About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 505
|
|
Escarpment Environment Protection Group and Another v Department of Water Affairs and Others (A666/11, 4333/12, 4334/12) [2013] ZAGPPHC 505 (20 November 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A665/11 ; 4535/11
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:
20 NOVEMBER 2013
In
the matters between:
ESCARPMENT
ENVIRONMENT PROTECTION GROUP
………………
First
Appellant
WONDERFONTEIN
COMMUNITY ASSOCIATION
…………………….
Second
Appellant
and
DEPARTMENT
OF WATER AFFAIRS
……………………………………
First
Respondent
XTRATA
ALLOYS (PTY) LTD
……………………………………………
Second
Respondent
THE
WATER TRIBUNAL
……………………………………………………
Third
Respondent
CASE
NOS: A666/11; 4333/12
In
the matters between:
ESCARPMENT
ENVIRONMENT PROTECTION GROUP
………………
First
Appellant LANGKLOOF ENVIRONMENTAL COMMITTEE
………………………
Second
Appellant
and
DEPARTMENT
OF WATER AFFAIRS
……………………………….
First
Respondent
WER
MINING (PTY) LTD
……………………………………………
Second
Respondent
THE
WATER TRIBUNAL
………………………………………………
Third
Respondent
CASE
NOS: A667/11; 4334/12
In
the matters between:
ESCARPMENT
ENVIRONMENT PROTECTION GROUP
………………
First
Appellant WONDERFONTEIN COMMUNITY ASSOCIATION
……………………
.
Second
Appellant
and
DEPARTMENT
OF WATER AFFAIRS
……………………………………
.
First
Respondent
EXXARO
COAL (PTY) LTD
………………………………………………
Second
Respondent
THE
WATER TRIBUNAL
……………………………………………………
Third
Responden
JUDGMENT
Tuchten
J
:
1
The proceedings before us arise from
appeals which served before the third respondent, the Water Tribunal.
The Water Tribunal was
established by s 146(1) of the National Water
Act, 36 of 1998 (“the NWA”). One of the functions of the
Water Tribunal
is to hear appeals arising from the decisions of
responsible authorities on applications for licenses for water use
under s 41
of the NWA.
2
There are
before us, by direction of the Deputy Judge President, three appeals
and three reviews from decisions of the Water Tribunal
given on
appeal to it against decisions made by responsible authorities. In
addition, we must adjudicate upon a number of interlocutory
applications in which the appellants seek in effect condonation for
various failures to comply with the rules relating to the prosecution
of appeals. These include the failure timeously to lodge the record,
the failure to lodge a power of attorney authorising the appellants’
attorneys to act in the appeal. In these instances the appellants
brought substantive applications for condonation. At one stage
the
WER Mining appeal (case no. A666/11) lapsed. The appellants have
brought a substantive application for the reinstatement of
the WER
Mining appeal.
3
All
the interlocutory applications were opposed. In addition, the
appellants were remiss in omitting timeously to file the power
of
attorney required under rule 7(2).
[1]
This omission was cured. It was not
suggested
that the eminent senior counsel or his junior or their attorney who
represented the appellants at any stage acted without
authorisation.
The omission to file the power of attorney caused no prejudice to the
court or any party. It was conceded that the
court had the power
without more to condone this omission. We do so condone.
4
There is in addition an application to
consolidate the three appeals and the three reviews. The
consolidation application was opposed
but not argued and was
overtaken by the direction that the appeals and reviews all be heard
together.
5
The proceedings brought by the
appellants were all initially opposed by all the cited second
respondents and by the first respondent,
which was cited as the
Department of Water Affairs (“the DWA”). We were told by
counsel that the Water Tribunal is
not presently functional; its
members all apparently having resigned. The Water Tribunal, although
cited as a respondent, did not
oppose any of the proceedings. By
notices dated 28 October 2013, the DWA withdrew its opposition. The
appeal involving Exxaro Coal
(case no A667/11) was settled with the
appellants pursuant to a written settlement agreement concluded in
April 2013. In the proceedings
before us, the appellants, on the one
hand, and WER Mining and Xtrata Alloys (whom I shall call
collectively the respondents) on
the other were represented. The
cases in which these respondents were involved proceeded before us.
6
The appeals and reviews all raise one
crisp point of law. Their merits, despite the immense volume of the
paper before us, depend
upon the answer to this single question:
Where
a responsible authority has not invoked its power under s
41(4)(a)(ii) of the NWA to require a license applicant to give notice
of its application for a water use license and to state in such
notice that written objections may be lodged against the application
before a specified date, does a person who has nevertheless lodged a
written objection in time to enable him to participate in
the
decision making process have, if the license is granted against his
objection, a right of appeal to the Water tribunal under
s 148(1 )(f)
of the NWA?
7
The answer to this question does not,
regrettably, end the enquiry before us. This is because the
appellants have not complied with
various rules relating to the
prosecution of appeals from magistrates’ courts to this court
and at least one of their appeals
lapsed pursuant to certain
non-compliances. In this regard the appellants seek what I shall
generally call condonation. Counsel
for the respondents, however,
conceded, as they were bound to do, that in relation to these
procedural matters the court has a
wide discretion to condone. And it
was accepted between counsel that in the exercise of this discretion,
the degree of non-compliance
with the Rules, the importance of the
case, explanations for the failures to comply with Rules, efforts
made toward compliance,
prospects of success, the interest of the
respondents on appeal in finality, avoidance of unnecessary delay,
convenience of the
court and prejudice all play a part. Where there
are no prospects of success at all it will be difficult to envisage a
case in
which condonation will be granted. But nevertheless the law
is clear: the court considers all the factors I have mentioned and
exercises a judicial discretion in which it strives to be fair to all
the litigants before it. In one case the cogency of the explanation
advanced may be decisive; in another the prospects of success or the
absence of prejudice will carry the day. Each case depends
on its own
facts. That is why reported instances in which another court
exercised its condonation discretion in a specific way
do not
constitute authority binding on the court called upon to exercise its
discretion in the case before it for consideration.
