THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 637/23
In the matter between:
HANNERé CECILE JOOSTE FIRST APPELLANT
JAN LOUIS JORDAAN SECOND APPELLANT
and
MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT
ENVIRONMENTAL AFFAIRS & DEVELOPMENT
PLANNING: WESTERN CAPE FIRST RESPONDENT
DIRECTOR: DEVELOPMENT
MANAGEMENT (REGION 1) OF THE DEPARTMENT
OF ENVIRONMENTAL AFFAIRS & DEVELOPMENT
PLANNING: WESTERN CAPE SECOND RESPONDENT
DIRECTOR; WASTE MANAGEMENT
DEPARTMENT OF ENVIRONMENATAL AFFAIRS
& DEVELOPMENT PLANNING: WESTERN CAPE THIRD RESPONDENT
SOUTH AFRICAN FARM ASSURED MEAT GROUP CC FOURTH RESPONDENT
HENDRIK JOHANNES SWANEPOEL DE BOD NO FIFTH RESPONDENT
JOHANNES PETRUS DU BOIS NO SIXTH RESPONDENT
DANIёL JACOBUS VAN STADEN NO SEVENTH RESPONDENT
Neutral citation: Jooste and Another v Member of the Executive Council for Local
Government Environmental Affairs & Development Planning: Western
Cape and Others (637/2023) [2024] ZASCA 138 (11 October 2024)
2
Coram: MOLEMELA P , PONNAN and KEIGHTLY JJA and BAARTMAN and
DIPPENAAR AJJA
Heard: 20 August 2024
Delivered: 11 October 2024 at 11h00
Summary: Appeal against dismissal of review and declaratory relief – disputes resolved in
terms of settlement made an order of court – appellants did not seek to challenge or set aside
the said order – issues res judicata – appellants bound by order and cannot revisit same
issues – appeal dismissed with costs.
3
________________________________________________________________________
ORDER
On appeal from: Western Cape Division of the High Court, Cape Town (Nuku J, sitting as
court of first instance):
1 The appeal is dismissed.
2 The appellants are directed to pay the costs of appeal of the fourth to seventh
respondents, including the costs of two counsel, where employed.
JUDGMENT
Dippenaar AJA (Molemela P, Ponnan and Keightly JJA and Baartman AJA concurring):
Introduction
[1] This appeal1 concerns the effect of a court order on review proceedings. It pertains to
an environmental authorisation granted in favour of the fourth respondent, the South African
Farm Assured Meat Group CC (SAFAM), in terms of s 24 of the National Environmental
Management Act 107 of 1998 (NEMA), authorising Listed Activities 4 and 28 of Listing Notice
1 of 2014 (Listed Activities).2 The high court dismissed the review application as well as the
ancillary relief sought, holding that the appellants made out no case for relief. The appeal is
with leave of this Court.
[2] Prior to the hearing, the appellants abandoned the appeal insofar as it relate d to a
waste management licence granted to SAFAM under s 20 of the National Environmental
Management: Waste Act 59 of 2008 (NEM: WA). This disposed of a substantial part of the
appeal.
1 The first appellant passed away after the granting of leave to appeal and the appeal is being pursued by the
second appellant.
2 Published under GG 38282, GN 983 dated 4 December 2014, as amended by GG 40772 GN 327 of 7 April
2017 and GG 41766 GN 706 of 13 July 2018
4
[3] The genesis of the appeal lies in a composting facility situated on a farm in Robertson
(the project site), 3 owned by the Reben Trust 4 and leased by SAFAM, which operates the
composting facility . SAFAM also operates abattoir facilities from other premises in
Robertson. The project site is adjacent to properties owned by the first and second
appellants, which form part of the Doornkloof Private Nature Reserve, a statutorily protected
area,5 on which the appellants conduct tourism -based activities. The first respondent , the
Member of the Executive Council for Local Government, Environmental Affairs and
Development Planning: Western Cape (the MEC), the second respondent , the Director:
Development Management (Region 1) of the Department of Environmental Affairs &
Development Planning: Western Cape (the Director, NEMA) and the third respondent, the
Director: Waste Management of the Department of Environmental Affairs and Development
Planning: Western Province (the Director NEM: WA), are functionaries who were involved in
the determination of those applications and the internal appeals which followed.
