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[2013] ZAGPPHC 98
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Supersize Investments 11 CC v Mec of Economic Development Environment and Tourism Limpopo Provincial Government and Another (70853/2011) [2013] ZAGPPHC 98 (11 April 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 70853/2011
DATE:11/04/2013
In
the matter between:
SUPERSIZE
INVESTMENTS 11
CC
...........................................................
APPLICANT
and
THE
MEC OF ECONOMIC
DEVELOPMENT,
...........................................
1st
RESPONDENT
ENVIRONMENT
AND TOURISM LIMPOPO
PROVINCIAL
GOVERNMENT
THE
SENIOR MANAGER
ENVIRONMENTAL
...........................................
2nd RESPONDENT
IMPACT
MANAGEMENT DEPARTMENT OF
ECONOMIC
DEVELOPMENT,
ENVIRONMENT
AND TOURISM LIMPOPO
PROVINCIAL
GOVERNMENT
JUDGMENT
FABRICIUS
J,
1.
In
this application the Applicant seeks to review and set aside the
decision of the First Respondent (the Second Respondent having
withdrawn his opposition to the application) to dismiss an appeal
brought by the Applicant against the decision of the Second
Respondent to refuse to grant the Applicant authorisation to develop
a so-called eco-estate within the area of the Thabazimbi Local
Municipality. This application was submitted to the Department of
Economic Development, Environment and Tourism of the Limpopo
Provincial Government (“DEDET”) on 15 June 2007. For
purposes of this process Applicant had appointed an independent
environmental consultant, Africageo - Environmental Services ("AGES”)
to do all things necessary in terms of the National
Environmental
Management Act 107 of 1998 (“NEMA”), and the relevant
regulations. The consultant thereafter did submit
a scoping report,
and thereafter also an environmental impact assessment report. No
negative information can be gleaned from the
reports submitted by the
environmental consultants. It is in fact common cause on the
affidavits that this is not an issue between
the parties, and that
nothing further was required by the Respondents in this context.
2.
Applicant
conducts its business from Thabazimbi and the Government authority is
based in Polokwane. In the founding affidavit Applicant
says that to
assist with the delivery of documents and general liaison between it
and the Department, it engaged the services of
a certain Mr.
Mathebula. This gentleman had previously assisted the Applicant in
respect of other townships it had established
in the Thabazimbi area,
and in each case he had been paid for individual services rendered,
such as travelling to Polokwane to
deliver and receive documents, and
to meet with officials from the Department to determine the status of
the Applicant’s
various projects.
3.
On
25 June 2008 the Applicant received an environmental authorisation
purporting to have been issued by the Department. It received
this
from the said Mr. Mathebula, but the authorisation itself is dated 19
June 2008, was addressed to the Applicant, and appeared
to have been
signed by the senior general manager of the Department dealing with
environmental impact management The contact name
provided in this
authorisation for enquiries was a lady whom the Applicant knew to be
the official in the Department dealing with
its application.
Applicant says that it was apparent from the authorisation and the
conditions attached thereto that there was
nothing untoward or
suspicious about those documents. Three pages of detailed conditions
were attached to the authorisation, and
specific information
regarding the application and the consideration of the application
were referred to, which lent authenticity
to them. Applicant
accordingly forwarded a copy of this authorisation to its mentioned
environmental consultant. What is strange,
from both the departments
and the consulting firm’s point of view, is that they held a
meeting on 28 August 2008, in the
absence of Applicant, during which
meeting the Department informed the consultant that the environmental
authorisation was fraudulent.
A conscious decision was taken not to
inform the Applicant thereof. It appears that the Department wished
to investigate the matter,
and that was the reason why the decision
was taken not to inform Applicant that it was a possible suspect in
the context of the
fraud committed. During October the township
establishment relevant to the development was approved by the
Municipality in terms
of the Town Planning and Township Ordinance
applicable at the time. Being blissfully unaware of the fraudulent
authorisation and
the meeting that I have mentioned (Applicant is not
accused of fraud in this application), Applicant commenced with the
installation
of services for the proposed township in November 2008.
