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[2012] ZAGPPHC 127
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Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs and Others (68161/2008) [2012] ZAGPPHC 127 (29 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 68161/2008
DATE:29/06/2012
In
the matter between:
HARMONY
GOLD MINING COMPANY
LIMITED
…............................................
Applicant
and
REGIONAL
DIRECTOR: FREE STATE,
DEPARTMENT
OF WATER
AFFAIRS
..................................................................
First
Respondent
NATIONAL
MANAGER: COMPLIANCE, MONITORING
AND
ENFORCEMENT UNIT OF THE DEPARTMENT
OF
WATER
AFFAIRS
...........................................................................................
Second Respondent
MINISTER
OF WATER AND ENVIRONMENT AFFAIRS
..................................
Third Respondent
ANGLO
GOLD ASHANTI
LIMITED
.......................................................................
Fourth
Respondent
SIMMER
AND JACK MINES
LIMITED
.................................................................
Fifth
Respondent
SIMMER
AND JACK INVESTMENTS (PTY)
LTD
...............................................
Sixth
Respondent
STILFONTIEN GOLD MINING COMPANY
LIMITED
...........................................
Seventh
Respondent
(in
liquidation)
MAKGOKA,
J:
[1]
This application concerns a directive issued in terms of s 19(3) of
the National Water Act, 36 of 1998 (the NWA). The section
applies
whenever there is land (the affected land) on which any
pollution-forming activity or process takes or has taken place.
S
19(1) of the NWA imposes duties on owners, controllers, occupiers or
users (landholders) of such land to take certain measures
to prevent
or control pollution. The primary issue is whether a directive issued
in terms of s 19(3) becomes invalid once a person
ceases to be a
landholder.
[2]
The first to third respondents sought condonation for the late
delivery of their answering affidavit. The Deputy Judge President
had
given a directive that the condonation application be set down and
determined prior to the hearing of this application. However,
the
first to third respondents failed to comply with that directive, with
the result that I was seized of that application. I formed
a view
that a proper case had been made out for condonation. In any event,
the application for condonation was not seriously resisted
by the
applicant at the hearing.
[3]
Back to the main application. The power to issue a directive in terms
of s 19(3) vests in a management catchment agency. In
areas for which
a catchment management agency has not been established, or is not
functional, all the powers of the catchment agency
are exercised by
the Minister of Water Affairs
1
in terms of
s 72(1) of the NWA. In the Kosh area, there was no
management catchment agency, and the Minister delegated (as she is
entitled to)
her powers to the first respondent, the Regional
Director. I use the word 'delegated' in a very guarded manner, and
solely for
convenience purposes, as there is controversy around the
purported delegation. That will become clear later. Accordingly,
reference
in relation to the powers in s 19(3), shall be to the
Minister. Where reference is made to the first and second respondent,
collectively
with the Minister, the designation shall be 'the
Department'.
[4]
The directive has its genesis in the gold mining activities in the
mining towns of Klerksdorp, Orkney, Stilfontein and Hartebeesfontein
(Kosh area). It is common cause that the gold mining activities
conducted by the mining houses (including the applicant) are a
source
of potential pollution to the underground water in the area. In order
to address the pollutive effect of the mining activities
in the area,
the Department of Environment and Water Affairs (the Depatment)
issued a series of directives in terms of s 19(3)
during 2005 to each
of the mining houses. They were required to take certain measures to
prevent the pollution of water in their
mines.
[5]
The directive in issue is the latest of those directives. It was
issued on 1 November 2005. It was to operate until the applicant
and
other mining houses had reached agreement on the long term management
of water arising from mining activities in the Kosh area.
Pending the
implementation of such agreement, the mining houses were obliged to
(i) manage, collect, treat, use or dispose of subterranean
water that
might affect the current and future operations of mines in the area,
and (ii) share the costs of taking these measures
equally. The
agreement envisaged in the directive was to be submitted by the
parties to the first respondent within 21 days from
the date of
issue. It is common cause that the agreement was never concluded.
[6]
The factual background is simple and largely common cause. During
September 2003 the applicant acquired all the shares in African
Rainbow Minerals Gold Ltd (Armgold). It thereafter managed Armgold's
mining operations and exercised control over the land in doing
so.
The ownership of the land however remained vested in Armgold. On 29
August 2007 Armgold sold the mine, including the land,
to Pamodzi
Gold Orkney (Pamodzi). The sale became unconditional and was
implemented in February 2008. From that period the applicant
ceased
to manage the mine and no longer exercised control over the land on
which the mine was based, as Pamodzi assumed all of
the applicant's
obligations in respect of the mining operations.
