void or
non-existent,
but exists as a fact and may provide the basis for
lawful acts pursuant to it.
However
in the dissenting judgment, Jafta J held:
‘
[107]
Because of the misapplication of the principle laid down in
Oudekraal
it has become necessary for this court to determine the scope and
content of that principle. Its misapplication has muddled up
our law,
turning on its head basic principles like: an illegal administrative
act has no legal force and as such cannot be enforced.
This is
a principle that flows from the rule-of-law principle of legality
which is to the effect that an illegal administrative
act,
although
it may exist in fact, does not
exist in
law
and
consequently it may not be enforced because it is not binding. This
is so because an administrative act derives its legal force
from its
validity. Simply put an invalid act is unenforceable.’ (My
emphasis)
[127]
The
reason
advanced
by
iSimangaliso
for
not
taking
any
action,
was
that
while
it
consistently
denied
any
right
or
water
entitlement
over
property
under
its
authority, in the absence
of any action taken by DWAF to enforce the rights
conferred
under the
water
use
certificate,
it had
no
need
to
institute
proceedings
to
set
aside
the
certificate.
In
support
of
this
argument
Ms
Gabriel
referred
to
the decision in
Oudekraal.
[68]
[128]
In
Oudekraal
the court concluded that the Administrator's
permission was unlawful and invalid at the outset because he either
failed to take
account of material information because it was not all
before him or, if it was before him, wrongly left it out of the
reckoning
when he should have taken it into account. In considering
the consequences followed from that conclusion, the court held that
the
Cape Metropolitan Council was not entitled to disregard the
Administrator's approval and all its consequences merely because it

believed that they were invalid. The Court held:
‘
[26]…Until
the Administrator's approval (and thus also the consequences of the
approval) is set aside by a court in proceedings
for judicial review
it exists in fact and it has legal consequences that cannot simply be
overlooked. The proper functioning of
a modern State would be
considerably compromised if all administrative acts could be given
effect to or ignored depending upon
the view the subject takes of the
validity of the act in question. No doubt it is for this reason that
our law has always recognised
that even an unlawful administrative
act is capable of producing legally valid consequences for so long as
the unlawful act is
not set aside.’
[129]
The court held further:
‘
[31]
Thus the proper enquiry - at least at first – is not whether
the initial act was valid but rather whether its substantive
validity
was a necessary precondition for the validity of consequent acts.
If
the
validity
of
consequent
acts
is
dependent
on
no
more
than
the
factual
existence
of
the
initial
act
then
the
consequent
act
will
have
legal
effect for so long as the initial act is not set aside by a competent
court.’
[32]
But just as some consequences might be dependent for validity upon
the mere factual existence of the contested administrative
act so
there might be consequences that will depend for their legal force
upon the substantive validity of the act in question.
When construed
against the background of principles underlying the rule of law a
statute will generally not be interpreted to mean
that a subject is
compelled to perform or refrain from performing an act in the absence
of a lawful basis for that compulsion.
It is in those cases - where
the subject is sought to be coerced by a public authority into
compliance with an unlawful administrative
act - that the subject may
be entitled to ignore the unlawful act with impunity and justify his
conduct by raising what has come
to be known as a 'defensive' or a
'collateral' challenge to the validity of the administrative act.’
(My emphasis)
[130]
Arising from the foregoing, I was of the view that UCOSP’s
water use entitlement fell under the former category, while
Ms
Gabriel
favoured the latter. UCOSP therefore had an existing
registered water use in terms of s 32(1)(a)(i) of the NWA as recorded
in the
water use certificate. However arising from the further
pertinent comments by the court in paragraph [37], it is clear that
iSimangaliso
could not simply await enforcement action to react, when
it challenged the legality of the certificate on the basis that the
verification
process and report were flawed:
‘
[37]
…While the Legislature might often, in the interests of
certainty, provide for consequences to follow merely from the
fact of
an administrative act, the rule of law dictates that the coercive
power of the State cannot generally be used against the
subject
unless the initiating act is legally valid. And this case illustrates
a further aspect of the rule of law, which is that
a
public authority cannot justify a refusal on its
part to
perform a public duty by relying, without more, on the invalidity of
the
originating
administrative act: it is required to take action to have it set
aside and not
simply
to ignore it.
[38]
It will be apparent from that analysis that the substantive validity
or invalidity of an administrative act will seldom have
relevance in
isolation of the consequences that it is said to have produced - the
validity of the administrative act might be relevant
in relation to
some consequences, or even in relation to some persons, and not in
relation to others - and for that reason it will
generally be
inappropriate for a court to pronounce by way of declaration upon the
validity or invalidity of such an act in isolation
of particular
consequences that are said to have been produced.’ (My
emphasis)
I
am fortified in my view by the majority judgment of the
Constitutional Court in
Merafong
City v Anglogold Ashanti Ltd.
[69]
[131]
Consequently, the allegations by iSimangaliso on the validity of the
water use certificate required no further consideration.
But
confirmation of UCOSP’s water entitlement did not resolve the
problem, because such entitlement only extended to the
artificial
Mapelane river mouth and could not be enforced because that river
mouth no longer exists as the uMfolozi river mouth
has moved
approximately 400 metres northward and there is one combined river
mouth at the St Lucia Estuary.
[132]
Secondly, s 22(2)(b) of the NWA, which came into operation on 1
October 1998,  provides for permissible water uses to
be
‘subject to any limitation, restriction or prohibition in terms
of this Act or
any
other
applicable
law’
.
(My emphasis). Therefore the water use right asserted by UCOSP is
subject to the provisions of the WHCA which came into effect
from 4
August 2000, and the November 2000 regulations, which seek to restore
the natural estuarine functioning at Lake St Lucia
and confer on
iSimangaliso the powers and duties to achieve that end. As already
held, the management policy implemented by iSimangaliso
which was in
compliance with its statutory obligations was averse to artificial
breaching at inappropriate sites because of the
adverse impact on the
Lake St Lucia estuary and the Park as a whole.
[133]
Similarly s 6(1) of the ICMA which came into effect on 1 December
2009, provides that ‘If there is a conflict relating
to coastal
management between a section of this Act and any other legislation
existing when this Act takes effect, the section
of this Act
prevails’.
[134]
Consequently, although UCOSP may have established a water use right,
the right was curtailed by territorial limits stipulated
in the water
use certificate and could not be enforced against iSimangaliso on the
basis that it was acting capriciously or making
ad hoc decisions when
called upon to breach the river mouth. This fact constrained the
exercise of my discretion in favour of UCOSP
to order the declaratory
or amended relief sought, as did my earlier conclusions that the
declaratory order sought would have no
practical effect and that
iSimangaliso had acted
intra vires
in implementing its
management policy which included the decision not to breach the
uMfolozi river mouth artificially.
Cooperative
Governance
[135]
In its FA UCOSP alleged that iSimangaliso also failed to give effect
to constitutional principles of cooperative governance
by refusing to
permit UCOSP to exercise its water right verified and registered by
the DWAF and despite directives issued by DWAF
against  iSimangaliso
on 9 June 2010 and 18 October 2011.
[136]
iSimangaliso responded by
furnishing a letter recording that at a meeting held
on
23
November
2011
UCOSP
had
acknowledged
that
DWAF
had
no
authority
to
issue
directives
to
iSimangaliso
compelling
it
to
open
the
uMfolozi
mouth.
[70]
At
a meeting on 5 June 2015
officials from DWAF acknowledged that the breaching of the
estuary
fell
within
the
jurisdiction
of
environmental
affairs
and
iSimangaliso
is
the
statutory
management
authority.
It
was
agreed
at
the
meeting
that
an
inter-
governmental
task
team
would
be
constituted
to
review
issues
arising
from
iSimangaliso’s
grievances.
iSimangaliso
furnished
a
schedule
reflecting
all
the
various
inter-governmental
and
co-operative
governance
structures,
relevant
to
the issues
herein,
that
it
participates
in
and
serves
on.
[71]
Consequently,
the
allegation that
iSimangaliso
had
breached
the
principles
of
co-operative
governance
as
required
by Chapter
3
of
the
Constitution
was
properly not
pursued
in
argument
by
UCOSP.
Custom
[137]
UCOSP averred that the practice of artificially breaching the
uMfolozi river mouth existed for over 50 years and all it was
seeking
to do was to preserve the status quo until iSimangaliso complied with
its obligations as the completion of the GEF project
would ultimately
bring relief from backflooding on the canelands.
[138]
The argument advanced was that customs such as the practice of
breaching to drain down farms may become rules of law; and
if a
custom existed for a long time, had been uniformly observed by the
community concerned, was reasonable and certain, it
will
be
found to constitute law.
[139]
It
was
not
suggested
in
the
FA
that
the
custom
of
artificial
breaching
had
in
effect
assumed
the
status
of
a
statute.
The
submission
by
UCOSP
was
that
the
breaching
should
take
place
as
interim
relief
while
the
statutory
obligations
were
complied
with,
which
indicated
that
UCOSP
was
aware
that
the
‘
custom’
had
been
superseded
by
the
statutes
applicable
to
the
uMfolozi
river
mouth
and
the
estuary.
UCOSP also specifically
referred to the obligation the WHCA placed on iSimangaliso
to
develop
measures
for
environmental
protection
and
sustainable
development
of
the
heritage
site
in
order
to
manage
harmful
activities
which
take
place
outside
the
site.
In
Van
Breda
v
Jacobs
the
court
accepted
that
custom
may
change
a
rule
of
common
law,
not
that
it
could
change
statutory
law,
and
that
the
custom
relied
on
had
to
be
consistently and
uniformly practised.
[72]
UCOSP
had
been
made
aware
at
least from 2012 that
artificial breaching would not be practiced as a matter of course
but on a ‘case by
case’ basis because of the policy of conservation and
regeneration
that
was
being
developed
by Isimangaliso
in accordance
with
the
objectives
of
and
its mandate under the
WHCA.
[140]
Secondly for the custom to be considered ‘reasonable’ it
must in relation to the specific circumstances be an
‘eminently
fair one to all parties and works no injustice to anyone’. The
artificial breaching was found to be ‘unreasonable’
by
the scientific studies commissioned by iSimangaliso which
demonstrated that artificial breaching had a severe adverse impact
on
the functioning of the Lake St Lucia Estuary and ecological
biodiversity in the wetland park, and caused wastage of valuable

