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[2012] ZAGPPHC 361
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Golden Falls Trading 125 (Pty) Ltd v MEC of the Gauteng Department of Agriculture and Rural Development and Others (77836/2010) [2012] ZAGPPHC 361 (23 November 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case Number:
77836/2010
Date: 23 November
2012
Reportable
Of Interest To Other
Judges
In the matter
between:
GOLDEN FALLS
TRADING 125 (PTY)
LTD
.....................................................................
APPLICANT
and
MEC OF THE
GAUTENG DEPARTMENT OF
AGRICULTURE AND
RURAL
DEVELOPMENT
..................................................
1
st
RESPONDENT
HEAD OF THE
GAUTENG DEPARTMENT OF
AGRICULTURE AND
RURAL
DEVELOPMENT
..................................................
2
nd
RESPONDENT
THE TRUSTEES FROM
TIME TO TIME OF
THE BADENHORST
FAMILIEGROEP
TRUST
...................................................
3
rd
RESPONDENT
AGATTU TRADING
(PTY)
LTD
..............................................................................
4
th
RESPONDENT
BROOKWAY
PROPERTIES (PTY)
LTD
...............................................................
5
th
RESPONDENT
LINDRIET
BELEGGINGS (PTY)
LTD
...................................................................
6
th
RESPONDENT
THE CHAIRPERSON
OF THE GAUTENG
DEVELOPMENT
TRIBUNAL
...................................................................................
7
th
RESPONDENT
JUDGMENT
Fabricius J,
1.
This
is a review application. The Second Respondent
("the
HOD
”
)
granted an Environmental Authorization
(“
EA
”)
to
the Fourth and Fifth Respondents to undertake certain listed
activities on a certain immovable property. The First Respondent
('the
MEC”
)
dismissed
an appeal noted by the Applicant against this Authorization issued by
the said HOD in terms of the provisions of the National
Environmental
Management Act, 107 of 1998 (“the
NEMA").
2
.
The
Applicant herein seeks to review these decisions, and seeks an order
for costs against the First Respondent. The First and Second
Respondents have not opposed this application, and they filed a
notice that they would abide by the decision of this court. The
Third
to the Sixth Respondents have opposed this application and they will
be referred to herein as
"the
developers”.
3.
Merely
for the sake of convenience, and to put the whole debate into the
proper context. I intend referring to background facts
that emanate
from the Applicant’s founding affidavit. It is the registered
owner of a property which is “
located
in close proximity”
of
the properties of the Third and Sixth Respondents, and which property
has been developed as a shopping centre, known as the Carnival
Mall.
The existing shopping centre is in the process of being expanded, and
Applicant says that it has invested some R320 million
in this
particular land. It then “
only
by coincidence"
became
aware of the intentions of the Third, Fourth, Fifth and Sixth
Respondents
(“the
developers’')
to
develop the properties of the Third and Sixth Respondents (
“the
subject properties
'’)
Applicant states that after it became aware of such developments, and
due to the totally inadequate public participation
process followed
by the developers, it did not formally register as an interested and
affected party in the environmental process
followed by the
developers in terms of
NEMA
,
and only after such public participation was done, actively became
involved. It is however currently a recognised registered party
to
the environmental authorisation process followed by the developers,
and, has a material interest in this development, not only
in its
capacity as registered interested and affected party, but also as an
adjacent land owner with vested interests in the area.
The Applicants
state that “
consequently”
it
has a material interest in the environmental process and
authorisation of certain activities required in terms of
NEMA
in
respect of the subject properties from a statutory point of view, and
also in its capacity as land owner. In its answering affidavit
the
Respondents say that during September 2011 the Gauteng Development
Tribunal granted an application to establish the land development
areas in the form of the townships which were described in respect of
the Badenhorst Estate. This proposed development is of a
mixed-use
nature over an area of some 295 hectares. The Applicant in the review
application appealed against this decision to the
Appeal Tribunal
appointed for the Gauteng Province in terms of the provision of the
Development Facilitation Act of 1995
. This appeal was dismissed
during February 2012. Thereafter the development commenced. The
activities which were authorised in
terms of the environmental
authorisation is a development comprising of residential,
business/retail, offices, retail, commercial,
mixed-use, municipal
and industrial buildings, a retirement village and a public open
space of some 100 hectares. The Respondents
say that in the mentioned
town-planning proceedings the Applicant herein had used its best
endeavours to delay the approval of
the land-use rights, to the point
where a hearing was required to finalise the matter before the
Gauteng Development Tribunal.
