About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2020
>>
[2020] ZASCA 39
|
|
South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government and Another (231/19) [2020] ZASCA 39; [2020] 2 All SA 713 (SCA); 2020 (7) BCLR 789 (SCA); 2020 (4) SA 453 (SCA) (17 April 2020)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 231/19
In
the matter between:
SOUTH
DURBAN COMMUNITY
ENVIRONMENTAL
ALLIANCE
APPELLANT
and
MEC
FOR ECONOMIC DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS:
KWAZULU-NATAL
PROVINCIAL GOVERNMENT FIRST
RESPONDENT
CAPITAL
PROPERTY FUND LIMITED SECOND
RESPONDENT
Neutral
citation:
South Durban Community
Environmental Alliance v MEC for Economic Development, Tourism and
Environmental Affairs: KwaZulu-Natal Provincial
Government
(Case no 231/19)
[2020] ZASCA 39
(17April 2020)
Coram:
PETSE DP and PONNAN, SWAIN, MAKGOKA and NICHOLLS
JJA
Heard
:
6 March 2020
Delivered
:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, publication on the Supreme
Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be
09h45 on Friday the 17th day of
April 2020.
Summary:
National Environmental Management Act 107 of 1998
(NEMA) – s 24 –
construction of
logistics park – environmental authorisation granted by
Department
–
s 43 of NEMA –
unsuccessful appeal to MEC – unsuccessful review on facts of
appellate decision of MEC – failure
to demonstrate
uncontentious and objectively verifiable facts resulting in a
different decision – failure to seek review
of decision of
Department – conflation of grounds of review and appeal –
appeal dismissed.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Durban (Vahed J, sitting as court of first instance):
Save
for setting aside the order of costs of the court below, the appeal
is dismissed.
JUDGMENT
Swain
JA (Ponnan JA concurring):
[1]
The construction of what is described as ‘a logistics park’,
located on the site of the old Clairwood Park Racecourse
in the South
Durban Industrial Basin(the Basin), has given rise to the present
dispute. The logistics park comprises warehouses,
vehicular parking
and a distribution yard, to service heavy haulage vehicles
transporting containers to and from the logistics
park. The need for
a logistics park in this location was said to arise from its
proximity to the port of Durban and the fact that
70 to 80 per cent
of all cargo that lands there, leaves the eThekwini Municipality.
[2]
The second respondent, Capital Property Fund Limited, (Capital)
wished to construct the logistics park and applied for and received
authorisation from the KwaZulu-Natal Department of Economic
Development, Tourism and Environmental Affairs (the Department) in
terms of s 24 of the National Environmental Management Act 107 of
1998 (NEMA), to do so. The appellant, the South Durban Community
Environmental Alliance, (the Alliance) is an environmental justice
non-governmental organisation, which seeks to promote and achieve
environmental justice for residents and communities of the South
Durban area. It initially opposed the grant of the authorisation,
and
thereafter pursued an internal appeal to the first respondent, the
MEC for Economic Development, Tourism and Environmental
Affairs,
KwaZulu-Natal Province (the MEC), in terms of s 43 of NEMA.
[3]
Central to the appeal by the Alliance was the assertion that the
logistics park would produce vehicular emissions of disproportionate
scale and that the Basin and the communities residing within it,
which had a negative history of serious air pollution from heavy
industry, were at high risk for exposure to significant levels of
ambient air pollution. This was said to arise from their geographic
relationship with certain sources of air pollutants, including two
major petroleum refineries and a pulp and paper manufacturer.
The
MEC, however, dismissed the appeal on 25 January 2016.
[4]
Dissatisfied with the dismissal of the appeal, the Alliance then
launched an application in terms of s 6 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), before the KwaZulu-Natal
Division of the High Court, Durban (the high court), on 22
July 2016,
for the judicial review and setting aside of the decision of the MEC,
and for the remittal of the matter to the MEC
for reconsideration.
The review application was heard on 13 December 2017 and judgment was
handed down a year later on 19 December
2018, in which the
application was dismissed with costs. Leave to appeal to this court
was thereafter granted by the high court
on 12 February 2019.
[5]
Before dealing with the merits of the appeal, it is necessary to deal
with a preliminary issue raised by the court with the
parties, at the
hearing of the appeal. This was that the appellant had only
sought a review of the MEC’s appellate
decision and
had not sought a review of the decision of the Department, granting
the authorisation. In
Wings Park Port
Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern Cape and
Others
2019 (2) SA 606
(ECG) para 34,
Plasket J dealt with the converse situation. A review was only sought
of a decision of the Department of Environmental
Affairs, which had
been appealed to the MEC Environmental Affairs, Eastern Cape, in
terms of s 43 of NEMA. It was held that in
the absence of a review of
the MEC’s appellate decision, the setting-aside of the decision
of the Department would be academic
and of no practical effect,
because the appellate decision would stand, even if the decision at
first instance was set aside. The
review application was accordingly
refused on this basis alone.
[6] Of relevance to the
present matter is what Plasket J stated at paras 33 and 34:
‘
When
a decision favourable to an applicant has been taken at first
instance, but reversed on internal appeal, however, it is only
the
appellate decision that needs to be reviewed: if the review is
successful, the decision at first instance will be revived .
. .
When an applicant has
suffered an unfavourable decision at first instance and it is
confirmed on appeal, the situation is somewhat
different. Both
decisions must be taken on review and, for the applicant to achieve
success, usually both decisions will have to
be set aside . . . In
these circumstances, had only one decision been attacked, whether at
first instance or on appeal, the other
would have remained in place.’
(Authorities omitted.)
In
the present appeal, the Alliance suffered an unfavourable decision at
first instance, when the Department granted the authorization,
which
was confirmed on appeal to the MEC.
[7]
Because the Alliance had only attacked the appellate decision of the
MEC, the decision of the Department at first instance,
would
ordinarily have remained in place. However, the Alliance submitted
that the remedy sought was not only the review and setting
aside of
the MEC’s appellate decision, but its reconsideration. In
reconsidering the appeal the MEC would be entitled to
set aside the
decision of the Department. In
Magaliesburg
Protection Association v MEC: Department of Agriculture,
Conservation, Environment and Rural Development, North West
Provincial Government and Others
[2013]
ZASCA 80
;
[2013] 3 All SA 416
(SCA) para 53, it was held that an
appeal in terms of NEMA was ‘a wide one enabling a full
hearing’.
[8] In
Sewpersadh v
The Minister of Finance and Another
[2019] ZASCA 117
;
[2019] 4
All SA 668
(SCA) para 20, the appellant had only sought an order
setting aside the appeal board’s decision, without challenging
the
initial decision of the treasury. The following was stated:
‘
For
some reason he did not challenge the initial decision of the
Treasury. It would probably have been better had he done so. It
was
pointed out in
Wings Park
that when an applicant has suffered an unfavourable decision at first
instance which is confirmed on an internal appeal, both decisions
must usually be taken on review in order to have the decision set
aside. This is because if just the appeal decision is set aside,
the
first decision that was the subject of the internal appeal will
continue to stand should it, too, not be set aside on review.
The
failure to target the original decision is, however, not necessarily
fatal to a review in such circumstances, and much depends
upon the
nature of the decision at first instance and the remedy sought on
review. Here the proceedings before [the] Appeal Board
do not amount
to a simple rehearing as in the case of a true appeal but, rather,
are akin to proceedings de novo in as much as
the Appeal Board can
receive further evidence and make further enquiries. In my view, this
is a case where a failure to target
the original decision does not
preclude relief.
Certainly, if the
Appeal Board’s decision is substituted on review with an order
which overturns the Treasury’s initial
decision, no harm can be
done
’. (Emphasis added.)
