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[2009] ZAGPPHC 326
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Pretoria Timber Treaters CC v Mosunkuto N.O. (53710/2008) [2009] ZAGPPHC 326 (22 September 2009)
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Certain
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NO: 53710/2008
DATE:
22 SEPTEMBER 2009
NOT
REPORTABLE
In
the matter between:
PRETORIA
TIMBER TREATERS
CC Applicant
And
KHABISI
MOSUNKUTO
N.O. Respondent
(in
his capacity as the MEC for Agriculture, Conservation and the
Environment)
JUDGMENT
MOTHLE
A J
1.
Pretoria Timber Treaters CC (“the Applicant’)
seeks an order reviewing and setting
aside the administrative fine in the amount of R522,500.00 (“the
fine”) imposed
by Khabisi Mosunkuto in his capacity as Member
of the Executive Council (MEC) for Agriculture, Conservation and the
Environment,
Gauteng (“the Respondent”).
2.
Section 24 of the National Environmental Management Act No. 107 of
1998 (“NEMA”)
as
amended by the National Environmental Management Act No. 8 of 2004,
authorises the Minister or the MEC of Environment in a Province,
to
impose a fine not exceeding R1 million to any person or entity that
conducts any activity which is a listed activity in terms
of the Act,
without first having obtained prior authorisation from the said
Minister or MEC. Section 24G of NEMA in particular
authorises the
Minister and the MEC to impose a fine in instances where it is found
that the person or entity has been involved
in a prohibited or listed
activity and has filed a rectification application. A rectification
application is brought in instances
where the party involved has been
engaged in the listed activity prior to obtaining approval and now
seeks to do so.
3.
The Applicant is engaged in the business of the construction and
operation of timber treatment used for structural purposes.
The wood
is treated using different concentrations of waterborne wood
preservative chemicals such as copper - chrome - arsenic
and borates.
4.
The Applicant first traded at the same premises as its predecessor
company in February 2001. In 2004 the Applicant received notice
that
the lease agreement on the premises where it conducted its business
would not be renewed when it expires in 2006. This triggered
a search
for an alternative venue from which it could conduct business.
5.
As at February 2006, the Applicant had not yet found a suitable and
authorised venue from which to conduct its business and,
according to
its version, the landlords extended the rental of the premises from
which they were trading to the end of February
2007.
During January and February 2007, the Applicant found and secured a
new site to which it relocated. This site is Portion […….]
JR in the area of [………], within the jurisdiction
of [……….] in Gauteng.
6.
It is this late location of new and suitable premises, which,
according to the Applicant, caused it to relocate without first
obtaining prior approval from the Respondent, by way of submitting an
application for the Environmental Impact Assessment (“ElA”)
for the area.
7.
Applicant, in violation of the provisions of the Act, then set up his
operations on these premises and commenced business which,
because of
its nature, fell within the listed activities. According to
Applicant, on the 15th June 2007, it submitted an application
in
terms of Section 24G of NEMA, as rectification application for the
unlawful commencement or continuation of a listed activity.
8.
It is common cause that the activity in which the Applicant was
involved is a listed activity, which has been identified by the
Minister in terms of Section 24 and Section 24D of NEMA, as having a
detrimental effect on the environment and which may not be
commenced
without prior written authorisation from the competent authority.
Such activities are listed in the schedules to the
Act as published
from time to time by the Minister.
9.
Upon receipt of the rectification application, the Respondent caused
an investigation to be conducted on the premises of the
Applicant,
which was done during or about July 2007. Subsequent thereto, and a
necessary step prior to the consideration of the
rectification
application, the Respondent notified the Applicant that a fine in the
amount of R522,500.00 has been imposed in terms
of Section 24G of the
Act. The payment of the fine is a precondition to the further
processing of the rectification application.
10.
The Applicant requested reasons for the imposition of the fine which
were delivered in writing by the Respondent in September
2008. In
that letter, the Respondent mentions, amongst others that the fine
has been imposed using a penalty calculator protocol
and guidelines
which have been developed by the National Department as well as
Provincial Departments to ensure uniformity, coherency
and
consistency in the imposition of fines in terms of that section. In
the same letter, the Respondent points out that the Applicant,
if
dissatisfied, may apply to the High Court for a review of the
decision.
11.