It did not present any specialist
reports in respect of any aspect of the Badenhorst Estate
development, except for a report by
a Dr. Levin, which was handed in
and relied upon during argument. The said Dr. Levin was however not
called to give evidence, and
it is the Respondents view that all of
such so called evidence was of a hear-say nature, and consisted of
trivial attacks on the
reports of the Respondent. They say that this
is the same strategy that the Applicant is following in the present
application.
They point out that it is noteworthy that the Applicant
does not abutt or adjoin any part of the Badenhorst Estate. They say
that
nowhere in the founding papers has the Applicant set out any
primary facts as to how the environmental authorisation and
development
of the Badenhorst Estate will negatively impact on its
property or any environmental right. This is clearly so, but it must
be
remembered that
section 32
of
NEMA
gives
any person legal standing not only in respect of his own interest,
but also in the interest of protecting the environment.
Then again,
the land is certainly not of a pristine nature and any sensible grass
owl apparently fled years ago.
4.
In
the context of the relief sought against the First Respondent, the
Applicant alleges that she did not at all, upon consideration
of the
appeal lodged by the Applicant, request the developers or the
Applicant to submit any additional documentation or information
to
her for consideration of the merits of the appeal, and moreover,
simply refrained from allowing the developers, or the Second
Respondent, being parties to the appeal, to submit responding
statements in respect of the issues raised in the appeal to her for
consideration, before she took a decision. She did accordingly not
apply her mind to the merits of the appeal, did not apply the
principles of
NEMA
for
purposes of the appeal decision, and simply repeated and confirmed
the obvious errors and irregularities in the Second Respondent’s
decision, without consulting with him, or, as I have said, allowing
him or the Applicant the opportunity to submit additional
information.
5.
The decision of the
Second Respondent would be negated if the relief sought against the
First Respondent was granted.
6
.
The
Applicant says that the environmental sustainability of any
development forms the cornerstone of
NEMA
,
and that this Act imposes a heavy burden of proof in that regard on
an Applicant for environmental authorisation for listed activities
in
terms of
NEMA.
They
say that the Act imposes a great responsibility on any competent
environmental authority like the First and the Second Respondents,
to
strictly apply the Environmental Management Principles contained in
section 2 of
NEMA,
and
inter alia
to
follow a cautious and risk-adverse approach in its consideration of
such applications, especially in circumstances where ali
information
pertaining to the possible impacts of such listed activities have not
properly been investigated, or are unknown. It
also alleges that the
First and Second Respondents have to apply strict procedural
requirements and standards prescribed not only
in terms of the
relevant Regulations, but also have to strictly comply with formal
prescriptions, policies and guidelines documents
issued by the
mentioned Respondents themselves.
7.
The application for
environmental authorisation is a document comprising almost 900
pages, and fortunately it is not necessary for
present purposes to
refer in any great detail thereto, inasmuch as the Applicant has
limited its grounds of review to a number
of particular topics.
8
.
Applicant
says that the provisions of section 24(1 )A of the Act are
peremptory, and that every applicant must accordingly comply
with the
requirements prescribed in this Act in relation to the topics set out
in this section. The Act also includes all Regulations
promulgated in
terms thereof. Before I continue with Applicant’s grounds for
review, it is clear from the Act and the Regulation
that the word
“
must”
is
mentioned in dozens of sections and regulations, in the context of
what is required of an Applicant for an environmental authorisation.
I will deal with this topic again hereunder. The relevant Regulation
is GN R385 of 21/04/2006 read with R387. They were repealed
in 2010.
9.
Does
the Act, and do the Regulations require exact, precise and one
hundred percent compliance in
each and every instance where the word
“
must
’
is used?
This
was Applicant’s case in the founding Affidavit and Heads of
Argument. The answer to this question, in my view, can only
be found
if one analyzes the purpose that is sought to be achieved by the Act
and the Regulations. The First and Second Respondents
are organs of
state, and in the given context their acts are of an administrative
nature. The Applicant must therefore, in the
context of each ground
for review relied on, bring itself within the ambit of the Promotion
of Administrative Justice Act (“
PAJA
”
)
3 of 2000. The question therefore is what right provided for in
PAJA
it
was deprived of, and, if such deprivation did occur, whether such was
unfair in the proper context. Such a finding would in my
view depend
on the approach of a court to the question whether or not the
relevant provisions of the Act and the Regulations have
been complied
with. On the other hand
NEMA
provides
that an interested person may seek appropriate relief in respect of
any breach of any provision of the Act. In this case
the Applicant
relied on
PAJA
only
in this context, ie it sought no relief in terms of section 32 of
NEMA.