[9] This court in
Sewpersadh
para 42, concluded that there was no purpose in
referring the matter back to the appeal board for reconsideration, as
this court
was in as good a position as the appeal board, to make a
decision on the particular facts. The following was stated:
‘
That
seems to be the best approach, as it does away with the difficulty
that I mentioned earlier in this judgment of the original
order
standing until it is reconsidered by the Appeal Board, and serves to
avoid both further delay and unnecessary costs . . .
When this was
drawn to the attention of the parties, they were agreed that if this
court should find for the appellant, we should
direct that he be paid
his pension.’ (Authorities omitted.)
The
problems occasioned by the failure of the appellant to challenge the
initial decision of the treasury, were therefore resolved
by
agreement between the parties, that the initial decision of the
treasury be set aside and replaced with an order granted by
this
court. There is, however, no such agreement between the parties in
the present appeal.
[10]
In addition, although this court in
Sewpersadh
was of the view that the initial decision of the treasury could be
set aside by the appeal board, thereby obviating the need for
a
review of the decision of the treasury, there is a further unique and
distinguishing feature in the present appeal. This is that
the four
grounds advanced by the Alliance for the review of the MEC’s
appellate decision, are identical to four of the grounds
of appeal
advanced by the Alliance in challenging the decision of the
Department, in the appeal to the MEC. In other words,
what were
originally described as grounds of appeal, are now described as
grounds of review.
[11]
Central to the present appeal and the review of the appellate
decision of the MEC, is the finding by the high court, that the
main
issue was whether the air quality in the vicinity of the proposed
logistics park was likely to be significantly affected,
by the
proposed activity. In dismissing the application on its merits, the
high court concluded that the Alliance had not put forward
any
evidence in support of its complaints and assertions, with regard to
air quality. The four grounds raised all have as a common
theme, that
the high court in reaching this conclusion, failed to appreciate the
correct facts. The Alliance submitted that the
Department and the MEC
also ignored facts which rendered their decisions unsustainable.
[12] The conflation of
grounds of review with grounds of appeal, gives rise to difficulties
which are compounded by the inherent
problems that may arise, in
distinguishing between review and appeal proceedings. In
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007 (1) SA 576
(SCA)
para 31, this was said to be caused by the following factors:
‘
This
is partly because process-related scrutiny can never blind itself to
the substantive merits of the outcome. Indeed, under PAJA
the merits
to some extent always intrude, since the court must examine the
connection between the decision and the reasons the
decision-maker
gives for it, and determine whether the connection is rational. That
task can never be performed without taking
some account of the
substantive merits of the decision.’
Such
an examination is of particular relevance in the present appeal,
where it is alleged that the Department and the MEC ignored
facts,
which rendered their decisions unsustainable.
[13] As a general rule
all administrative decisions are treated as valid until a court has
pronounced upon its validity and set
it aside. Importantly in the
present context the MEC exercised an appellate power. The original
grounds of appeal have now been
dressed up as grounds of review. Prof
C Hoexter
Administrative Law in South Africa
2 ed (2012) at
111, commenting upon the dictum in
Rustenburg Platinum Mines
,
points out that the distinction between review and appeal
nevertheless continues to be asserted in the courts as it reflects
the separation of powers, which is a fundamental pillar of our
constitutional order. In accordance with this doctrine, it is
unacceptable
for Judges to pronounce on the merits of administrative
decisions, as this would constitute a usurpation of the functions
entrusted
to the executive branch by the Constitution. Prof Hoexter
then states the following:
‘
A
more realistic approach, as I suggest in the context of review for
reasonableness, may be to accept the illusory nature of the
distinction at the stage of scrutiny and to attempt rather to observe
its spirit at the point of judicial intervention. This is
because
judicial scrutiny, even of the merits, is not dangerous in itself. It
is only when that scrutiny is translated too readily
into
intervention (setting aside) that it becomes objectionable, for the
court may well be imposing its own idea of what the right
decision
would be.’
[14] In
Wings
Park,
after a review of the relevant authorities, Plasket J went on to
state the following:
‘
[46]
My conclusion from the cases I have discussed is that, as a general
rule, when an administrative action is subject to an internal
appeal,
review proceedings must, at least, be directed at the appellate
decision. Whether it is only the appellate decision that
may be
challenged may depend on the nature of the decision at first instance
and the remedy sought by the applicant. In most instances,
however,
both decisions will have to be challenged.’
This
may well have been the kind of matter, where both decisions should
have been challenged. That, in and of itself, ought to have
led to
the failure of the Alliance’s application before the court
below. However, I make no firm finding in that regard and
shall, in
its favour, proceed to a consideration of the substantive merits of
the application.
[15]
Before turning to the substantive merits, it is necessary to record
that in refusing the application, the high court upheld
two points in
limine raised by Capital but held that the review application should,
in any event, fail on its substantive merits.
At the hearing of the
appeal, the parties were agreed that that if we were inclined to
dismiss the appeal on its merits, we could
pass over the points in
limine.
[16] The high court in
dismissing the application on its merits, concluded that the Alliance
had not put forward any evidence in
support of its complaints and
assertions, with regard to air quality and stated that:
‘
In
its appeal, which served before the first respondent, it simply
stated, without evidence, that the logistics park would generate
“disproportionate” vehicular emissions. In its founding
affidavit it “contends”, without evidence, that
the
cumulative impacts arising from the environmental authorisation will
“. . . add to past and continuing adverse environmental
impacts
emanating from industrial activities in South Durban. . .”.
Even in reply, when the applicant belatedly put up Professor
Cairncross’ affidavit to bolster its case, he confined himself
to generalised criticism of the method adopted by Mr Gaze,
and did
not express an opinion that the construction and operation of the
logistics park was likely to have a significant effect
on the
environment from the point of view of air quality.’
[17] The high court then
concluded that there was:
‘
.
. . no evidence tending to establish that the logistics park is
likely to have a significant effect on the environment from the
point
of view of air quality.’
And that:
‘
Once
it is accepted that the effect of the proposed logistics park,
including its cumulative effect, is likely to be negligible,
then all
of the grounds of review fall away. There is no basis for me to find
that a mandatory condition of the empowering legislation
was not
complied with, or that relevant factors were not taken into account
by the first respondent in deciding to dismiss the
appeal.’
[18] The Alliance
submitted that the high court erred in its understanding of the term
‘significant effect’ and in finding
that the Alliance’s
failure to establish that the development would have a significant
negative effect on air quality and
community health was entirely
dispositive of the grounds of review and the entire application
itself. In support of this submission
the Alliance relied upon the
following dictum in
Allpay Consolidated Investment Holdings (Pty)
Ltd and Others v Chief Executive Officer, South African Social
Security Agency and
Others
[2013] ZACC 42
;
2014 (1) SA 604
(CC)
para 44:
‘
Doing
this kind of exercise is no different from any other assessment to
determine whether administrative action is valid under
PAJA. In
challenging the validity of administrative action an aggrieved party
may rely on any number of alleged irregularities
in the
administrative process. These alleged irregularities are presented as
evidence to establish that any one or more of the
grounds of review
under PAJA may exist. The judicial task is to assess whether this
evidence justifies the conclusion that any
one or more of the review
grounds do in fact exist.’
[19] In this appeal, the
Alliance advances the following four grounds, as the basis for its
submission that the high court erred
in refusing to review the
appellate decision of the MEC. As pointed out above, these grounds
were also advanced as grounds of appeal
in the appeal to the MEC.
