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[2012] ZAFSHC 49
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Friends of the Seven Dams Conservanct v MEC for Economic Development, Tourism and Environmental Affairs: Free State and Others (A209/2011) [2012] ZAFSHC 49 (22 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A209/2011
In the matter between:-
THE FRIENDS OF THE
SEVEN DAMS
CONSERVANCY
….................................................................
Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL:
ECONOMIC
DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS:
FREE STATE PROVINCE
…........................................
First
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALITY
…...................................................
Second
Respondent
PROPERTY COMMERCE
CC
…...............................
Third
Respondent
_____________________________________________________
CORAM:
JORDAAN, J
et
CLAASEN, AJ
_____________________________________________________
HEARD
ON:
12 MARCH 2012
_____________________________________________________
JUDGMENT
BY:
JORDAAN, J
_____________________________________________________
DELIVERED
ON:
22 MARCH 2012
_____________________________________________________
[1] This is an
application for a review brought by the applicant in which the
following relief is,
inter alia
, sought;
“
The first
respondent’s decision that authorises the third respondent to
do development on the remainder of farm Bayswater
No 2865,
Bloemfontein, Free State in accordance with the layout plan(s) 40154
MD 52 T and/or 40154 MD 52 X is reviewed and set
aside.”
[2] Applicant is The
Friends of the Seven Dams Conservancy, an association of which the
main objective is to promote the interests
of The Seven Dams
Conservancy, including the conservation of its natural habitat, etc.
The first respondent is the Member of the
Executive Council: Economic
Development, Tourism and Environmental Affairs, Free State Province.
Second respondent is the Mangaung
Metropolitan Municipality. Second
respondent did not oppose the application and did not take part in
the proceedings. Third respondent
is Property Commerce CC, herein
referred to as “the developer”.
[3] The developer wished
to establish township development on a piece of land adjacent to the
existing township development of the
second respondent. The relevant
property was zoned for agricultural land or undetermined use and, for
the aforesaid purpose, had
to be rezoned to a township establishment.
That, being an activity which was identified as a probably
detrimental activity in terms
of section 21 of the Environment
Conservation Act, No. 73 of 1998, required the developer to obtain
the necessary authorisation
from the competent authority referred to
and prescribed in section 22 of the aforesaid Act.
[4] For that purpose an
environmental impact assessment report was obtained by the developer,
which first report was prepared during
November 2005 and a further
report amending the aforesaid one, was finalised during July 2007. In
a letter dated 25 November 2007,
the applicant objected to the
proposed development, which letter was addressed to the Townships
Board. In the letter the applicant’s
objections and
reservations about the proposed development were listed.
[5] During 2008 an
environmental development plan relating to the area, was prepared by
Dr. Brand, the deponent to the applicant’s
replying affidavits.
It is alleged that the said report was completed in March 2008 and
distributed to,
inter alia
, the MEC (first respondent) and the
developer.
[6] A decision
authorising the requested change of land use in terms of section 22
of the Environment Conservation Act (
supra
), apparently signed
by the head of the department of first respondent on 29 April 2009
and allegedly issued on 3 May 2009 (the
ROD) came to the applicant’s
knowledge. The aforesaid decision (ROD) contained a general basis for
the decision as well as
some conditions pertaining to the
authorisation. The applicant decided not to request reasons for the
decision, but in stead to
lodge an appeal to the MEC in terms of
section 35 of the last-mentioned Act. The appeal was lodged on 12 May
2009 and thereafter
the first respondent, on 29 July 2009, decided to
confirm the ROD and dismissed the appeal. The notice in that regard
addressed
to the applicant’s representative, mentioned that the
applicant is entitled to request reasons for the decision within 90
days of receipt of the letter and secondly, the applicant’s
attention is drawn to sections 6 up to 8 of PAJA (Act 3 of 2000),
stating that any proposed judicial review of the decision should be
instituted not later than 180 days from receipt of the said
letter.
[7] In response to the
invitation to request reasons, the applicant by means of a letter
dated 9 September 2009, requested reasons
for the MEC’s
decision and, when no response was forthcoming, repeated such request
in a letter dated 21 January 2010. The
first respondent supplied such
reasons on 8 February 2010.