[4] The appellants seek the setting aside of the environm ental authorisation granted to
SAFAM under NEMA by the Director, NEMA on 29 November 2019. Declaratory orders are
further sought on the basis that SAFAM had unlawfully commenced with Listed Activities 8
and 28 of Listing Notice 1 under NEMA . An order is sought directing the Director, NEMA to
take all steps necessary to enforce compliance by SAFAM with the provisions of NEMA ,
together with a costs order against any respondents who oppose the appeal. The appeal is
opposed by the fourth to seventh respondents. The State respondents abide th is Court’s
decision as they did in the high court.
The facts
[5] The background facts are uncontentious. The composting facility was established by
SAFAM during February 2017, after it was advised by the Langeberg Municipality that its
SAFAM during February 2017, after it was advised by the Langeberg Municipality that its
abattoir waste6 could no longer be disposed of at the Municipality’s waste disposal site in
3 Portion 6 of the Farm Middelburg No. 10.
4 The fifth to seventh respondents are the trustees for the time being of the Reben Trust.
5 Under s 12 of the National Environmental Management: Protected Areas Act 57 of 2003. The properties were
thus proclaimed in terms of s 12(4) of the Cape Nature Conservation Ordinance 19 of 1974 under Western
Cape Provincial Gazette 5533 Notice 281 of 9 June 2000.
6 Comprising of animal by-products, blood and carcasses.
5
Ashton after the end of 2016. SAFAM’s composting facility disposes of the abattoir waste in
windrows, ultimately producing organic compost which is either used on the farm or sold to
third parties . The appellants complain that c onsequent upon the establishment of the
composting facility, the use and enjoyment of their properties , and the tourism activities
thereon, have been impacted by foul odours and flies emanating from the composting facility.
[6] During January 2018, SAFAM submitted applications to obtain the necessary
authorisations to conduct the composting facility on the project site. 7 An a pplication for
environmental authorisation under NEMA was made to conduct Listed Activities 48, 89 and
28.10
[7] The appellants registered as interested and affected persons and actively participated
in opposition to SAFAM’s applications to obtain the necessary environmental consents
throughout the process. They consistently contended that SAFAM had unlawfully
commenced with Listed Activities in violation of s 24F(1) (a) of NEMA, which prohibits the
commencement of any listed activity under s 24(a) and (b) of NEMA. This would necessitate
SAFAM having to apply for retrospective authorisation under s 24G of NEMA, involvi ng,
amongst others, the possible cessation of any composting activities by SAFAM at the facility
7 The environmental authorisation application was duly made in terms of regulation 16 of the Environmental
Impact Assessment Regulations of 2014, published under GN R982 in GG 38282 of 4 December 2014 .
8 Listed Activity 4 is defined in Listing Notice 1 as: ‘The development and related operation of facilities or
infrastructure for the concentration of animals in densities that exceed –
(i) 20 square metres per large stock unit and more than 500 units per facility;
(ii) 8 square metres per small stock unit and;
(a) more than 1000 units per facility excluding pigs where (b) applies; or
(b) more than 250 pigs per facility excluding piglets that are not yet weaned;
(b) more than 250 pigs per facility excluding piglets that are not yet weaned;
(iii) 30 square metres per crocodile and more than 20 crocodiles per facility;
(iv) 3 square metres per rabbit and more than 500 rabbits per facility; or
(v) 250 square metres per ostrich or emu and more than 50 ostriches or emu per facility
9 Listed Activity 8 is defined in Listing Notice 1 as: ‘The development and related operation of hatcheries or agri-
industrial facilities outside industrial complexes where the development footprint covers an area of 2000 square
metres or more.’
10 Listing Activity 28 is defined in Listing Notice 1 as: ‘Residential, mixed, retail, commercial industrial or
institutional developments where such land was used for agriculture, game farming, equestrian purposes or
afforestation on or after 01 April 1998 and where such development:
(ii) will occur outside an urban area, where the land to be developed is bigger than 1 hectare;
excluding where such land has already been developed for residential, mixed, retail, commercial or industrial
purposes’.
6
under s 24G(1) (aa)(A), pending the determination of such application and payment of an
administrative fine under s 24G(4).
