SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

CASE NO: 9/2024

In the matter between

MILNERTON CENTRAL RESIDENTS ASSOCIATION APPLICANT

And

ZAAHIR TOEFY N.O. FIRST RESPONDENT

ANTON BREDELL N.O. SECOND RESPONDENT

LITTLE SWIFT INVESTMENTS 92 (PTY) LTD THIRD RESPONDENT

Date of hearing: 20 November 2024
Date of judgment: Judgment was handed down electronically by circulation
to the parties’ representatives by email and released to
SAFLII. The date for hand down is deemed to be 21
February 2025

JUDGMENT


RELIEF APPLIED FOR

[1] The applicant applies for the following relief:

[1.1] Reviewing and setting aside the decision of the first respondent on 6
January 2023 (reference 14/3/1/A1/18/0609/23) to grant to the third
respondent environmental authorisation (“ EA”) for a proposed
residential development and associated infrastructure on erven 2[...]
and 2[...]2 , Milnerton;

[1.2] Reviewing and setting aside the decision of the second respondent
taken on 11 May 2023 to dismiss the appeals and uphold the EA .

[1.3] Remitting the matter back to the first respondent for determination in
accordance with the precepts of the National Environmental
Management Act, 107 of 1998 (“NEMA ”) and the Environmental Impact
Assessment Regulations, 2014, promulgated in terms of NEMA.

[1.4] The applicant also asks this court to exercise its discretion to extend
the 180 -day period of review contemplated in section 7(1) of the
Promotion of Access to Admin istrative Justice Act, 2000 (“ PAJA ”) in
terms of the Court's discretion under section 9(1) of PAJA.

INTRODUCTION

[2] The applicant is a community organisation representing the residents of
Milnerton Central, including the Esplanade pocket of Milnerton. The
Esplanade is a narrow portion of Milnerton situated between the Diep River
mouth and the R27 road - the R27 being an arterial and important road
running from the City of Cape Town close to the sea through the Western
suburbs of Cape Town up the West C oast – and across the Diep River mouth
from the well -known Wood Bridge Island. The R27 (Main Drive) is a scenic
route that extends from the Otto du Plessis Drive - Blaauwberg Road
Intersection to the Milnerton lagoon mouth. It is approximately 10 kilometr es
long. The route is regarded as significant as it offers unique views of Table
Bay, Table Mountain, and the Milnerton Lagoon. The Milnerton Lagoon is a
natural area, although it is situated in the centre of one of the city’s oldest
suburbs.

[3] The propose d development at the centre of this judicial review, which was
granted an EA by the first respondent, is a sizeable six -storey block of flats on
the esplanade side of the R27, where there are no other blocks of flats or
buildings of such height.

[4] The app licant seeks to review and set aside two impugned decisions, the first
made by the first respondent and the second (appeal) made by the second
respondent in terms of NEMA and the Environmental Impact Assessment
Regulations, 2014 promulgated in terms of NEM A (“the 2014 EIA
Regulations”). In essence, the review application concerns the correctness of
these decisions.

[5] The first respondent is the “competent authority” , as contemplated in NEMA
regarding environmental authorisation applications , and the second
respondent is the “appeal authority”. The first and second respondents
oppose this application and are referred to as the “ respondents” .

[6] The third respondent is the company that intends to develop the block of flats
and has not opposed this application. I refer to the third respondent as the
“developer”. The developer, as it was legally obliged to do, appointed an
Environmental Assessment Practitioner (“EAP”) to prepare a Basic
Assessment Report, the final version of which is dated 5 September 2022 (the
“BAR”).

[7] The applicant has six grounds of review that are detailed in its founding
affidavit and supplementary affidavit filed in terms of Uniform Rule 53(4). The
six grounds of review, so the applicant contends, fall within the ambit of
sections 6(2)(b) and/or 6(2)(c) and/or 6(2)(d) and/or 6(2)(e)(iii) and/or 6(2)(f)(ii)
of Promotion of Access to Administrative Justice Act, 2000 (“PAJA” ).