fresh water. It was on that basis that a decision had been taken not
to breach as a matter of course, the spillway constructed
and other
alternative methods investigated and implemented in terms of the
management policy adopted by iSimangaliso from 2011/2012.
The
undisputed benefits to the estuary since listed by iSimangaliso
rendered the artificial breaching to drain down canefields

‘unreasonable’, particularly, as already found, the
breaching will not prevent flooding on the canefields that lie
on the
floodplain, and will instead reverse the progress made to restore the
natural functioning of the estuary. The breaches that
have taken
place by iSimangaliso until 2015 which were effected for specific
reasons on appropriate sites, were set out in the
CAA and preliminary
answering affidavit (PAA). I was therefore not persuaded that the
custom of artificial breaching could be classified
as ‘reasonable’
in accordance with the principle in
Van
Breda
v
Jacobs
supra.
[141]
To
the
contrary,
the
insistence
on
breaching
the
river
mouth
on
the
basis
of
custom
to protect the interests of the shareholders, reflected a
self-serving and dated
perspective
and
a
conscious
lack
of
concern
that
environmental
degradation
runs
contrary
to
s
24
of
the
Constitution,
[73]
although
UCOSP
ostensibly
supported
the GEF project. The
management
of
the
St Lucia Estuary was
informed
by
the
results
of scientific
investigation and valid environmental and socio-economic
considerations
and
sought
to
serve
not
only
the
collective
interests
of
the
current
Park
community
(including the interests
of the owners of land adjacent to the Park) and stakeholders,
but
to
preserve
the
world
heritage
site
for
the
benefit
of
future
generations,
an
objective
that
was
lauded
by
the
SCA
in
Company
Secretary
,
ArcelorMittal,
South Africa Ltd &
another v Vaal Environmental Justice Alliance
.
[74]
[142]
Consequently I was not persuaded that UCOSP could properly rely on
custom to assert a right to declaratory relief or the amended
relief
sought.
Failure
to join other parties affected by the relief sought by UCOSP
[143]
Ms
Gabriel
submitted that the relief sought by UCOSP required
that all parties potentially at risk of prejudice by the declaratory
sought by
UCOSP ought to have been joined in the application viz all
parties that had benefited from the implementation of iSimangaliso’s

2011/2012 management policy.
[144]
In
the
authority
furnished,
West
Coast
Rock
Lobster
Association
supra
[75]
the
appellants
were
holders
of
long
term
commercial
fishing
rights
in
West
Coast
rock
lobster
fisheries.
The
first
respondent,
the
Minister
of
Environmental
Affairs
and
Tourism
(the
Minister)
granted
rights
to
catch
and
sell
West
Coast
rock
lobster
to
subsistence
fishers
generally,
and
the
fourth
to
1
245th
respondents
in
particular.
The
appellants
applied
in
the
Cape
High
Court
for
an
order
reviewing
and
setting
aside
this
decision,
and
a
declaratory
order
that
the
Minister
was
precluded
from
using
s
81
of
the
Marine
Living
Resources
Act
18
of
1998
(the
Act)
to
grant
subsistence fishers a
right to catch and sell West Coast rock lobster for commercial
purposes.
[145]
On appeal against the dismissal of the application, Navsa JA held
that the appellants faced two insurmountable problems:
1.
All interested parties were not before the court below and there
was
no indication on the record that a declaratory order would have any
practical effect.
2.
The second hurdle faced by the appellants was the nature and
extent
of the declaratory order sought in the court below: the proposed
order was in substance a perpetual interdict purporting
to
prejudicially affect a whole class of persons (subsistence fishers),
including persons who were not joined as parties to the
litigation
but who might have wanted to say something in opposition to the
relief sought. A declaratory order cannot affect the
rights of
persons who are not parties to the proceedings.
The
appeal was, accordingly, dismissed.
[146]
In
West
Coast
Rock
Lobster
Association
the parties who may have suffered prejudice were specifically those
who were included in ‘the class of subsistence farmers’,