[8] The applicant alleges
that the supplied reasons did not include the alleged revised layout
plan, which was referred to in the
reasons and that the applicant
could therefore not ascertain whether the development authorised were
on areas where the Bloemfontein
Karroid Shrubland occurs. It also
alleges that the applicant was uncertain about which plan was
authorised, since the original
ROD referred to the plan numbered “Q”
and, if there existed a revised plan to the aforesaid one, the new
plan should
have been numbered “R”.
Since the applicant was
not satisfied with the reasons, as aforesaid, a letter dated 1 March
2010 was sent on behalf of the applicant
to the MEC, requesting,
inter alia
, a copy of the layout plan approved. The applicant
received no response to the last-mentioned letter. On 15 June 2010
the applicant
sent a letter to the head of the department of first
respondent requesting information and documents in terms of the
Promotion
of Access to Information Act, No. 2 of 2000. In response to
that a plan numbered “X” and a map were supplied to the
applicant on 1 July 2010. The applicant then called for a meeting
with the first respondent, which meeting was held on 12 August
2010
and on the same date the first respondent issued a notice calling a
meeting regarding the initial ROD and the proposed development,
which
invitation was,
inter alia
, sent to the third respondent, MDA
Consultants, and an attorneys firm. According to the applicant, it
was envisaged that the meeting
would be held within two weeks, but
was only held eventually on 7 December 2010 between the applicant and
the head of the aforesaid
department. It is alleged that the HOD
undertook to forward the approved plan, showing less extensive
development where Shrubland
occurs, to the applicant, which did also
not happen.
On 7 February 2011 the
applicant obtained the alleged approved plan numbered “T”
from the developer.
The present application
for review was instituted on 5 August 2011.
[9] Apart from dealing
with the merits of the application, both the first and third
respondents took the view that the application
for review has become
time barred due to the provisions of section 7 of the Promotion of
Administrative Justice Act, No. 3 of 2000
(PAJA). It is common cause
that subsection 1(a) of section 7 of the aforesaid Act is applicable
to the present application. It
is also common cause that the period
of 180 days provided in section 7 of the Act has not been extended by
agreement between the
parties and no formal application in terms of
section 9 of the Act was filed.
[10] The stance of the
respondents is that the internal remedy consisting of the appeal to
the MEC have been concluded when the
MEC made his decision on 29 July
2009 as envisaged in section 7(1)(a) of PAJA. The review should
therefore have been instituted
within 180 days after the
last-mentioned date. The present application has been instituted more
than two years later.
[11] In argument, the
applicant endeavoured to meet this difficulty on mainly three
alternative grounds:
1.
Uncertainty
According to the
argument, it would have been unreasonable and even reckless to expect
of the applicant to lodge an application
for review without knowing
the reasons for the decision. Since the reasons were only supplied
after the expiration of 180 days
from the date of the decision, they
would not have been in the position to lodge an application for
review before that. The reasons
in itself, so the argument went,
created the impression that the developer was prohibited from doing
development in areas on the
property where the Karroid Shrubland
occur and a revised layout plan, making provision for the
preservation of the said species,
was approved. Since the revised
layout plan was not annexed to the reasons, the applicant was not in
a position to ascertain whether
the said plain did indeed make
provision for the protection of the Karroid Shrubland where it occurs
on the property. The applicant’s
endeavours to obtain the
revised layout plan from the first respondent was unsuccessful and
such plan was only received and came
to the knowledge of the
applicant on 7 February 2011, when it was received from the
developer. The 180 days prescribed in the Act
should therefore only
run from the last-mentioned date meaning that the application was
indeed brought within 180 days. It was
also argued that the applicant
was justified to interpret the reasons of the MEC to mean that a
revised plan were drawn and approved
by the MEC.
Interpretation of
section 7(1)
It was argued that in
terms of section 7(1)(b) the 180 days would only start running after
the date on which the person concerned
was informed of the
administrative action, became aware of the action and the reasons for
it or might reasonably have been expected
to have become aware of the
action and the reasons for it. The legislature could never have
intended, so the argument went, that
someone who made use of internal
remedies, as provided for in subsection (a) of the aforesaid section,
should be in a worse position
than someone whose application is
brought in terms of section 7(1)(b). An interested person is entitled
to request reasons in terms
of PAJA within 90 days of the decision
and such reasons have to be supplied within 90 days after that. That
also applies to a party
who made use of internal remedies, as
envisaged in subsection (a). In view of that, the internal remedies
are only concluded in
terms of subsection (a) once reasons are
supplied. In the present case, the reasons supplied were
contradictory, vague and, in
view of the omission to annex the
revised layout plan, incomplete. It was only when the layout plan was
received from the developer
on 7 February 2011 that the applicant was
in a position to ascertain the full impact of the decision and the
reasons therefore
and it must therefore be deemed that the internal
remedies were only concluded on the last-mentioned date.