They are as follows:
(a) The MEC failed to
properly take account of the findings and recommendations of the
South Durban Health Studies of 2002 and 2007,
which were respectively
undertaken by the Nelson Mandela Medical School and the University of
Michigan Medical School. The Alliance
submitted that these studies
showed the levels and extent of the negative impact contributed by
developments, polluting industries
and vehicle trucking emissions.
This amounted to a reviewable irregularity and ground of review in
terms of s 6(2)
(e)
(iii) of PAJA.
(b) In the scoping report
and the environmental impact assessment report prepared by the
environmental assessment practitioner,
retained by Capital, when
dealing with the ‘description of the environment’, failed
to ‘specifically and in detail
describe the environment by
reference to air quality and the state of health of the community
affected by the proposed development’.
This was said to be a
necessary pre-condition for the proper and lawful exercise of the
MEC’s discretion on appeal.
(c) The Occutech Equality
Impact Report presented by Capital was inadequate, in that it failed
to comply with the mandatory requirements
of reg 32 of the
National
Environmental Management Act (107/1998
): Environmental Impact
Assessment Regulations, GN R982,
GG
38282, 4 December 2014,
regulating specialist processes and reports. Consequently, the
reliance by the MEC on the findings contained
in this report,
rendered his decision reviewable in terms of s 6(2)
(b)
of
PAJA.
(d)
The MEC in deciding the appeal failed to consider how the proposed
development would adversely affect environmental justice,
by
distributing adverse environmental impacts in a manner which unfairly
discriminated against any person, particularly vulnerable
and
disadvantaged persons. The MEC dismissed the appeal despite the fact
that the Environmental Impact Assessment Report had made
it clear,
that the affected community was one with a history of environmental
injustice, due to adverse air quality impacts from
the surrounding
industry. The failure by the MEC to consider the principle of
environmental justice, constituted a failure to take
into account a
relevant consideration, as contemplated by s 6(2)
(e)
(iii)
of PAJA.
[20]
The MEC submitted that all of these grounds of review were based upon
the assertion that he ignored certain facts, which rendered
the
decision reviewable, but that in the present appeal the Alliance did
not clarify precisely what facts were ignored, nor their
materiality.
In addition, in the appeal to the MEC, the Alliance did not properly
set out the facts that it maintained had not
been considered by the
Department.
[21] Before dealing with
the grounds of review advanced by the Alliance in the appeal, it is
necessary to deal with the principles
of judicial review based on
errors of fact. In
Pepkor Retirement Fund and Another v Financial
Services Board and Another
2003 (6) SA 38
(SCA) para 48, the
following was stated:
‘
Recognition
of material mistake of fact as a potential ground of review obviously
has its dangers. It should not be permitted to
be misused in such a
way as to blur, far less eliminate, the fundamental distinction in
our law between two distinct forms of relief:
appeal and review. For
example, where both the power to determine what facts are relevant to
the making of a decision, and the
power to determine whether or not
they exist, has been entrusted to a particular functionary (be it a
person or a body of persons),
it would not be possible to review and
set aside its decision merely because the reviewing Court considers
that the functionary
was mistaken either in its assessment of what
facts were relevant, or in concluding that the facts exist. If it
were, there would
be no point in preserving the time-honoured and
socially necessary separate and distinct forms of relief which the
remedies of
appeal and review provide.’
[22] In
Dumani v Nair
and Another
2013 (2) SA 274
(SCA) para 32, the following was
stated:
‘
In
none of the jurisdictions surveyed by the authors have the courts
gone so far as to hold that findings of fact made by the
decision-maker
can be attacked on review on the basis that the
reviewing court is free, without more, to substitute its own view as
to what the
findings should have been – ie an appeal test. In
our law, where the power to make findings of fact is conferred on a
particular
functionary – an “administrator” as
defined in PAJA – the material-error-of-fact ground of review
does
not entitle a reviewing court to reconsider the matter afresh.
This appears, in the context of the particular ground of review being
considered, from para 48 of
Pepcor
,
quoted in para [29] above; and in the context of review generally,
from the following passage in the judgment of O’Regan
J in
Bato
Start Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
2004 (4) SA 490
(CC)
(2004 (7)
BCLR 687:
[2004] ZACC 15)
para 45:
“
Although
the review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The Court should take care not to usurp
the functions of administrative agencies. Its
task is to ensure that
the decisions taken by administrative agencies fall within the bounds
of reasonableness as required by the
Constitution.”
The
ground must be confined to the situation, as in the English law . . .
“to a fact that is established in the sense that
it is
uncontentious and objectively verifiable. . . .”.’
[23] I consider that the
present state of the law in this regard, is correctly set out in the
following dictum, in the case of
Airports Company South Africa v
Tswelokgotso Trading Enterprises CC
2019 (1) SA 204
(GJ) para 12:
‘
In
sum, a court may interfere where a functionary exercises a competence
to decide facts but in doing so fails to get the facts
right in
rendering a decision, provided the facts are material, were
established, and meet a threshold of objective verifiability.
That is
to say, an error as to material facts that are not objectively
contestable is a reviewable error. The exercise of judgment
by the
functionary in considering the facts, such as the assessment of
contested evidence or the weighing of evidence, is not reviewable,
even if the court would have reached a different view on these
matters were it vested with original competence to find the facts.’
[24] Based upon these
authorities the MEC submitted that for the Alliance to succeed, it
had to demonstrate that he left out ‘uncontentious
and
objectively verifiable’ facts, which were material in nature
and which would have resulted in a different decision, had
they been
taken into account by him. The MEC submitted that there were no
common cause, incontrovertible or objectively ascertainable
and
material facts presented by the Alliance, which ought to have been
considered by him, over and above the material placed before
him. It
is against the background of these principles, that I turn to
consider the Alliance’s four grounds of appeal.
First ground of
appeal: The MEC failed to properly take account of the findings and
recommendations of the South Durban Health Studies.
[25]
The Alliance submitted that the MEC had failed to comply with a
mandatory and material condition prescribed by an empowering
provision, in terms of s 6(2)
(b)
of PAJA, and had failed to consider relevant facts, in terms of s
6(2)
(e)
(iii)
of PAJA. The Alliance alleged that the environmental assessment
practitioner, the Environmental Impact Assessment Report,
the
Department and the MEC had all failed to ‘consider and take
into account the findings and recommendations of the two
South Durban
Health Studies’.
[26]
The argument presented by the Alliance to the MEC on appeal, was that
no research was done to obtain these studies and that
these health
studies compiled by consultants and specialists were not considered,
with the result that the increase in trucking
would further
jeopardise the lives of people in South Durban. In response, Capital
submitted that it had dealt with air quality,
had referred to the
noise and air quality reports and had submitted that there would not
be a significant decrease in air quality
in the area, and that the
potential cumulative noise increase and air-quality decrease would be
‘nominal and relatively insignificant
during operation’
of the logistics park.
[27]
The MEC in his decision noted that the Alliance had drawn his
attention to these health studies and noted that the complaint
of the
Alliance, was that these studies had not been considered in the
decision-making process. The MEC submitted, however,
that on
the facts and in terms of the rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634G-I, it was established that he did
consider the health studies. The MEC found that Capital had
adequately addressed
the concerns over quality and noise impacts, and
he had considered these issues throughout the environmental
authorisation process.
[28] The finding by the
MEC was as follows:
‘
The
Appellant has not demonstrated that there were any shortcomings in
the assessment referred to above. I am therefore not in a
position to
take the Appellant’s concerns any further. . . The Appellant’s
concerns were considered (in the EIA and
the decision-making process)
but the Appellant ignores that consideration and merely reiterates
its concerns on appeal without
substantiating these or introducing
new evidence to counter the assessments conducted during the
assessment process.’