but were not party to the application. The affected parties referred
to by Ms
Gabriel
were ‘640 000 people, 12 traditional
authorities, 12 land claimants, 5 local municipalities, 2 district
municipalities, subsistence
users, NGOs and residents and business
owners around the Park.’ In my view, although the order sought
by UCOSP would ultimately
have a deleterious effect on the St Lucia
Lake estuary, this was an unreasonably wide net to cast to join
parties who may be potentially
prejudiced as respondents.
Failure
to join the shareholders of UCOSP
[147]
In the FA the applicants are described as:
1.
UCOSP, a company with 48 shareholders who farm sugar cane on
9127
hectares of land adjacent to the uMfolozi River. UCOSP provides
various services to its shareholders /farmers on a cost recovery

basis.
2.
The second and third applicants are also shareholders and farmers

whose farms were affected by backflooding resulting from the failure
to breach the uMfolozi River mouth and were again at risk
of imminent
flooding.
[148]
The second applicant, Mr Paul van Rooyen, who deposed to the founding
affidavit, is also the chairperson of UCOSP. He responded
to
iSimangaliso’s allegation that the second and third applicants
had not established that they were shareholders in UCOSP
as follows:
‘
1
I am a second-generation sugarcane farmer farming on the uMfolozi
flats. I grew up and have lived in the area for 58 years. Prior
to me
taking over the farm almost 40 years ago, my farm was run by my
father who farmed there from 1946. I have been a member of
the board
of UCOSP for 24 years. The First Respondent recognises me as a member
of UCOSP.
2
I deposed to the founding affidavit and remain duly authorised to
depose to this replying affidavit in the application for interim

relief on behalf of the Applicants in this matter.’
[149]
There
was
no
response
to
the
allegation
that
the
third
applicant
leases
the
land
on
which
he
farms
and
that
the
lease
was
due
to
end
in
2016
or
to
the
allegation
that
UCOSP
had
not
furnished
any
evidence
of
damage
suffered
by
its
shareholders
other
than
the
second
and
third
applicants
whose
farms
lie
in
the
estuarine functional
zone.
[76]
[150]
On 11 May 2016 UCOSP delivered to iSimangaliso the share certificates
for Riaden Farming CC and uMfolozi Sugar Planters Shareholding
Trust
which did not indicate that the second and third applicants were
shareholders of UCOSP.
[151]
Relying on
Board
of Healthcare Funders of Southern Africa (Association
Incorporated
under
Section
21
of
the
Companies
Act
61
of
1973)
&
another
v
The
Council
for
Medical
Schemes
&
others
[77]
Ms
Gabriel
submitted
that
all
the
shareholders ought to
have been joined in these proceedings, but were not. She also
reiterated
that
only  shareholders  could  benefit  from
the
alleged
‘
custom’.
She
contended
that as the second and third applicants were never shareholders of
UCOSP and had made misleading statements under oath
they ought to be
ordered to pay iSimangaliso’s costs in their individual
capacity and jointly and severally with UCOSP.
[152]
In
Board
of
Healthcare
Funders
of
Southern
Africa,
Pretorius J was called upon to
determine whether the first applicant which alleged that it was a
major representative organisation
of registered medical schemes to
which it also offered various services, was entitled to institute
proceedings for declaratory
relief. He restated the legal principle
that a declaratory order may only be sought by an applicant who has a
legal interest in
the subject matter of the application, and not
merely a financial interest. Such an ‘interested person’
who is entitled
to apply for a declaratory order is ‘a person
who has a direct and real interest in the question of law enquired
into,’
who would be prejudicially affected by the judgement of
the Court; therefore the legal interest must attach to the applicant
itself.
Consequently Pretorius J found that the first applicant did
not have a real interest in the outcome of the application as no
legal
interest had been proved. Pertinent to this application, he
also noted that it would have not been necessary to join the second

applicant had the first applicant in fact represented all the medical
aid schemes.
[153]
In this matter,  UCOSP furnished no explanation or reason why
only two ‘shareholders’ were joint applicants
with UCOSP
while the remaining 46 shareholders were not named or joined as
parties to the application. In any event, I found merit
in Ms
Gabriel’s
submission that the shareholders ought to have
been joined as they held the legal interest in the subject matter of
the application,
even if UCOSP had been mandated to bring the
application. It was also the shareholders and not UCOSP who would be
affected by the
outcome of the application.
Conclusion
on Part B
[154]
The original relief sought in Part B and the amended relief sought
fell to be refused.
Part
A of the Application
[155]
In Part A of the application UCOSP sought urgent interim interdictory
relief, directing iSimangaliso to breach or allow UCOSP
to breach the
uMfolozi estuary in order  to  drain  down  the
current  backflooding  levels
and  to
prevent  further backflooding of the applicants’
farmlands. UCOSP alleged that the relief was
urgent and necessary to
prevent harm to the canefields of its members, certain of which were
already flooded and more of which
were at imminent risk of being
flooded if the uMfolozi river mouth was not urgently opened. Legal
requirements for an interim interdict
[156]
The
legal
requirements
for
an
interim
interdict
were
settled
in
Setlogelo
v
Setlogelo.
[78]
The onus lies on the
applicant to prove on a balance of probabilities:
1.
A  prima facie right, although open to some doubt;
2.
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief
is eventually granted;
3.
The balance of convenience favours the granting of an interim
interdict; and
4.
The applicant has no other satisfactory remedy (failure to implement
the policy and allow or breach the river
mouth).
[157]
In
Olympic
Passenger
Service
(Pty)
Ltd
v
Ramlagan
[79]
Holmes
J
clarified
these requirements:
‘…
where the applicant's
right is clear, and the other requisites are present, no difficulty
presents itself about granting an interdict.
At the other end of the
scale, where his prospects of ultimate success are nil, obviously the
Court will refuse an interdict. Between
those two extremes fall the
intermediate cases in which, on the papers as a whole, the
applicants' prospects of ultimate success
may range all the way from
strong to weak. The expression '
prima
facie
established though open to some doubt' seems to me a brilliantly apt
classification of these cases. In such cases, upon proof of
a well
grounded apprehension of irreparable harm, and there being no
adequate ordinary remedy, the Court may grant an interdict
- it has a
discretion, to be exercised judicially upon a consideration of all
the facts. Usually this will resolve itself into
a nice consideration
of the prospects of success and the balance of convenience - the
stronger the prospects of success, the less
need for such balance to
favour the applicant: the weaker the prospects of success, the
greater the need for the balance of convenience
to favour him. I need
hardly add that by balance of convenience is meant the prejudice to
the applicant if the interdict be refused,
weighed against the
prejudice to the respondent if it be granted.’
Urgency
[158]
UCOSP contended that an extremely urgent situation had arisen: as a
result of the closing of the river mouth in January 2015
and the
unseasonable rains in the catchment areas in July, backflooding had
occurred on 30-31 July 2015 and inundated land of the
second and
third applicants. The parties had been in discussions in respect of
the closure of the river mouth and backflooding
since January 2015,
but iSimangaliso refused to breach where it is optimal for UCOSP,
although it has an obligation to keep the
mouth open until the water
has drained down off the farmlands.
[159]
Despite the alleged urgency, no interim relief was ordered on 4
August 2015. On 15 October 2015 the parties took the consent
order in
respect of interim relief pending finalisation of the application
which was projected for April-May 2016.
[160]
It
is
also
pertinent
that
UCOSP
knew
that
iSimangaliso
was
not
going
to
breach
the
uMfolozi
river
mouth
at
the
site
it
requested
for
some
time
before
the
application
was
launched.
A
letter
dated
25
May
2015
[80]
from
iSimangaliso’s
attorneys to UCOSP’s
attorneys records:
‘
4.
It is also clear to iSimangaliso that it will be extremely
difficult,  but  not impossible, to reconcile the