[7]
Armgold transferred the land to Pamodzi on 6 January 2009. On 20
March 2009 Pamodzi was placed in provisional liquidation. On
25 May
2009 the applicant wrote a letter to the Department, and copied the
interested parties, wherein it expressed a view that
as of February
2008, the directive was no longer valid against it, but against
Pamodzi. It further gave notice of its intention
to cease its
contribution to the costs of water pumping and treatment with effect
from 30 June 2009. The other mining houses did
not agree with the
applicant's position. Efforts to resolve the impasse fell through. On
28 August 2009 the applicant requested
the Department to withdraw the
directive against it, contending that it no longer fell within the
ambit of s19(1) of the Act, as
it was no longer the landholder of the
affected land. On 21 September 2009 the Department refused the
applicant's request. Aggrieved
by that refusal, the applicant now
approaches this court for relief.
[8]
The applicant seeks, in the main, an order reviewing and setting
aside the directive issued to it on 1 November 2005. The applicant
also asks condonation for the late launching of the application. In
the alternative the applicant seeks to review and set aside
the
decision of the Department on 21 September 2009 not to withdraw the
directive against it. As a corollary, and flowing from
the above, the
applicant seeks a declaratory order that the directive became invalid
on 6 January 2009 (it should be February 2008)
when it ceased to
operate any mining activity on the affected land. With the exception
of the fourth and seventh respondents, the
relief sought by the
applicant is opposed by the rest of the respondents. It is convenient
to dispose of the relief sought in the
main.
[9]
The applicant submitted that, given its argument that the directive
became invalid against it from 6 January 2009, I should,
independently of the Promotion of Administrative Justice Act 3 of
2000 (PAJA) exercise the powers conferred on this court by s
172(1)(b) of the Constitution
2
and consider the application on the basis of the legality principle.
The applicant made this submission on the authority of the
obiter
remarks in Diggers Development (Pty) Ltd v City of Matlosana
3
to the effect that if the principle of legality is found to have been
breached, it is not necessary to consider neither of the
two
requirements of s 7 of PAJA, namely that the application be
instituted without unreasonable delay and after internal remedies
had
been exhausted. Without necessarily accepting the correctness of the
obiter remarks in Diggers Development, I accept the invitation.
[10]
I commence by considering s 19 of the NWA. It provides:
An
owner of land, a person in control of land or a person who occupies
or uses the land on which-
(a)
any activity or process is or was performed or undertaken; or
(b)
any other situation exists, which causes, has caused or is likely to
cause pollution of a water resource, must take all reasonable
measures to prevent any such pollution from occurring, continuing or
recurring.
(2)
The measures referred to in subsection (1) may include measures to -
(a)
cease, modify or control any act or process causing the pollution;
(b)
comply with any prescribed waste standard or management practice;
(c)
contain or prevent the movement of pollutants;
(d)
eliminate any source of the pollution;
(e)
remedy the effects of the pollution; and
(f)
remedy the effects of any disturbance to the bed and banks of a
watercourse.
(3)
A catchment management agency may direct any person who fails to take
the
measures required under subsection (1) to-
(a)
commence taking specific measures before a given date;
(b)
diligently continue with those measures; and
(c)
complete them before a given date.
(4)
Should a person fail to comply, or comply inadequately with a
directive given under subsection (3), the catchment management
agency
may take the measures it considers necessary to remedy the situation.
(5)
Subject to subsection (6), a catchment management agency may recover
all costs incurred as a result of it acting under subsection
(4)
jointly and severally from the following persons:
(a)
Any person who is or was responsible for, or who directly or
indirectly contributed to, the pollution or the potential pollution;
(b)
the owner of the land at the time when the pollution or the potential
for pollution occurred, or that owner's successor-in-title;
(c)
the person in control of the land or any person who has a right to
use the land at the time when-
i.
the activity or the process is or was performed or undertaken; or ii.
the situation came about; or
(d)
any person who negligently failed to prevent-
i.
the activity or the process being performed or undertaken; or ii the
situation from coming about.
(6)
The catchment management agency may in respect of the recovery of
costs under subsection (5), claim from any other person who,
in the
opinion of the catchment management agency, benefited from the
measures undertaken under subsection (4), to the extent of
such
benefit.
(7)
The costs claimed under subsection (5) must be reasonable and may
include, without being limited to, labour, administrative
and
overhead costs.
(8)
If more than one person is liable in terms of subsection (5), the
catchment management agency must, at the request of any of
those
persons, and after giving the others an opportunity to be heard,
apportion the liability, but such apportionment does not
relieve any
of them of their joint and several liability for the full amount of
the costs.