[29] I agree with the
submission by the MEC that the Alliance in the proceedings before the
MEC and the high court, introduced generalised
complaints that the
health studies ought to have been considered, that the
recommendations in the health studies ought to have
been considered
and implemented and that the MEC ought to have required further
studies on such matters to be undertaken. The MEC
submitted that the
Alliance raised generalised complaints about the absence of pertinent
facts, without presenting any evidence
on what the facts were, and
why such facts were material to his decision. In my view, it is clear
that there were no common cause,
incontrovertible or objectively
ascertainable and material facts presented by the Alliance, which
ought to have been considered
by the MEC, over and above the material
placed before him. The first ground of review therefore falls to be
dismissed.
Second
ground of appeal: The failure to describe the receiving environment
with reference to air quality and health.
[30]
The Alliance submitted that it ‘was a necessary pre-condition
for the proper and lawful exercise of the MEC’s discretion’,
that the scoping report and environmental impact report had to
include ‘specifically and in detail’, a description
of
the environment ‘by reference to air quality and the state of
health of the community, affected by the proposed development’.
The Alliance submitted that the failure to do so, resulted in
‘non-compliance with a material condition or procedure
prescribed
by NEMA’, in terms of s 6(2)
(b)
of PAJA.
[31]
The MEC submitted that it was common cause that the scoping report
referred to the documented health and air issues in the
South Durban
Basin, and for these reasons the need for noise, traffic, air impact
and social impact assessments were identified
and carried out. The
results of these studies were that there would be no significant
adverse impacts from the logistics park.
In addition, the minutes of
the appeal committee deliberations illustrated that the appeal panel
was aware of these issues.
[32] The MEC correctly
pointed out that, as with the first ground of appeal, the Alliance
had not specified precisely what facts
were missing from the scoping
and environmental impact report. In addition, there was no indication
why such facts were material
and would have resulted in the MEC
reaching a different conclusion. In my view, in the absence of any
evidence from the Alliance
in this regard, the impact assessment
reports, the record of decision and its conditions and the MEC’s
decision, as well
as the decision of the high court, cannot be
faulted. The second ground of review therefore also falls to be
dismissed.
Third ground of
appeal: Inadequate air quality impact report.
[33]
The Alliance submitted that the air quality impact study conducted by
Occutech was inadequate, in that with respect to air
quality and the
impact on air quality, dust emissions ought to have been considered
and that ‘traffic emission during peak
conditions’ ought
to have been considered. Capital in response submitted that the
specialist study, demonstrated that there
would be no significant
decreases in air quality from the logistics park and that the
‘potential cumulative noise level increase
and air quality
decrease in the area have been rated as nominal and relatively
insignificant’, during the operational phase
of the logistics
park.
[34] The MEC considered
these arguments and correctly concluded that the Alliance had not
demonstrated any shortcomings in the Occutech
air quality impact
assessment. In addition, the MEC concluded that the potential impacts
identified in this report and the noise
impact assessment report,
could:
‘
.
. . be managed and mitigated to ensure the community is not
significantly affected. Not only will the [environmental management
programme] . . . be an important tool in this regard but [Capital]
will also be required to comply with the provisions of the National
Environmental Management: Air Quality Act 2004.’
[35] The MEC also
correctly concluded that the Alliance had ‘not demonstrated
that there were any shortcomings in the assessment[s]’
relating
to air quality and noise impacts and noted that all of the Alliance’s
concerns on this issue, had been considered
during the environmental
authorisation process. In addition, the Alliance had not introduced
‘any new evidence to counter’
the air quality and noise
assessments conducted by Capital. The third ground of review
therefore also falls to be dismissed.
Fourth ground of
appeal: Failure to consider the principle of environmental justice.
[36] Capital submitted
that the MEC failed to consider and apply the principle contained in
s 2
(c)
of NEMA, in terms of which environmental justice
required environmental impacts to be distributed fairly and in a
non-discriminatory
way. This constituted a failure to consider a
relevant aspect and was a reviewable irregularity in terms of s
6(2)
(e)
(iii) of PAJA. The MEC stated that he had considered
the evidence before him concerning the social impact of the
development, analysed
the social impact assessment of Capital, as
well as the arguments of the Alliance and concluded that:
‘
While
the interests of the residents of the South Durban Basin are
important, of equal importance are the interests of the public,
in
general.’
[37]
The MEC pointed out that the Alliance did not challenge his
acceptance of the evidence tendered by Capital, that there was
a
clear need for a logistics park in that area, which also served the
public interest. I agree with the submission by the MEC that
he
acknowledged the rights of the local residents, but had to and did,
balance these rights with the competing need in the public
interest
for a development of this nature, in an area regarded as a ‘national
economic hub’.
[38]
The MEC pointed out that the Alliance did not challenge the balancing
of rights and interests by him which are polycentric
matters of fact
and policy, in respect of which the MEC was vested with
decision-making power, and which called for judicial deference.
The
nature of the decision taken by the MEC is such that judicial
deference is required to ensure that his functions in this
regard are
not usurped. The fourth ground of review therefore also falls to be
dismissed.
[39]
A matter of considerable concern is the failure by the Alliance to
seek an interdict at the outset, restraining Capital from
proceeding
with the construction of the logistics park, pending the finalisation
of the challenges to the environmental authorisation,
granted by the
Department. As found by the high court, the Alliance, despite
threatening to do so, never interdicted the implementation
of the
environmental authorisation. The steps taken by the Alliance to
challenge the environmental authorisation, which was granted
by the
Department as long ago as 29 May 2015, were as follows: The
Alliance filed an appeal to the MEC on 17 July 2015 against
the
Department’s decision and on 25 January 2016 the MEC dismissed
the appeal. The review application before the high court
was only
launched on 22 July 2016, the high court finding that the Alliance
had delayed unreasonably in doing so. The review was
then only heard
on 13 December 2017. Judgment was handed down a year later on 19
December 2018, in which the application was dismissed
with costs.
Leave to appeal to this Court was thereafter granted by the high
court on 12 February 2019, with the appeal being heard
by this Court
on 6 March 2020.
[40]
Construction of the logistics park however commenced as early as
October 2016, when Capital awarded contracts to six contractors
totaling R475 million in value. Capital states that if it had been
required at that stage to order these contractors to stop work,
they
would have been entitled to terminate the contracts and Capital would
have incurred substantial termination penalties, in
the order of R47
million. By October 2017, Capital was committed to various aspects of
the development, including external roadworks
to the approximate
contract value of R117 million and had invested in a wetland
rehabilitation site, where R10 million had already
been spent,
amongst other spending commitments and development activities. We
were informed by counsel for Capital from the bar,
without objection,
that at present 24 990 m² of the development has been completed
and leased, out of a total of 358 000 m²,
to be completed over a
ten year construction programme. It is self-evident that since
October 2016 a great deal of construction
work has been completed.
[41]
The failure by the Alliance to interdict, at the outset, the
construction of the logistics park and to allow it to proceed
over
all these years, is a relevant factor in the award of costs. When
counsel for the Alliance was asked what steps could be taken,
with
regard to the substantial construction of the logistics park, if the
review was successful, he submitted that the MEC could
investigate
what mitigation measures could be introduced to reduce any air
pollution, caused by the logistics park. However, no
details were
forthcoming as to the nature of the mitigation measures that could be
introduced at this late stage. As a result of
the conduct of the
Alliance, if the review of the decision of the Department and the MEC
had been successful, this court would
have been presented with a
fait
accompli
in the form of the
substantially completed portion of the logistics park. In addition,
the failure by the Alliance to prevent the
construction of the
logistics park in the interim, was to the prejudice of the local
residents, whose cause, the Alliance maintains
that it champions.