different points of departure and it may be appropriate for this
matter to be resolved through a formal Court process. As you will

appreciate the issues are complex and cannot be dealt with properly
on an urgent basis, besides the present dispute started in
January
2015 and urgent court action has been repeatedly threatened.
iSimangaliso therefore insists on adherence to the normal
time
periods in any court proceedings.’
5.
in the circumstances iSimangaliso cannot now accede to the
request to open the mouth further south.’
[161]
Prior to the launch of the urgent application UCOSP’s attorneys
wrote to iSimangaliso’s attorneys on 31 July 2015
advising that
backflooding was occurring from that morning and was spreading on the
fields under crop. It was anticipated that
the damage would worsen as
the drainage channels around the canefields were unable to cope with
the water levels and were overflowing.
iSimangaliso was called upon
to confirm by 17h00 on that day as to whether it would open or allow
UCOSP to open the mouth of the
uMfolozi river to drain down the water
from and keep it off the farmland and requested:
‘
In
making
your
decision,
please bear
in mind that
the location of
the opening
must
take
into account the need to have a draining to the sea which would be
effective to
not
only accommodate the river flow but to maintain a drain down of the
overflowing
channels.’
[81]
[162]
However
as
set
out
comprehensively
by
iSimangaliso,
there
were
13
urgent
requests for iSimangaliso
to take open the mouth or take similar action from April 2 2015
[82]
.
The urgent application was subsequently brought on 48 hours’
notice.
[163]
I was in the premises not satisfied that the urgency was justified.
Prima
Facie
Right
[164]
UCOSP alleged that it had not just a prima facie right but a clear
right to the interdict (which also forms part of the amended
relief
sought).
[165]
I have already dealt with the three interrelated rights asserted by
UCOSP to sustain its claim for interim relief: the water
use
certificate, custom and iSimangaliso’s legal duty to act
positively to minimise the threat created to the applicants’

farms by not continuing the practice of artificial breaching.
Although the certificate may have constituted a
prima
facie
right, though open to some doubt, UCOSP failed on the remaining
grounds.
A
Well Grounded Apprehension of Irreparable Harm
[166]
UCOSP contended that if
the urgent interim relief sought was not granted its
shareholders would suffer
irreparable harm. Due to the
backflooding
since February
2015,
the
shareholders
had
already
suffered
considerable
losses,
as
contained
in
the
report prepared by the South African Cane Growers Association
[83]
on the
damage
on
the
uMfolozi
flats
as
the
result
of
flooding
from
January
to
April
2015.
UCOSP contended that the
imminent risk of further damage meant further economic loss.
[167]
As pointed out by iSimangaliso, the only evidence of actual
backflooding was in respect of the limited inundation of
approximately
91 hectares of the properties farmed by the second and
third applicants and there was no demonstration of previous harm to
UCOSP’s
shareholders. The report relied on was merely an
estimate of previous losses as a result of four months inundation.
[168]
I have already dealt with the deficiencies in UCOSP’s own flood
protection measures and the failure to install any modifications
or
improved measures despite the fact that it had been brought to UCSP’s
attention that backflooding would occur even on
an open mouth
scenario. I was therefore not satisfied that UCOSP had demonstrated
‘irreparable harm’ in respect of
the interim relief
sought urgently.
Balance
of convenience
[169]
UCOSP argued that the balance of convenience was also in its favour.
The applicants would suffer substantial financial loss
and the
interim relief was merely the enforcement of the existing practice
which been in operation for approximately 50 years.
Further UCOSP was
entitled to exercise its lawful water entitlement to breach the
uMfolozi river mouth in order achieve adequate
drain down of the
affected land.
[170]
However I was satisfied that the natural process of backflooding, the
prejudice to the environmental advances in the Lake
St Lucia estuary
and wider issues of statutory imperatives, public interest and the
2011/2012 IMP implemented by iSimangaliso,
weighed the balance of
convenience overwhelmingly in favour of iSimangaliso.
No
Alternative Remedy
[171]
UCOSP submitted that extensive negotiations with iSimangaliso had
failed because iSimangaliso was unwilling or unable to take
a
rational, reasoned decision in accordance with the existing practice
in respect of breaching the river mouth.
[172]
I have already held that the allegation that iSimangaliso had taken
ad hoc and unreasonable decisions in respect of the breaching
of the
river mouth was unfounded, and that the reliance on custom could not
be sustained. Further UCOSP did not accept tenders
made by
iSimangaliso on the basis that the proposed sites would not offer
optimal drainage.
[173]
The proposal that the discordant views of the parties be resolved
through recourse to the courts were raised previously.
Conclusion
Part A
[174]
UCOSP  had  not  made  out  a  case
for  urgent  interim  relief.  The
same
considerations and conclusions applied to the amended relief sought
in Part B.
Costs:
Part A and B
[175]
Although Ms
Gabriel
contended that a punitive costs order was
warranted, and I did find that the applicants had been disingenuous
under oath on several
occasions, I was not persuaded that costs on an
attorney and client scale were warranted. However there is no reason
why costs
should not follow the result and the three applicants
should not jointly and severally bear the costs of the application
in
toto,
including the reserved costs.
The
Contempt Applications
[176]
The first issue in the two contempt applications in December 2015 and
March 2016 which arose from iSimangaliso’s alleged
failure and
refusal to comply with the order of court which was taken by consent
on 15 October 2015 (the order), is the interpretation
of the order.
[177]
The portion of the order in dispute reads:
‘
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 Mfolozi River Mouth to the sea to drain down backflooding on the
Applicant[s’] farmland whenever  the
cotca[n]e level
reaches 1.2m.s.l. and shall establish the breach within 24 hours of
being notified of the level by the First Applicant.’
[178]
It is common cause that the order was issued in confirmation of an
agreement reached by the parties at court in respect of
an interim
arrangement pending finalisation of Part B of the application and not
the result of a judicial decision, and that the
‘settlement
agreement’ was in essence a contract between the parties.
[179]
UCOSP
contended
[84]
that
the
order
should
be
interpreted
according
to
the
principles established in
Natal
Joint Municipal Pension Fund v Endumeni
Municipality
[85]
and
Bothma-Batho
Transport
(Edms)
Bpk
v
S
Bothma
&
Seun
Transport (Edms) Bpk
[86]
in respect of contracts:
1.
The starting point is the  plain meaning of the words actually
used;
2.
Where more than one interpretation is possible
(my emphasis)
a.
the context in which the word/phrase is used and
b.
the purpose to which the phrase is directed and the knowledge of the
parties must be considered.
3.
A  sensible  meaning  is  to  be
preferred  to  one  which  would  lead