10
.
The
Applicant submits that the words “must” and
“
shalf
generally
indicate an
“
imperative,
mandatory
,
obligatory, or
peremptory’
intention
of the legislature. It referred to a number of decisions of the
Courts amongst others
Feinberg v
Pietermaritzburg
Liquor Licensing Board 1953(4) SA 415 AD at 419 to 420,
and
Mostert v Munroe and Another 1965(1) SA 193 AD at
201.
The
effect of these decisions and dozens of others in the same vein, is
that the word “
shair
or
“
must”
when
used in a statute, is to be construed as peremptory and directory,
unless there are other circumstances which negate this construction.
The Respondents say that this is not the proper approach at all. It
was argued that what needs to be done is to establish the object
of
the statutory provision, and then to determine whether that object
was achieved. This may be a different way of saying that
a statute
may indicate, despite of the use of the word “
must'
,
or
“
shalf',
that
there are indications that non-compliance with a so-called peremptory
provision will not be visited with a nullity. During
argument Mr.
Erasmus SC on behalf of Applicant abandoned the absolutist view and
put his test as follows: there is a difference
between absolute and
strict compliance. The Act does not require the former, but
compliance must be as “
close
as possible
”
to
the Act. Any “
materiaf'
deviation
renders the decision taken, void.
In
the context of whether a certain regulation was peremptory or merely
directory, the Appellate Division in
Maharajah
and Others
v
Rampersad
1964(4) at 638 at 341
said
that it was a recognised principle of statutory construction that a
court, when determining which of these two alternative
constructions
is to be placed upon a statutory enactment, must seek to ascertain
the real intention of the legislature, and in
so doing must have
regard to the scope and object of the enactment as a whole.
In
Charlestown Town Board and Another v Vilakazi
1951(3) SA 361 AD at 370
it
was said that every enactment must be dealt with in light of its own
language, scope and object, and the consequences in relation
to
justice and convenience of adopting one view rather than the other.
The
decision of
Weenen Transitional Local Council v
Van Dyk 2002(4) SA 654 SCA
is
particularly instructive. The court analysed the local Council's
scheme of assessing, levying and collecting rates, and determined
that it was obliged to issue four notices before it could claim
payment of rates due to it. It had however published only one notice.
This notice was allegedly also defective for a number of reasons. The
relevant section of the particular Act required two notices
at least
five days apart.
In
that particular context the court said that the correct approach to
the objection was to follow a common-sense approach by asking
the
question whether the steps taken by the local authority were
effective to bring about the exigibility of the claim measured
against the intention of the legislature as ascertained from the
language, scope and purpose of the enactment as whole, and the
statutory requirement in particular. Legalistic debates as to whether
the enactment is peremptory (imperative, absolute, mandatory,
categorical imperative) or merely directory; whether “
shall'
should
be read as “may”; whether strict as opposed to
substantial compliance is required: whether delegated legislation
dealing with formal requirements are of legislative or administrative
nature, etcetera may be interesting, but seldom essential
to the
outcome of a real case before the Courts. They tell us what the
outcome of the Courts’ interpretation of the particular
enactment is; they cannot tell us how to interpret. The proper
approach was to follow the trend away from the strict legalistic
to
the substantive (at 659). This avoidance of a narrowly textual and
legalistic approach was thereafter also followed by the
Constitutional Court in
African Christian
Democratic Party v Electoral Commission 2006(3) SA 305 at 317 par 25.
This
is the modern, correct approach, and has fortunately found its way
into the Act itself by way of the provisions of section
47A
:
which does not invalidate the failure to take any steps in terms of
this Act as a prerequisite for any decision or action, if such
failure is not material, does not prejudice any person and is not
procedurally unfair.
11
.
It is accordingly in
that context that the alleged peremptory provisions of the Act and
the Regulations must be interpreted.
The
Act contains the National Environmental Management Principles in
Chapter 1. It specifically states that these principles set
out in
section 2
“
serve
as the general framework
”
(I
underline) within which environmental management and implementation
plans must be formulated. They also
“
serve
as guidelines
'’
(I
underline) by reference to which any organ of state must exercise any
function when taking any decision in terms of this Act,
and any
statutory provision concerning the protection of environment.