[11]
It is not in dispute that the existence of a particular relationship
between the landholder and the affected land is a jurisdictional
prerequisite for the issuing of a valid directive under s 19(3) of
the Act. Put differently, it is common cause that the Minister's
directive-issuing power in terms of s 19(3) is limited to a
landholder. However, the applicant contends that the Minister's power
is further limited to the extent that the Minister may only direct
the landholder to take preventive measures for as long as it
remains
the landholder.
[12]
The primary question is therefore whether the continuance of the
particular relationship between the landholder and the affected
land
is also required for its ongoing validity. As stated above, the
applicant ceased mining operations on the affected land in
February
2008. According to the applicant, as of that date, the directive
became invalid and fell away by operation of law. This
contention is
rejected by the respondents.
[13]
The starting point in the interpretation of a statutory provision
remains an endeavour to ascertain the intention of the legislature
from the words used in the enactment. Those words must be accorded
their ordinary, literal, grammatical meaning and a court may
depart
from that meaning only where to do so 'would lead to an absurdity so
glaring that it could never have been contemplated
by the
legislature, or where it would lead to a result contrary to the
intention of the legislature, as shown by the context or
by such
other considerations as the court is justified in taking into account
VentervRex
4
See also Randburg Town Council vKerksay investments (Pty) Ltd
5
.
[14]
The fifth paragraph of the preamble to the NWA recognises the need to
protect the quality of water resources to ensure sustainability
of
the nation's water resources in the interest of all water users. The
purpose of the NWA is stated in s 2 to be to ensure that
the nation's
water resources are, among others, conserved and managed so as to
take into account reduction and prevention of pollution
and
degradation of water resources.
[15]
Where pollution and degradation of the environment are in issue, as
is the case here, one must also consider s 24 of the Constitution,
and the provisions of the National Environmental Management Act 107
of 1998 (NEMA). S 24 of the
Constitution
confers the right to an environment which is not harmful to one's
health and to environmental protection by reasonable
legislative and
other measures that, among others, prevent pollution and ecological
degradation. Of particular relevance in NEMA,
is s 28, which
provides:
(1)
Every person who causes, has caused or may cause significant
pollution or degradation of the environment must take reasonable
measures to prevent such pollution or degradation from occurring,
continuing or recurring, or, in so far as such harm to the
environment
is authorised by law or cannot reasonably be avoided or
stopped, to minimise and rectify such pollution or degradation of the
environment.
(2)
Without limiting the generality of the duty in subsection (1), the
persons on whom subsection (1) imposes an obligation to take
reasonable measures, include an owner of land or premises, a person
in control of land or premises or a person who has a right
to use the
land or premises on which or in which-
(a)
Any activity or process is or was performed or undertaken; or
(b)
Any other situation exits,
which
causes, has caused or is likely to cause significant pollution or
degradation of the environment.
(6)
If a person required under this Act to undertake rehabilitation or
other remedial work on the land of another, reasonably requires
access to, use of or a limitation on use of that land in order to
effect rehabilitation or remedial work, but is unable to acquire
it
on reasonable terms, the Minister may-
(a)
expropriate the necessary rights in respect of that land for the
benefit of the person undertaking the rehabilitation or remedial
work, who will then be vested with the expropriated rights; and
(b)
recover from the person for whose benefit the expropriation was
effected all costs incurred.
[16]
S 2(4) of NEMA lays down certain principles. Those are, among others,
that pollution and degradation of the environment are
to be avoided,
or, where they cannot be altogether avoided, they should be minimised
and remedied. Furthermore, negative impacts
on the environment and on
people's environmental rights should be anticipated and prevented,
and where they cannot be altogether
prevented, be minimised and
remedied.
[17]
In terms of s 2(1) of NEMA, those principles are also to serve as a
general framework within which environmental management
and
implementation plans must be formulated. When taking any decision in
terms of any statutory provision concerning the protection
of the
environment, any organ of State is enjoined to use the provisions of
NEMA as guidelines for the exercise of any function
in that regard. S
2(1 )(e) provides that the principles are furthermore to guide the
interpretation, administration and implementation
of NEMA, and any
other law concerned with the protection or management of the
environment. It admits of no debate that the National
Water Act is a
law envisaged in s 2(1 )(e) of NEMA.
[18]
The NEMA principles received the imprimatur of the Constitutional
Court in Fuel Retailers Association of Southern Africa v
Director-General: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga Province, and
Others
6
.
[19]
With the above legislative and jurisprudential framework in mind, I
turn to consider the primary legal question: whether a
directive
issued under s 19(3) continues in force against a person who is no
longer the landholder of the affected land.