The factors taken into consideration as part of the calculation of
the fine include, amongst others, social impact, social benefit,
visual impact, biodiversity impact, noise impact, sense of place and
most importantly, the Applicant profile.
12.
The Applicant considers the fine to be excessive and feels that the
Respondent did not apply its mind to the representation
it had made,
was unreasonable and acted arbitrarily. This resulted in the present
application for an order seeking review and setting
aside of the fine
imposed.
13.
The present application is brought in terms of the provisions of the
Promotion of Administrative Justice Act, No. 3 of 2000
(“PAJA”).
It is not disputed by the parties that the decision by the Respondent
is an administrative action as defined
by PAJA. As such, like all
other administrative actions, it may be reviewed or set aside on the
grounds as set out in Section 6
of PAJA.
14.
The Applicant sets out as the grounds for the review and setting
aside of the decision and the intentions in
support of those grounds that:
14.1.
The content of its application for rectification was not considered
when the fine was determined. The Applicant contends that
there is no
indication in the letter advising of the fine nor in the letter
giving reasons that the decision maker had reference
to the
voluminous document prepared by the Applicant’s environmental
specialist.
14.2.
The Applicant alleges that no mention was made of
“
information
provided by yourself.”
In
addition thereto, the Applicant alleges that despite the attorney’s
request, the reasons are silent as to the method of
operation of the
calculator;
14.3.
A request for a copy of the protocol and guidelines was refused;
14.4.
The decision maker has not set out whether any similar applications
have been brought within its jurisdiction, what the outcome
thereof
was, and whether these have been taken into consideration;
14.5.
The reasons furnished do not indicate what score or weighting each
factor was given and how each such factor was assessed,
based on the
Applicant’s application;
14.6.
The letter providing reasons makes reference to the Applicant’s
attorney’s letter dated 29 May 2008 when in fact
there is no
record of such a letter being sent. This, the Applicant alleges,
raises a suspicion that the Respondent was using a
precedent when
preparing its reasons;
14.7.
The Applicant concludes by saying that it suspects that the
Respondent applied the penalty calculator mechanically, without
due
consideration for the applicability of the Applicant’s
application. The Applicant further contends that for reasons stated
above, the Respondent’s decision has failed to satisfy the
requirements of rationality and reasonableness and on those grounds
also should not be allowed to stand and should be set aside; and
14.8.
The Applicant contends further that the reasons which have been given
for the decision to impose the fine are not sufficiently
adequate as
contemplated in Section 5(2) of PAJA and that it should therefore be
presumed that the fine was imposed without good
reason.
15.
The Respondent filed an answering affidavit to these allegations,
denying that the decision he took was unlawful, unreasonable
and
procedurally unfair. Attached to the answering affidavit is the
weighing and scoring used to determine the fine.
16.
The Applicant did not file a reply to the Respondent’s
answering affidavit. The Respondent’s averments therefore
stand
uncontested.
17.
I need to mention from the outset that in its notice of motion, the
Applicant called upon the Respondent to file a record of
proceedings
including documents which were considered in arriving at the
decision. This is a request that is normally stated in
a review
application in terms of Rule 53 of the Uniform Rules of Court. The
same Rules, provide that in the event such record is
filed, the
Applicant is given an opportunity to file a supplementary affidavit
to amend and/or add or vary its application before
the Respondent can
provide an answer, if any.
18.
A record of proceedings was delivered but the Applicant did not file
a supplementary affidavit. I raise this matter as I notice
that in
its founding affidavit, the Applicant makes an allegation in support
of its grounds for review, amongst others, that the
Respondent failed
to supply adequate reasons for its decision and on request, failed to
make available to the Applicant the penalty
calculator in how it
arrived at the fine it did.
19.
Notwithstanding the fact that the Respondent made available such
information in terms of records of proceedings as well as an
annexure
to the answering affidavit of such document, the Applicant failed to
deal with these averments, amplifying its grounds
for review, either
in a supplementary affidavit or at the very least, in a replying
affidavit to the Respondent’s answering
affidavit.
20.
It seems to me that the essence of this application, is to seek a
relief that would result in a review of the amount of the
fine
imposed. The Applicant does not challenge the authority of the
Respondent to impose the fine, the validity of the protocol
and the
guidelines including the calculator used to determine the fine.