(Section 2(1 )(b) and (c)). I am aware of the fact that the
protection of the environment is particularly important. Section 24
of the Constitution makes this clear. The duty of a Court of
Law when
a decision of an environmental authority is brought on review, is to
evaluate the soundness or otherwise of the objections
raised in the
light of the applicable legal principles.
See
Fuel Retailers Association v
D-G;
Environmental Management, Mpumalanga 2007(6) SA 4 CC
at 39.
In
that context neither the identity of the litigant who raises the
objection, nor the motive is relevant. I say this at this stage
because the good faith of the Applicant was questioned in these
proceedings, but I will not concern myself with that debate. In
any
event, section 32 renders such motive irrelevant. Doing the right
thing for the wrong reason, may concern a philosopher, but
not the
Act, and therefore not a Court.
12
.
I
must make one further observation: Section 6(2) of
PAJA
authorises
a court to judicially review an administrative action if
u
b.
a
mandatory or
material condition prescribed by an empowering provision
was
not complied
with".
In
that context Hoexter in
Administrative
Law South-Africa, Juta and Company Limited,
Cape
Town, 2007 at 262 said the following:
“
it
would of course be delightfully simple if the failure to comply with
mandatory provisions inevitably resulted in invalidity while
ignoring
directory provisions never had this consequence, but the reality is
not so clear-cut. From our case law one sees that
some requirements
classified as “mandatory’' need not, in fact, be strictly
complied with, but that “substantial
”
or
“adequate
"
compliance may be
sufficient The reference in the PAJA to a “material”
procedure or condition may indeed be read as
recognising this".
I
agree with this view but subject to the qualification that
jurisprudentially speaking the more correct question would be:
“
keeping in
mind the objects of the Act, were they achieved?”
If
the answer is in the affirmative, one would then not be bothered by
nebulous concepts such as “
substantiaf
’
or
"adequate".
This
is how I have interpreted this Act, its objects and Regulation. It is
also the correct way to interpret statutes in general.
The purpose of
a statute is important, the mischief at which it is aimed and then,
of course, the Court will not lend itself to
an interpretation that
leads to impractical, unbusinesslike or oppressive consequences or
that will stultify the broader operation
of the legislation.
See:
Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012(4) SA 593 SCA at 606G and 610B-C.
13.
In
the context of the review directed against the decision of the First
Respondent to dismiss the appeal, it was submitted that
there was a
failure to comply with regulation 65 of the 2006
NEMA
Regulations,
inasmuch as regulation 65(1) provided that any organ of state which
received notice in terms of regulation 62(2) may
submit to the MEC a
responding statement within thirty days from the date of the appeal,
or when the appeal submission was made
available for inspection. An
organ of state who submitted a responding in terms of regulation
65(1)
11
must'
serve
a copy of the statement on the appellant. In the present instance it
was not disclosed to the Applicant that the Second Respondent
had
filed a responding statement. In such response the Second Respondent
answered to most of the grounds of appeal relied upon
by the
Applicant in the notice of appeal. It was accordingly argued that
regulation 65(2)(a) of Regulations R385 was peremptory.
The fact that
the Applicant was not allowed the opportunity to file an answering
statement to the responding statement of the Second
Respondent was
procedurally unfair, and in breach of section 6(2)(c) of
PAJA
at
the very least. For this reason alone it was submitted that the
dismissal of the appeal by the First Respondent should be reviewed
and set aside. Respondents in turn argued that the relevant document
filed by Second Respondent amounted to nothing more than a
“
memorandum
”
which
contained the departmental response to the appeal. Respondents say
that the question ought to be whether such non-disclosure
eroded the
fairness of the administrative process. It was argued that the
high-water mark of the Applicant’s complaint in
this context
was to be found in the contention that the Second Respondent had
commented, if not on all, then on most grounds of
the appeal. The
Applicant however deliberately failed to:
13.1 identify
any significant issues raised in the response;
13.2 identify
new material or reasons advanced by the HOD which were not expected
or anticipated;
13.3 indicate
what prejudice it had suffered in consequence of the inability to
respond to the responding statement;
13.4 indicate
what additional submissions it would have submitted to the MEC, had
it been favoured with a copy
of the responding statement.
Respondents
say that this submission is glaringly obvious in that the contents of
the memorandum simply does not call for a response.