to absurdity.
[180]
Consequently
what
the
parties
ex
post
facto
think
or
believe
regarding
the
meaning
to be attached to the clauses of the agreement, and thus what  their
intention was, is of no
consequence.
[87]
[181]
The plain meaning of the order required iSimangaliso to do three
things when the trigger level of 1.2m.s.l was reached:
1.
to breach the ‘Mfolozi River mouth to the sea’;
2.
to achieve the breach within ‘24 hours’; and
3.
to drain down backflooding on the Applicants’ farmland’.
[182]
iSimangaliso failed to act as required by the order. Its efforts in
December 2015 were ineffective and the interpretation
of the order by
iSimangaliso to justify its failure which resulted in the second
application was absurd viz that more had to be
demonstrated before
its obligation in terms of the court order arose, and there was not
enough backflooding for it to take action;
in addition to the
backflooding, UCOSP was obliged to prove water logged crops; the
Mfolozi river mouth did not exist; and it did
not have to establish
the breach but the site within 24 hours.
[183]
iSimangaliso
submitted
that
the
principles
to
be
applied
in
interpreting
the
order
were
set
out
in
Engelbrecht
&
another
NNO
v
Senwes
Ltd
[88]
viz
that
the
principles for the
interpretation of contracts must be applied to the interpretation of
a
settlement
agreement.
The
court
applied
the
dictum
in
Coopers
&
Lybrand
and
others v Bryant
.
[89]
[184]
iSimangalsio therefore contended that the clear language of the
interim arrangement against the background circumstances it
had set
out was to the effect that iSimagaliso would:
‘
(a)
breach the Umfolozi River mouth;
(b)
at the place it decided was most appropriate, based on its expertise
and
existing management plan for the St Lucia Estuary;
(c)
establish the site within 24 hours of being notified that the levels
had
reached 1.2msl; to
(d)
assist drain down of
backflooding on the farms.’
[90]
The
Current Approach to Interpretation
[185]
In
Natal
Joint Municipality Pension Fund v Endumeni Municipality
,
[91]
Wallis JA
provided useful guidance
to interpretation of contracts:
‘…
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to
the
context provided by
reading
the particular provision or provisions in the light of the document
as a whole
and
the
circumstances
attendant
upon
its
coming
into
existence.
Whatever the nature of the document,
consideration
must be given to the language used in the light
of
the
ordinary
rules
of
grammar
and
syntax;
the
context
in
which
the
provision
appears;
the apparent purpose to which it is directed and the material known
to those
responsible
for
its
production.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective,

not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the

apparent purpose of the document.’ (My emphasis)
[186]
He held further:
[92]
‘
Unlike
the trial judge I have deliberately avoided using the conventional
description of this process as one of ascertaining the
intention of
the legislature or the draftsman, nor would I use its counterpart in
a contractual setting, “the intention of
the contracting
parties”, because these expressions are misnomers, insofar as
they convey or are understood to convey that
interpretation involves
an enquiry into the mind of the legislature or the contracting
parties. The reason is that the enquiry
is restricted to ascertaining
the meaning of the language of the provision itself.’
(Footnotes omitted.)
[187]
In
Bothma-Batho
Transport
(Edms)
Bpk
Wallis JA again set the approach to interpretation now adopted by
South African courts in relation to contracts. After referring
to the
dictum in
Coopers & Lybrand & others
Wallis JA stated:
‘
[12]
That summary is no longer consistent with the approach to
interpretation now adopted by South African courts in relation to

contracts or other documents, such as statutory instruments or
patents.
Whilst
the
starting
point
remains
the
words
of
the
document,
which are the only relevant medium through which the parties have
expressed
their contractual intentions, the process of interpretation does not
stop at a
perceived
literal
meaning
of those
words,
but
considers
them in
the
light
of  all
relevant
and admissible context, including the circumstances in which the
document
came
into
being.
The former distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages  but  is
'essentially  one  unitary exercise'. Accordingly
it
is no longer helpful to refer to the earlier approach.’ (My
emphasis)
[188]
Therefore although the intention of the parties is not a permissible
enquiry, the ‘
relevant
and
admissible
context
including
the
circumstances
in
which
the order
came into being
’, must be
considered together with the ‘
perceived literal meaning’
of the disputed words, and the application of this approach is
not restricted only to the situation ‘
where
more than
one interpretation is possible’
.
[189]
The argument advanced by UCOSP is based on the literal meaning, as
UCOSP denies that there is any ambiguity in the order and
the
ordinary grammatical meaning must prevail. But if a contextual
interpretation is applied, the following facts become pertinent:
1.
On 15 October 2015, the parties were in court because they were

unable to reach agreement on the relief sought by UCOSP pending
finalisation of Part B: an order directing iSimangaliso to open
or
allow UCOSP to open the uMfolozi estuary to drain down current
flooding and prevent further backflooding of the farmlands of
the
second and third applicants and other shareholders of UCOSP.
2.
UCOSP had made the same demand of iSimangaliso several times
since
the beginning of 2015 and despite the ensuing and protracted
engagement by the parties, no agreement had been reached.
3.
UCOSP had insisted that iSimangaliso breach or allow UCOSP to
site
breach where it had been located prior to iSimangaliso becoming the
management authority for the Park and the Lake St Lucia
estuary: the
artificial Maphelane mouth where the uMfolozi mouth was previously
located, because optimal and quick drain down of
the affected
farmland would be achieved.
4.
iSimangaliso had strenuously resisted and refused to breach
on the
old site. The reasons therefor were fully documented in the answering
affidavits that were already filed by 15 October 2015
and have been
considered earlier in this judgment.
5.
Tenders to breach at sites acceptable to iSimangaliso were refused
by
UCOSP as ineffective.
6.
No interim relief had been ordered on 4 August 2015.
7.
Both parties were ready to argue Part A on 15 October 2015,
but
decided there was merit in my proposal that the parties attempt to
negotiate interim arrangements which would apply until the