Though Applicant’s counsel made submissions questioning
the
calculations made by Respondent, the Applicant failed on the papers
to raise this challenge, but rather only concerned with
what is
regarded as an exorbitant fine. This is evidenced by the fact that it
did not amend, add or vary its grounds of review,
in spite of the
fact that it had received an explanation and an annexure from the
Respondent concerning the calculation of the
fine. The Applicant
further failed to demonstrate in what way the Respondent failed to
apply its mind to the information it supplied,
how he was
unreasonable in arriving at that amount, and in what way he was
arbitrary and did not follow procedural guidelines.
21.
Instead, the Applicant proposes a fine of R15,000.00 which it does
not explain or give reasons as to how it arrived at it and
most
importantly why the Respondent had to impose such fine and not the
one it did. Counsel for the Applicant conceded, and rightly
so, that
the proposed fine need not be considered by the Court.
22.
Failure
by the Applicant to file a replying affidavit to the Respondent’s
answering affidavit, leaves the allegations unchallenged.
The failure
to reply brings the application within the ambit of the rule
formulated in the seminal case of Plascon Evans Paints
Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A). It is trite that in
terms of this Rule, where in motion proceedings disputes of fact
arise on the affidavits, a final order
may be granted if those facts
averred in the Applicant’s affidavits which have been admitted
by the Respondent, together
with the facts alleged by the Respondent,
justifies such an order. As Respondent’s counsel correctly
pointed out, this rule
has been elaborated upon in Wightman t/a JW
Construction v Hedfore (Ptv) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA).
23.
It seems to me that in considering the conspectus of the evidence as
outlined, in particular the facts averred in the Applicant’s
founding affidavit and the Respondent’s answering affidavit,
the Applicant has not succeeded to make out a case in support
of the
grounds of review. Notwithstanding the fact that the record of
proceedings was availed to the Applicant, the Applicant did
not
provide evidence as to how the Respondent is supposed to have acted
arbitrarily, unreasonably and procedurally unfair.
24.
In addition, a letter giving reasons for the decision and dated
13th September 2008, the Respondent clearly outlines the
factor
taken into consideration in the calculation of the fine. The
calculation, together with the percentage weighing and scoring
indicates how the fine imposed was arrived at. On the papers, the
Applicant did not challenge this annexure, which to me is the
basis
of the fine imposed. This evidence stands incontrovertible.
25.
The Applicant bears the onus to prove its case on a balance of
probability, in this regard, I refer to Pillay v Krishna 1946
(AD)
946
26.
The Applicant contends that even though it was given a reasonable
opportunity to make representations in the form of the application
for rectification, it appears from the wording of the reasons for the
decision that the contents of the application were not properly
(or
at all) considered when determining the fine.
27.
It seems to me that the Applicant makes bold unsubstantiated
allegations which it failed to expatiate upon receipt of the record
of proceedings.
28.
Applying the principles in Plascon Evans case supra, it appears that
the Applicant alleges, which allegation are admitted by
the
Respondent, that:
28.1.
It was acting unlawfully in operating with chemicals which are listed
activity, without prior authorisation.
28.2.
That it was liable for a imposition of a fine;
28.3
That the rectification application cannot be considered further
before the fine is paid;
28.4
That the fine was imposed, based on the protocol and guidelines
calculation; and
28.5.
The Respondent had authority to impose the fine.
29.
In addition thereto, the Respondent alleged, which allegations were
not disputed by the Applicant that:
29.1.
All statutory and legal procedures were followed in imposing the
fine;
29.2.
The calculator in Annexure “EMK2” attached to the
answering affidavit, reflected the correct calculations for
the fine;
29.3.
The Respondent did not act arbitrarily, acted procedurally and
applied its mind to the relevant factors;
29.4.
The reasons advanced were adequate.
30.
The application seeks a final and not interim relief.
Consequently, in applying the rule in the
Plascon Evans case, I come to the conclusion that the Applicant
failed to make out a case
to support its contentions and accordingly,
its application cannot succeed.
In
the premises I make the following order:
1.
The
application is dismissed with costs.
For
the Applicant:
ATTORNEYS
ROESTOFF VENTER AND CROUSE
MENLO
PARK
PRETORIA
ADV.
E B CLAVIER
APPLICANT’S
COUNSEL
For
the Respondent:
STATE
ATTORNEY
PRETORIA
ADV.
M SIKHAKHANE