[8] Mr Fehr, representing the applicant, did not vigorously pursue all six grounds
of review. He emphasised , in particular, the first ground of review rega rding
non-compliance with mandatory legal requirements relating to alternatives to
building a block of flats, secondly, the alleged bias of the EAP or lack of
independence , thirdly the failure to properly weigh up ownership of a nearby
development in considering the third respondent’s application , fourth
environmental concerns related to the completion of the Pots Dam wastewater
treatment p lant, the 100-year flood line and the depth of the water table during
the wet season.

[9] Opposed hereto Ms S Mahomed argued on behalf of the first and second
respondents that:

[9.1] As a starting point, the respondents submit that an EA only means that
insofar as the environment is concerned , the proposed development is
sound. The application for an EA is only one of the applications in the
planning and development process. Developments of this nature
require numerous planning applications and processes, and only once
the party seeking to d evelop a property is successful in all of these
applications and processes, can the development commence. In its
founding affidavit, the applicant stated that the Municipal Planning
Tribunal (“MPT”) rejected the developer’s land use management
application (“LMUS”) in terms of the City’s Municipal Planning By -Law,
2015.

[9.2] It is imperative to mention that the decisions that form the subject of
this review application involved weighing up various facts ,
circumstances , and an extensive range of documents addres sing
several issues that had to be considered and reviewed. The
representations of various parties had to be obtained and considered in
light of the principles reflected in the central statute, NEMA, and various
other policy and planning documents.

[9.3] The respondents submitted that the EA and the appeal decision are
just and correct, resulting from a comprehensive consultative and fair
process.

[10] The affidavits filed herein exceeded more than 300 pages , and the record of
the decisions extended to 6000 pages . The Court faces a challenging task
regarding the depth of information and the relevant evidence required.
Consequently, there is a significant risk that the Court could become
sidetracked by peripheral issues, dispu tes, and technicalities. Therefore, I will
begin by examining the judicial responsibilities of the review Court.

COURT’S ROLE TO ENSURE FAIR ADMINISTRATIVE PROCESS IN
ACCORDANCE WITH THE LAW

[11] Courts are reluctant to become involved in the issue of policy, particularly
when such policy relates to the development and implementation of highly
technical and complex decisions .1 Chaskalson CJ stated the Court’s role in
Bel Porto School Governing Body and others v Premier, Western Cape and
another2 as follows:

‘The role of the courts has always been to ensure that the administrative
process is conducted fairly and that decisions are taken in accordance with
the law and consistently with the requirements of the controlling legislation. If
these requ irements are met, and if the decision is one that a reasonable
authority could make, courts would not interfere with the decision. ’

[12] The Court must recognise that a decisionmaker has wide discretion to strike a
balance in furthering the objectives and principles of the Act governing the

1 Food corp (Pty) Ltd v Deputy Director – General, Department of Environmental Affairs and
Tourism: Branch Marine and Coastal Management and others [2004] JOL 12478 (C) at para
60
2 2002 (3) SA 265 (CC) at 292
decision. In such capacity , the decision takes and gives, to a large extent,
effect to government economic policies , and under these circumstances ,
judicial review calls for deference . In Logbro Prop erty CC v Bedderson N.O .
and others3, Camaron, AJ (as he was then) quoted with approval the words of
the learned author Cora Hoexter as follow s:

‘… a judicial willingness to appreciate the legitimate and constitutionally -
ordained province of administrative agencies; to admit the expertise of those
agencies in policy -laden or polycentric issues; to accord their interpretation of
fact and law due resp ect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and the practical and financial
constraints under which they operate. This type of deference is perfectly
consistent with a concern for individual rights an d a refusal to tolerate
corruption and maladministration. It ought to be shaped not by an
unwillingness to scrutinize administrative action, but by a careful weighing up
of the need for – and the consequences of – judicial intervention. Above all, it
ought to be shaped by a conscious determination not to usurp the functions of
administrative agencies; not to cross over from review to appeal.