8
To put the
crisp point before us in its context, I need to give some background.
The respondents are both engaged in mining activities.
In pursuance
of those activities they applied to the DWA for water use licenses
under the NWA. Of crucial importance in these appeals,
the DWA did
not direct the respondents (as applicants for water use licenses) to
publish notices informing readers that written
objections to the
grant of the licenses might be lodged within a specified time. The
respondents accordingly did not publish any
such notices. The
appellants nevertheless found out about the applications for water
use licenses and submitted written objections.
9
It is unnecessary for present purposes
to go into the minutiae of the objections. They were directed both at
the process followed
by the DWA in its consideration of the
applications and the substance of the applications themselves, in
particular the environmental
degradation the appellants asserted
would take place if the licenses were granted.
10
The appellants themselves are
non-governmental organisations. The first appellant’s members
reside in, work in or regularly
visit the catchment areas affected by
the license applications. Some of the first applicant’s members
are farmers and eco-tourism
operators. The second appellant’s
members, some 400, are land claimants and occupiers and farm workers,
also in the relevant
catchment areas. The appellants have a legal
interest in and are affected by the license applications.
11
Despite the objections, the licenses were granted; WER Mining’s
license was granted on 24 October 2008 and Xtrata’s
license was
granted on 9 December 2009. The appellants then sought, out of time,
to appeal against the decisions granting the licenses
to the Water
Tribunal. As they were out of time, they sought condonation for their
late appeals to the Water Tribunal. Condonation
was granted by the
Water Tribunal.
12
The Water Tribunal then required the
appellants to address it on the question whether the appellants had
the requisite standing
to appeal to the Water Tribunal. This issue
was argued separately from the merits of the appeals. The Water
Tribunal found that
the appellants did not have the requisite
standing and dismissed the appeals, without pronouncing on their
merits. In the case
of Exxaro, too, there was no direction in
relation to the publishing of notices calling for written objections
within a specified
time but the appellants nonetheless submitted a
written objection. Exxaro was granted a license. The appellants
sought to appeal
against the grant of the license to Exxaro.
But
In the Exxaro case, too, the Water Tribunal similarly found that the
appellants lacked standing to appeal.
13
The NWA provides for an appeal to this court on questions of law
against decisions of the Water Tribunal given on appeal to it.
Thus
the appeals before us. After commencing the appeal procedures, the
appellants decided to bring reviews of the Water tribunal’s
decisions to this court. Thus the reviews. The reviews were not
stated in their notices of motion to be in the alternative to the
appeals, but that is how counsel argued them. A consideration of the
reviews will only be necessary if the appeals fail.
14
It is necessary to describe in some detail the legislative scheme
applicable to the present disputes. The starting point must
be the
Constitution. Under s 24:
Everyone
has the right-
(a)
to an environment that is not harmful to
their health or well-being; and
(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.
15
The protection of the environment is an important constitutional
concern. The Constitutional Court said:
[2]
The
importance of the protection of the environment cannot be gainsaid.
Its protection is vital to the enjoyment of the other rights
contained in the Bill of Rights; indeed, it is vital to life itself.
It must therefore be protected for the benefit of the present
and
future generations. The present generation holds the earth in trust
for the next generation. This trusteeship position carries
with it
the responsibility to look after the environment. It is the duty of
the Court to ensure that this responsibility is carried
out.
16
The primary legislative measure
contemplated in s 24(b) is the National Environmental Management Act,
107 of 1998 (“NEMA”).
Its long title and preamble read:
ACT
To
provide for co-operative environmental governance by establishing
principles for decision-making on matters affecting the environment,
institutions that will promote cooperative governance and procedures
for co-ordinating environmental functions exercised by organs
of
state; to provide for certain aspects of the administration and
enforcement of other environmental management laws; and to provide
for matters connected therewith.
Preamble
WHEREAS many
inhabitants of South Africa live in an environment that is harmful to
their health and well-being; everyone has the
right to an environment
that is not harmful to his or her health or well-being;
the State must
respect, protect, promote and fulfil the social, economic and
environmental rights of everyone and strive to meet
the basic needs
of previously disadvantaged communities;
inequality in the
distribution of wealth and resources, and the resultant poverty, are
among the important causes as well as the
results of environmentally
harmful practices; sustainable development requires the integration
of social, economic and environmental
factors in the planning,
implementation and evaluation of decisions to ensure that development
serves present and future generations;
everyone has the right to have
the environment protected, for the benefit of present and future
generations, through reasonable
legislative and other measures that-
prevent pollution and ecological degradation; promote conservation;
and
secure ecologically
sustainable development and use of natural resources while promoting
justifiable economic and social development;
the environment is a
functional area of concurrent national and provincial legislative
competence, and all spheres of government
and all organs of state
must co-operate with, consult and support one another;
AND WHEREAS it is
desirable -
that the law
develops a framework for integrating good environmental management
into all development activities; that the law should
promote
certainty with regard to decision-making by organs of state on
matters affecting the environment;
that the law should
establish principles guiding the exercise of functions affecting the
environment; that the law should ensure
that organs of state maintain
the principles guiding the exercise of functions affecting the
environment;
that the law should
establish procedures and institutions to facilitate and promote
co-operative government and intergovernmental
relations;
that the law should
establish procedures and institutions to facilitate and promote
public participation in environmental governance;
that the law should
be enforced by the State and that the law should facilitate the
enforcement of environmental laws by civil society;
…
17
Section 2 of NEMA sets out the principles which are to apply
throughout the Republic alongside “all other appropriate and
relevant considerations”, “serve as guidelines by
reference to which any organ of state must exercise any function
when
taking any decision in terms of this Act or any statutory provision
concerning the protection of the environment” and
“guide
the interpretation, administration and implementation of this Act,
and any other law concerned with the
protection
or management of the environment”. These principles prescribe,
to the extent relevant for present consideration,
that
[3]
(2)
Environmental management must place
people and their needs at the forefront of its concern, and serve
their physical, psychological,
developmental, cultural and social
interests equitably.