Analysis
of S 19 of the NWA
[20]
That should start with a brief analysis of s 19 of the NWA. I have
already alluded to the common cause understanding that the
directive
envisaged in s 19(3), can only be issued to the landholders, that is,
only those who have current connection to the land.
S 19(4) to (8)
come into play if a landholder to whom a directive has been issued,
fails to comply with it. The Minister may then
lake the measures
(she) considers necessary to remedy the situation' and recover the
costs of doing so from a range of persons.
[21]
Those persons are not limited to the landholder who was obliged to
take preventive measures in terms of s 19 (1) and to whom
the
Minister issued a directive in terms of s 19 (3), but extends to
former landholders, persons who had the right to use the land
at the
time of actual or potential pollution, and any person who had
negligently failed to prevent potential or actual pollution.
There is
therefore a clear contrast between the classes of persons in s 19(1)
and (5), and the remedies available to the Minister
in each case.
[22]
When one considers s 19 (1) and (2) and their interrelation with s 28
of NEMA, it becomes clear that they are couched in strikingly
similar
terms. Both focus on preventive measures, and identify the persons on
whom an obligation rests to take reasonable measures
to prevent
pollution as the owners, or persons in control of the land or
premises, or persons who have the right to use the land.
The
applicant's argument
[23]
The applicant argues for a restrictive interpretation of s 19(3), and
that in this particular instance, the directive became
invalid by
operation of law when the applicant's connection with the affected
land came to an end. Counsel for the applicant, Mr.
Oosthuizen
advanced several contentions for this proposition. I hope not to do
an injustice to counsel's well-constructed submissions
(written and
oral) by summarising the applicant's contentions as follows:
(a)
the directive is not sourced in law, as it imposes liability in
perpetuity;
(b)
the directive breaches the principle of cessante ratione legis cessat
ipsa lex;
(c)
the restrictive interpretation is consistent with the NEMA
principles;
(d)
the directive is unreasonable to the extent it remains in force when
the person against whom it was issued no longer has connection
to the
land or derive any benefit from the such land;
(e)
the restrictive interpretation ensures that the severe penalties
prescribed for non-compliance with a directive are limited
to persons
with current connection with the affected land;
(f)
the word 'fails' in s 19(3) envisages that a person who is no longer
a member of the circumscribed class can no longer be said
to have
failed to comply with a directive;
(g)
the subsection does not envisage obligations to be imposed in
perpertuity.
[24]
I now consider the applicant's contentions, in turn.
The
directive is not sourced in law, as it imposes liability in
perpetuity.
[25]
The argument here was that the directive imposes liability
irrespective of the applicant's link to the affected land, burdening
it with responsibility of taking measures to protect the environment
and prevent pollution regardless of the extent of its causal
contribution and/or the costs and benefits of such measures for it.
It therefore, so was the argument, constituted too extreme
an
interference with the applicant's property to be constitutionally
acceptable. To that extent, it is unreasonable and constitutionally
impermissible as there is no causal link between conduct and
consequence.
[26]
A short answer to this submission is this. Among the reasons for the
issuance of the directive, is the failure by some mining
houses to
fully comply with the previous directives. They failed to submit, or
inadequately submitted, information necessary to
determine and
calculate the joint and several responsibility and liability of each
individual mining house for contribution towards
the costs incurred
to remedy pollution caused by these mining houses. The mining houses
had also failed to share the costs necessary
for taking measures to
prevent pollution.
[27]
It is to be borne in mind that the directive was issued pending the
implementation of an agreement and joint proposal towards
long-term
sustainable management of water arising from mining activities in the
Kosh area. The mining houses, including the applicant,
failed to
reach such an agreement. Therefore it does not assist the applicant
to decry the indefinite nature of the directive.
The perpetuity
referred to by the applicant remains only to the extent that the
applicant and other mining houses fail to reach
and implement the
envisaged agreement.
The
principle of cessante ratione legis cessat ipsa lex.
[28]
The applicant contended that the legal basis, and rationale, on which
the directive was issued, namely the current connection
to the
affected land, had fallen away when the applicant ceased to be a
landholder of the affected land. Consequently, so was the
argument,
the directive should follow suit. This submission ignores the plain
provisions of s 19(3), in terms of which the Minister
may direct a
landholder who fails to take the measures required by s 19(1) to:
'(a) commence taking specific measures before a
given date; (b)
diligently continue with those measures; and (c) complete them before
a given date.'
[29]
From these provisions, and the broader context, it is clear that the
rationale is the preservation of the environment. The
Minister is
empowered to direct a landholder to take preventative measures for as
long as it takes to address the risk of pollution.
As a result, the
rationale of the section, and of the directive, does not fall away
when the landholder, who had been validly directed
to take certain
measures, severs ties with the affected land. The principle clearly
does not find application here.