[42] We were informed by
counsel for the MEC, that the MEC had abandoned the costs order
granted in its favour in the high court
and did not seek a costs
order against the Alliance on appeal, in accordance with the
principal in
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC). Counsel for Capital submitted, however, that
the Alliance had sought costs against Capital before the high court,
and on
appeal and there was no reason why a costs order should not
follow the outcome of the appeal. Counsel for the Alliance, in
reliance
upon the provisions of s 32(2) of NEMA, submitted that
a costs order should not be granted against the Alliance. The
relevant
portions of the section read 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 . . . if the
court is of the opinion that the person or group of
persons 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.’
[43]
The Alliance submitted that it had acted reasonably out of a concern
for the public interest and this court should accordingly
exercise
its discretion in favour of the Alliance, and not make an award of
costs in favour of Capital, against the Alliance. However,
when due
regard is had to the unreasonable conduct of the Alliance in failing
to take any steps at the outset, in the interests
of the local
populace, to interdict the construction of the logistics park pending
the resolution of these proceedings, I am not
persuaded that the
Alliance acted reasonably and should be absolved from paying the
costs of Capital. In terms of the
Biowatch
principle, the MEC rightly abandoned
the costs order granted in his favour by the high court and did not
seek costs on appeal. That
principle does not find application in
respect of Capital. Both Capital and the Alliance are private
litigants. What is more, in
seeking costs against Capital, the
Alliance forced it to come to court to defend its interests. Having
failed against Capital,
the Alliance can hardly escape a costs order,
which should follow the result.
[44] I have had the
benefit of reading the judgments of my colleagues Nicholls JA and
Makgoka JA (concurred in by Petse DP) in which
it is concluded that
an adverse costs order should not be made against the Alliance. In
granting an adverse costs order against
the Alliance in the court a
quo, Vahed J referred to the judgment of Plasket J in
Beweging vir
Christelike-Volkseie Onderwys and others v Minister of Education and
others
[2012] 2 All SA 462
(SCA) paras 67-71, in which the
exceptions to the
Biowatch
principle were said to be as
follows;
‘
[68]
That principle is subject to exceptions. So, the Constitutional Court
held, if “an application is frivolous or vexatious,
or in any
other way manifestly inappropriate, the applicant should not expect
that the worthiness of its cause will immunize it
against an adverse
costs award.” Furthermore, the issues “must be genuine
and substantive, and truly raise constitutional
considerations
relevant to the adjudication”. Whether proceedings are
manifestly inappropriate is a question of fact to be
determined in
the light of all of the evidence. In my view, an application would be
manifestly inappropriate if an applicant had
delayed unreasonably
before launching it and ought to have known that its prospects of
having the delay condoned were slight.’
[45]
It was on this basis, that the Court a quo justifiably ordered the
Alliance to pay the costs of the MEC and Capital, having
upheld the
point in limine that the Alliance had unreasonably delayed, in
launching the review application. In this regard the
court a quo
reasoned:
‘
[74]
The second respondent’s arguments are persuasive and, in my
view, insurmountable. There was no real reason proffered
for the
delay between the date of the first respondent’s appeal
decision and the commencement of these proceedings, and without
an
interdict in place, the additional delay between then and the date of
argument places the prejudice beyond the pale. The [Alliance]
fails
on both scores; the reasons for delay, such as they are, are
unacceptable, and too much water has flowed under the bridge
to even
begin to consider the much belated plea for condonation. . . .’
The
reluctance of a court of appeal to interfere with the discretion
exercised by a court of first instance is well known.
[1]
We are not simply at large. In
Naylor
and Another v Jansen
2007
(1) SA 16
(SCA) para 14, Cloete JA put the position as follows:
‘
Where the law
has given a judge an unfettered discretion, it is not for this
court to lay down rules which, whilst purporting
to guide the
judge, will only have the effect of fettering the discretion. If
therefore there are factors which the trial
court in the
exercise of its discretion can and legitimately does decide to take
into account so as to reach a different
result, a
court on appeal is not entitled to interfere ─ even
although it may or even probably would
have given a different
order. The reason is that the discretion exercised by the court
giving the order is not a “broad”
discretion (or a
“discretion in the wide sense” or a “discretion
loosely so called”) which obliges
the court of first instance
to have regard to a number of features in coming to its conclusion,
and where a court of appeal is
at liberty to decide the matter
according to its own view of the merits and to substitute its
decision for the decision of the
court below, simply because it
considers its conclusion more appropriate. The discretion is a
discretion in the strict or
narrow sense (also called a “strong”
or a “true” discretion). In such a case the power to
interfere
on appeal is limited to cases in which it is found that the
court vested with the discretion did not exercise the discretion
judicially,
which can be done by showing that the court of first
instance exercised the power conferred on it capriciously or upon a
wrong
principle, or did not bring its unbiased judgment to bear on
the question or did not act for substantial reasons. Put differently,
an appeal court will only interfere with the exercise of such a
discretion where it is shown that “… the lower
court had not exercised its discretion judicially, or that it
had been influenced by wrong principles or a misdirection on
the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing
itself to
all the relevant facts and principles.”’
I
am not persuaded that the test for interference has been satisfied in
this case. My colleagues appear to suggest that the court
a quo
failed to apply the provisions of 32(2) of NEMA. But, nowhere in the
Alliance’s founding affidavit is there even a
passing reference
to this section. In those circumstances the court a quo can hardly be
faulted for failing to invoke those provisions.
In any event, as I
shall presently show, even had it done so, I am not persuaded that it
ought to have arrived at any different
conclusion.
[46]
The
MEC felt obliged to abandon the costs order granted in his favour.
Not so Capital. Having failed in the high court, the
Alliance
had an opportunity for further reflection but chose to persist with
an appeal. Not just that, but in heads of argument
filed with this
court, it was stated on behalf of the Alliance: ‘With regard to
costs, we submit that if the appeal is upheld,
the respondents should
be ordered to pay [the Alliance’s] costs . . . If, however, the
appeal is dismissed no order of costs
should be made against [the
Alliance]’. No authority was relied upon in support of that
submission. It has now failed
in the appeal. In support of the
contention that we should depart from the usual rule relating to
costs, counsel for the Alliance
invoked
Biowatch
.
In the course of the debate, however, he was asked whether the
Biowatch
principle
found application to a private litigant such as Capital. He was
unable to point to any authority in support of the proposition
that
the principle found application in a situation such as this. I can
conceive of no basis in principle for departing from the
usual
rule.
[2]
After all, not only did
the Alliance drag Capital to court, it sought a costs order against
it. Capital was thus obliged to come
to both the court below as well
as this court, not only to defend the administrative decision that
had been granted by the Department
in its favour, but also to stave
off a costs order. Undeterred by its failure in the high court and
the costs order that had gone
against it, the Alliance elected to
prosecute an appeal. Throughout Capital was not just an unwilling
litigant, but was obliged
to go to court to protect its interests. In
these circumstances, it must be asked if not the Alliance, then who
should be liable
for Capital’s costs?
[47] In the face of the
Alliance’s opposition, Capital had sought and obtained approval
from the Department. That approval
was never sought to be reviewed
and set aside. That failure, as I earlier pointed out, may well, in
and of itself, have been fatal
to the Alliance’s application.