(3)
Development must be socially,
environmentally and economically sustainable.
(4)
(a) Sustainable development requires the
consideration of all relevant factors including the following:
(i)That
the disturbance of ecosystems and loss of biological diversity are
avoided, or, where they cannot be altogether avoided,
are minimised
and remedied;
(ii)
that
pollution and degradation of the environment are avoided, or, where
they cannot be altogether avoided, are minimised and remedied;
(iii)
that the disturbance of landscapes and
sites that constitute the nation’s cultural heritage is
avoided, or where it cannot
be altogether avoided, is minimised and
remedied;
(iv)
that waste is avoided, or where it
cannot be altogether avoided, minimised and re-used or recycled where
possible and otherwise
disposed of in a responsible manner;
(v)
that the use and exploitation of
non-renewable natural resources is responsible and equitable, and
takes into account the consequences
of the depletion of the resource;
(vi)
that the development, use and
exploitation of renewable resources and the ecosystems of which they
are part do not exceed the level
beyond which their integrity is
jeopardised;
(vii)
that a risk-averse and cautious approach
is applied, which takes into account the limits of current knowledge
about the consequences
of decisions and actions; and
(viii)
that negative impacts on the environment
and on people's environmental rights be anticipated and prevented,
and where they cannot
be altogether prevented, are minimised and
remedied.
(b)
Environmental management must be
integrated, acknowledging that all elements of the environment are
linked and interrelated, and
it must take into account the effects of
decisions on all aspects of the environment and all people in the
environment by pursuing
the selection of the best practicable
environmental option.
(c)
Environmental justice must be pursued so
that adverse environmental impacts shall not be distributed in such a
manner as to unfairly
discriminate against any person, particularly
vulnerable and disadvantaged persons.
(d)
Equitable access to environmental
resources, benefits and services to meet basic human needs and ensure
human well-being must be
pursued and special measures may be taken to
ensure access thereto by categories of persons disadvantaged by
unfair discrimination.
(e)
Responsibility for the environmental
health and safety consequences of a policy, programme, project,
product, process, service or
activity exists throughout its life
cycle.
(f)
The
participation of all interested and affected parties in environmental
governance must be promoted, and all people must have
the opportunity
to develop the understanding, skills and capacity necessary for
achieving equitable and effective participation,
and participation by
vulnerable and disadvantaged persons must be ensured.
(g)
Decisions must take into account the
interests, needs and values of all interested and affected parties,
and this includes
recognising all forms
of knowledge, including traditional and ordinary knowledge.
(h)
Community wellbeing and empowerment must
be promoted through environmental education, the raising of
environmental awareness, the
sharing of knowledge and experience and
other appropriate means.
(i)
The
social, economic and environmental impacts of activities, including
disadvantages and benefits, must be considered, assessed
and
evaluated, and decisions must be appropriate in the light of such
consideration and assessment.
(j)
The right of workers to refuse work that
is harmful to human health or the environment and to be informed of
dangers must be respected
and protected.
(k)
Decisions must be taken in an open and
transparent manner, and access to information must be provided in
accordance with the law.
18
The purpose of the NWA, one of the
measures contemplated in NEMA and thus to be interpreted having
regard to the provisions of NEMA
which I have quoted, is expressed in
s 2. It is:
...
to ensure that the nation's water resources are protected, used,
developed, conserved, managed and controlled in ways which
take into
account amongst other factors-
(a)
meeting the basic human needs of present
and future generations;
…
(e)
facilitating social and economic
development;
(f)
providing for growing demand for water use;
(g)
protecting aquatic and associated
ecosystems and their biological diversity;
(h)
reducing and preventing pollution and
degradation of water resources;
…
and
for achieving this purpose, to establish suitable institutions ... .
19
The NWA provides for licensed and unlicensed water use. The uses for
which the respondents as license applicants sought licenses
are
lawful only under a license granted pursuant to an application to a
“responsible authority” under s 41 of the NWA.
[4]
20
Applications for water use will often
affect the rights of others. A responsible authority which decides an
application under s
41 of the NWA performs an administrative action.
Those affected by such an application for water use are thus
entitled, under s
33(1) of the Constitution, to administrative action
that is lawful, reasonable and procedurally fair. The Promotion of
Administrative
Justice Act, 3 of 2000 (“PAJA”) prescribes
in such a case that the organ of state taking the administrative
action
must consider in each case what procedure would most
appropriately give effect to the right to procedurally fair
administrative
action.
21
The scheme in the NWA for achieving the
constitutionally mandated end of procedurally fair administrative
action is contained in
s 41. I think it is necessary to quote it in
full:
Procedure
for licence applications
(1)
An application for a licence for water
use must-
(a)
be made in the form;
(b)
contain the information; and
(c)
be accompanied by the processing fee,
determined by the responsible authority.
(2)
A responsible authority-
(a)may,
to the extent that it is reasonable to do so, require the applicant,
at the applicant’s expense, to obtain and provide
it by a given
date with-
(i)
other information, in addition to the
information contained in the application;
(ii)an
assessment by a competent person of the likely effect of the proposed
licence on the resource quality; and
(iii)
an independent review of the assessment
furnished in terms of subparagraph (ii), by a person acceptable to
the responsible authority;
(b)
may conduct its own investigation on the
likely effect of the proposed licence on the protection, use,
development, conservation,
management and control of the water
resource;
(c)
may invite written comments
from any organ of state which or person who has an interest in the
matter;
and
(d)
must afford the applicant an opportunity
to make representations on any aspect of the licence application.
(3)
A responsible authority may direct that
any assessment under subsection (2) (a) (ii) must comply with the
requirements contained
in regulations made under section 26 of the
Environment Conservation Act, 1989 (Act 73 of 1989).