The
NEMA principles
[30]
Mr. Oosthuizen contended that the NEMA principles do not authorize
the use of any means to ensure the protection of the environment.
He
argued that there are indications of constraints in those principles,
tempering the means to be used and thus, upon the public
power to be
exercised towards achieving that end. These constraints, he argued,
echoed the constitutional imperatives that the
means or measures to
ensure environmental protection must not go beyond the power
conferred by the law, and that they must not
be unreasonable under
the circumstances. Counsel proffered the concept of responsibility
laid down in NEMA as one of the factors
which he submitted, were
indications of constraints referred to above.
[31]
In this regard, it was argued that in the context of the present
case, the concept required an active intervention to do something,
as
opposed to a passive one. Therefore, so was the argument, only those
in a position of lawful control vis-a-vis the potential
pollution or
existing state of affairs, that is, who are able to take lawful steps
to prevent it or lawfully intervene, may be
said to be responsible
for preventing and/or remedying its effects. Without such control or
power of intervention, so it was argued,
it would not be possible for
the person concerned to take steps to avoid harm to the environment.
It was further argued that the
restrictive interpretation (which
requires current connection between the landholder and the affected
land) is consistent with
the principles of responsibility enunciated
in NEMA: only those persons who are in a position to lawfully control
(and hence prevent)
harm or potential harm to the environment are to
be burdened with this legal duty or care and, once they are no longer
in the required
relationship with the affected land, that legal duty
falls away.
[32]
This argument overlooks the fact that where the directive was issued
while a person was in control to take the preventative
measures, his
unfulfilled obligations do not become discharged or nullified once he
ceases to be in control. If he severs ties
with the land, fully
knowing that his validly imposed obligations remained unfulfilled, he
can hardly complain if it is insisted
that he should comply with
those before he is discharged from them. In this regard, s 28(6) of
NEMA, which is concerned with rehabilitative
and remedial work on
another's land, comes into play, to the extent he has to access
another person's land.
[33]
Mr Oosthuizen also argued that the requirement of responsibility
gives rise to a further constraint in that such responsibility
is
limited in time because it is directly linked, as far as the duration
thereof is concerned, to the life cycle of the particular
conduct
embarked upon. The restrictive interpretation limits the duration for
which a directive may be issued, as s 19(3) specifically
provides
that the directive will require certain action to be taken before a
given date and diligently continued to be completed
by a given date.
This in itself, so was the argument, was an indication that the
legislature intended these directives to have
a finite operation with
some end in sight. Therefore s 19(3) does not provide for obligations
to be imposed in perpetuity. By limiting
the class of persons against
whom the directive may be validly issued to those listed in s 19(1),
the finite nature of the directive
power is reinforced.
[34]
This argument is clearly based only on a consideration of (a) and (c)
of s 19(3), ignoring (b), from which the Minister' power
to issue an
indefinite directive, is implicit. The applicant's attack is not
directed at the reasonableness or otherwise of the
Minister's
decision or that she failed to apply her mind. It is also not the
applicant's the argument that s 19 is unconstitutional.
The
directive is unreasonable
[35]
In this regard, Mr Oosthuizen submitted that it is unreasonable for a
directive to continue in force where there is no longer
a current
connection between the person against who the directive is issued and
the affected land: that person is no longer under
a legal duty of
care in this regard; that person no longer derives any benefit from
the affected land but others do at his expense;
that person's
contribution to the pollution or potential, both causally and morally
as far as his blame is concerned, has not yet
been quantified or
determined; that person no longer has any control over the affected
land so that he cannot be regarded as someone
"responsible"
to take preventative measures; and yet he remains exposed to criminal
sanctions as well as a continuing
and unjustified infringement of his
fundamental right to property.
[36]
When considering the above argument the following should be borne in
mind: the directive in question was issued on 1 November
2005, during
which period the applicant was the landholder of the affected land as
envisaged in s 19(1) of the NWA. The applicant's
mining activities
polluted and contributed to the pollution of the underground water in
the Kosh area. The applicant derived financial
benefit from its
pollution activities. Without fully complying with the directive, and
while the obligations in terms of that directive
remained
unfulfilled, the applicant disposed of its entire issued share
capital to Pamodzi in August 2007. It is therefore not
correct that
the applicant is obliged to take responsibility for others'
contribution to the pollution.
[37]
The directive required of the applicant to take measures, among
others, for pollution which occurred while the applicant was
the
landholder. The nature and extent of that duty is clearly defined in
the directive. There is therefore a clear causal and moral
link
between the directive and the applicant's pollution activities.