Having failed in its appeal to the Minister, the Alliance then
dressed up the very same grounds
forming the subject of its appeal,
as grounds of review to the high court. In that it failed before the
high court, albeit on a
preliminary point. During the course of the
hearing of the appeal, the parties urged us to proceed to a
consideration of the substantive
merits of the matter. I thus pass
over the point held to be decisive against the Alliance by the court
a quo. That is not to suggest
that the court a quo was wrong on that
score. It was simply unnecessary to decide the point, because, even
assuming in the Alliance’s
favour on that score, it had to fail
on the substantive merits.
[48]
This truncated history is particularly important to the view that I
take on the question of costs. Before launching the application,
the
Alliance had already had two bites at the proverbial cherry. Both
times it had come short. Importantly, the judgment
of the
court a quo did not end with the point in limine. It also proceeded
to a consideration of the merits of the matter, which
is relevant to
the issue of costs. In that regard, as pointed out above, the court
held:
‘
[92]
In my view, a careful examination of the record and of the affidavits
reveals that the [Alliance] has not put forward any evidence
in
support of its complaints and submissions with regard to air quality.
(a)
In its appeal, which served before the
first respondent, it simply stated, without evidence, that the
logistics park would generate
“disproportionate”
vehicular emissions.
(b)
In its founding affidavit it “contends”,
without evidence, that the cumulative impacts arising from the
environmental
authorization will “. . . add to past and
continuing adverse environmental impacts emanating from industrial
activities in
South Durban . . .”
(c)
Even in reply, when the applicant belatedly
put up Professor Cairncross’ affidavit to bolster its case, he
confined himself
to generalised criticism of the method adopted by Mr
Gaze, and did not express an opinion that the construction and
operation of
the logistics park was likely to have a significant
effect on the environment from the point of view of air quality.’
. . .
[94] The second
respondent submits that the [Alliance] has not sought leave to
cross-examine Mr Gaze, nor tendered Professor Cairncross
for
cross-examination.
[95] In my view Mr Gaze’s
evidence is acceptable because his reasons have been explained and I
am able to properly assess
them. He has not been contradicted on any
point of substance. There is no evidence tending to establish that
the logistics park
is likely to have a significant effect on the
environment from the point of view of air quality.
[96] In the result I
accept Mr Gaze’s conclusions and regard them as being correct.
[97]
Once it is accepted that the effect of the proposed logistics park,
including its cumulative effect, is likely to be negligible,
then all
of the grounds of review fall away. There is no basis for me to find
that a mandatory condition of the empowering legislation
was not
complied with, or that relevant factors were not taken into account
by the first respondent in deciding to dismiss the
appeal.’
[49]
Thus, as the high court saw things there was little to be said for
the Alliance’s application. By the time the application
was
launched, the Alliance ought to have had a fair idea as to the
strength of its case. By then it ought to have been clear, on
the
strength of the expert evidence adduced on behalf of Capital, that
the approved development would have a negligible impact
on the
environment. That was the view that had been taken by the Department,
when it approved the development, as well as the MEC,
when he
dismissed the Alliance’s appeal. Thus, whatever the history of
the basin or the effects of apartheid spatial planning,
it was not as
relevant as is sought to be made out. For, this approval had little,
if any, further detrimental effect on the environmental
and the
community. This development would leave the state of health of the
environment unchanged. All of this the Alliance well
knew before it
launched the review application.
[50]
There is a further dimension. In determining an appropriate costs
order, one cannot view matters solely from the perspective
of the
Alliance. I do not believe that this is what s 32 of NEMA
contemplates. One of necessity must also approach the enquiry
from
the perspective of Capital. Capital obtained the necessary approval
from the relevant Department, successfully resisted an
internal
appeal before the MEC and a review before the high court. Both before
the MEC and the court a quo it had to defend an
approval that had
been properly sought and granted. And yet, despite the fact that
throughout it has conducted itself as a constitutionally
compliant
citizen, it is now being told that it must bear its own costs. Not
because of any remissness on its part, but because,
on some less than
clearly discernible principle, it would be unfair to mulct a litigant
such as the Alliance, who has plainly embarked
on litigation that is
unmeritorious, with those costs.
[51]
The general rule is that costs should follow the result. The
Biowatch
principle
is an exception to that
general rule. Whilst the rationale for the rule is clear enough
insofar as state parties, such as the MEC,
is concerned (see
Biowatch
para 23), it is less than clear to me
what the rationale is insofar as private litigants, such as Capital,
is concerned. However,
even if the
Biowatch
principle
can be extended to a private
litigant in the position of Capital (a question I prefer to leave
open for the present), that is hardly
the end of the enquiry. It
remains to consider all of the relevant considerations that obtain in
the litigation and to weigh the
conduct and the competing interests,
of what after all are two private litigants, in the enquiry. Capital
has had to jump through
all of the necessary administrative hoops.
Having obtained a decision in its favour from the Department, it is
then dragged to
court to defend, not that decision (which as I have
said has never been assailed in these proceedings), but the decision
of the
MEC on appeal to him. The departmental approval signals that
the development to be undertaken by Capital, will not have any
deleterious
effect on the environment. The stance of the Department
has been vindicated by the MEC on appeal to him and two courts on
review
to it. In that regard whatever negative impact the Alliance
perceived was more illusory than real. The historical negative impact
that Nicholls JA alludes to can hardly be placed at the door of
Capital. For that it is as blameless as the Alliance. Thus,
whilst, as I have shown, there are several considerations that weigh
against the Alliance, there are none that weigh against Capital.
Capital’s conduct has been beyond reproach in this matter. And,
yet it is being suggested that it should be denied its costs.
I
cannot subscribe to such an approach. When all of the relevant
considerations are taken into account, as I believe they should
be,
and the conduct of the Alliance is weighed against that of Capital,
then it seems to me that there can be no justification
for deviating
from the usual rule that the costs in this case should follow the
result. That is so, in my view, even if the
Biowatch
principle
is extended to a litigant in
the position of Capital. My colleague Makgoka JA sees s 32(2) of NEMA
as the bridge between the
Biowatch
principle
and a private litigant such
as Capital. Whether that is a bridge too far I prefer not to decide.
For, even on his approach, namely
that s 32(2) subjects the court’s
discretion to further guiding principles; when all of the relevant
considerations are taken
into account, I can find no warrant for
denying a litigant such as Capital, whose conduct has at all stages
been beyond reproach,
of its costs.
[52] Regrettably,
something must be said concerning the delay by the high court in
delivering its judgment. The review application
was heard on 13
December 2017 and judgment was only handed down a year later, on 19
December 2018. Vahed J in his judgment granting
leave to appeal, was
acutely aware of the inordinate delay and explained it in the
following terms:
‘
Those
two dates, I concede, suggest an alarming gap between hearing
argument in this case and delivery of the judgment which in
part was
due to the workload of this division but in part, and in major part I
might add, to the complexities that faced me in
having to decide this
case.’
[53] Due and careful
regard being had to the considerable pressure that the workload in
the high court imposes upon Judges and the
complexities of the case,
the delay in furnishing the judgment, was nevertheless unreasonable.
This Court disapproves of unreasonable
delay by judicial officers in
delivering judgments. In
Pharmaceutical Society of South Africa
and Others v Tshabalala-Msimang and Another NNO; New Clicks South
Africa (Pty) Ltd v Minister
of Health and Another
2005 (3) SA 238
(SCA) para 39, Harms JA stated the following:
‘
The
judicial cloak is not an impregnable shield providing immunity
against criticism or reproach. Delays are frustrating and
disillusioning
and create the impression that Judges are imperious.
Secondly, it is judicial delay rather than complaints about it that
is a threat
to judicial independence because delays destroy the
public confidence in the judiciary. There rests an ethical duty on
Judges to
give judgment or any ruling in a case promptly and without
undue delay and litigants are entitled to judgment as soon as
reasonably
possible. Otherwise the most quoted legal aphorism, namely
that “justice delayed is justice denied”, will become a
mere platitude.’