(4)
A responsible authority may, at any
stage of the application process, require the applicant-
(a)
to give suitable notice in newspapers
and other media-
(i)
describing the licence applied for;
(ii)
stating that written objections may be
lodged against the application before a specified date, which must be
not less than 60 days
after the last publication of the notice;
(iii)
giving an address where written
objections must be lodged; and
(iv)
containing such other particulars as the
responsible authority may require;
(b)
to take such other steps as it may
direct to bring the application to the attention of relevant organs
of state, interested persons
and the general public; and
(c)
to satisfy the responsible authority
that the interests of any other person having an interest in the land
will not be adversely
affected.
22
Two procedures for facilitating the
involvement of interested persons are specifically identified in s
41. Section 41(2)(c) empowers
a responsible authority to “invite
written comments from any organ of state which or person who has an
interest in the matter”,
while s 41 (4) empowers a responsible
authority to require a license applicant to give “suitable
notice” in the media
in which the responsible authority may
require the applicant to state that
...
written objections may be lodged against the application before a
specified date, which must be not less than 60 days after
the last
publication of the notice.
23
A considerable degree of flexibility is accorded to the responsible
authority to achieve procedurally fair administrative action.
It will
be noted that none of the provisions of s 41 are mandatory in the
sense that a responsible authority is bound by the provisions
of s 41
itself to take any of the steps specified in the section. In each of
the instances provided for in s 41, the responsible
authority “may”
take the step described. In my view, the word “may”
should be read as a complete discretion
to the responsible authority
to decide whether or not to require publication, coupled with a duty
to do so in a proper case.
[5]
Whether or not a responsible authority is required by law to take any
such step depends on the facts of the case before it. And
the steps
individually described in s 41 are not the only steps which a
responsible authority can, or should, take in a given instance.
A
responsible authority must take steps within its power to ensure
compliance with s 33 of the Constitution and s 3 of PAJA. To
that
end,
s
4(1 )(e) of PAJA specifically empowers a responsible authority
[6]
to follow a procedure other than those specifically mentioned in ss
4(1 )(a) and (b) which is appropriate to give effect to s 3.
24
I must stress, for reasons which will
emerge, that a responsible authority need not, even if it invokes its
powers specifically
conferred by s 41 (4) to require notice through
the media, require that a license applicant must make mention of
objections, written
or otherwise, or a specified date for the lodging
of such objections. The type of notice in each case, I repeat, must
be determined
on the facts of the individual case. This is recognised
in s 41(4)(b) which empowers a responsible authority to require a
license
applicant to
...
to take such other steps as it may direct to bring the application to
the attention of relevant organs of state, interested
persons and the
general public.
25
The notice regime envisaged under s
41(4), with or without its potential prescription under s 41
(4)(a)(ii) for admonishing objectors
to lodge written objections
before a specified date is thus merely one of a range of options
available to a responsible authority
to achieve compliance with the
constitutionally mandated requirement of
administrative
action which is procedurally fair to those affected by it, in this
case the decision on an application for a water
use license.
26
Under s 42 of the NWA, after a
responsible authority has reached a decision on a license
application, it must promptly notify the
applicant and any party who
has objected to the application.
27
This brings me to the Water Tribunal
which, I have said, was established under s 146(1) of the NWA. It is
an independent body with
country wide jurisdiction. It is required to
consist of a chairperson, a deputy chairperson and such members as
the Minister of
Water Affairs and Forestry considers necessary. Under
s 147(1), a matter before the Water tribunal may be heard and decided
by
any one or more of its members.
28
Appeals lie to the Water Tribunal in a
number of situations identified in s 148(1) of the NWA. Here again, I
must quote the provisions
in full:
(1)
There is an appeal to the Water Tribunal-
(a)
against a directive issued by a
catchment management agency under section 19(3) or 20(4)(d), by the
recipient thereof;
(b)
against a claim by a catchment
management agency for the recovery of costs under section 19(5) or
20(7) by the person affected thereby;
(c)
against the apportionment by a catchment
management agency of a liability for costs under section 19(8) or
20(9), by a person affected
thereby;
(d)
against a decision of a water management
institution on the temporary transfer of a water use authorisation
under section 25(1),
by a person affected thereby;
(e)
against a decision of a responsible
authority on the verification of a water use under section 35 by a
person affected thereby;
(f)
against a decision of a responsible
authority on an application for a licence under section 41, or on any
other application to which
section 41 applies, by the applicant or by
any other person who has timeously lodged a written objection against
the application;
(g)
against a preliminary allocation
schedule published by a responsible authority under section 46 (1),
by any interested person;
(h)
against the amendment of a condition of
a licence by a responsible authority on review under section 49(2),
by any person affected
thereby;
(I)
against a decision of a responsible
authority on an adjudication of claims made under section 51(1), by
any person affected thereby;
(j)
against a directive issued by a
responsible authority under section 53(1), by the recipient thereof;
(k)
against a claim by a water management
institution for the recovery of costs under section 53 (2) (a), by
the person against whom
the claim is made;
(l)
against a decision by a responsible
authority on the suspension, withdrawal or reinstatement of an
entitlement under section 54,
or on the surrender of a licence under
section 55, by the person entitled to use water or by the licensee;
and
(m)
against a declaration made by, directive
given by or costs claimed by the Minister in respect of a dam with a
safety risk under
section 118(3) or (4).
29
Because it is relevant to an argument
made by counsel for WER Mining, I must add that the effect of the
noting of an appeal to the
Water Tribunal is to suspend a license for
water use granted under s 41, unless the Minister directs otherwise.
30
Section 149 of the NWA gives to a party
to a matter in which the Water Tribunal has given a decision on
appeal under s 148 the right
to appeal, on a question of law, against
that decision to a High Court. The appeal to the High Court must be
noted in writing within
21 days “of the date of the decision of
the Tribunal”. The notice of appeal must be lodged with the
relevant high court
and the Water Tribunal and be served on every
party to the matter. The appeal itself must be prosecuted as if it
were an appeal
from a magistrate’s court to a high court.
31
I return now to the facts of the cases
before us. The appellants appealed against the grant of the water use
licenses to the Water
Tribunal. Their appeals were noted out of time.