[8] A draft Basic Assessment Report was circulated for comment on 14 March 2018,
whereafter the Director, NEMA, during April 2018, sought, inter alia, confirmation of the size
of the area used for the composting facility from SAFAM and the applicability of Listed Activity
28. Pursuant to SAFAM ’s response, the Director, NEMA requested that SAFAM’s NEMA
application be withdrawn on the basis that it had unlawfully commenced with Listed Activity
28, pending the conclusion of an investigation. On 23 May 2018, SAFAM was informed by
the Director, NEMA that a new application would have to be submitted as the application had
lapsed due to the failure to submit a final Basic Assessment Report , and that the file had
consequently been closed. On 16 August 2018, t he Director: NEM: WA rejected the NEM:
WA application on a similar basis, namely that SAFAM had unlawfully commenced with
certain listed activities, including Listed Activity 28.
[9] After an unsuccessful internal administrative appeal under s 43(2) of NEMA, which
was dismissed by the MEC on 13 June 2019, SAFAM launched an application in the high
court on 14 August 2019 to review the dismissal of its application for a waste management
licence under NEM: WA on 16 August 2018 , and the dismissal of its appeal against that
decision under NEMA on 13 June 2019 (the SAFAM review). Its stated purpose in doing so
was ‘to resolve the series of obstacles in the form of erroneous and irrational administrative
actions and conclusions, that prevent (SAFAM) from operating the existing composting
facility and further expanding it’. Various declaratory and directory orders were sought
against the MEC and the Department of Environmental Affairs and Development Planning
(collectively the Department).11
11 In relevant part, a declaratory order was sought that SAFAM had not commenced with Listed Activity 28
under NEMA. An order was further sought directing the MEC to condone SAFAM’s failure to timeously submit
its Basic Assessment Report relating to its NEMA application for environmental authorisation for Listed Activities
4, 8 and 28 within the period contemplated by regulation 19(1) (a) of the 2014 EA Regulations under s 47C, on
the basis that the pending investigations by the Department were not concluded. An order was sought directing
the Department of Environmental Affairs and Development Planning to consider and decide upon the NEMA
application within thirty days of submission of the Basic Assessment Report.
7
[10] The Department opposed the application. In the answering papers, the Department
raised substantially the self-same issues and arguments as advanced by the appellants
throughout the process and in the present appeal. The central issues were whether SAFAM
had unlawfully commenced Listed Activities in contravention of s 24F(1)(a) of NEMA and
whether the retrospective application process in s 24G had to be followed by SAFAM. These
issues had underpinned the rejection of SAFAM’s application s for environmental
authorisation and a waste management licence. It was further in dispute whether SAFAM
unlawfully commenced with a Listed Activity and there were issues relating to the size of the
existing composting facility.
[11] The appellants were not cited as parties to the SAFAM review application but became
aware thereof on 10 October 2019, some six days before the hearing date . They were
informed by the State Attorney, representing the Department, that settlement negotiations
were underway with SAFAM.
[12] A settlement was reached between SAFAM and the Department, which culminated in
an order being granted by consent in the Western Cape Division of the High Court on 18
October 2019, reflecting the terms of their settlement (the settlement order).12 The
12 The order provides:
‘1. The decision taken by the first respondent (“the minister”) on the 13 June 2019 in respect of the appeal
lodged by the applicants in terms of section 43(6) of National Environmental: Management Act, 107 of 1998
(“NEMA”) against the decision referred to in paragraph 2 below is reviewed and set aside.
2. The decision taken by the director, Waste Management on 16 August 2018 to reject the First Applicant’s
application for a waste management licence (“the Waste Management Licence Application”) in terms of section
49(1)(c) of the National Environmental: Management Waste Act, 59 of 2008 (“NEM: WA”) is reviewed, set aside
and remitted to the Director: Waste Management in terms of section 8(1)(C)(i) of the promotion of Administrative
Justice Act, Act 3 of 2000, for a determination of the waste management Licence Application, with the following
directions:-
2.1 the Applicants shall within 5 days of the date of the court order submit such further information as required
by the department pursuant to the Waste Management Licence Application in respect of the land developed for
the purposes of the composting facility in order to ascertain whether such land is bigger than 1 hectare for
purposes of Activity 28 of Listing Notice 1;
2.2 the remainder of the information submitted as part of the Waste Management Licence application shall
suffice and does not need to be resubmitted.
