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[2012] ZAGPPHC 354
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Exxaro Coal (Mpumalanga) (Pty) Ltd and Another v Minister of Water Affairs and Another (63939/2012) [2012] ZAGPPHC 354 (7 December 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 63939/2012
Date:
7 December 2012
In
the matter between:
EXXARO
COAL (MPUMALANGA) (PTY) LTD
….................................
First
Applicant
EXXARO
COAL (PTY)
LTD
......................................................................
Second
Applicant
And
THE
MINISTER OF WATER
AFFAIRS
...................................................
First
Respondent
THE
JUDICIAL SERVICE
COMMISSION
.............................................
Second
Respondent
JUDGMENT
PRETORIUS
J.
[1]
The applicants approach the court on an urgent basis and seeks relief
against the first respondent. The principal relief being
sought is:
“
An
order that pending the final determination of appeals already
instituted by the applicants on 23 May 2012 and 13 July 2012 in
terms
of section 148 of the National Water Act, that the operation and
execution of directives issued by the first respondent on
11 April
2012 and 13 June 2012 be suspended, alternatively that the first
respondent be interdicted from taking any steps against
the
applicants pursuant to or in execution of the directives issued
against the applicants on 11 April 2012 and 13 June 2012."
[2]
The applicants argued that if the court grants the principal relief,
the remaining relief may be postponed sine die. This relief
is that
the first respondent:
“
Orders
that the first respondent perform such actions as are necessary to
appoint the chairperson, deputy chairperson and members
of the Water
Tribunal (in order that the appeals lodged by the applicants may be
heard).”
[3]
and further:
“
An
order declaring that a directive issued by the Minister; purportedly
in terms of section 150 of the National Water Act, in which
the first
respondent directed that the appeals not be heard
by
the Water Tribunal but by a Mediation Panel, is invalid and of no
legal force or effect ”
[4]
No relief is sought against the second respondent.
[5]
However, during argument, Mr Maritz, counsel for the applicants,
argued that the court should adjudicate the application as
a whole as
all the facts are before the court.
[6]
On 11 April 2012 and 11 June 2012 the Mpumalanga office of the first
respondent issued two directives to the two applicants
respectively,
in terms of section 53 (1) of the National Water Act (NWA), 1998.
These directives, in terms of section 53 (1), set
out that the
applicants were using water in contravention of section 22 of the
National Water Act. The applicants had to rectify
the alleged
contravention according to the directives.
[7]
The applicants lodged appeals to the Water Tribunal in terms of
section 148 (1)(i) of the National Water Act. Section 148
(1)(j)provides:
“
148.
Appeals to Water Tribunal. - (1) There is an appeal to the Water
Tribunal -
(j)
against a directive issued by a responsible authority under section
53 (1), by the recipient thereof;”
[8]
Section 146(1) of the National Water Act provides as follows for the
appointment of the Water Tribunal:
“
146.
Establishment of Water Tribunal. - (1) The Water Tribunal
is
hereby established.
(2)
The Tribunal is an independent body which -
(a)
has jurisdiction in all the provinces of the Republic; and
(b)
may conduct hearings anywhere in the Republic.
(3)
The Tribunal consists of a chairperson, a deputy chairperson and as
many additional members as the Minister considers necessary.
(4)
Members of the Tribunal must have knowledge in law, engineering,
water resource management or related fields of knowledge.
(5)
The chairperson, the deputy chairperson, and the additional members
of the Tribunal are appointed by the Minister on the recommendation
of the Judicial Service Commission contemplated in section 178 of the
Constitution and the Water Research Commission established
by section
2 of the Water Research Act, 1971 (Act No.34 of 1971, in accordance
with item 3 of Schedule 6.’’ (Court
s emphasis)
[9]
The applicants addressed a letter to the respondents on 15 June 2012,
after the second directive had been received. A meeting
was held at
the offices of the Regional Department of Water Affairs on 19 June
2012 between representatives of the second applicant
and
representatives of the Department of Water Affairs.
[10]
A notice of appeal against the directive of 11 April 2012 was
delivered to the Department of Water Affairs on 13 July 2012,
six
weeks before the chairperson of the Water Tribunal’s contract
came to an end and before the members of the Water Tribunal’s
terms expired.