[54] I would accordingly
grant the following order:
1 The appeal is
dismissed.
2 The appellant is
ordered to pay the costs of the second respondent.
_________________________
K G
B Swain
Judge
of Appeal
Nicholls
JA (Petse DP and Makgoka JA concurring)
[55]
I have read the judgment (main judgment) of my colleague, Swain JA.
While I agree with the main judgment that the appeal ought
to be
dismissed, I do not share the view that the appellant should pay the
second respondent’s costs. As the main judgment
correctly
points out, the appellant is an environmental justice
non governmental organisation, which seeks to promote and
achieve environmental justice for residents and communities of the
South Durban industrial basin area. The final scoping report
identified the area as a prime industrial site which has had a
history of environmental injustice and well-documented air quality
issues. The social dynamics are complicated with a history of
conflict between the community and industry.
[56]
There can be no dispute that the appellant did not pursue this
litigation for its own self-interest or private commercial interests
but in an attempt to achieve a cleaner environment for a marginalised
community who has been the victim of apartheid spatial planning
over
a protracted period of years. By placing this community in the middle
of the highly polluted industrial basin, they have suffered
years of
related health problems. While the appellant cannot be successful in
its appeal for the reasons already set out in the
main judgment, the
question is whether they should be liable to pay the second
respondent’s costs. As already indicated the
main judgment
answers this in the affirmative.
[57]
The
Biowatch
principle
[3]
is
now established law, any party who litigates in good faith against
the State in an attempt to vindicate their constitutional
rights is
not liable to pay the legal costs of the State should they be
unsuccessful. The challenge should be genuine and non-frivolous.
There is no suggestion that the appellant was either frivolous or
insincere by resorting to litigation to champion the rights of
the
effected community. Citing
Biowatch
,
the first respondent abandoned the costs it was granted in the High
Court and sought no costs in the appeal.
[58]
The Constitutional Court has acknowledged the invaluable role played
by public interest groups in a democratic society and
the chilling
effect that an award of costs may have on litigants who wish to
vindicate their constitutional rights.
[4]
The
Constitutional Court in
Biowatch
pointed out, that constitutional issues will not often arise where
the State is not a party to the litigation but they will arise
from
time to time.
[5]
This
was precisely the case in
Campus
Law Clinic, University of Kwazulu Natal v Standard Bank of South
Africa
.
[6]
The
Constitutional Court found it not to be in the interests of justice
to grant leave to appeal and the application for direct
access, but
because it was a matter involving banks and mortgagees, no order as
to costs was made. This was because Campus Law
Clinic ‘sought
to raise important constitutional issues in [the Constitutional]
Court, albeit unsuccessfully’.
[7]
This
is not the only instance where the Constitutional Court has seen fit
not to award costs against an unsuccessful litigant in
private
litigation.
[8]
[59] In terms of s
2(4)
(c)
of the National Environmental Management Act 107 of
1998 (NEMA) ‘[e]nvironmental justice must be pursued so that
adverse
environmental impacts shall not be distributed in such a
manner as to unfairly discriminate against any person, particularly
vulnerable
and disadvantaged persons’. Section 32(1) of NEMA
provides:
‘
(1)
Any person or group of persons may seek appropriate relief 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 –
(a)
in that
person’s or group of person’s own interest;
(b)
in the
interest of, or on behalf of, a person who is, for practical reasons,
unable to institute such proceedings;
(c)
in the
interest of or on behalf of a group or class of persons whose
interests are affected;
(d)
in the
public interest; and
(e)
in the
interest of protecting the environment.’
[60]
The appellant argues that s 32(2)
[9]
of
NEMA is the codification of the
Biowatch
principle in the context of litigation implicating environmental
rights. As NEMA pre-dates
Biowatch
this may be a misnomer. This section gives a court a discretion
not to award costs against any party who failed to secure
the relief
sought in respect of a breach of any of the provisions of NEMA. Like
Biowatch
,
this is dependent on whether the court is of the opinion that the
party acted out of public interest, or in this particular instance,
in the interests of protecting the environment.
[61]
It is common cause that the appellant was acting out of a genuine
concern for the environment with the objectives as set out
in s 32(1)
above. In
Magaliesberg
Protection Association v MEC: Department of Agriculture,
Conservation, Environment and Rural Development, North West
Provincial Government and Others
[10]
,
Navsa JA stated that ‘[w]e should all laud the efforts of
conservationists . . . . they generally act to preserve and protect
the environment for the benefit of present and future generations.’
In
Magaliesberg
Protection Association
the appellant sought to set aside the decision of the MEC
ex
post facto
to grant environmental authorisation to the third respondent, a
private party, to build a hotel. An interim interdict to prevent
the
construction pending the final review was refused. This did not deter
the appellant from proceeding. This Court found that
the appellant
failed to show at the most basic level that it was entitled to the
relief sought. Nonetheless relying on s 32(2)
of NEMA each party was
ordered to pay its own costs.
[62]
The main judgment finds that the appellant acted unreasonably in
failing to interdict the construction of the logistics park
at the
outset. While commending the State for abandoning its costs order in
terms of the
Biowatch
principle, it finds that this principle does not apply to private
parties particularly in the circumstances of this case.
[63]
Insofar as the High Court found that the appellant should be liable
for the costs of the second respondent, this Court is entitled
to
interfere with the exercise of that discretion if it resulted in an
‘unjustifiable conclusion’
[11]
.
The High court justified the costs order against the appellant on the
basis that it had unreasonably delayed in launching its
review
application. For this reliance was placed on the judgment of this
Court in
Beweging
vir Christelik-Volkseie Onderwys and Others v Minister of Education
and Others
,
where it was held that the delay in bringing the application had
rendered it manifestly inappropriate and therefore an exception
to
the
Biowatch
principle.
[12]
In
that matter the government notice which the appellants’ sought
to review in terms of PAJA, was known to them in April 2005,
if not
years before. The application was launched in September 2007, 2 years
and 5 months later. An application for the condonation
of the late
filing was itself beset by unreasonable delays with the replying
affidavit being filed 18 months late. This can hardly
be compared to
the situation in the present matter where the application was issued
within the 180 day period, albeit shortly before
the expiry thereof.
[64]
Although a delay of more than 180 days is per se unreasonable, this
does not mean that a delay within the 180 day period set
out in s
7(1) of PAJA is necessarily reasonable
[13]
.
However, as Plasket J stated in
Joubert
Galpin Searle and others v Road Accident Fund
:
‘
Notionally,
therefore, it is possible that a delay in launching a review
application of less than 180 days after the cause of action
arises
can be an unreasonable delay but I think it is fair to say that cases
of this sort will be rare and have exceptional circumstances.
I say
this because in practice, prior to the PAJA coming into force, delays
of anything between six and nine months were generally
regarded as
not being unreasonable and, since PAJA came into force, the 180-day
limit has tended to be regarded as the dividing
line between
reasonable and unreasonable delay’.
[14]
[65] In relying on the
delay as the reason for the inapplicability of
Biowatch
, I am
of the view that the High Court erred in the exercise of its
discretion and reached an unjustifiable conclusion. It does
not seem
to me that the delay was in any way exceptional, it is common cause
that the second respondent commenced construction
just short of 3
months after the review application was launched.