They applied for condonation. A hearing was convened to determine
whether condonation
should be granted. It was. But then the question
was raised whether the appellants had standing to appeal to the Water
Tribunal.
In the case of WER Mining, the Water Tribunal raised the
question itself. Xtrata itself raised the question in its case.
32
The Water Tribunal proceeded
after a hearing to find that the appellants had no standing to
approach it on appeal as an objector
against the grant of a water use
license under s 41. It was common cause that in order to establish
standing the appellants had
to bring their case within s 148(1 )(f).
No other provision provided a basis upon which the appellants might
legitimately appeal
to the Water Tribunal against the grant of the
licenses. But, said the Water Tribunal, s 148(1 )(f) did not provide
for an appeal
by any person (apart from an aggrieved license
applicant) except a person who had timeously lodged a written
objection against
the application.
33
And person who had timeously lodged, the
Water Tribunal reasoned, could only refer to a person who had lodged
a written objection
pursuant to a notice given after having been
required to do so under s 41(4)(a)(ii). But the responsible
authority, as I have noted,
did not require the respondents as water
license applicants to do anything pursuant to s 41(4). So, the Water
Tribunal concluded,
no right of appeal to the Water Tribunal lay
against the grant of the licenses by the appellants. The appellants
were, it will
be remembered, persons
who
had entered upon the issue and had lodged written objections against
the grant of the licenses otherwise than after or pursuant
to notice
under s 41(4)(a)(ii).
34
In
the present case, I consider it appropriate first to consider the
appellants’ prospects of success. This is constitutional
litigation. The constitutionally protected rights to just
administrative action, access to courts or other dispute resolution
forums, equality and an environment that is not harmful are all
engaged directly or indirectly by the issue raised. Legislation
must
be interpreted to promote the spirit, purport and objects of the Bill
of Rights. If there is more than one plausible interpretation
of a
statute, the court must adopt that interpretation of the measure
which better promotes these constitutional values. A generous
interpretation is to be preferred to one which is merely textual or
legalistic. The measure to be interpreted must be examined
within the
context of any related provisions and the statute as a whole,
including its underlying values. While the text is often
the starting
point of any statutory construction, due regard must be paid to
context.
[7]
35
Where
the interpretative function requires the ascertainment of the
appropriate meanings or shades of meaning of words which can
bear
different meanings or shades of meaning, this should not be divorced
from the broad context of the use of the words in question.
A court
must consider the apparent purpose of the measure and the context in
which it occurs.
[8]
36
In my view the measure we are called
upon to consider can textually bear the meanings contended for by
both sides. So we must determine
the meaning to be preferred.
37
Taking the text of s 148(1 )(f) alone,
purely as a starting point, it is striking that the measure does not
identify the written
objection which creates the right of appeal. Had
the purpose of the measure been to restrict the class of written
objectors to
those who responded to or merely responded after the
publication of a notice containing the admonition concerning the
specified
date, one would have expected the text to have referred to
a written objection pursuant to a notice under s 41 (4)(a)(ii) or at
the very least a written objection pursuant to a notice under s
41(4). For obvious reasons, a person who found out about the license
application and sought to participate in the decision making process
where no such notice was published had a right to do so. This
case is
an example of just that.
38
Timeously
is not defined in the NWA. In its dictionary definitions, the word
can mean, according to the Oxford English Dictionary,
sufficiently
early, in good time; promptly; in a well timed or opportune manner.
It was submitted by counsel for the respondents
that a word used in a
statute is generally presumed to bear the same meaning throughout.
This is so but it is by no means an inflexible
rule.
[9]
From that starting point, counsel argue that written objection in s
148(1 )(f) should bear the meaning it carries in s 41 (4)(a)(ii).
39
But the premise on which the argument of
counsel for the respondents is founded is flawed: the word timeously
is not used in s 41
(4)(a)(ii). The proper enquiry, as I see it, is
not what
written objection
means in the context of s 148(1 )(f) but what
timeously
lodged
a
written objection
means in that
context. And indeed to interpret s 41 (4)(a)(ii) to mean that an
objection lodged after a date specified in the subsection
was not
timeous in the sense that such an objection should ipso facto be
excluded from consideration would be constitutionally
offensive. As
was correctly conceded in argument by counsel for the respondents, a
written objection submitted after the specified
date but in good time
to be dealt with during the decision making process must be taken
into account. It seems strange to conclude
that one and the same
written objection may be timeous for the purposes of the s 41
decision making process (the single purpose
for which it was
solicited) but untimeous for the purposes of s 148(1 )(f).
40
The
submission for the respondents, however, was that such a class of
objectors, in common with all persons submitting written objections
otherwise than pursuant to and in accordance with a notice containing
a specified date given in the media, did not obtain the right
of
appeal to the Water Tribunal enjoyed by those objectors whose written
objections followed the appropriate notice pursuant to
s
41(4)(a)(ii). From this it followed, quite ineluctably, that on the
interpretation advanced by the respondents, an objector who
through
no fault of her own (eg through inability to read or otherwise access
the media required for the notice) failed to lodge
her written
objection by the specified date would enjoy a right of participation
in the initial application for the license but
would not enjoy a
right of appeal to the Water Tribunal.
41
Counsel for the respondents submitted that the exclusions of the
classes of objectors I have mentioned from the appeal process
to the
Water Tribunal which follow from the interpretation they advanced
were merely examples of a clearly discernable legislative
scheme. We
were rightly admonished to bear in mind the separation of powers
doctrine and not to intrude upon the preserve of the
Legislature
merely because we thought a better scheme could be devised than that
selected by the Legislature. In oral argument
counsel for the
respondents were invited to explain why the Legislature might
rationally have chosen to exclude these objectors
from the appeal
process on no ground other than that the responsible authority had
chosen to select one method over another of
bringing the fact of the
license application to the notice of potential objectors. Three
grounds were advanced.