It consists of
general submissions, and the question could well be asked, why it was
deemed necessary by the HOD to file the document?
There was simply no
particular submission which could have induced the MEC to dismiss the
appeal, or to which the Applicant would
have been able to file a
meaningful response. Accordingly, the Applicant could not complain
that it was deprived of the right provided
for in section 3 of
PAJA
to
be given a reasonable opportunity to make representations. In this
context a flexible approach was required, which depended on
the
circumstances of each case. It speaks for itself that the
“
reasonableness
of
the opportunity depends on the question whether “
adverse
information
”
was
available to the administrative body and which could, if considered,
affect their decision. The contents of this memorandum
had therefore
to be considered in proper context. The complaint about the
non-disclosure for example of a document which favoured
the
Applicant, could hardly form the basis of a valid complaint. In each
case it had to be determined whether a party’s right
to a fair
administrative process has been materially infringed. I agree with
that contention. This is the proper test. The question
of fairness in
the administrative process has to be decided with reference to the
circumstances of each case and there is no defined
all embracive
test. There is also no room for an overly technical approach. In each
case it must be determined whether the particular
process materially
prejudiced the rights of any interested party. I agree that an
isolated element of the entire process does not
necessarily have the
effect of depriving it of the attributes of fairness. Unfairness in
the air should be of no consequence in
modern administrative law.
See
Logbro Property CC v Bederson N.O and Others
2003(2)
SA
460
SCA at par 8- 9
,
and
sections 3(1), 4(1), 5(1) and 6(2)(b)(c) of PAJA confirm this view.
14.
The
Respondent also submitted that one should be guided by the approach
adopted by our courts in determining whether a party is
vested with a
right of reply or rebuttal, as part of the administrative process.
The outcome of this question depended on the “
materiality
and significance of the new information and of the seriousness of the
case”.
In
Huisman
v
Minister of Local Government, Housing and Works
1996(1) SA 836 (A)
,
the
court refused to recognise a right of reply in circumstances where
al! that the Minister had received where
“new submissions based on old facts
”
,
f therefore agree with the Respondents’ submission that
non-disclosure of submissions made to an organ of state does not
axiomatically justify a review and setting aside of the decision.
Something more is required; something that on the face of it
at least
calls for a reply.
In my view therefore
the non-disclosure of the memorandum filed by the Second Respondent
did not have the effect of tainting the
fairness of the relevant
administrative process. Furthermore, one must remark that the second
Respondent did not act as an affected
party, and that appellant was
also not an applicant. Regulation 62 read with reg. 65 must therefore
be read in the proper factual
context.
15.
Was
the public participation process followed by the Fourth and Fifth
Respondents fatally flawed
?
The
Act defines “
public
participation process
”
in
relation to the assessment of the environmental impact of any
application for an environmental authorisation as meaning a process
by which potentially interested, and affected parties are given
opportunity to comment on. or raise issues relevant to, the
application
Chapter
6 of the Regulation R385 deals with this process. (Regulations 56 to
59). It will be noted that this regulation refers to
the word
"must'
in
a number of instances, but again, it is required to adopt the correct
approach that I have set out hereinabove. For instance,
regulation
56(2)(a) requires the fixing of a notice board at a place conspicuous
to the public at the boundary or on the fence
of the site where the
activity to which the application relates is or is to be undertaken.
Regulation 56(4) then stipulates that
this notice board must be of a
size at least 60cm by 42cm. It would be absurd if the argument were
upheld that if this notice board
were to be of size 58cm by 40cm, the
whole public participation process would be fatally flawed, and any
decision taken in that
context would have to be set aside on review.
This is just one example in the context of what is required by
regulation 56, but
many others can be given. The Applicants have
submitted that the advertisement in the newspaper that is required by
regulation
56(2)(c) was misleading for a number of reasons. Because
the PP was the corner stone of the investigation process in order to
obtain
an EA, strict compliance should be required with the
provisions relating to the PP. It was submitted that should the PP be
flawed,
the whole process leading up to the EA and the approval of
the EA was similarly flawed. In this context reliance was then placed
on the provisions of section 6(2)(b) and/or (c) and/or (f) and/or (i)
of
PAJA,
in
that a mandatory and material procedure of the
NEMA
was
not complied with, the whole administrative action was proceduraily
unfair, and that the EA and the upholding thereof on appeal
contravened the provisions of
NEMA.