[11]
On 30 August 2012 a further meeting was held between representatives
of the applicants and the respondents. At this meeting
the
representatives of the applicant were informed that the Water
Tribunal had been suspended due to the fact that it no longer
had a
chairperson and that the remaining members of the Water Tribunal’s
terms would expire on 31 August 2012.
[12]
In a letter, dated 20 September 2012, the attorneys for the
applicants sent a letter requesting, on an urgent basis, that the
respondents comply with their obligations in terms of item 3(1) of
the Act to appoint a chairperson in terms of section 146 (5)
of the
Act and to ensure that the Water Tribunal is reinstated.
[13]
On 2 October 2012 the applicants’ attorneys of record received
an e- mail informing them that “the appeal must
be dealt with
by the Mediation Panel as an interim arrangement.”
[14]
A document, signed by the first respondent on 9 September 2012, was
attached to the e-mail. This document was a “Directive
in terms
of section 150 (1) of the National Water Act.”
[15]
Section 150(1) of the Act provides:
‘‘
150.
Mediation. - (1) The Minister may at any time and in respect of any
dispute between any persons relating to any matter contemplated
in
this Act, at the request of a person involved or on the Minister’s
own initiative, direct that the persons concerned attempt
to settle
their dispute through a process of mediation and negotiation. ”
[16]
The document was addressed to:
“
All
appellants with appeals pending in the water tribunal”
[17]
The directive sets out:
“
The
operations of the Water Tribunal is currently placed in abeyance
pending a legislative amendment process of the National Water
Act and
in light of the fact that the term of
office
of the current Water Tribunal came to an end in August 2012.’’
(Court’s emphasis)
[18]
No indication is given whether a new Water Tribunal will be appointed
and when this would take place. Up to date no steps have
been taken
to ensure the appointment of a Water Tribunal.
[19]
On 23 October 2012 a letter was addressed to the applicants notifying
them that the mediation had been set down for 7 November
2012. On 31
October 2012 the applicants’ attorneys informed the Acting
Registrar of the Water Tribunal that they were not
submitting to the
proposed mediation process in the place of appealing the directives
of 11 April 2012 and 11 June 2012.
[20]
There is no provision in the National Water Act granting the first
respondent the power to disband the Water Tribunal. There
is no
discretion vested in the first respondent to decide not to appoint a
Water Tribunal even if she does not agree with the provisions
in the
National Water Act which provides for the Water Tribunal to be
constituted. She has to comply with section 146 (5) of the
National
Water Act, untill other proposed legislation has been promulgated and
enacted.
[21]
Section 148 (1)(j) of the National Water Act grants the Water
Tribunal exclusive jurisdiction to hear appeals against directives
issued in terms of section 53(1) of the National Water Act - as is
the case in the present application. The decision by the first
respondent not to appoint a chair person and deputy chairperson to
the Water Tribunal infringes on the applicants constitutional
right
in terms of section 34 of the Constitution. The first respondent has
no power of authority outside the legislation. Section
34 provides:
"Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court
or, where appropriate, another independent and impartial tribunal or
forum. ”
[22]
The contention by the respondents that mediation in terms of section
150 (1) of the National Water Act is an internal remedy
which the
applicants should have availed themselves of cannot be entertained.
The dispute is not finally decided and no binding
ruling can be made
through mediation. The first respondent could have directed the
parties to mediate the matter and if not successful
they could
continue with the appeal, but that is not what she did. She directed
the applicants to mediate instead of proceeding
with the appeal, as
she does not intend to appoint a Water Tribunal as the Act requires
her to do.
[23]
The court finds the directive directing the applicants to mediate as
invalid and ultra vires. Such a directive can never take
away the
right of appeal which was created by legislation.
[24]
Item 3 of Schedule 6 of the National Water Act specifically provides
that the first respondent is obliged to take steps to
fill vacancies
as they occur that may from time to time exist in the Water Tribunal.
[25]
It is incumbent on the first respondent to uphold the rule of law and
perform her constitutional obligations. She cannot mero
motu decide
to do away with the Water Tribunal and replace it with a panel of
mediators.
[26]
The exercise of public power must comply with the Constitution, which
is the supreme law and the doctrine of legality. The
first
respondent’s actions is a failure to comply with her
constitutional obligations. It is not in her power to suspend
certain
sections of the National Water Act as they do not suit her. That is
the exclusive domain of the legislature upon whose
functions she is
intruding.