[13] The aforesaid principle aligns with the fact that a review does not concern the
question of whether there is a bet ter decision or option available to the
decision taker. The fact that there may be more than one rational way of
dealing with a particular problem does not make the choice of one rather than
the other irrational. It is within the domain of the executive to make these
decisions. The Court cannot interfere with rational decisions that have been
lawfully made simply because it believes a different decision would have been
more preferable. The Court should, therefore, not utilise judicial review as an
opportunity to scrutinise the d ecision maker’s decisions in favour of the
Court’s own views, as this would obliterate the distinction between a review
and an appeal. This is especially pertinent in cases concerning subject

3 2003 (2) SA 460 (SCA) at[21]
matters related to administrative actions that are technical or in which the
Court has no particular proficiency.4

[14] In Minister of Environmental Affairs and Tourism and Others v Phambili
Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others
Bato Star Fishing (Pty) Ltd5 the Court held further that:

‘During the course of the argument for Phambili we were frequently told that
something that the Chief Director had done was “wron g”. This is the language
of appeal, not review. I do not think that the word was misused, because time
and time again it appears that what is really under attack is the subst ance of
the decision, not the procedure by means of which it was arrived at. That is
not our job. I agree with what is aid by Hoexter…:

“The important thing is that Judges should not use the opportunity of
scrutiny to prefer their own views as to the corre ctness of the decision,
and thus obliterate the distinction between review and appeal”. …’. 6

[15] In Pietermaritzburg Pistol Club v Member of the Executive Council –
Department of Economic Development and another ,7 the Court referred to the
constitutional constraints with regard to the different powers exercised by
different decision -takers in making decisions regarding environmental matters.
The decision maker may not intrude upon the rights of a different departm ent
regarding land use and land use management, including municipal planning.
In Fuel Retailers Association of SA v Director General Environmental
Management, Department of Agriculture, Conservation and Environmental,
Mpumalanga Province and others8 Ngcobo J stated:


4 Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism and others v Bato Star Fishing (Pty) Ltd 2003
(6) SA 407 (SCA) [ 46] to [5 1]
5 2003 (6) SA 407 (SCA)
6 MEC for Environmental Affairs v Clairisons 2013 (6) SA 235 (SCA) at [18] to [22]
7 [2019] JOL 42427 (KZP) at para [32] and [34]
8 2007 (6) SA 4 (CC) at para [85]
‘The local authority considers need and desirability from the perspective of
town -planning and an environmental authority considers whether a town -
planning scheme is environmentally justifiable. A proposed development may
satisfy the nee d and desirability criteria from a town -planning perspective and
yet fail from an environmental perspective. ’

[16] Local authorities must , therefore, exercise powers confirmed in giving
effective the purpose of the empowering legislation and in pursuit of that
purpose. The local authority is the caretaker of the community interest in
relation to building applications. This empowers the local authority to consider
the impact of a building proposal on the surrounding area, its direct
neighbours, but als o the environment.9

[17] In Sea Front For All v MEC, Environmental Planning10, the legal position was
aptly summarised as follows:

‘Judicial review is, in essence, concerned, not with the decision but with the
decision -making process. Review is not directed at correcting a decision on
the merits. Upon review, the court is, in general terms, concerned with the
legality of the decision, not with its merits. The function of judicial review is to
scrutinise the legality of administrative action, not to s ecure or to substitute a
decision by a judge in the place of the decision of an administrator…’

INTERNAL REMEDY AND GROUNDS OF REVIEW NOT ADVANCED IN THE
APPEAL PROCESS

[18] The application for the EA was lodged on 3 June 2022 , supported by the
developers EAP. On 5 September 2022 , the first Basic Assessment Report
(“BAR”) was received from the EAP, and on 17 November 2022, the EA was
granted. On 3 April 2023 , the first of thirteen appeals w ere lodged against the
EA. The curre nt applicant was one of the thirteen appellants. The appellants
in the appeal process raised the following grounds of appeal:

9 SIMCHA Trust v Da Cruz 2019 (3) SA 78 (CC) at [30]
10 2011 (3) SA 55 (WCC) at [29] 62I – 63A

[18.1] Visual impact;

[18.2] The impact on traffic;

[18.3] Safety and security risks;

[18.4] Public participation;

[18.5] Proposed buildings’ shadow -effect;

[18.6] Alternatives to the activity;

[18.7] The independence of the consultants ;

[18.8] The need and desirability of the project;

[18.9] Flood lines, coastal edge and climate change risks;

[18.10] The provision of bulk services;

[18.11] The impact on the biodiversity in the buffer zone adjacent to the
Table Bay Nature Reserve and Milnerton lagoon estuary;

[18.12] Wind impact.