[10]
Manifestly, the means chosen to bring the fact of the license
application to the notice of potential objectors can have no bearing
on the merits of any potential objection or the merits of any
potential appeal.
42
Furthermore, the purpose of the
specified date would not be to limit participation in the decision
making process before the responsible
authority, the administrative
process which was the subject of the published notice - because there
was no basis upon which to
ignore an objection received after the
expiry of the specified date but in good time for consideration by
the responsible authority.
This even though the only administrative
process identified in the notice would be that before the responsible
authority. The purpose
proposed would be to limit participation in
another, at that stage uncontemplated, administrative process (before
the Water Tribunal
but not mentioned in the notice) which could only
conceivably arise after the process before the responsible authority
had been
completed and, for present purposes, if the decision of the
responsible authority went against the objector.
43
And to add to the eccentricity of the scheme suggested by counsel for
the respondents: if an objector excluded by the nature
of the notice
she received from enjoying a right of appeal to the Water Tribunal,
was aggrieved by the failure of the responsible
authority to direct
publication which included a specified time for objection under s 41
(4)(a)(ii) and wanted to achieve a right
of appeal in case she lost
before the responsible authority, the remedy of such an objector, on
counsels’ submission, would
be to review the decision of the
responsible authority not to direct such publication. This means
that, on the respondents’
argument, an objector preparing to
attack the license application, who ex hypothesi had suffered no
prejudice in relation to the
administrative process before the
responsible authority
as
a result of the s 41(4)(a)(ii) failure,
[11]
would, on pain of falling potentially foul of s 7(1) of PAJA,
[12]
have to launch a review to generate her potential appeal rights even
in some instances before the parties to the dispute raised
by the
license application and the objection(s) had come to grips with the
issues at first instance.
44
As I have demonstrated, the action of requiring publication under s
41 (4)(a)(ii) is merely one of an undefined range of methods
available to a responsible authority to bring the fact of a license
application to the notice of potentially affected persons.
Although
one may with a measure of confidence say that notice through the
media will reasonably be directed by a responsible authority,
acting
correctly, where the license applied for gives rise to serious issues
which affect a substantial body of persons, this will
by no means be
the only appropriate notice method for such a case. Particularly
where the license application affects poorly educated
or illiterate
rural people without significant access to the media, notice through
the media might be quite valueless. Why then
privilege, for purposes
of a potential appeal, the intended beneficiaries of notice through
the media
over classes of interested persons who receive notice in another way?
None comes to mind. So one may legitimately characterise
the narrow
construction as arbitrary.
45
All this leads me to conclude that the construction favoured by the
Water Tribunal gives rise to absurdities as that term is
used in
Venter v Rex
1907 TS 910
and cases which have approved it.
[13]
But, as counsel for the appellants pointed out, I did not need to go
that far. It is sufficient for present purposes if I am able
to find
that the construction proposed by the appellants is one which might
reasonably be applied to the measure and which better
promotes the
spirit, purport and objects of the Bill of Rights.
46
It is no doubt correct, as counsel for the respondents submitted,
that the appellants do not have a constitutional right to an
internal
remedy such as an appeal process from a decision of a responsible
authority. But that is not the question which arises
in the present
cases. The question which does arise is why the Legislature, having
created such an internal remedy, would have
sought to exclude
interested persons such as the appellants from its ambit.
47
The answer proposed by counsel for the respondents is that the
interests of persons such as the appellants are adequately protected
by their right to participate in the process before the responsible
authority and their right of review. No doubt. But this answer
begs
the question. The rights of s 41 (4)(a)(ii) objectors are equally
well protected by review rights. Why then create an appeal
right for
them?
48
The legislative scheme I have described emphasises that participation
is an essential tool to ensure that decisions that may
significantly
affect the environment are scrutinised and made from an informed
point of view. This decision making process both
advances the
constitutional values of openness and inclusivity and is advanced by
providing platforms for those affected to air
their views
[14]
.
The Water Tribunal is a specialist body. Under s 146(4) of the NWA
its members must have “knowledge in law, engineering,
water
resource management or related fields of knowledge”.
49
An
appeal is a rehearing. An appellate body, properly so called,
examines the decision of the institution below it to determine
whether the decision to it was right or wrong. No rational purpose
comes to mind for denying the Water Tribunal the input of the
classes
of objectors I have identified. There is moreover a fundamental
difference between an appeal and review. As was said in
Sidumo and
Another v Rustenburg Platinum Mines and Others
[15]
...
there may well be a fine line between a review and an appeal, in
particular, where ... the reviewing court considers the reasons
given
by a tribunal, not to determine whether the result is correct, but to
determine whether a gross irregularity occurred in
the proceedings.
At times it may be difficult to draw the line. There is, however, a
clear line. And this line must be maintained.
50
Leaving
aside the class of objectors whose motives are purely obstructive,
that objectors participated in the process not because
notice to was
given them but because of their own vigilance is an indication that
their concerns about the license application
might well be
legitimate. That they entered the process at the level of the
responsible authority through their own vigilance is
hardly a
rational ground for a legislative denial of a right to participate at
the next level, ie that of the Water Tribunal. After
all, as was held
in Koyabe and Others v Minister for Home Affairs and Others
[16]
Internal
remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilise its
own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital role
in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal remedies cannot
be gainsaid.
51
The
Koyabe
court quoted with approval
[17]
from Hoexter, Administrative Law in South Africa, 2
nd
ed 63:
Effective
administrative appeal tribunals breed confidence in the
administration as they give the assurance to all aggrieved persons
that the decision has been considered at least twice and reaffirmed.
More importantly, they include a second decision-maker who
is able to
exercise a calmer, more objective and reflective judgment’ in
reconsidering the issue.
52
Counsel for the respondents argue that
the restriction of those with appeal rights within the context of s
148(1 )(f) to persons
who have lodged written, as opposed to oral,
objections would be equally offensive to constitutional values. Why,
they ask, would
the measure discriminate against those who did not
put their objections in writing?