There were apparently certain rumours floating around in the society
in
the context of a possible fraudulent authorisation having been
issued, but it was only in June 2009 that the Applicant was informed
by officials of the Department that the relevant authorisation was
fraudulent. In response to this information the Applicant ceased
all
construction activities associated with the development and awaited
the Department’s decision on its application on the
merits.
4.
The
Department was requested to urgently consider the final environmental
impact assessment which had been in its possession since
early 2008.
It however requested Applicant to supply further details of Mr.
Mathebula’s activities, which it did, and it
is not an issue
that subsequently Mr. Mathebula was charged with fraud, and sentenced
to a term of imprisonment in relation to
the issuing of numerous
fraudulent authorisations purporting to have been issued by the
Department Neither the Applicant nor any
of its members were charged,
or accused of being involved in any way with the aforesaid fraud.
Neither the Applicant nor the First
Respondent placed the record on
the proceedings before me, and I must emphasise that nothing in the
affidavits pertaining to this
application indicate that Applicant
acted dishonestly in any manner whatsoever. Vague suggestions were
made by Respondents’
counsel during argument, but these are of
no assistance or relevance at all. A litigant must make his case in
the relevant affidavits,
and this the Department did not do in this
context. See: Valentino Globe BV v Phillips
[1998] ZASCA 43
;
1998 (3) SA 775
(SCA) at
779.
5.
On
3 August 2009 the Department informed the Applicant that its
application could not be professed further as construction activities
had commenced before authorisation had been granted by it. It said in
the relevant letter advising the Applicant of this fact,
that as a
result, the review of the application was discontinued. Applicant was
further warned that the commencement of a listed
activity without
environmental authorisation constituted an offence in terms of the
provisions of section 24 F of NEMA. A so-called
compliance notice in
terms of the provisions of section 31 L of NEMA was threatened by way
of a so-called “pre-compliance
notice” dated 5 August
2009.
6.
As
a result of the Department’s refusal to even consider the
merits of the application for the reason that it relied on, the
Applicant approached this court for an order compelling the
Department to make a decision on the actual application. This order
was granted and is dated 20 October 2009, and I note that the First
Respondent was not cited as a party. The head of the relevant
department was cited as the only Respondent. The Department’s
decision not to further consider the application was set aside,
and
the following other relevant orders were made:
“
3.
That the Respondent, within 10 days from the date of this order
notify the Applicant in writing of any outstanding information
or
documentation it requires in order to make a decision in regard to
the Applicant’s application to develop an eco-estate
on the
property.
4.
That the Respondent, within 30 days of receipt of any outstanding
information or documentation requested in par 3 above, or should
no
information or documentation be so requested, within 40 days of the
date of this order, to grant or refuse the Applicant authorisation
to
develop an eco- estate on the property in terms of NEMA.”
In
my view the order is clear, and gave the Department the opportunity
to request further relevant information, and thereafter to
make a
decision on the actual merits of the application before it. In the
given context, there is in my view no other reasonable
interpretation
open to the Respondent.
7.
No
other Information or documentation was requested, and on 30 November
2009 Respondent’s senior manager refused the authorisation
in
writing, referring to section 24(1) and section 24(4A) of NEMA, and
stating that “invariably the EIA process can only
be applicable
to an activity that has not yet commenced”. No decision on the
merits was taken. Applicant then appealed to
the MEC against the
senior manager’s decision. The MEC dismissed this appeal, and
again the sole reason provided was that
construction activities
associated with the proposed development had commenced before
completion of the prescribed environmental
impact assessment process.
8.
It
was this decision that I am asked to review and set aside on a number
of grounds referred to in section 6 of the Promotion of
Administrative Justice ACT 3 of 200 ( "RAJA”). Seven
grounds were relied on in this context, amongst others that bad
faith
contemplated in section 6{2)(e)(v) had played a role, that the
decision was procedurally unfair, that in any event Applicant’s
application had never been considered, and that this was caused by an
error of law as contemplated in section 6(2)(d) of PAJA.
9.