[19] The second respondent considered each of the grounds of appeal and gave a
detailed reasoned decision , dated 11 May 2023, regarding the grounds of
appeal relied upon by the thirteen appellants in the internal appeal.

[20] The respondents argued , in opposing th e judicial review, that two grounds of
review were not grounds of appeal raised in the internal appeal. The two
grounds not raised in the appeal related to the ownership of the development
and that of the Burmeister Circle Development and , second, the heritage
importance of the properties involved. The respondents accordingly argued
that all internal remedies in terms of s 7(2) of PAJA must be exhausted before
a Court can entertain a judicial review. The rule is , however, not absolute,
and an applicant can proceed with the judicial review if they can convince a
Court that there are exceptional circumstances and that it is in the interest of
justice.

[21] It is settled that an applicant wanting to challen ge an administrative action
must exhaust the internal remedies before proceeding with a review.11 The
respondents argued accordingly that the applicant had to address the
question of why these grounds were not raised in the internal appeal and that
it cann ot rely upon these grounds of review since they should have formed
part of the internal process.

[22] There is a distinction between a ground of review and an internal remedy. Just
as a cause of action differs from an application or action, grounds of appeal
are not equivalent to a remedy . It could never have been the intention of the
legislature, by implementing s 7(2) of PAJA, that a ground for review could not
be raised unless it formed part of the internal remedy process and the
reasoning for the ultimate decision reached as a result thereof. If this w as the
legal position, it would render the provisions of Uniform Rule 53 meaningless
concerning the filing of a record and the procedural right used by the applicant
to amplify their founding affidavit and grounds of review after receiving such a
record.

[23] However, it is significant to note the grounds of appeal that were not included
in the review application. The applicant attack s the decision s on a narrow
basis , abandoning som e grounds of ap peal of greater environmental
significance . The Court was provided, as indicated, with a record of decision
exceeding 6000 pages. In preparing to hear arguments, the parties were
requested to inform the Court which parts of the record required perusal.
Surprisingly, the applicant and respondents indicated that the Court only

11 Dengetenge Holdings (Pty) Ltd v Southern Sphere Min ing and Development Co Limited and
others 2014 (5) SA 138 (CC) at paras 127 to 133
needs to consider the annexures to the affidavits and that, if necessary, the
Court would be directed to specific parts of the record. It became evident
during the argument that almost no reference was made to the record itself,
but rather that the submissions primarily related to the affidavits and
annexures thereto. Upon reviewing all the evidence, the applicant could not
credibly dispu te the factual information, reasoning, or conclusions of the
various reports, investigations, and expert opinions contained in the record.
Different to the judgments in Philippi Horticultural Area Food and Farming
Campaign and another v MEC for Local Gover nment, Western Cape and
others12 and Sea Front For All v MEC, Environmental Planning13 and further
Minister of Environmental Affairs and Tourism and others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism and others v Bato
Star Fishing (Pty) Ltd14 there is no serious factually based attack on the
correctness of the recommendations that the respondents considered in
reaching their respective decisions . There is no clear error or omission of
relevant information substantiated by the applicant’s own evidence or expert
opinion. There is no glaring mistake in any of the reports or
recommendations.