Furthermore, I find it significant that it was only shortly
after
Pamodzi was placed in provisional liquidation (March 2009) that the
applicant first intimated to the Department (May 2009)
that the
directive was no longer valid against it.
A
restrictive interpretation follows from the ordinary and grammatical
meaning of the word "fails" as used in section
19(3) of the
NWA.
[38]
Counsel submitted that the directive power is premised on a failure
to comply with the legal duty imposed by subsection (1)
and, once a
person is no longer a member of the circumscribed class of persons
and thus does no longer have that legal duty, he
can no longer be
said to have failed or be failing to comply therewith. Furthermore,
it is argued that this interpretation limits
the scope of the persons
against whom a section 19(3) directive may be issued. As such, it
ensures that the severe penalties which
may be imposed for
non-compliance with a directive are limited to persons who have a
current connection with the land in question.
[39]
I cannot agree with any of these propositions. Starting with the
first one, if a member of the class of persons had, while
still a
landholder, fails to comply with the duty, his failure does not
become erased by him merely 'walking away' from the affected
land
without fulfilling the outstanding obligations. The applicant bases
its interpretation on the fact that the Minister may only
issue a
directive to someone who "fails" to take the preventive
measures required by s 19 (1), that is, to someone who
has "a
current connection with the land in question". However, this is
relevant only with regard to the Minister's only
limited power in
terms of s 19(3) - she can only issue a directive to a landholder who
is obliged to take preventive measures under
s 19 (1) but fails to do
so. This is common cause. The severance of ties with the affected
land does not affect the obligations
validly imposed when the
landholder still belonged to the class of persons obliged to take
measures. As a result, such obligations
remain until fulfilled.
[40]
With regard to the penalties, all I can say is that the threat of
severe criminal penalties should hold no terrors for a landholder
who
complies with the obligations imposed validly, as is the case here.
The penalties only kick in once there is failure to comply
with a
validly issued directive. The penalties are therefore aimed at those
who fail to comply with the directive and those former
landholders
who seek to circumvent the directive by subsequently severing ties
with the affected land. The only way to avoid those
penalties is
compliance with the directive.
[41]
Finally, it was argued on behalf of the applicant that the contrast
between classes of persons (which I have pointed out in
paragraph
[20] above) indicates that the legislature's solution to imposing
liability on former owners lies not in s 19 (3) but
in recovery of
costs, should the Minister elect to take the measures referred to in
s 19(4). That argument would be correct only
with reference to a
directive issued after a former owner had terminated connection with
the land. In those circumstances, as stated
above, the Minister's
power is confined to the recovery of costs. But we have in the
present case, a situation where the directive
was validly issued to
the applicant as the landholder.
[42]
There is no limitation in s 19 that such a directive may only bind
the owner, occupier or user of affected land to take measures
for as
long as such person remains such. Put differently, there is nothing
to suggest that once the owner, occupier or user of
land ceases to be
such, the unfulfilled obligations imposed in terms of s 19(3)
directive lapses. Had the directive been issued
subsequent to the
sale of shares agreement, it would be a different situation
altogether, as then the Minister's remedy would be
limited to the
recovery of costs from the applicant in terms of s 19(5) after taking
the measures envisaged in s 19(4).
[43]
The applicant, by the construction it places on s 19(3), in essence,
seeks to
'read
in' by implication, words to the following effect, to the subsection:
'Once
a person ceases to be an owner of land, a person in control of land
or a person who occupies the land referred to in subsection
(1) such
a person shall no longer be obliged to take the measures referred to
in subsection (2)'
[44]
Mr. Trengrove, counsel for the fifth and sixth respondents, pointed
out the proper approach if words were to be read into a
statute by
implication. He did so with reference to Rennie NO v Gordon and
Another A/A/O
7
;
Bernstein v Bernstein
8
;
NDPP v Mohamed
9
;
Geuking v President of the RSA
10
and Masetlha v President of the RSA
11
.
That approach is: words cannot be read into a statute by implication
unless the implication is a necessary one in the sense that,
without
it, effect cannot be given to the statute as it stands. I now
consider, in turn, the applicant's submissions.
[45]
Mr. Trengrove further submitted that the interpretation of s 19 (3)
contended for on behalf of the applicant, would undermine
its
effectiveness, as a person who is obliged to take measures to prevent
or minimise the pollution caused by the hazard he created,
can simply
circumvent his obligations and the Minister's directive by vacating
the land and so escape the Minister's directive,
and thereby defeat
the purpose of s 19 (3). I agree.