Inherent powers to
condone
Lastly, it was argued
that, at common law, it is open to a court,
mero motu
, to
raise the issue of inordinate delay in bringing an application for
review of an administrative decision. If that is the position,
so the
argument went, the court also has the inherent power to condone
inordinate delays, in its discretion. Counsel for applicant
then
asked for such condonation from the Bar during argument.
[12] Regarding the
argument in par. [1] above, it must be kept in mind that the MEC, in
his decision in the appeal, confirmed the
decision of the head of the
department and dismissed the appeal. In his reasons he referred to
the decision of the HOD and therefore
the original ROD. In argument,
counsel for the applicant intimated that the applicant exclusively
relies on the uncertainty as
to which layout plan was approved and
was under the impression that the MEC asked for and approved a
revised plan.
It is however clear from
the reasons given by the MEC that he referred to the decision of the
department and explicitly said that
the department did not approve
the initial layout plan, but requested a revised new layout which was
designed to assure that housing
remains outside sensitive areas, and
that was the approved plan. The decision of the MEC on appeal makes
no mention of any alteration
to the ROD issued by the head of the
department and simply confirmed the decision. There could be no
reasonable doubt as to the
fact that the plan referred to in the
original ROD was the relevant authorised and approved layout plan,
namely the plan marked
“Q”. The applicant’s alleged
uncertainty was therefore ill-founded and not borne out by the
evidence read in
context.
The argument that the
applicant was not in a position to bring the application for review
before being apprised of the full reasons
and the impact thereof is
also without substance. The applicant requested reasons and, when
that was not forthcoming within 90
days, decided to repeat the
request after the 180 days has already expired. The reasons were
requested on 9 September 2009 and
should have been supplied within 90
days thereafter in terms of section 5(2) of PAJA. If that has not
been done, section 5(3) comes
into play, which provides:
“
If an
administrator fails to furnish adequate reasons for an administrative
action it must, subject to subsection (4) and in the
absence of prove
to the contrary, be presumed in any proceedings for judicial review
that the administrative action was taken without
good reason.”
The 90 days from 9
September 2009 expired in the beginning of December 2009 after which
the applicant was in an excellent position
to bring the application
for review based on the last-mentioned subsection of section 5 of
PAJA. That would still have been within
the prescribed 180 days.
Even if, in favour of the
applicant, it is accepted that the applicant was entitled to await
the reasons for the decision, those
decisions were supplied on 8
February 2010, almost one and a half year before the application for
review was brought. I have already
alluded to the fact that there was
nothing unclear in the reasons, if it was read in context with the
original ROD. If the applicant
regarded the reasons as inadequate,
section 5(3) of PAJA again came into play and could have been made
use of.
[13] As to the
interpretation of section 7(1) of PAJA, it is clear that subsection
(b) provides for the situation where an interested
party only becomes
aware of an administrative action and the reasons therefore after the
decision has been taken or the action
completed. It stands to reason
that such knowledge should form the basis of the clock starting to
tick towards the expiry of the
180 days. However, where a party makes
use of internal remedies, he obviously knows about the administrative
action and his knowledge
is therefore not an issue. It is for that
reason that the 180 days starts to run from the day when the internal
remedies have been
concluded. More often than not such a party would
have, after the initial action or decision has been taken, have
requested and
received reasons for that decision already. There can
be little doubt that the internal remedies are concluded when the
decision
is made pertaining thereto. Even if I am wrong in that view,
there can be less doubt that the conclusion of such remedies would
at
least coincide with the supply of reasons, which, as referred to
above, occurred almost a year and a half before the review
application was brought.
[14] As to the argument
concerning the court’s inherent jurisdiction, the dicta relied
on in
CAMPS BAY RATEPAYERS' AND RESIDENTS' ASSOCIATION AND
ANOTHER v HARRISON AND ANOTHER
2011 (4) SA 42
(CC) at par.
[53] go no further than to establish that the court has an inherent
jurisdiction to raise the issue of inordinate
delay whether in common
law review proceedings or in relation to PAJA insofar as section 7
refers to “without unreasonable
delay”. That is far from
saying that a court has inherent jurisdiction to condone the
non-compliance with a statutory prescription.