Respondents
say that it was, and is, the Applicant's strategy to capitalise on
trivial deficiencies to discredit the entire environmental
process.
It also has to be remembered that the Applicant intentionally did not
initially register as an interested and affected
party, and only did
so after the public participation process was completed It decided
not to register when it had the opportunity
to do so on the basis
that the whole process was allegedly totally inadequate The Applicant
was also not an
“
adjacent
land owner.
The
Applicant's shopping centre as clearly indicated on the plan put
before court, was not adjacent to the Badenhorst Estate, and
was
separated from it by a number of residential properties and two
provincial roads. The Applicant also does not state that its
property
is within a 100m of the Badenhorst Estate. The relevant notice boards
were placed at a main intersection of two provincial
roads directly
in front of the Carnival Mall, the Applicant's shopping centre, and
there is no reason for finding that the relevant
notice boards would
have escaped the attention of the Applicants. As far as the
publication in the newspaper was concerned, the
Respondents dealt
with the relevant alleged flaws, and submitted that various persons
responded to the notices and participated
in the process, and
referred me to the relevant data base which was part of the record
before me. There was a public meeting on
13 November 2008 and the
attendance register only indicates that four persons attended. The
database however indicates, just by
way of example, that there were
representatives of a number of communities, the businesses,
developments, home-owner’s associations
etc. More importantly,
Respondents say that Applicants did not produce any evidence
concerning the exclusion of parties wishing
to have participated, and
which were excluded by any misleading effect of the publication
process. Accordingly, the combined affect
of the publication, the
notice board and the BID document, which was served on interested and
affected parties within 100m of the
Badenhorst Estate, satisfied the
purpose of the publication process. Accordingly they say there was
“
substantial
compliance"
with
the object of the relevant legislation. Regulation 56(2) requires
that the person conducting the public participation process
must take
into account any guidelines applicable to public participation, and
must give notice to all potential and affected parties
of the
application which is subjected to public participation by, amongst
others, the fixing of the mentioned notice board, the
giving of
written notice, the placing of an advertisement.
Regulation
56(6) in this context is in my view also of importance, in that it
requires the person conducting the process to ensure
that
participation by potential interested and effected parties is
facilitated in such a manner, that all such parties are provided
with
a reasonable opportunity to comment on the application. I agree with
the Respondents’ contention that the Applicants
has not placed
any evidence before me indicating that there were such interested and
affected parties who were not provided with
such a reasonable
opportunity, and that they were accordingly prejudiced, or that the
Applicant itself had been unfairly prejudiced
in that context.
Respondents say that they were therefore entitled to rely on the
provisions of section 47A of
NEMA
which
states that a regulation or notice, or an authorisation, permit or
other document, made or issued in terms of this Act, which
does not
comply with any procedural requirement of the relevant Act. is
nevertheless valid, if the non-compliance was not material
and did
not prejudice any person. Section 47A(2) also states that the failure
to take any steps in terms of this Act or a specific
Environmental
Management Act as a prerequisite for any decision or action does not
invalidate the decision or action, if the failure
is not material,
does not prejudice any person and is not procedurally unfair.
Respondents therefore submitted that inasmuch as
the Applicant failed
to identify any non-compliance with a material provision or
regulation promulgated in terms of
NEMA
rendering
the authorisation invalid, I ought not to interfere on the basis that
regulation 56 was not strictly complied with by
the Respondents.
16.
For the reasons
stated in the previous paragraphs I am of the view that Applicant’s
ground of review relating to the public
participation process ought
not to be upheld.
17.
Absence
of consent by the owners of the immoveable property
.
Applicant
alleged that the Third and Sixth Respondent were the owners of the
relevant immovable property, but not the Fourth and
Fifth
Respondents. Accordingly, and in the context of regulation 16(1) of
Regulations R385 a mandatory and material procedure has
not been
complied with. The Respondents say that neither the First nor the
Second Respondent had any concerns in this regard, and
in any event a
proper explanation had been furnished: the Respondents purchased the
properties concerned and would therefore acquire
the status of
“
the
developer
”
after
transfer of the properties.
Listed
activities authorised but not applied for
The main complaint
was that the Second Respondent approved an activity, namely relating
to the grounds storage of dangerous goods,
which had not been applied
for. This related to a fuel retail facility. This is not in dispute,
and the Respondents admit that
no filling station was ever applied
for, but that the intention had been to obtain authorisation for the
temporary storage of fuel
during construction. This obvious error had
been rectified, and the Applicant could accordingly not have been
prejudiced at all.