[46]
S 1(3) of the NWA provides that when interpreting a provision of the
Act, any reasonable interpretation which is consistent
with the
purpose of the Act as stated in section 2, must be preferred over any
alternative interpretation which is inconsistent
with that purpose In
my view, the restrictive interpretation contended for on behalf of
the applicant would not be consistent with
the stated purpose of the
NWA. Such an interpretation would not only defeat that purpose, but
would be at variance with the NEMA
principles, the Constitutional and
environmental imperatives, and render s 19(3) ineffective. It would
clearly lead to a glaring
absurdity in that a landholder who caused
pollution through an activity that was performed or undertaken by
him, can escape his
obligations in terms of the directive by simply
disposing of the land or by disposing of its interest or control or
occupation
of the land. That could not have been the intention of the
legislature.
[47]
In the final analysis, it should therefore be clear that the 'current
connection' contended for on behalf of the applicant
should refer to
the period at the time when the directive was issued, and not
subsequent thereto. It therefore follows that the
'reading in' of an
implied limitation into s 19(3) is neither necessary nor warranted by
the purpose of the NWA.
[48]
I am therefore satisfied, and agree with the Department's contention
that until the applicant fully complies with the directive,
the
directive remains valid. It was not issued subsequent to the sale of
shares agreement that resulted in the applicant severing
ties with
the affected land, but was an existing obligation which remained
unfulfilled at the time the applicant disposed of its
interest in the
mine to Pamodzi. The applicant does not contend that it has complied
with the directive. The disposal of interest
by the applicant could
never bring an end to unfulfilled obligations imposed in terms of the
directive. As such, there was no duty
or responsibility on the
Department to withdraw the directive until such time there was proper
compliance with the directive. The
directive did not, as a result,
breach the legality principle.
[49]
That brings me to a consideration of the matter purely on the basis
of PAJA. In this regard the applicant seeks to review and
set aside
the directive on the basis that it was not validly issued as there
was no delegation of powers by the Minister to the
first respondent
to issue the directive. In paragraph [3] I pointed out that in the
Kosh area there was no management catchment
agency. The powers in s
19(3) therefore vested in the Minister. In terms of s 63 of the NWA,
the Minister may delegate a power
and duty vested in her to, among
others, an official of the Deparment by name or the holder of an
office in the Department. On
1 November 2005 there was no catchment
management agency for the Kosh area. The directive was issued by the
Regional Director,
which presupposes that there must have been a
delegation to him by the Minister of the powers under s 19(3).
[50]
In its answering affidavit, the Department has attached what purports
to be the Minister's delegation. It is undated and unsigned.
It is on
this basis that the applicant attacks the purported delegation as
being of no force and effect. It is submitted that the
Regional
Director issued the directive without any lawful authority to do so.
Assuming the applicant's contentions to be correct,
the directive
falls to be reviewed and set aside in terms of s 6(2)(a)(i) of PAJA.
[51]
S 7 of PAJA requires the application to be brought without
unreasonable delay, and in any event, within 180 days and after
having exhausted internal remedies. In this regard the fifth and
sixth respondents argued that the application is out of time and
internal remedies have not been exhausted. I now consider the
jurisdictional factors of s 7 of PAJA.
Delay
[52]
The applicant submitted that a distinction be made between the
decision to issue the directive on 1 November 2005 and the decision
refusing to withdraw the directive on 21 September 2009. From that
premise it was argued that the 1 November 2005 directive became
invalid on 6 January 2009 when the affected land was transferred to
Pamodzi. The application was launched a few months later, well
within
the 180 day period. Therefore, it was argued, there was no need for
condonation. I do not agree. With regard to the issuance
of the
directive, the operative and determinative date is 1 November 2005.
The application was made approximately 4 years after
the directive
was issued, and the application is clearly out of time.
[53]
The applicant sought to overcome this difficulty on the basis of
absence of prejudice on the part of any of the respondents.
In my
view, absence of prejudice is but one of the considerations, together
with the reasons for the delay, to be taken into account
in deciding
whether or not to condone the delay. In the present case, the delay
is of approximately 4 years after the directive
was issued.
[54]
The closest the applicant comes to explaining the reasons for the
delay is this: initially it received legal advice that it
may not
need to challenge to challenge the directive because it could attack
it collaterally if it were ever compelled to comply
with it. This is
an unsatisfactory explanation, and in fact flies in the face of the
applicant's apparent attitude (of acceptance
of the validity of the
directive until January 2009). I do not consider the absence of
prejudice on its own to be a sufficient
basis, and decisive, in
granting condonation for the delay. The delay is inordinate. There is
no proper explanation for that. I
am accordingly not inclined to
exercise my discretion in the applicant's favour. The interests of
justice do not permit of that.