[27]
The appeals have been delayed for an inordinate period of time due to
the first respondent’s lack of action by not appointing
a Water
Tribunal, as the National Water Act provides. The applicants have a
right to a fair and expeditious hearing of the appeals
according to
the Constitution.
[28]
Although the minister indicates that the National Water Act will be
amended, there is no time line and her counsel could not
give any
indication that such an amendment is imminent or that it has been
considered by Parliament. There is not even a draft
amendment to
which the first respondent’s legal representative could draw
the court’s attention to. In the interim
the present National
Water Act applies, whether it suits the Minister’s purposes or
not.
[29]
In the circumstances it is clear that a Water Tribunal will have to
be appointed to deal with the appeals, as the appellant
cannot be
forced to partake of mediation where there is no prospect that the
disputes will be resolved by mediation.
[30]
Although the respondents indicated that no criminal prosecution will
be proceeded with, it is not adequate relief as the applicants
have a
right to have the appeals against the directives to be heard by the
Water Tribunal.
[31]
According to the Promotion of Administrative Justice Act 2000, (PAJA)
the directive directing the applicants to mediate is
an
administrative action. I must agree that the first respondent is not
authorised to take such an administrative action as there
is no
provision therefor in the National Water Act. The directive was
influenced by an error of law as
mediation
cannot replace appeals according to the provisions of the National
Water Act.
[32]
The directive is an administrative action not authorised by the
National Water Act and is a procedure directed to circumvent
the
necessity to appoint a Water Tribunal.
[33]
The actions by the first respondent set out above causes the actions
to be unconstitutional and/or unlawful. In this instance
the first
respondent has a legal duty to appoint the members of the Water
Tribunal and her failure to do so could be judicially
reviewed in
terms of section 6 (3) of PAJA.
[34]
The court accepts the applicants’ argument that the fact that
directives were issued and that they have had no opportunity
to
address the issues in the respective directives through appeal
procedures are highly prejudicial to the applicants. There is
no
mechanism for them to clear their names as the issue of the
directives in April and June 2012 had been widely reported in the
press. The respondents do not deny that at the meeting of 30 August
2012 officials of the respondents indicated that there were
currently
60 appeals pending before the Water Tribunal. This indicates what an
important function the Water Tribunal plays in adjudicating
appeals.
[35]
The court has taken note of the nature of the disputes between the
parties and must agree that these disputes cannot be resolved
through
mediation. The dispute in both appeals pertain to the existence or
non-existence of a legal right, which should be heard
by the Water
Tribunal who will be able to make a binding ruling which would be
final.
[36]
There is no indication by the respondents as to what the further
steps would be should mediation not succeed and the Water
Tribunal
has not been appointed. It is strange that, although the Minister
knew that the members of the Water Tribunal’s
terms expired on
30 August 2012, there was no plan in place to replace them prior to
30 August 2012. The first respondent waited
and did not comply with
section 146 (5) of the National Water Act by causing the Water
Tribunal to be appointed timeously.
[37]
I must agree that the applicants have no other recourse but to
approach the court. There is no functional Water Tribunal and
no
indication that the first respondent will remedy this condition at
any stage soon. These are multi-national mining companies
who have to
plan ahead. At present they cannot do so due to the Minister’s
actions and her lack of complying with the provisions
of the Act.
[38]
The first point in limine by the respondents regarding locus standi
was apparently abandoned as Ms Cassim did not argue the
point in
limine.
Ms
Cassim indicated the matter was not urgent. I cannot agree if I take
into consideration the history of the matter - as late as
31 October
2012 the parties were still communicating with one another. The last
communication was when the applicants informed
the respondents that
they were not interested in mediating the matter as the matter was
not able to be resolved by mediation.
[32]
I must disagree with the respondents that the applicants had to
request reasons why their appeals had not been heard. Section
5 of
PAJA is not peremptory and there was no duty on the applicants to
request reasons at all. This argument is thus without any
substance.
[33]
The nature of the relief is not a judicial review of the first
respondent’s decision in terms of PAJA, but the applicants
are
seeking a mandamus against the first respondent to perform her duties
in terms of the National Water Act and an interdict pending
the final
determination of the appeals once the Water Tribunal has been
constituted once more.