Other activities which had been applied for had
been abandoned later, and had been removed in terms of an amendment
which had been
granted. Accordingly, it was contended by the
Respondents that Applicant’s complaints in this context were
without any foundation.
I agree.
19.
Absence of
geo-hydrological report
In
the BID the developers notified the general public that several
specialist studies were conducted during the EA, including
geo-hydrological
investigations. This was admitted by the
Respondents, who however also conceded that no such investigations
were conducted. Applicants
say that this omission is
1
disconcerting"
having
regard to the existence and presence of various mines, mine dumps,
toxic water, shallow water tables and sensitive wetland
areas on the
immovable properties on which the development will be undertaken. In
this context reference was then made to regulation
8 of Regulations
R385. It was submitted that Second Respondent should have at least
insisted upon a proper investigation and a
report in this context.
The failure to do so was fatally defective, and in breach of a number
of provisions of
PAJA
including
those referred to in section 6(2)(b). 6(2)(d) and 6(f)(i). amongst
others. In this context Respondents have said that
all of these
contentions had been fully dealt with, and that pollution risks,
environmental impacts and risks of degradation had
been investigated.
The EA report comprised all these reports in fact. Further, no
underground water would be extracted for use
in the development, as
water would be supplied by the local authority. A full investigation
had also been undertaken in respect
of mining below surface and the
areas where such mining had been undertaken, but these areas would
not be developed. Furthermore,
there was also no statuary requirement
for a geo-hydrological report, and none was shown to exist by the
Applicant. The relevant
plan clearly showed that no development would
take place on any undermined area or in the upper strip. Accordingly
there was also
no merit in this ground of review. I agree
20
.
Storm water
draining into the Apex Pan
Applicants
say that the developers have proposed in the EA that the northern
area of the proposed drainage would drain into the
Apex Pan. The Pan
thereafter drains through an underground movement of water towards
the Brakpan Lake It was allegedly common cause
that the Apex Pan
contained highly poisonous water due to cyanide pollution.
Notwithstanding this proposal, the Second Respondent
allegedly had no
information at his disposal on which he could properly asses the risk
in this context On a risk-averse approach
it was therefore
irresponsible of the Second Respondent to have approved the
Environmental Application, or at the very least he
should have called
for a proper study pertaining to storm water management. Section
2(4)(a)(vii) of the Act was in this context
relevant, and it was
necessary therefore that a risk-averse and cautious approach be
applied. The failure to do so was accordingly
in breach of section
6(2)(b), (d), (e)(iti) , (f)(i) of
PAJA,
amongst
others. Respondents say that it was opportunistic for the Applicant
to raise this criticism, and persist therewith. The
comment in the EA
report was that the Apex Pan was unsuitable for recreational
purposes. It was proposed to fence it off. The Applicant
ignored this
fact, and furthermore the events that have occurred since 2008. They
say that no polluted storm water will be discharged
into this Apex
Pan, that remedial measures have been taken since 2008 to improve the
water quality in that Pan, and that it had
in any event not been
established that by the addition of clean storm water, the situation
would be aggravated. The risk-averse
approach was therefore not
required, and there was no basis to interfere with the decision to
grant the environmental approval.
Having
regard to the facts, I agree. I may just add that I have followed the
approach laid-down in
Plascon-Evans Paints v Van
Riebeeck Paints 1984(3) SA 623 AD at 634
where
there are disputes of fact.
21
.
Failure
to comply with and apply the requirements for bio-diversity
assessments
Applicants
say that the Second Respondent failed to apply the bio-diversity
assessment requirements set out in the relevant document.