3. It is recorded that, pursuant to the settlement of this application, the Minister has, in terms of section 47C of
NEMA, condoned the First Applicant’s failure to submit the final Basic Assessment Report for purposes of the
First Applicant’s application for environmental authorisation in terms of the 2014 EIA Regulations for activities
4,8 and 28 as contained in listing notice 1: 2014 (“t he NEMA Application”), within the time periods required by
regulation 19(1) of the 2014 EIA Regulations.
8
settlement order set aside the decisions made by the Department to dismiss SAFAM’s
NEMA appeal and its application for a waste management licence. The waste management
licence application was remitted to the Department for consideration by a certain date, and
SAFAM was directed to provide certain additional information specified in the order .
Condonation was granted by the Minister under s 47C for SAFAM’s failure to timeously
submit its Basic Assessment Report. Pending the determination of the authorisation
applications, the Department undertook not to take any enforcement steps against SAFAM,
‘who in turn undertook not to conduct composting activities over an area exceeding 1 hectare
and ten tonnes of waste per day. The appellants were furnished with a copy of the settlement
order on 25 October 2019. SAFAM complied with the settlement order, culminating in the
granting to SAFAM of an environmental authorisation on 29 November 2019, authorising
Listed Activities 4 and 28. A waste management licence was also granted.
[13] This triggered the launching of a combined internal appeal under s 43(2) of NEMA by
the appellants on 13 January 2020 against the granting of the authorisation and licence. The
appeal was dismissed by the MEC on 31 August 2020, who confirmed the environmental
authorisation and waste management licence. This resulted in the launching of the review
application, the subject of this appeal, in the high court.
The issues
4. The First Applicant shall submit the final NEMA Basic Assessment Report, and the information referred to in
paragraph 2.1 above to the Department within 5 days of the date of the court order.
5. Provided that the First Applicant complies with the time periods in paragraphs 2.1 and 4 above, the decision
in respect of Waste Management Licence Application and the NEMA Application shall be made by no later than
29 November 2019.
6. Pending the First Applicant obtaining a waste management licence under NEM:WA, alternatively complying
with the National Norms and Standards for Organic Waste Composting, if and when they come into effect, and
such environmental authorisation under NEMA as may be required.
6.1 The Applicants undertake not to treat in excess of ten tons of general waste per day calculated on monthly
average on portion 6 of farm Middelburg 10, Robertson (“ the Farm ”) and the total area within which the
composting activities take place on the Farm shall not exceed 1 hectare.
6.2 The Department undertakes not to take any further enforcement steps against the applicants in terms of
chapter 7 of NEMA on the basis that the Applicants have unlawfully commenced with Listed Activity 28 and/ or
Waste Listed Activity 6, provided that the Applicants comply with the undertaking in 6.1.
7. The Department shall pay the Applicants’ party and party costs.’
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[14] In the high court, t he appellants raise d mainly procedural grounds of review , the
majority of which were not persisted with on appeal . Before this Court , in their heads of
argument, the appellants articulated their four grounds of appeal thus:
(a) that the MEC’s condonation decision in terms of s 47C of NEMA was procedurally unfair
as no prior notice of the MEC’s intention was given to the appellants or other interested and
affected parties, no opportunity was afforded to them to make representations and no
information or reasons for the decision were ever provided;
(b) that the MEC was not empowered to take the condonation decision under s 47C - this
ground was abandoned at the hearing and requires no further comment;
(c) that SAFAM unlawfully commenced with Listed Activity 28 in breach of s 24F of NEMA;
and
(d) that SAFAM unlawfully commenced with Listed Activity 8 in breach of s 24F of NEMA.
[15] The major obstacle facing the appellants is the settlement order of 18 October 2019.
On a grammatical, contextual and purposive interpretation of the settlement order, its ambit
and effect is that it sets aside the State respondents’ previous decisions and resolved the
issues between the parties , which informed those decisions . This included any unlawful
commencement of the impugned Listed Activities that were considered to contravene s 24F
of NEMA . It further provided directions facilitating the process which culminated in the
granting of the environmental authorisation on 29 November 201 9, without directing any
further public participation requirements. It thus resolved the very factual and legal issues
regarding SAFAM’s conduct which underpin this appeal.