I know of no such
authority and none has been referred to by counsel. Section 7
explicitly prescribes that proceedings for review
shall not be
brought later than 180 days after the (in this case) internal
remedies have been concluded. It then empowers the court
to extend
that period for a fixed period on application by a concerned party.
No application has been filed and the half-hearted
and belated oral
application from the Bar can in no circumstances be entertained. Even
if the evidence in the application justifies
a finding as to the
reasons for the delay in bringing the review application, there are
no evidence or justification for the delay
in bringing the
application for condonation.
[15] The conclusion to
which I come, is therefore that the application has been brought well
outside the 180 days time limit and
therefore time barred. Although
that disposes of the application in effect, I regard it as prudent to
make some general remarks
regarding other issues in the application.
[16]
Review of what
decision?
1. On the strength of the
decision in
SEA FRONT FOR ALL AND ANOTHER v MEC, ENVIRONMENTAL
AND DEVELOPMENT PLANNING, WESTERN CAPE AND OTHERS
2011 (3) SA
55
(WCC) it was argued that the appeal to the MEC was an appeal in
the wide sense. In that matter an ROD of the MEC was brought under
review and it appeared that the MEC reconsidered the application and
issued a new ROD. The MEC concerned the application afresh
and
replaced the initial ROD of the official with his ROD. In the present
matter, although the MEC considered the appeal, he only
confirmed the
ROD of the head of the department, dismissed the appeal and made no
new order or issued a new ROD. The aforesaid
decision is therefore
clearly distinguishable.
2. In view of the
aforesaid, the applicant applied for an amendment to the Notice of
Motion so as to include the decision of the
“department”
in the review application. The application for amendment was filed on
21 February of this year.
If I were to decide the
issue, I would not have granted the amendment. Firstly, the head of
the department who issued the ROD, is
not a party to the proceedings
and has not been joined. If, on the strength of the dicta in
JAYIYA
v MEMBER OF THE EXECUTIVE COUNCIL FOR WELFARE, EASTERN CAPE, AND
ANOTHER
2004 (2) SA 611
(SCA) paras [4] and [5], I am wrong
in this respect, then, secondly, I would have refused the amendment
on the basis that it is
seeking to bring another decision on review,
even more belatedly than the initial review. The review of that
decision will also
be time barred.
[17] As set out in the
beginning, the applicant seeks to set aside a decision authorising
the development on the property. Counsel
for applicant conceded that
the wording does not reflect the true position. The true position is
that the ROD only authorised the
rezoning in respect to land use. The
amendment of the town planning scheme and establishment of the
development was authorised
by a totally different department.
[18]
Late filing of
replying affidavit
The respondents agreed to
the late filing of the replying affidavits and gave an extension to
27 January 2012. The affidavit was
only filed on 16 February. An
application for condonation for the late filing of the replying
affidavit was served on 5 March 2012,
in which it is stated that, due
to the magnitude of issues and the time of year in which the opposing
affidavits were filed, being
December, the applicant was not able to
file the replying affidavit timeously. Apart from applying for
condonation, the applicant
also asks that the costs of the
application for condonation be ordered to be costs in the main
application. I would have granted
the application, but ordered the
applicant to pay the costs occasioned by the application. The
affidavits were filed relatively
shortly after the agreed extended
date. It is in the interest of justice that the whole picture is
before court and no real prejudice
could have been done by the filing
of the replying affidavits.
[19]
Merits
Notwithstanding the
various points raised initially in the objections on behalf of the
applicant, the objections were in argument
limited to the
“conditions” under which the approval was granted.
According to the argument on behalf of the applicant,
the objection
to the conditions relates exclusively to the layout plan which
authorises development, also in areas where the Karroid
Shrubland
occurs.
The application is based
on three grounds as far as the merits are concerned, namely:
that the procedure was
procedurally unfair in that the applicant was not afforded a
reasonable opportunity to influence the decision
of the competent
authority;
that the decision was
taken arbitrarily or capriciously in that the approval of the layout
plan was done without the competent
authority being aware of
precisely where the Karroid Shrubland occurs on the property; and
that the decision was
not rationally connected to the reasons given for it, in that the
MEC in his reasons intimated that the
developer will not be allowed
to develop in identified zones where the Srubland occurs, whilst the
approved layout plan indeed
authorises such development in areas
where it does occur.