They
alleged that the curriculum vitae of any specialist who undertook any
specialist study must be annexed as an appendix to the
report. This
had not been done. In this context Respondents say that a highly
qualified EAP had explained that the experts who
had submitted
reports (which were bio-diversity assessments) were all well known to
the department of the Second Respondent. The
insistence by the
Applicant on the CV’s in these circumstances was absurd. The CV
of an expert, once on record with the department,
was not amended. In
any event it was difficult to appreciate why the Applicant was of the
belief that the policy referred to was
dispositive of the issue, a
policy ought not to be rigidly applied, and if such policy did in
fact exist in the present context,
its application thereof would be
absurd. Applicants in turn referred to a report done by Bear Geo
Consultants. They say that this
report could not be of any assistance
because one could not determine that the authors thereof were indeed
experts, and that in
the absence thereof no weight could have been
attached to this report. Reference was also then made by the
Applicant to alleged
requirements relating to radio-activity in the
area. Respondents say that a geo-technical report was not a
bio-diversity assessment,
and that no CV was required in the context
of what Bear Geo Consultants dealt with. They also deny that mine
dumps and old mines
were present on the
“
subject
property
and
if a dispute of fact existed in this context, the Respondents version
had to be accepted. As far as radio-active material was
concerned,
the contents of the appeal documents on which the Applicants relied
on during argument, constituted inadmissible hearsay
evidence. The
mine dump which appeared to be the focus of the Applicants
contentions in this context was in any event situated
outside of the
boundary of the Badenhorst Estate. The
National Nuclear Regulator Act
47 of 1999
was therefore not applicable at all, as no residential use
was proposed on or near the radio-active remains of the mine dump. On
the basis of these facts, I find that there is no merit in the
Applicant's complaint under the specific heading.
22
.
Data species
In
this context Applicants rely upon an ecological assessment that was
attached to the EA which made specific reference to an endangered
species (commonly referred to as red data specie) namely the African
grass owl. which was allegedly on the property. The Second
Respondent
did not require of the developers to submit a specialist report. The
Second Respondent accordingly breached the provisions
of
section
2(4)(i)
of
NEMA,
in
that a potentially devastating environmental impact had not been
investigated and or considered by the department. This failure
allegedly also breached certain provisions of
s6
of
PAJA.
Respondents
say that Applicant's complaint was taken out of context. It had
mentioned that the habitat
had
been
suitable for the African grass owl, but that no such owls had been
seen or noticed on the particular property for the last
twelve years.
Concerning the alleged requirements for further reports. Respondents
say that there was simply no evidence of any
soil contamination,
water contamination or nuclear activity on the Badenhorst Estate, and
no under ground water would be extracted
for use in the development.
The storm water drainage system which would be installed on the
Estate consisted of a piped system,
posing no risk to sub-terrainian
water. There was consequently no need for any further reports in this
context. They also say,
more importantly, that there was no
indication in the founding papers that the environmental rights of
the Applicant had in any
way been affected, or that the environment
would be degraded or damaged. The environmental authorisation and the
numerous conditions
imposed in respect thereof, together with the
environmental management plan, provided sufficient protection against
an impact that
might be harmful to the environment. Accordingly there
was no need for a court to interfere with the decisions of the First
and
Second respondent.
23.
Respondents
accordingly sought the dismissal of the application with costs, such
costs to include the costs of two counsel, and
further sought a cost
order in the urgent application under case number 48767/2012
including the costs of two counsel. On 20 September
2012 this court,
following undertakings by the Third to Sixth Respondents, made a
prohibitive order pending this review application
and reserved the
costs.
24.
I
was referred to a decision by van der Byl AJ in this court of 2
September 2011 (un-reported) under case nuber 37087/2009 in the
matter of
Chieftain Real-Estate Incorporated
Cornelius N.O and Others
.
In
that judgment my learned colleague without further ado held that
regulation 65(2)
, was
“
in
compelling terms”,
in
the context of the responding statement that was also the subject
matter of this review. He held, that it was peremptory, whether
or
not it contained any new information. Having regard to what I have
set out in some detail in this judgment in this context,
I am of the
view that that judgment is not correct on that topic, and I
respectfully disagree with it. It is not in line with the
modern
approach.
25.
In the light of all
of the above the result is the following:
25.1 Applicants
application is dismissed with costs including the costs of two
counsel;
25.2 The Applicant
is to pay the costs in the urgent application under case number
48767/2012, including the costs of two counsel.
25.3 No order is
made in the Respondents application for striking-out certain passages
in Applicant’s Replying Affidavit.
JUDGE H J
FABRICIUS
JUDGE OF THE
NORTH GAUTENG HIGH COURT
Case no.: 77836/2010
Counsel for the
Applicants:
Adv. M.C. Erasmus SC
Adv. J.A. Venter
Instructed by:
Adriaan Venter and Associates Pretoria
Counsel for the
Third Fourth and Sixth Respondents: Adv. J. G Wasserman SC
Adv. L.M du Plessis
Instructed by: Ivan
Pauw and Partners Pretoria
Heard on: 9 November
2012
Date of Judgment: 23
November 2012