finalisation of Part B in approximately six months.
8.
After discussions the parties reverted with what purportedly
was an
interim arrangement acceptable to both of them.
[190]
Therefore the negotiated agreement could not have constituted a
capitulation on the part of either party. But it is apparent
that the
context in which the agreement was reached does not accord with the
interpretation attributed by either of the parties.
[191]
The literal interpretation of the order would mean that, despite its
consistent refusal to comply with UCOSP’s demands
to breach
where the artificial mouth had been located, and its opposition to
the interim relief sought in Part A, iSimangaliso
effectively
capitulated and agreed to act contrary to its own management
policies.
[192]
Similarly iSimangaliso’s submission that it had contemplated
breaching in accordance with its own policy, is the conduct
which
consistently aggrieved UCOSP and culminated in the application.
[193]
Although iSimangaliso consistently maintained that there was no
separate Mfolozi river mouth, only a combined mouth in the
St Lucia
estuary since 9 July 2012, it does not explain why the order states
that breach was to take place at the Mfolozi river
mouth. Nor does it
explain why the interpretation or effect of the words it contends for
viz that the breach would be located ‘at
the place it decided
was most appropriate, based on the expertise and existing management
plan for the St Lucia estuary’
was not fully expressed in the
order. And yet the contended interpretation accords with
iSimangaliso’s prior conduct a few
months prior to the order.
In April 2015 UCOSP asked iSimangaliso to breach as per the previous
practice, iSimangaliso initially
refused but subsequently agreed, but
refused to breach at the usual location and the breach was located at
a northerly location
on 1 and 16 May 2015.
[194]
In my view the clause ‘establish the breach’ is
ambiguous. The verb ‘establish’ when used with an
object
(a noun), is defined in the Shorter Oxford English Dictionary and the
Living Oxford Dictionary as ‘set up on a permanent
or secure
basis; to initiate or bring into being; to start or create or
introduce (something that is meant to last for a long time)’.

Therefore to ‘establish’ the breach could mean to
‘initiate’ or ‘start’ the breach, a process

which commences with the location of a site for the breach, as
contended by iSimangaliso; or it could mean to ‘create’

the breach – which would mean that there would be a physical
opening which would be operational, as contended by UCOSP. However

the further meaning attached to the word ‘establish’,
that what is ‘established’ is meant to least for
a long
time is certainly not in accordance with what was common cause: the
breach was a temporary measure only.
[195]
I am in agreement with
the argument by Mr
Kemp
that
the 1.2msl trigger was
meant
to
provide
certainty
as
to
when
action
should
be
taken
in
respect
of
the
breach.
But
it
was
pertinent
to
note
that
in
a
letter
dated
29
November
2011
[93]
to
UCOSP’s
attorney,
iSimangaliso’s
attorney
recorded
that
iSimangaliso
did
not
accept UCOSP’s
arbitrary
trigger level (Cotcane level)
because
of the dynamic
nature of the system and
called for a meeting with UCOSP’s technical experts.
[94]
[196]
Consequently I can only conclude that that the parties were not
ad
idem
as to the site and implementation of the breach. Given the
ambiguity as set out above and that the contextual interpretation is
irreconcilable with the interpretation contended for by either party,
I am of the view that the order was unenforceable.
[197]
But even if the literal interpretation contended for by UCOSP is
favoured, the requirements for establishing contempt must
be proved:
1.
the order must exist;
2.
the order must have been duly served on, or brought to the notice of,
the alleged contemnor;
3.
there must have been non-compliance with the order; and
4.
the non-compliance must
have been wilful or
mala
fide
.
[95]
[198]
Once
the
first
three
requirements
are
established,
mala
fides
and
wilfulness
are
presumed
unless
the
contemnor
is
able
to
prove
otherwise,
[96]
by
leading
evidence
sufficient
to
create
reasonable
doubt
as
to
their
existence. Should
the
contemnor prove
unsuccessful in discharging this evidential burden, contempt will be
established.
[97]
[199]
Furthermore, as
emphasized by UCOSP, in
Pheko
and in
Van der
Merwe and
another
v
Taylor
NO  &
others
[98]
the
Constitutional
Court
held
that
there
was
a
constitutional
obligation
on
an
organ
of
state
to
display
ethical,
open
and
accountable
conduct
towards
the
public
and
that
the
state
was
required
to
lead
by
example. It was therefore
of importance that organs of state (such as iSimangaliso) should
be
held
to
account
if
they
failed
to
comply
with
court
orders
and
displayed
disregard for the rule of
law.
[99]
[200]
In
Pheko
para 42 the Constitutional Court also stated:
‘
While
courts do not countenance disobedience of judicial authority, it
needs to be stressed that contempt of court does not consist
of mere
disobedience of a court order, but of the contumacious disrespect for
judicial authority.’
[201]
Therefore in order to issue a civil contempt order against
iSimangaliso, it is necessary to consider whether, on a balance
of
probabilities, iSimangaliso’s non- compliance was born of
wilfulness and
mala fides
.
[202]
Having
considered
the
disputes
of
fact
on
the
affidavits
and
iSimangaliso’s
responses
in
the
answering
affidavits
in
each
of
the
contempt
applications
to
the
allegations
of
UCOSP
in
respect
of
its
alleged
failure
to
act
in
accordance
with
the
order,
and
having
noted
that
the
reasons
furnished
for
its
conduct
were
consistent
with
the
management
policy
implemented
in
terms
of  the
BID
and
its
statutory obligations,
and with its allegations in its answering affidavits
[100]
I am unable to draw an
inference
of
wilfulness
and
mala
fides
or
conclude
that
iSimangaliso
is
in
contempt
of
the
order.
It
follows
that
iSimangaliso
has
shown
good
cause
why
it
should not be held in
contempt.
Conclusion:
Contempt applications
[203]
The applications fall to be refused. However I am of the view that
these matters require an exercise of my judicial discretion
in
respect of costs, and costs should not follow the result,
particularly because of my finding that the parties had not reached

proper consensus on the order issued on 15 October 2015. Therefore no
costs should be ordered.
Order
[204]
In the interests of clarity I reiterate the relevant parts of
the order issued on 20 May 2016:
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.
[205]
The following order do issue:
1.
Costs in the Main Application: Parts 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.
______________________
MOODLEY
J
APPEARANCES
For
the
APPLICANTS:

Advocate Kemp J Kemp SC
Ms S Pudifin–Jones
Instructed
by
SHEPSTONE & WYLIE
24 RICHEFOND CIRCLE
RIDGESIDE OFFICE PARK
UMHLANGA ROCKS
4319
For
the
FIRST RESPONDENT
:
Ms A A Gabriel SC
Instructed
by
D’ARCY-HERRMAN RANEY ATTORNEYS
45 AVONWOLD ROAD
SAXONWOLD
JOHANNESBURG
2196
TEL: 011 – 486 3894
FAX: 011 – 486 0646
EMAIL:
raney@ldh.co.za
(REF: MR SG RANEY/TM/153)
C/O NORTON
ROSE
FULBRIGHT
PENCARROW PARK, LA LUCIA
RIDGE
3 PENCARROW CRESCENT
DURBAN
4051
TEL: 031 – 582 5600
REF: SLW 47/Murray
Alexander
SECOND,
THIRD,
FOURTH
AND
FIFTH RESPONDENTS:
SECOND
RESPONDENT