The record and evidence
shows that the applicant informed the township’s board of its
objections by means of the letter dated
25 November 2007 already and
in which letter it is intimated that it already interacted with the
developer. In the letter the objections
and reservations of the
applicant about the development were listed.
The deponent to the
applicant’s replying affidavit, Dr. Brand, drew an
environmental management plan relating to the area
in 2008 already.
It is alleged that that plan was completed in March 2008 and
distributed to the first and third respondents at
the time. The said
plan explicitly deals with,
inter alia
, the existence of the
Karroid Shrubland in the area, the importance thereof and the high
irreplaceable value thereof.
It is clear that the head
of the department in the ROD took full cognisance of the Karroid
Shrubland’s existence in the area,
as well as the high
irreplaceable value thereof. The ROD mentions that it is impossible
to reach conservation goals without the
Shrubland and it indicates
its high significance and ecological value. The ROD then continues to
state that the layout of the proposed
development has been designed
to minimise disturbance of areas of conservation worthiness and which
contain areas of environmental
sensitive receptors. The ROD also
contains certain conditions in relation to environmental issues. It
requires the submission of
an environmental management plan, the
appointment of an environmental officer to monitor compliance with
the conditions on site
and provides for a certain rescue project to
be implemented prior to development of the area. Because of his
cognisance of the
environmental effect of development, various
specialists’ input were obtained, for example, in the field of
botanical and
wetland issues, as well as cultural, historic and
archaeological issues.
It is abundantly clear
that the applicant’s concerns were indeed taken into account.
The ROD and other documents contained
in the record, shows a thorough
investigation and consideration of all material issues and relevant
aspects pertaining to the development.
In the result I am not
convinced that any justifiable reasons exist to review and set aside
the decisions of either the MEC or the
head of the department on the
grounds advanced by the applicant.
[20]
Costs
It was submitted on
behalf of the applicant that, if the application is unsuccessful, the
applicant should not be ordered to pay
the costs of the application,
but that no order as to costs should rather be made. In that regard
reliance was placed on
section 32
of the
National Environmental
Management Act, No. 107 of 1998
, which, in subsection 2, provides as
follows:
“
A court may
decide not to award costs against a person who, or group of persons
which, fails to secure the relief sought in respect
of any breach or
threatened breach of any provision of this Act, including a principle
contained in Chapter 1, or of any provision
of a specific
Environmental Management Act, or of any other Statutory provision
concerned with the protection of the environment
or the use of
natural resources, if the court is of the opinion that the person or
group of person acted reasonably out of a concern
for the public
interest or in the interest of protecting the environment and had
made due efforts to use other means reasonably
available for
obtaining the relief sought.”
It goes without saying
that the applicants acted out of concern in the broader public
interest as well. Even their initial concerns
and objections are
obviously well-founded and reasonable.
There are, however, other
considerations that play a role as well. The application was
instituted well beyond the 180 time limit.
The relief claimed was
against a decision that authorised the development of the property,
which was not the decision taken by
the MEC. After the unsuccessful
appeal the relevant effective decision was that of the head of the
department and not of the MEC.
In circumstances where applicant
should have foreseen as a real possibility that the application was
instituted well beyond the
time limit prescribed by PAJA, it failed
to apply for condonation or an extension of time in terms of the Act.
The rezoning of
the area has been done, the development approved and
the subdivision of the erven done. All that has been done in lieu of
decisions
by other officials in other departments. There is no
application for the review of any of those decisions, with the effect
that,
even if the application would have been successful, it would
not follow as of necessity that the other decisions by other
officials
are automatically also set aside.
In all the circumstances
the applicant brought an application when it should have been clear
that it was bound to fail, even if
only because of the lapse of the
180 days time limit. There is no reason why the respondents should,
in those circumstances, be
compelled to pay their own costs.
[21] In the result the
application is dismissed with costs.
_______________
A.F. JORDAAN, J
I
concur.
________________
J.Y. CLAASEN, AJ
On behalf of appellant:
Adv. B. Knoetze SC
With him:
Adv. P.J.J. Zietsman
Instructed by:
Webbers Attorneys
BLOEMFONTEIN
On behalf of the first
respondent: Adv. L.M. du Plessis
Instructed by:
State Attorney
BLOEMFONTEIN
On behalf of third
respondent: Adv. F.W.A. Danzfuss SC
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
/sp