I
think the answer has to do with good record keeping. Most South
Africans know that when you interact with officialdom, you usually
have to fill in a form. It may be that to have broadened the range of
those entitled to appeal to all persons who participated
in the
initial decision making process would have been more constitutionally
appropriate but the restriction to those who have
come on record is
rational.
53
I turn to consider the three grounds upon which counsel for
the respondents seek to justify the restriction for which they
contend.
The first is that a general right of appeal would overburden
the system. I think that this submission is at best speculative. We
have nothing before us to suggest that the system as it presently
operates is overburdened. I have pointed out that the Water Tribunal
need not sit
en banc.
Under s 147(1), a matter can be heard by
a single member of the Water Tribunal. The solution to the work load
argument is to be
found in s 146(3) of the NWA: if more members are
necessary to deal with the case load, the Minister can appoint them.
There is
no statutory restriction on the number of members of the
Water Tribunal.
54
Secondly, the appellants point to the
provisions of s 148(2)(b) which suspends the decision to grant a
license. But the measure
contains a remedy for that concern: the
Minister may direct that the appeal should not suspend the operation
of the license, much
as a high court may direct that its order not be
suspended pending appeal.
55
Thirdly, the respondents counsel argue
that the restriction for which they contend is rendered rational
because the s 41(4) regime
is designed for matters which are serious
and of broad impact, while the s 41 (2)(c) regime is directed at
matters which are less
serious and of narrower impact. I have touched
upon this consideration in paragraph 44. Although the argument has
weight, I do
not think it can carry the day in the light of the other
considerations I have discussed.
56
I have touched above on the contention
that the restrictive interpretation of s 148(1 )(f) accords with a
discernable legislative
scheme to curtail the classes of litigants
who enjoy a right of appeal to the Water Tribunal. It is quite right,
as counsel for
the respondents argue, that it is not for this court
to substitute its own sense of appropriateness and proportion for
that of
the Legislature or to second-guess the policy choice of that
organ.
57
But, in interpreting the measure, we
must bear in mind the legislative context in which those very policy
choices were made. The
policy which I identify is a desire, within
broad limits, to provide for appeals to the Water Tribunal by persons
interested in
or affected by decisions made by functionaries in the
exercise of the powers conferred upon them by the NWA. The
legislative choice
was to identify each of the decisions in respect
of which a right of appeal was conferred and, in the main, those who
would be
entitled in each of those instances to appeal. The reasons
for some of the potential exclusions under categories of potential
appellants
in situations other than that contemplated by s 148(1 )(f)
may well be problematical. For example, one wonders why a right of
appeal
is conferred in some instances on interested and in others on
affected persons. In one instance - s 148(1 )(m) - there is no
identification
at all of the class entitled to appeal. In the case of
a directive issued by a catchment agency - s 148(1 )(a) - only the
recipient
of the directive has a right of appeal.
58
There may, or there may not, be
rationality in each of the other situations contemplated under s
148(1). We are not called upon
to deal with them. We are called upon
to interpret s 148(1 )(f) in the light of the considerations with
which I have dealt. There
is no clear policy manifested to exclude
from the ambit of s 148(1) as a whole any particular class of
potential appellants. And
any absence of rationality in other
situations within s 148(1) which may or may not exist would not help
in the task of interpreting
s 148(1 )(f).
59
In my view, the construction of s 148( 1
)(f) of the NWA proposed by the appellants would advance the
constitutional value of open,
broad participation by those affected
by administrative processes while the construction proposed by the
respondents would retard
it.
60
All this leads inevitably to the
conclusion that the appellants prospects of success are very strong
indeed. Had the case been untrammelled
by the condonation questions,
with which I shall now deal, the appeals would at this point in the
judgment have been upheld.
61
The appellants are non-governmental
organisations. Their funds are limited. Particularly in the case of
the second appellant, their
members include those previously
disadvantaged by inadequate access to educational and economic
resources. Their attorney is a
public interest litigator. I mention
this not because there is one law for the appellants and their
attorney and another for other,
perhaps more affluent, litigants and
their legal representatives but because in evaluating the case for
condonation, I bear in
mind the relatively disadvantaged position in
which the former have to conduct the litigation.
62
The
root cause of the appellants’ problems was their struggle with
the transcriber employed by the appellants’ attorney
to produce
the record.
[18]
Despite the
attorney’s best efforts, it took nearly eight months for the
record to be produced. And then the record contained
mistakes which
had to be corrected. The transcriber was paid in advance for its
work. The respondents suggested that the attorney
should have used
another contractor when the problems manifested themselves. Alas, the
predicament of the appellant’s attorney
is all too familiar in
this Division. There was no prospect that another transcriber would
have done a better job. And the attorney
had already paid for the
work. She, or the appellants, could hardly have been expected to find
more money for a new transcriber
and then try to recover the money
paid from the original contractor.
63
The delays have, except for one period
of six weeks all been explained. The explanations for some of the
periods were weak indeed.
The unexplained inaction for the period of
six weeks is indeed a serious breach of the Rules and departure from
the standards expected
by the courts of their practitioners. But I
think one must bear in mind, as anyone who has been in practice will
recall, the feelings
of demoralisation and powerlessness which
overtake a practitioner, particularly a busy practitioner, when
confronted with the apparently
insoluble problem of someone within
the present context who will just not do his work, even though you
have paid or promised to
pay him to do so.
64
Although
the respondents dealt extensively both by affidavit and argument with
the condonation aspect, they do not make the case
that they actually
believed, when the record was not timeously lodged and the appeal
lapsed, that the appellants had given up the
struggle to bring their
cases before this court. Nor did the respondents in anyway alter
their positions to their detriment as
a result of the delays. The
court has not been inconvenienced. The ponderous, unwieldy and
largely unnecessary record was placed
before us in enough time for us
to prepare for the appeal.
65
A factor which weighs heavily with me is the nature of the case and
its importance within the context of the interests of justice.