MINISTER OF WATER AND SANITATION
SEDIBENG BUILDING
10th FLOOR, ROOM 1029
185 FRANCIS BAARD STREET
PRETORIA
TEL: 012 – 336 7500
FAX: 012 – 328 4254
THIRD
RESPONDENT

MINISTER OF ENVIRONMENTAL AFFAIRS
ENVIRONMENT HOUSE
437 STEVE BIKO STREET
ARCADIA
PRETORIA
FOURTH
RESPONDENT

MINISTER FOR AGRICULTURE, FORESTRY AND FISHERIES
20 AGRICULTURE PLACE
BLOCK D, FLOOR 1
CNR STEVE BIKO AND
SOUTPANSERG ROAD
ARCADIA
PRETORIA
TEL: 012 – 319 6000
FAX: 012 – 319 6681
FIFTH
RESPONDENT

MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
184 JEFF MASEMOLA STREET
PRETORIA
0001
TEL: 012 – 312 8911
FAX: 012 – 312 8066
C/O STATE
ATTORNEY
(KWAZULU-NATAL)
6th FLOOR, METLIFE
BUILDING
391 ANTON LEMBEDE
(FORMERLY SMITH) STREET
DURBAN
REF: 52/326/15/U/P9 Mr N
Harricharan / Mr Nqasa
[1]
The applicant denies that the parties have competing interests.
[2]
It
was
originally
founded
in
1923
as
a
co-operative
of
the
sugarcane
farmers
who
farm
on
the
uMfolozi floodplain and
registered as a company in 2008.
[3]
Annexure FA16 pp 118 -235.
[4]
The draft order in the heads of argument refers to ‘UCOSP’
in error.
[5]
Timeline of uMfolozi mouth and other relevant or significant
activities Annexure EC 32 pg 748 -751.
[6]
This is recorded in iSimangaliso’s Background information
Document (BID) entitled
Lake
St Lucia:
understanding
the
problem
and
finding
the
solution
.
Annexure
EC5
to
the
Combined
Answering
Affidavit
(CAA), pg 8, record pg 514.
[7]
BID pg 4, Annexure EC5 to the CAA.
[8]
IMP pg 144.
[9]
FA Annexure FA16 pgs 118-235.
[10]
CAA pg 436 para 273-4.
[11]
Ms
Gabriel
has
annexed to her
heads of
argument a list of
what UCOSP contends are
common
cause
facts which are disputed by iSimangaliso (see pgs 54-55).
[12]
Plascon-Evans
Paints
Ltd
at
634H-I
and
638C-E.
See
also
Stellenbosch
Farmers’
Winery
Ltd
v
Stellenvale
Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G.
[13]
Fakie
NO v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 56.
[14]
CAA Vol 4 para 81-140. Heads of argument para 60.
[15]
Swissborough
Diamond Mines (Pty)
Ltd & others v Government of the Republic of South Africa &
others
1999
(2) SA 279
(T) at 323F-G: ‘It is trite law that in motion
proceedings the affidavits serve not only to place evidence before
the Court
but also to define the issues between the parties. In so
doing
the
issues between the parties are identified. This is not only for the
benefit of the Court but also, and
primarily,
for the parties. The parties must know the case that must be met and
in respect of which
they
must adduce evidence in the affidavits.’
[16]
Heads of argument, Part B para 41-42.
[17]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 22.
[18]
RA para 39 pg 1054.
[19]
E.g. Ms
Gabriel’s
argument
on the separation of powers principle.
[20]
Para 117 of the FA.
[21]
Section E para 66-72.
[22]
Para 13 of the CAA
[23]
Annexure EC5 to the CAA.
[24]
CAA para 71.
[25]
CAA para 70. Also see BID pg 525.
[26]
CAA Section G para 96-105 and Annexure EC7.
[27]
CAA para 51: the deponent points out that ‘the IMP (and
related plans) have been approved by the
Third
Respondent
and
…
the
studies
for
Component
1
of
the
GEF
were
in
accordance
with
all
applicable environmental laws”.
[28]
CAA para 460-471 and SAA Part B para 152-155.
[29]
Section H para 108 -112.
[30]
CAA Annexure EC8.
[31]
CAA Annexure EC6 pgs 528-554.
[32]
IMP pg 203.
[33]
Published in GG No 36432, GN No. 341, 10 May 2013.
[34]
CAA
para
55:
The
largest
catchment
of
the
Lake
St
Lucia
system
is
the
uMfolozi
Catchment.
Human intervention inter
alia agricultural farming activities on the floodplain, and the
canalisation and
unnatural
management of the uMfolozi River has had a major impact on Lake St
Lucia.
[35]
CAA Annexure EC7 pg 555.
[36]
ICMA ss 7A (b), (c) and 12.
[37]
CAA Annexure EC4 pg 497-504.
[38]
Vol 9 pgs 920-922; Second contempt application Vol 2 pgs 161-162.
[39]
iSimangaliso also provided a tabular summary of its policies plans
procedures etc. Annexure EC 48
pg
824 -826 which were rejected by UCOSP as not properly founded.
[40]
Para 32 of the FA.
[41]
IMP cl 2.3.6 pg 204.
[42]
CAA Annexure EC6.
[43]
CAA para 123.
[44]
Dated 6 May 2016 Part B pg 1082 -1086.
[45]
Heads of argument para 23-27.
[46]
Annexure EC 33 pg 752 -753.
[47]
RA para 49-51 pg 936-937.
[48]
FA para 33-34.
[49]
CAA Annexure EC 34 pg 754.
[50]
CAA Annexure EC 37 pgs 763-771.
[51]
This would be exacerbated by rising sea levels caused by global
warming See CAA para 23.1 pg
879.
[52]
Abbott
v
Overstrand
Municipality
&
others
(16599/2013)
[2014]
ZAWCHC
184
(1
October
2014) which was
confirmed on appeal by the SCA in
Abbott
v Overstrand Municipality
&
others
(99/2015)
[2016] ZASCA 68
(20 May
2016).
[53]
CAA Annexure EC 30 p733.
[54]
CAA Annexure EC8 p556-560.
[55]
CAA para 377.
[56]
CAA Annexure EC35 pg 756.
[57]
RA para 39.
[58]
2005 (6) SA 205
(SCA) para 16 & 17; see also
West
Coast Rock Lobster Association & others v
Minister of
Environmental Affairs and Tourism & others
[2011]
1 All SA 487 (SCA).
[59]
Airports
Company South Africa
Ltd v ISO Leisure OR Tambo Ltd & another
2011
(4) SA 642
(GSJ)
para
29.
[60]
Section 22(1)(b) read with s 4(2) and 32 of the NWA.
[61]
FA Annexure FA3 pg 60-71.
[62]
FA para 95 pg 35.
[63]
2017 (2) SA 211 (CC).
[64]
RA pg 945 para 70.
[65]
2016 (2) SA 176
(SCA) the court per Maya JA held that the City was
obliged to approach the court
to
rescind the Minister's ruling by way of judicial review, because
even if the ruling were ultra vires, it
existed
in fact and had legal consequences.
By
simply disregarding it, the City had acted in breach of
the principle of
legality. The City was, as organ of state, barred from mounting a
collateral challenge to
the
ruling:
in
our
law
a
collateral
challenge
was
available
to
a
person
threatened
with
coercive
action by a public
authority, and the notion that an organ of state could use this