[16] One of the core objectives of court orders is bringing finality to litigation.13 The
settlement order brought finality to the lis between SAFAM and the State respondents, which
became res judicata and finally disposed of those issues.14 It is of no consequence that the
became res judicata and finally disposed of those issues.14 It is of no consequence that the
source of the order was a settlement between the parties. Such order is an order like all
others and will be interpreted as such.15 The settlement order is not a nullity but exists in fact
13 Moraitis Investments (Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others [2017] ZASCA 54; [2017] 3 All
SA 485 (SCA); 2017 (5) SA 508 (SCA) para 10.
14 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 29 and 31.
15 Eke para 57.
10
and has legal consequences .16 It is binding and must be complied with, obeyed and
respected, irrespective of whether it has been correctly or incorrectly granted, until it is set
aside.17
[17] Despite prior knowledge of the pending SAFAM review application that culminated in
the settlement order , the appellants did not enter the fray or seek to intervene in those
proceedings to raise any issue that may have adversely impacted on the settlement
negotiations. After receipt of a copy of the settlement order, they took no steps to have the
order rescinded or set aside. It was open to the appellants to challenge the order and seek
its rescission, which they elected not to do. The appellants have also not sought any relief in
respect of the order in the present proceedings.
[18] The appellants’ strident allegations of connivance between SAFAM and the State
respondents and the existence of ‘irregularities’ and ‘anomalies’ in the order, set out in the
appellants’ founding affidavit, lack merit and are worthy of censure. Those allegations
resulted in the State respondents delivering an explanatory affidavit in response before the
high court, an issue relevant to determining an appropriate costs order.
[19] The appellants’ collateral attempt to challenge the validity of the settlement order by
way of review proceedings which seek to revive issues which have been resolved, is
untenable. This is because the appellants’ case relies on issues which preceded the
settlement agreement and disregards its effect . The settlement order following upon the
settlement agreement is dispositive of all of the grounds of appeal advanced.
[20] In argument, this Court was urged not to mulct the appellants with costs if the appeal
is not successful , and to apply the principles in Biowatch Trust v Registrar, Genetic
16 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2)
SA 622 (CC) para 182.
SA 622 (CC) para 182.
17 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in
the Public Sector including Organs of State v Zuma and others [2021] ZACC 18; 2021 (9) BCLR 992 (CC);
2021 (5) SA 327 (CC) para 59.
11
Resources,18 as the appeal is not vexatious or frivolous. R eliance was also placed on the
provisions of s 32(2) of NEMA,19 in arguing that the appellants acted reasonably and in the
public interest.
[21] These principles do not avail the appellants. Considering: (a) the history of the matter,
(b) the intemperate allegations in the founding papers in the face of the clear consequences
of the unchallenged settlement order; and (c) the abandonment of a substantial portion of the
appeal, the conclusion may well be inescapable that the appeal was frivolous and that the
appellants acted unreasonably and not in the public interest in pursuing it. It is these spurious
allegations that led the State respondents to file an explanatory affidavit in the high court and
to make written and oral submissions in this Court. There is thus no reason to deviate from
the normal principle that costs follow the result. The State respondents elected to abide the
decision on appeal, as they did in the high court and although counsel was instructed with a
view to assisting this Court no costs were sought.
[22] In the result, the following order is granted:
1 The appeal is dismissed.
2 The appellants are directed to pay the costs of appeal of the fourth to seventh
respondents, including the costs of two counsel, where employed.
_________________________
E F DIPPENAAR
ACTING JUDGE OF APPEAL
18 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR
1014 (CC) para 19.
19 Section 32(2) of NEMA provides:
‘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 principle
contained in Chapter 1, or o ,f 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 effort to use other means reasonably available
for obtaining the relief sought.’
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Appearances
For the appellants: P Lazarus SC with S Pudifin-Jones and S
Khoza
Instructed by: Ndlovu De Villiers Attorneys
Webbers, Bloemfontein
For the first to third respondents: C De Villiers
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein
For the fourth to seventh respondents: Van Rooyen SC with A Jansen
Instructed by: Du Bois Attorneys
Symington De Kok Attorneys, Bloemfontein.