FIRST GROUND OF REVIEW – NON -COMPLIANCE WITH MANDATORY LEGAL
REQUIREMENT

[24] The applicant submits that when considering the environmental authorisation
application, the first respondent was obliged (in terms of Regulation 18 of the
EIA Regulations ) where the peremptory word “must” is used to have regard to
sections 24O and 24(4) of NEMA. In terms of section 24O(b) of NEMA, an
application must take into account all relevant factors including:

‘(iii) where appropriate, any feasible and reasonable alternatives to the
activity which is t he subject of the application and any feasible and

12 2020 (3) SA 486 (WCC)
13 2011 (3) SA 55 (WCC)
14 2003 (6) SA 407 (SCA)
reasonable modifications or changes to the activity that may minimise
harm to the environment;

(viii) any guidelines, departmental policies, and environmental management
instruments … and any other inform ation in the possession of the
competent authority that are relevant to the application. ’

[25] In terms of section 24(4)(b)(i) of NEMA when considering the application, a
Competent Authority must include “investigation of the potential
consequences or impacts of the alternatives to the activity on the environment
and assessment of the significance of those potential consequences or
impacts, including the option of not implementing the activity” .

[26] The applicant argues that the EAP, the BAR, and the Respondents, in
reaching their Decisions, acknowledged (correctly) that the City of Cape
Town’s (the City’s) ‘Tall Building Policy’ of 2013 is a relevant policy for
determining the application. This policy also stresses (like NEMA) that a
developer must propose alternatives to the development. The Tall Building
Policy states explicitly that low, medium , and high -rise schemes for the
development site should be prepared, producing comparative information
about the different options. There should also be a cos t-benefit analysis of
these different alternatives, which should deal with issues including visual
impacts and require a study of alternative building forms explorations
motivating for the option proposed .

[27] The Environmental Impact Assessment Regulations o f 2014 defines the term
“alternatives” as follows:

‘Alternatives’ in relation to a proposed activity, means different means of
meeting the general purpose and requirements of the activity, which may
include alternatives to the –

(a) Property on which or location where the activity is proposed to be
undertaken;

(b) Type of activity to be undertaken;

(c) Design or layout of the activity;

(d) Technology to be used in the activity; or

(e) Operational aspects of the activity.’

[28] NEMA does not contain a def inition for the term “alternative” . However , this
Court in Sea Front For All and another v MEC, Environmental and
Development Planning, Western Cape and Others15 held regarding the
Environmental Conservation Act 73 of 1989 that the point of departure for the
proper consideration of a review application of this nature is s 24 of the
Constitution which provides that:

‘Everyone has the right –

(a) To an environment that is not harmful to their health or well -being;
and

(b) To have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures that –

(i) Prevent pollution and ecological degradation;

(ii) Promote conservation; and

(iii) Secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development. ’

15 2011 (3) SA 55 (WCC)

[29] Fourie J in Sea Front For All in line with the authorities referred to aforesaid,
further found that

‘... judicial review is in essence concerned, not with the decision, but with the
decision -making process. Review is not directed at correcting a decision on
the merits. Upon review the Court is in general terms concerned with the
legality of the decision, not with its merits. The function of judicial review is to
scrutinise the legality of administrative action, not to secure or to substitute a
decision by a Judge in the plac e of the decision of an administrator. ... ’16

[30] Regulation 1 of the 1 983 ECA Regulations defined the term “alternative” as “in
relation to an activity ... any other possible cause of action, including the
option not to act.” In Sea Front For All , the Court, therefore, held that to this
end, the functionary is required to consider reports, which should not only
concern the impact of the proposed activity but also alternative causes of
action, including the option not to act. The decisionmaker is requir ed to
consider on the strength of the evidence presented, whether the land in
question ought to continue with its land use in the current form or as per the
applicant’s proposal. In Sea Front For All , the applicants contended that, as is
the case herein, the alternative proposals were not properly considered,
including the “No -Go” option, and that the ROD is unlawful and forced to be
set aside.17 The Court concluded that the MEC was repeatedly advised that it
was necessary to investigate and consider the a lternatives and that he could
not and should not rely on the City’s proposal alone and that it was clear that
the MEC did not consider the No-Go-option.