shield against another
organ
of state was simply untenable. (Paragraphs 15-17.)
[66]
Merafong
fn 63.
[67]
2004 (6) SA 222 (SCA).
[68]
Oudekraal
fn 67 para 34-35.
[69]
Merafong
fn 63 para 43:‘…the
Oudekraal
principle
puts a provisional brake on  determining
invalidity.
The
brake
is
imposed
for
rule-of
-law
reasons
and
for
good
administration.
It
does
not
bring
the
process
to
an
irreversible
halt.
What
it
requires
is
that
the
allegedly
unlawful
action
be
challenged by the right
actor in the right proceedings. Until that happens, for rule-of-law
reasons, the
decision
stands’.
Further
in
para
63
the
Court
stated:
‘
In
abjuring
legal
proceedings
on
the
part
of
organs
of state until there is no reasonable alternative, both section 41
and the Framework Act imply
a
corollary. This is that, when all reasonable measures and
alternative remedies have been
exhausted,
an organ of state to which a contested ruling applies should
ordinarily go to court to have
the
legal
rights
and
wrongs
of
the
ruling
determined.
In
the
circumstances,
without
holding
that
Merafong
was under a stand-alone duty to clarify the Minister’s
decision, once Merafong disputed the
decision,
and
decided
it
did
not
wish
to
comply with
it,
Merafong
owed
a
duty
to AngloGold,
which
relied
on the decision. That duty was to seek clarification from the
courts.  What it could not do was
sit
on its hands or defy the ruling by enforcing its own unilateral
view.’
[70]
CAA Annexure EC21 pg 706.
[71]
CAA Annexure EC49 pg 827-8.
[72]
1921 AD 330.
[73]
Section 24 (b) of the Constitution provides: ‘Everyone has the
right-
(b)
to have the environment protected, for the benefit of present and
future generations, through reasonable
legislative and other
measures that –
(i)
prevent pollution
and ecological degradation;
(ii)
promote conservation;
and
(iii)
secure ecologically sustainable
development and use of natural
resources while promoting justifiable economic and social
development.’
[74]
2015 (1) SA 515
(SCA) para 84.
[75]
West
Coast Rock Lobster Association
fn58
para 46-47.
[76]
CAA para 179- 182.
[77]
2012 JOL 28806
(GNP) paras 43 and 54.
[78]
1914 AD 221
at 227: 'The requisites for the right to claim an
interdict are well known; a clear right,
injury
actually committed or reasonably apprehended, and the absence of
similar protection by
any
other
ordinary remedy . . . where the right asserted by the applicant,
though
prima
facie
established,
is open to some doubt...
the test must be applied whether the continuance of the thing
against which
an
interdict is sought would cause irreparable injury to the applicant.
If so, the better course is to grant
the
relief
if
the
discontinuance
of
the
act
complained
of
would
not
involve
irreparable
injury
to
the
other
party.'
[79]
1957 (2) SA 382
(D) AT 383C-F.
[80]
CAA Annexure EC 54 pg 859-860.
[81]
CAA Annexure EC 59 pg 859-860.
[82]
CAA Annexure EC 53 pg 835-860.
[83]
Annexure FA18 pg 337-341.
[84]
Heads of argument para 13-14.
[85]
2012 (4) SA 593 (SCA).
[86]
2014 (2) SA 494 (SCA).
[87]
Shakawa
Hunting & Game Lodge (Pty) Ltd v Askari
Adventures CC
(44/2014)
[2015] ZASCA 62
(17 April 2015) para 11:
’It must be bone in mind that an action of a contract, the
rule of interpretation is
to
ascertain,
not
what
the
parties’
intention
was,
but
what
the
language
used
in
the
contract
means…’
.
See
Worman
v
Hughes
& others
1948
(3)
SA
495
(A)
at 505.
[88]
2007 (3) SA 29
(SCA) para 6-8.
[89]
[1995] ZASCA 64
;
1995 (3) SA 761
(A) dictum at 768A-D applied. :
‘
The
correct approach to the application of the “golden rule'”
of interpretation after having ascertained the literal
meaning of
the word or phrase in question is, broadly speaking, to have regard:
(1)
to the context in which the word or phrase is used with its
interrelation to the
contract as a whole, including the nature and
purpose of the contract . . . ;
(2)
to the background circumstances which explain the genesis and
purpose of the contract,
ie to matters probably present to the minds
of the parties when they contracted. . . ;
(3)
to apply extrinsic evidence regarding the surrounding circumstances
when the language
of the document is on the face of it ambiguous, by
considering previous negotiations and correspondence between the
parties,
subsequent conduct of the parties showing the sense in
which they acted on the document, save direct evidence of their own
intentions.'
[90]
Heads of Argument para 45
[91]
Natal
Joint Municipality Pension Fund v Endumeni Municipality
fn
87 para 18.
[92]
Ibid para 20.
[93]
CAA Annexure Annexure EC1.
[94]
See
also
opinion
of
the
estuarine
ecologist
Forbes
in
the
First
Contempt
Application
para
18
pg
202:
‘…an instantaneous measurement, whether 1.2msl or any
other sea level, cannot be an instant
trigger
level because it is entirely depended on other factors such as wind
levels, which as in this very
example
shows how variable this can be from second to second.’
[95]
Fakie
NO
fn
13 para 22.
[96]
MEC,
Department of
Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA) and
Pheko
v Ekhurleni
Municipality
2005
(5) SA 600
(CC) para 36.
[97]
Pheko
ibid para 36.
[98]
2008 (1) SA 1
(CC) para 71-72.
[99]
Pheko
fn 98 para 25-27.
[100]
One example is CAA para 114 pg 989.
iSimangalio’s
proposals to UCOSP prior
to 15 October
2015
included:
‘
114.1         Consultation
as to the appropriate time for opening;
114.2
Exchange of relevant information including regular Cotcane readings;
114.3
Opening the mouth where determined by First Respondent as close
as
possible to the natural courses and only as a matter of last resort.
115.
In simple terms the First Respondent cannot and
will not accept
opening the mouth where determined by the applicants and keeping the
mouth open to allow the Applicants to escape
the consequences of
their inadequate and unimproved flood protection works.’