It
concerns access to justice. It is of the utmost importance that
litigants to whom the law provides access to a tribunal are
not
deprived of their rights in this regard. This is, as far as we have
been able to establish, the first time the present issue
has been
considered by a court of law. The matter has been fully argued by
skilled and diligent counsel on behalf of all the private
sector
litigants.
[19]
66
Taking all these considerations into
account, I think it is right to grant condonation.
67
Some aspects of the condonation question
were not specifically raised in the papers which the appellants
delivered in support of
their condonation application. In each of
these aspects, the facts upon which the appellants relied for
condonation appeared from
their affidavits in their substantive
application. The term “application” is not defined in the
Rules. It is open to
a court to entertain, in a proper case, an
application for condonation made orally from the bar. This is such a
case.
68
In another instance, the notice of
appeal to this court was served on the 21
st
day after the appellants had obtained the decision of the Water
Tribunal in which they were non-suited. But the notice of appeal
was
lodged with this court one day late. This infraction caused no
prejudice. It, too, is condoned.
69
In the result, it is unnecessary to
consider the reviews and they fall away. I turn to the question of
costs.
70
In
my view, this is a proper case for the application of the
Biowatch
[20]
principle. The parties respectively attack and defend a decision of
an organ of state. Costs were not sought against the organ
of state
in question. The principle is that private parties in such a case
should not be mulcted in costs, including those arising
from
interlocutory applications in the course of the litigation, unless
their conduct has been frivolous, vexatious or otherwise
inappropriate. None of those exceptions is presently applicable.
71
In the result, the following orders are made:
1
All the appellants’ departures from the provisions of
the Rules are condoned and the appeals are, to the extent necessary,
reinstated;
2
No order is made on the application for consolidation;
3
The appeals in case nos A665/11, A666/11 and A667/11 are all
upheld. The decision of the Water Tribunal in each case is set aside
and substituted with the following:
it is declared
that the appellants have standing to pursue their appeal before the
Water Tribunal
;
4
No order is made on the reviews before this court.
5
The deed of settlement in case no. A667/11 concluded between
the appellants and Exxaro Coal (Pty) Limited is made an order of
court;
6
Pursuant to the deed of settlement, Exxaro Coal (Pty) Limited
is ordered to pay the appellants’ costs on the unopposed scale
as between party and party, including the preparation of the record
of proceedings;
7
Save as set out above, no order is made as to costs.
NB
Tuchten
Judge
of the High Court
18
November 2013
I
agree.
M
Victor
Judge
of the High Court
18
November 2013
For
the appellants
Adv
P Kennedy SC and Adv M Bishop
Instructed
by Legal Resources Centre
Johannesburg
For
the second respondent in case nos. A665/11 and 4535/11
Adv
A Dodson SC and Adv P Lazarus
Instructed
by Routledge Modise Inc
Johannesburg
For
the second respondent in case nos. A666/11 and 4533/11
Adv
MA Wesley
Instructed
by Malan Scholes
Johannesburg
[1]
Rule 7(2) reads: The registrar shall not set down any appeal at the
instance of an attorney unless such attorney has filed with
the
registrar a power of attorney authorising him to appeal and such
power of attorney shall be filed together with the application
for a
date of hearing.
[2]
Fuel Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province, and Others
2007
6 SA 4
CC para 102
[3]
The emphasis in all quotations from statutory measures is my own.
[4]
The responsible authority in all the cases before us is the DWA.
[5]
Compare
Van
Rooyen and Others v The State and Others (General Council of the
Bar
of South Africa Intervening)
2002 5 SA 246
CC footnote 163,
quoting with approval from Wade and Forsythe,
Administrative
Law,
(8th ed 2000) att 239.
[6]
An administrator for the purposes of PAJA.
[7]
Bato
Star Fishing (pty) ltd
1
/
Minister
of Environmental Affairs and
Others
2004 4 SA
490
CC para 90;
South
African Police Service v Public Servants Association
2007
3 SA 521
CC paras 17-20;
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
6 SA 199
CC para 53
[8]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
4 SA 593
SCA para 25
[9]
Compare
MEC:
Department of Agriculture, Conservation and Environment and Another
v HTF Developers (Pty) Limited
[2007] ZACC 25
;
2008
2 SA 319
CC para 33 where it was held that the word "direct
”
had
different meanings in different sections of the Environmental
Conservation Act.
[10]
I
deal with these grounds in paras 53 to 55 below.
[11]
Because,
on the example given, she knew enough about the process before the
responsible authority to enable her to exercise her
rights.
[12]
The duty to bring review proceedings without unreasonable delay but
in any event within 180 days of becoming aware of the decision
not
to require such publication and the reasons for it or might
reasonably have been expected to have become aware of the action
and
the reasons.
[13]
See,
eg,
Natal
Joint Municipal Pension Fund
1/
Endumeni
Municipality, supra,
footnote
35.
[14]
I am paraphrasing the views of Murombo and Valentine, SLAPP suits:
An emerging obstacle to public interest environmental litigation
in
South Africa, (2011) SAJHR82 at 86
[15]
2008 2 SA 24
CC para 244
[16]
2010 4 SA 327
CC para 35
[17]
Footnote
35
[18]
This is ironic because very little reference was made to the record
as such during argument. But no attempt was made by any party
to
reach agreement on the curtailment of the record on appeal.
[19]
It is most regrettable that on a matter of such importance to the
administration of the NWA, we did not have the benefit of the
views
of the DWA. It is the constitutional duty of all organs of state to
assist the courts to ensure their effectiveness. Sections
41 (1
)(h)(ii) and 165(5) of the Constitution. There is thus a duty on
every organ of state whose decisions and functions are
being
considered by a court to appear through counsel and give the court
the benefit of its views. This applies not only when
the organ of
state wishes to defend its actions or its interests or resist the
relief sought. A court is also entitled to be
told by the organ of
state why it does not resist the relief sought or why it does not
wish to defend its actions or interests.
[20]
Biowatch Trust v Registrar Genetic Resources ad Others
2009 6 SA 232
CC