[34]
The first respondent did not comply with the provisions of section
237 of the Constitution which stipulates that all constitutional
obligations must be performed diligently and without delay.
[35]
In Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) the court stated at paragraph [21]:
“
When
construed against the background of principles underlying the rule of
law a sfafufe will generally not be interpreted to mean
that a
subject is compelled to perform or refrain from performing an act in
the absence of a lawful basis for that compulsion.
It is in those
cases where the subject is sought to be coerced by a public authority
into compliance with an unlawful administrative
act - that the
subject may be entitled to ignore the unlawful act with impunity and
justify his conduct by raising what has come
to be known as a
'defensive' or a 'collateral' challenge to the validity of the
administrative act." (Court’s emphasis)
[43]
In S v Mabena
2007 (1) SACR 482
(SCA) at paragraph 2 the court held:
“
[2]
The Constitution proclaims the existence of a State that is founded
on the rule of law. Under such a regime legitimate State
authority
exists only within the confines of the law, as it is embodied in the
Constitution that created it, and the purported
exercise of such
authority other than in accordance with law is a nullity. That is the
cardinal tenet of the rule of law. It admits
of no exception in
relation to the judicial authority of the State. Far from conferring
authority to disregard the law the Constitution
is the imperative for
justice to be done in accordance with law. As in the case of other
State authority, the exercise of judicial
authority otherwise than
according to law is simply invalid. ” (Court’s emphasis)
[44]
In International Trade Administration Commission v Scaw South Africa
(Pty) Ltd
2012 (4) SA 618
(CC) at paragraph [92] the court set out:
“
[92]
In our constitutional democracy all public power is subject to
constitutional control. Each arm of the state must act within
the
boundaries set. However; in the end, courts must determine whether
unauthorised trespassing by one arm of the state into the
terrain of
another has occurred, in that narrow sense, the courts are the
ultimate guardians of the Constitution. They do not only
have the
right to intervene in order to prevent the violation of the
Constitution, they also have the duty to do so.’’
(Court’s emphasis)
[45]
In Reed and Others v Master
[2005] 2 All SA 429
(E) an internal
remedy is described in paragraph 20 as:
"The
section applies to internal remedies, and not simply to any form of
potential extra-curial redress. A remedy, in this
context, is defined
in the New Shorter Oxford English Dictionary as a “means of
counteracting or removing something undesirable,
redress, relief;
legal redress". Inherent in this concept, as it is used in its
legal context is the idea that a remedy, in
order to qualify to be
regarded as such, must be capable, as a matter of law, of providing
what the Constitution terms appropriate
relief: it must be an
effective remedy.’’ (Court’s emphasis)
[46]
I have taken note of Mr Maritz’ argument on behalf of the
applicants that I should grant all the relief sought. I must
agree
that I have read all the papers, listened to all the arguments and
considered all the facts and authorities and am therefore
in a
position to make a decision to grant all the relief sought by the
applicants or to dismiss it.
[47]
However, I am loath to enter into the area where the executive has to
comply with legislation. I intend granting the interdict
as set out
in prayer 2. The other relief is postponed sine die to enable the
executive to comply with the provisions of the Act.
[48]
The applicants can approach the court on the same papers, should the
first respondent not rectify the situation within a reasonable
time
by taking steps to appoint a Water Tribunal.
[49]
There can be no other conclusion than that the first respondent did
usurp the Water Tribunal’s functions by appointing
a mediation
panel in its stead and by doing so ignoring her statutory
obligations.
[50]
The following order is made:
1.
The application is urgent;
2.
Pending the final determination of the appeals already instituted by
the applicants on 23 May 2012 and 13 July 2012; that the
operation
and execution of the directives issued by the first respondent on 11
April 2012 and 13 June 2012 (annexures “B”
and “C”
to the application) is suspended.
3.
Prayers 3, 4 and 5 are postponed sine die;
4.
Costs to be paid by the first respondent which includes the costs
occasioned by the use of two counsel.
Judge
Pretorius
Case
number : 63939/2012
Heard
on : 22 November 2012
For
the Applicant / Plaintiff : Adv NGD Maritz SC
:
Adv JHA Saunders
Instructed
by : Mahlangu Inc
For
the Respondent : Adv N Cassim
Instructed
by : State Attorney
Date
of Judgment : 7 December 2012