[66]
Accordingly, I am not persuaded that a public interest litigant in
the position of the appellant, where the application was
brought
within the 180 days, should be mulcted with costs. This is more so in
instances, as in this case, where the
Biowatch
principle is buttressed by s 32(2) of NEMA which has direct
application. This being so, an adverse costs order should not be made
against the appellant who has acted only for the benefit of the
community to assert its constitutional right, ‘to an
environment
that is not harmful to their health or well-being.’
[15]
[67] I would therefore
dismiss the appeal on its merits but uphold it as regards the costs
and would make the following order:
1 The appeal against the
order of the High Court succeeds only in respect of costs but is
otherwise dismissed.
2 Each party is to pay
its own costs.
3 The order of the High
Court is set aside and is substituted with the following:
‘
The
application is dismissed. Each party is to pay its own costs.’
__________________
C
H Nicholls
Judge of Appeal
Makgoka
JA (Petse DP and Nicholls JA concurring)
[68]
I have had an opportunity of reading the judgments of my colleagues,
Swain and Nicholls JJA. I agree with Swain JA that the
appeal should
be dismissed for the reasons set out in his judgment. However, in
relation to costs, I agree with Nicholls JA that
it is not
appropriate to mulct the appellant with costs, both in this court and
the court a quo. I briefly state my reasons for
agreeing with the
judgment of Nicholls JA.
[69] In terms of the
preamble to NEMA, the State is the repository of the environment. As
a result, environmental litigation would
invariably mostly involve
individuals or public-interest groups like the appellant, against the
State. The
Biowatch
principle would ordinarily apply where a
private entity is unsuccessful against the State. However, as between
two private entities,
such as the appellant and the second
respondent,
that
principle, does, ordinarily not apply.
But this does not mean its underlying reasoning is irrelevant. This
is because of s 32(2)
of NEMA. Two observations about the section.
First, it embodies the
Biowatch
principle.
[1]
Second,
it subjects the court's ordinary discretion on costs to certain
further guiding principles contained in NEMA.
[70] It therefore admits
of no debate that in environmental litigation, the essence of the
Biowatch
principle is applicable, and extends to litigation
between private entities such as the appellant and the second
respondent. In
Biowatch
the circumstances in which a private
entity could be ordered to pay the State’s cost in the event of
being unsuccessful,
were explained. After referring to the
general approach to costs in constitutional litigation, Sachs J
explained (para 24):
‘
At
the same time, however, the general approach of this Court to costs
in litigation between private parties and the state, is not
unqualified. If an application is
frivolous
or vexatious, or in any other way manifestly inappropriate
,
the applicant should not expect that the worthiness of its cause will
immunise it against an adverse costs award.’
(my
emphasis.)
[71]
In the light of s 32(2) of NEMA, these considerations apply with
equal force as between private entities in environmental litigation.
[72]
Turning to the present case, there is no suggestion that the
appellant’s application was frivolous or vexatious. The
first
judgment mulcts the appellant with costs because it considers its
case to have been inappropriate. This is because it failed
to
interdict the second respondent’s works at the outset. I do not
consider this to be ‘manifestly inappropriate’
in the
sense meant by Sachs J in
Biowatch
.
Instead, I deem it a mere ‘inadvertent procedural or
technical lapse’ (para 23 of
Biowatch
).
In my view, something more in the conduct of a litigant is required
to remove the
Biowatch
shield, and order such party to pay costs. Misconduct, dishonesty,
recklessness and ulterior motive are immediate examples of such
conduct. None of these can be attributed to the appellant.
Furthermore, despite it being unsuccessful both in the court a quo
and in this court, its case cannot be classified as being totally
hopeless from the inception.
[73]
A typical example of conduct which is ‘manifestly
inappropriate’ is that of a
non-governmental
organisation in
Wildlife and
Environmental Society of South Africa v MEC for Economic Affairs,
Environment and Tourism, Eastern Cape, and Others
2005
(6) SA 123
(ECD). There, the application was unnecessary and
unreasonable because the organisation’s very real concerns had
already
been met, and the application was doomed to failure from its
inception. It was accordingly, and understandably, ordered to pay
costs.
That, with respect, cannot be
said of the appellant’s conduct in this matter.
[74]
The chilling effect which a costs order in the circumstances of this
case will have on environmental non-governmental organisations,
is
manifest. The failure by the appellant to interdict the works at the
outset, could be attributable to a number of factors. Because
this
was never pertinently raised as a discrete issue in the papers, the
appellant has never had an opportunity to meaningfully
explain it.
In
Silvermine Valley Coalition v Sybrand
van der Spuy Boerderye and Others
2002
(1) SA 478
(C) at 484G Davis J pointed to the difficulties which
non-governmental organisations have to confront in order to litigate,
particularly
in that many of them possess limited means.
[75] For these reasons, I
do not agree that the appellant should be ordered to pay the costs of
the second respondent. As between
them, there should not be a costs
order. Hence my concurrence with Nicholls JA.
____________________
T M Makgoka
Judge of Appeal
Appearances:
For
the Appellant:
S Magardie (with G Solik)
Instructed
by:
Legal
Resources Centre, Cape Town
Webbers,
Bloemfontein
For
the First Respondent:
A Gabriel SC (with M Moodley)
Instructed
by:
The
State Attorney, Durban
The
State Attorney, Bloemfontein
For
the Second Respondent:
A J Lamplough
Instructed
by:
Ensafrica,
Johannesburg
Symington
& De Kok, Bloemfontein
[1]
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 578.
[2]
There
are several instances where, despite the fact that the review
involved environmental legislation, our courts have awarded
costs
against the unsuccessful litigant. (See for example
MEC,
Department of Agriculture, Conservation and Environment and Another
v HTF Developers (Pty) Ltd
[2007] ZACC 25
;
2008
(2) SA 319
(CC) para 56;
Fuel
Retailers of Southern Africa v Director-General Environmental
Management, Department of Agriculture, Conservation and Environment,
Mpumalanga Province and Others
2007
(6) SA 4
(CC) para 108;
BP
Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation,
Environment and Land Affairs
2004
(5) SA 124
(W) at 160H and
MEC
for Agriculture, Conservation, Environment and Land Affairs v Sasol
Oil (Pty) Ltd
2006
(5) SA 483
(SCA) para 30.
[3]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14;
2009
(6) SA 232 (CC).
[4]
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006
(3) SA 247
(CC) para 138;
Biowatch
para
21-23.
[5]
Biowatch
para 27
[6]
Campus
Law Clinic, University of Kwazulu-Natal v Standard Bank of South
Africa
[2006]
ZACC 5
;
2006
(6)
SA 103 (CC).
[7]
Id
para 28.
[8]
Giddey
NO v J C Barnard and Partners
[2006]
ZACC 13
;
2007 (5) SA 525
(CC) para 35;
South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Ltd
(Seafoods
Division Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para 52.
[9]
Section
32(2) of NEMA reads–
‘
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 persons 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.’
[10]
Magaliesberg
Protection Association v MEC: Department of Agriculture,
Conservation, Environment and Rural Development, North West
Provincial Government and Others
[2013] ZASCA 80
;
[2013]
3 All SA 416
(SCA) para 61.
[11]
Biowatch
para
31 quoting
Bookworks
v Johannesburg Metropolitan Transitional Council
1999 (4) SA 799
(T) 807G H and 808A-B.
[12]
Beweging
vir Christelik-Volkseie Onderwys and Others v Minister of Education
and Others
[2012] ZASCA 45
;
[2012]
2 All SA 462
(SCA) para 67-71.
[13]
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[2013]
ZASCA 148
;
[2013] 4 All SA 639
para 26.
[14]
Joubert
Galpin Searle and Others v Road Accident Fund
[2014] 2 All SA 604
(ECP) para 40.
[15]
Section
24
(a)
of the Constitution.