Before
dealing with what I regard as being the crux of the matter, (and
counsel during argument conceded this to be so) I need to
deal with
the allegations of bad faith. Applicant relied on a dictum in
President of the Republic of South Africa v South African
Rugby
Football Union
1999 (10) BCLR 1059
(CC) at 1123 C to D, to the affect
that good faith is an element of the principle of legality, and was
an aspect of the Rule of
Law which is enshrined in the Constitution
as a founding value. Furthermore, this duty to
act
in good faith was consistent with the values and principles that
govern public administration as contained in section 195(1)
of the
Constitution, particularly those that require a high standard of
professional ethics, impartiality, fairness, and equitable
and
unbiased provision of services and the accountability of public
administration and transparency. This section of the Constitution
sets the bar very high, but no doubt for a very good reason. The
public is not there for the benefit of the administration. Public
administration exists to serve the public, and not to enslave the
public by incompetence, sullenness, ignorance, lack of interest,
greed, dishonesty or self-interest (this short list is not
exhaustive). The Constitution says so directly, but the topic is not
new. I find it fascinating what Aristotle (384-322 BC !) had to say
in this context, in Nichomachean Ethics. Book V: "...the
function of a ruler is to be the guardian of justice, and if of
justice, then of equality”, and ’justice is the good
of
others”. Even apart from these considerations. Applicant’s
counsel Mr. SJ Grobler SC, with him Advocate P. Lazarus,
argued that
public morality would require that public powers entrusted to public
officials ought to be exercised honestly and in
good faith.
In
this context reference was made to Baxter, Administrative Law, Juta &
Co 1984 at 156 to 157, and an unpublished thesis for
the degree of
Doctor of Philosophy by Clive Plasket (now judge) titled The
Fundamental Right to Just Administrative Action: Judicial
Review of
Administration Action in the Democratic South Africa, Rhodes
University 2002 at 368, where he deals with this topic.
In this
context the respected author said the following: “Even without
the above provisions (the Constitutional Court decision
and s195(1)
of the Constitution) political morality would require that public
powers entrusted to public officials ought to be
exercised honestly
and otherwise in good faith.” He then deals with the concept
which comes in various shapes and forms and
does not necessarily
involve dishonesty, as ( have mentioned. In this context however it
is the reference to ‘political morality’
that interests
me. Section 195 of the Constitution, as I have said, deals with
values and principles enshrined in the Constitution
which must govern
public administration. Amongst others a high standard of professional
ethics must be promoted and maintained
"Professional ethics”
however is not only required of public servants, but it is clear from
s195(2) of the Constitution
that the principles contained in
subsection 1 also apply to administration in every sphere of
Government, to all Organs of State
and to all public enterprises. An
“Organ of State" is defined in s239 of the Constitution.,
and it includes any Department
of State or administration in the
national, provincial or local sphere of Government, or any other
functionary exercising a power
or performing a function on terms of
the Constitution. It also includes any functionary exercising a
public power or performing
a public function in terms of any
legislation. One can ask: what does ethics mean in this context?
Ethics deals with questions
of moral judgement and of moral
behaviour, with putting into practice a given set of mutually shared
values and rules. The word
ethics derives from the classical Greek
‘ethicos’, which means character. Depending on the degree
of complexity of
human societies, there can be more specific, more
comprehensive, and more complete codes of ethics that specify in
detail what
it means to be moral and to behave morally. However,
sections 1 and 2 of the Constitution also refer to standards of
conduct that
must be achieved and maintained I must add however, that
unless the public administration in all its forms is committed to
these
values, and the public itself, these Constitutional principles
will remain as part of a dream world only. Section 195 of the
Constitution
Is an admirable example of such a code of ethics in the
context of what is required of those in power who occupy their posts
for
the public benefit (or ought to) It seems to me that political
morality, that Plasket refers to, must be seen in this context at
the
very least.
See
by way of example only: The Code of Global Ethics R. Tremblay,
Prometheus Books 2010, at 28.
10
.