Internal
remedies
[55]
If this conclusion is wrong, the applicant has in any event, failed
to exhaust internal remedies. S 7 of PAJA requires an applicant
for
review first to exhaust his or her internal remedies. S 7(2) provides
that 'no court or tribunal shall review an administrative
action in
terms of this Act unless any internal remedy provided for in any
other law has first been exhausted'. In terms of s 148(1)(a)
of the
NWA the applicant was entitled, within 30 days of the issue of the
directive, to appeal against the directive.
[56]
The fifth and sixth respondents took issue with the fact that the
applicant has not exhausted this internal remedy before launching
this application. The applicant contended that an administrative
appeal contemplated in the section does not cover situations like
the
present one in which the directive becomes invalid as a result of a
change of circumstances. If this argument is correct, then
at best
for the applicant, the appeal became available to it on 6 January
2009. It did not exercise that.
[57]
Only in 'exceptional circumstances' and on application, may an
exemption be granted from exhausting any internal remedy, 'if
the
court deems it in the interest of justice'. What 'exceptional
circumstances' are, would obviously differ from case to case.
In
Nichol v The Registrar of Pensions Fund
12
it was held that 'exceptional circumstances' must be those that are
out of the ordinary and that render it inappropriate for the
court to
require the applicant first to exhaust his or her internal remedies.
The circumstances must be such as to warrant the
immediate
intervention of the courts rather than resort to the applicable
internal remedy. I do not find any exceptional circumstances
in the
present case to justify exempting the applicant from the requirement
to exhaust internal remedies. I also do not find that
this is a case
in which the immediate attention of the courts is required. I
therefore find that no proper case has been made for
condonation of
the late launching of the review application.
[58]
To sum up. First, I am satisfied that the directive issued on 1
November 2005 did not breach the legality principle, and to
that
extent, was not invalid. Second, the plain language of s 19(3) of the
NWA does not permit of a restrictive interpretation.
Third, the
applicant has not made out a case for condonation regarding its late
launching of the review application. Fourth, it
has similarly failed
to establish exceptional circumstances for it to be exempted from the
requirement to exhaust internal remedies
before approaching this
court. The application therefore falls to fail.
[59]
Finally, the issue of costs. This is a matter which is within the
discretion of the court, which discretion must be exercised
judiciously having regard to all the circumstances. It is so that the
application is primarily about the applicant's own commercial
interests. However, the applicant raised constitutional issues of
importance aimed at vindicating a constitutional principle of
legality. Its challenge cannot be described as frivolous or in any
way inappropriate. The proper approach to adopt, in the
circumstances,
is that established in Affordable Medicines Trust and
Others v Minister of Health and Others
13
and Biowatch Trust v Registrar, Genetic Resources and Others
14
.
I would therefore not order costs in favour of any of the
respondents.
[60]
In the result the application is dismissed. There will be no order as
to costs.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD :24 OCTOBER 2011
JUDGMENT
DELIVERED :29 JUNE 2012
FOR
THE APPLICANT :ADV MM OOSTHUIZEN SC (with ADV
K
HOFMEYER)
INSTRUCTED
BY :CLIFFE DEKKER HOFMEYR, CAPE TOWN,
FRIEDLAND
HART SOLOMON & NICOLSON, PRETORIA
FOR
THE FIRST, SECOND &
THIRD
RESPONDENTS :ADV B ROUX SC (with ADV TAN MAKHUBELE)
INSTRUCTED
BY :STATE ATTORNEY, PRETORIA
FOR
THE FIFTH AND SIXTH
RESPONDENTS
:ADV W TRENGROVE SC (with ADV
T
DALRYMPLE)
INSTRUCTED
BY :EVERSHEDS, SANDTON, JACOBSON &
LEVY
INC, PRETORIA
NO
APPEARANCES FOR THE 4th & 7th RESPONDENTS
1
The
department formerly incorporated Forestry and was known as the
Department of Water Affairs and Forestry. Since May 2009 it
has
existed as a separate department from the Department of
Environmental Affairs, within the Ministry of Water and
Environmental
Affairs.
2
Constitution of the Republic of South
Africa Act 108 of 1996
3
2010 JDR 0214 (GNP) para 80.
4
1907
TS 910-915.
5
1998
(1) SA 98 (SCA) at 107B-G).
6
2007
(6) SA 4 (CC) at para 67.
7
1988
(1)SA1(A) at22E-F
8
1996 (2) SA 751 (CC) para 105
9
2003 (4) SA 1 (CC) para 48
10
2003 (3) SA 34 (CC) para 20
11
2008 (1) SA 566 (CC) para 192
12
2008 (1) SA 383 (SCA) para 16
13
2006 (3) SA 247 (CC) para 138.
14
2009 (6) SA 232 (CC) paras 23 and 24.