I
was also reminded by Applicant’s counsel that bad faith comes
in a variety of shapes and forms, and does not necessarily
involve
dishonesty. In its strictest usage mala fides refers to fraud,
dishonesty or corruption. It is however often used in a
less
pejorative way to refer to the wrongful use of power even where the
official concerned has been perfectly honest. See Radebe
v Minister
of Law and Order
1987 (1) SA 586
(W) by way of example. In that
decision it was held that the relevant action taken by a police
official constituted mala fide conduct
as there had been a cynical
failure to apply his mind to the subject matter. It is that context
that the Respondent, so it was
argued, was mala fide. In my view the
court order of 20 October 2009 is clear but, as I said, the previous
MEC was not cited as
a party. The relevant decision was taken by an
official, in my view, because he misinterpreted the relevant
provisions of NEMA,
and not, as I was asked to find, because he
cynically attempted to circumvent the affect of the court order, and
therefore acted
mala fide. It is true that he ought to have asked the
Applicant to submit additional information on the merits, if he
thought that
was necessary to arrive at a proper decision. I can
however not find that the relevant official acted with bad intent and
decided
to circumvent the order of the court without further ado.
11
.
The
crux of the case before me is the question whether the relevant
decision not to consider the application on the merits because
the
development had already commenced before a lawful authorisation had
been considered, was a decision materially influenced by
an error of
law. It is clear from the findings of the MEC at the time that he was
of the view that the applicant’s application:
11.1
could not be considered in the normal course after commencement of
any development;
11.2
could only be dealt with in terms of section 24G of NEMA after any
commencement had taken place.
It
was contended that both views were incorrect.
12.
I
have previously decided in an unreported judgment dated 23 November
2012 in Golden Falls Trading 125 (Pty) Ltd v MEC of the Gauteng
Department of Agriculture and Rural Development and Others that NEMA
must be interpreted contextually and purposely. (Case no:
77836/2010)
Chapter 5 of the Act deals with integrated environmental management
and section 23 in particular deals with the general
objectives of
such management. Section 24 deals with environmental authorisations,
and it is clear that the competent authority
(in this case the MEC)
must consider the potential consequences for all impacts on the
environment of listed activities or specified
activities, in order to
give effect to the general objectives of integrated environmental
management as laid down in this chapter.
Section . 24(1 A) then deals
with the relevant requirements applicable to an application and, as I
have said in the Golden Falls
judgment (supra) a case must be
considered on its merits having regard to the purpose of the Act.
In
this case it is common cause that the Applicant complied with all
relevant requirements, that it offered to tender any additional
information that may be required to consider the application, that no
such request was made, and that all relevant information,
taking into
account the purpose of the Act, is before the present MEC (as it was
before the previous MEC).
13.
The
senior manager of the Department as well as the particular MEC,
relied on the provisions of s24F and s24G in stating that the
application could not be considered on the merits (despite the
relevant court order), because once an activity had commenced without
authority, an offence had been committed, and accordingly no
application could be considered thereafter. Section 24G refers to
an
offence committed in terms of s24F. In s24F (3) reference is made to
a charge, and in s24F(4) reference is again made to an
offence, a
conviction and a fine or imprisonment, or both, in my view it is
clear that both sections 24F and 24G in the present
context refer to
criminal proceedings against a person. The present Applicant was not
subjected to any criminal proceedings, and
obviously not convicted in
a criminal court of any offence relevant to s24F and s24G Accordingly
those provisions can not be applied
to it. Apart from that, Applicant
s counsel relied on a decision of this court in Eagles Landing Body
Corporate v Molewa NO an
Others
2003 (1) SA 412
(TPD). That decision
was decided on the basis of similar provisions of the Environment
Conservation Act 73 of 1989 which was repealed
by NEMA. Section 22 of
that Act was relevant which stated that a competent authority had to
grant authorisation for a “proposed
activity". Against the
background of the use of the word “proposed” an argument
was put forward in the Eagles
Landing decision that authorisation for
any identified activity must precede the undertaking of the activity,
and that the legislation
did not permit ex post facto authorisation
of an activity already undertaken. This argument was rejected by this
court, because
it would have the absurd result that in every case
where some construction had been undertaken without the necessary
authority,
authorisation could never be given for the completion of
the construction, and the developer would be obliged to first remove
what
had been constructed, and only thereafter apply for
authorisation before commencing with the construction. It was held
that the
completion of the construction was to be considered as the
“proposed activity” and authorisation couid be given
midway
through the implementation of an activity if, the object of
the Act would otherwise be achieved obviously. It was argued herein
that the provisions of s24 of NEMA and s22 of the Environment
Conservation Act were sufficiently similar for the dictum in the
Eagles Landing case to be fully applicable in the present
circumstances. The relevant development that had taken place here, as
in the case of Eagles Landing, had not been completed, and there was
nothing contained in s24 which would prohibit the authorisation
of
the activity being granted after commencement. It was argued that
should NEMA be interpreted so as to exclude the possibility
of
authorisation after commencement where no offence had been committed
(as in this case), this would lead to absurd results such
as:
13.1
It would mean that an innocent Applicant would be forced by the
provisions of NEMA to admit to a crime that it had not committed
in
order to fall within the ambit of s24G;
13.2
it would also mean that a fine of up to R1 million had to be paid by
an innocent person in terms of s24G(2A);
13.3
the only alternative would be to first demolish what had been done,
and then again to apply for authorisation, something which
was found
to be absurd in the Eagles Landing case. It was accordingly submitted
that the purpose of s24G was designed to cater
for the situation
where no application had been lodged, no or insufficient reports
dealing with impact, mitigation and management
had been submitted,
and an offence had been committed. In the present situation all of
the requirements had been complied with.
Accordingly, since the MEC
dismissed the Applicant’s appeal on the erroneous assumption
that the Applicant s application
ought to have been dealt with in
terms of s24G of NEMA, his decision ought to be set aside, as it was
materially influenced by
an error of law as contemplated in s6(2)(d)
of PAJA.
14.
Having
regard to the purpose of the Act, and how it ought to be interpreted
so as to achieve its stated purpose, I am of the view
that the
relevant dictum in the Eagles Landing decision (at par 101) is
correct on this topic, and ought to be applied herein as
well.
15.
The
application therefore must succeed, but I need to consider whether or
not I ought to remit the application to the present MEC
for
reconsideration as contemplated in s8(1)(c)(i) of PAJA, or not. I
have referred to the relevant facts. The application has
been with
the Department since June 2008, and it is common cause that it did
not have any negative impact on the environment having
regard to any
of the considerations relevant hereto as stipulated by NEMA. Despite
the order of this court authorising the Department
to request and
consider further information from the Applicant, no such request had
been forthcoming. As I have said the most important
consideration
however is that no negative environmental impacts were identified
either by the Department or by the Applicant’s
agent, Although
I did not find that the Respondents’ acted mala fide, in the
broader sense, there are indications of indecision,
lack of urgency,
probably incompetence and most certainly a degree of obstinacy, in
the light of the relevant facts it would serve
no practical purpose
to again place this application before the Department.
16.
There
were applications before me pertaining to affidavits which had not
been filed competently, and in that context there were
applications
for condonation and opposition thereto. Both parties were of
agreement that I should not concern myself with those,
and that I
ought to deal with the application on the merits taking into account
the relevant legal principles. This I have done,
and accordingly I am
of the view that the following order can justifiably be made:
Prayers
1 and 2 of the notice of motion are granted together with costs of
the application including the costs of two counsel.
JUDGE H J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Case
number: 70853/2011
Counsel
for the Applicant: Adv S. J Grobler SC
Adv
P. Lazarus
Instructed
by: Gerneke & Potgieter
c/o
Jacques van Wyk Pretoria
Counsel
for the First Respondent: Adv. F. Diedericks SC
Adv.
M. Mokadikoa
Instructed
by: State Attorney
Pretoria
Heard
on: 25 March 2013
Date
of Judgment:12 April 2013
9.
Before
dealing with what I regard as being the crux of the matter, (and
counsel during argument conceded this to be so) I need to
deal with
the allegations of bad faith. Applicant relied on a dictum in
President of the Republic of South Africa v South African
Rugby
Football Union
1999 (10) BCLR 1059
(CC) at 1123 C to D, to the affect
that good faith is an element of the principle of legality, and was
an aspect of the Rule of
Law which is enshrined in the Constitution
as a founding value. Furthermore, this duty to
[1]
No
other Information or documentation was requested, and on 30 November
2009 Respondent’s senior manager refused the authorisation
in
writing, referring to section 24(1) and section 24(4A) of NEMA, and
stating that