[31] Regulation 19(3) of the EIA Regulations provides that the “basic assessment
report must contain the information set out in Appendix 1 to these
Regulations” (i.e. this is, again, mandatory). Appendix 1 provides the objective
of the basic assessment process - the objective of the basic assessment
process is to, through a consultative process, identify the alternatives

16 Sea Front For All [29] 62I to 63A
17 Sea Front For All [31] and [32] 63C to F
considered, including the activity, location, and technology alternatives , and
describe the need and desirability of the proposed alternatives . Scope of
assessment and content of basic assessment reports - A basic assessment
report must conta in the information that is necessary for the competent
authority to consider and come to a decision on the application, and must
include a full description of the process followed to reach the proposed
preferred alternative within the site, including detai ls of all the alternatives
considered; details of the public participation process undertaken in terms of
regulation 41 of the Regulations, including copies of the supporting
documents and inputs; a summary of the issues raised by interested and
affected p arties, and an indication of the manner in which the issues were
incorporated, or the reasons for not including them; the environmental
attributes associated with the alternatives focusing on the geographical,
physical, biological, social, economic, herita ge and cultural aspects; positive
and negative impacts that the proposed activity and alternatives will have on
the environment and on the community that may be affected focusing on the
geographical, physical, biological, social, economic, heritage and cul tural
aspects; if no alternatives, including alternative locations for the activity were
investigated, the motivation for not considering such .

[32] Clearly, the developer was obliged to provide alternatives to the proposed
development , and the respondents were obliged to consider those alternatives
and their impacts. As a general proposition, it is trite that failing to comply
with peremptory provisions renders a decision reviewable and liable to be set
aside . The applicant contends that t hese mandatory requirements were not
complied with by the developer or the EAP , and thus, the decision -makers
should have rejected the EA application on this basis.

[33] Opposed hereto the first and second respondents place reliance upon the
judgment in Golden Falls Trading 125 (Pty) Ltd v MEC, Gauteng Department
of Agriculture and Rural Development and Others18 where the court dealt with
the review application where the applicant averred that the environmental

18 [2012] ZAGPPHC 361
sustainability of any development forms the cornerstone of NEMA and that
NEMA imposes a heavy burden of proof in that regard o n an applicant for
Environme ntal Authorisation for listed activities in terms of NEMA.

[34] The applicant, in that case, stated that NEMA imposes a great responsibility
on any competent environmental authority , such as the respondents , to apply
strictly with the Environmental Management Principles contained in s 2 of
NEMA, and, inter alia , to follow a cautious and risk-averse approach in its
consideration of applications, especially in circumstances when all information
pertaining to the possible impacts of such listed activities have no t properly
been investigated, or are unknown.

[35] The applicant, in Golden Falls, also alleged that the respondents in that
matter were required to apply strict procedural requirements and standards
described not only in terms of the relevant regulations b ut also to comply
rigorously with formal prescriptions, policies, and guideline documents issued
by the aforementioned respondents themselves .The court dealt with whether
NEMA and the Regulations require exact, precise and 100% compliance in
each and every instance where the word ‘ must ’ is used as follows:

‘[9] … answer to this question, in my view, can only be found if one
analyses the purpose that is sought to be achieved by NEMA and its
Regulations. The first and second respondents are organs of state and in the
given context their acts are of an administrati ve nature. The applicant must
therefore, in the context of each ground of review relied on, bring itself within
the ambit of PAJA. The question therefore is what right provided for in PAJA
was deprived of, and, if such deprivation did occur, whether such was unfair in
the proper context. Such a finding would in my view depend on the approach
of a court to the question whether or not the given provisions of NEMA and the
Regulations have been complied with. On the other hand, NEMA provides
that an interes ted person may seek appropriate relief in respect of any breach
of any provision of the Act. In this case the applicant relied on PAJA only in
this context, i.e. it sought no relief in terms of section 32 of NEMA.
…
[10] …The decision in Weenen Transit ional Local Council v Van Dyk 2002
(4) SA 654 (SCA) is particularly instructive. The court analysed the local
Council's scheme of assessing, levying and collecting rates, and determined
that it was obliged to issue four notices before it could claim payme nt of rates
due to it. It had however published only one notice. This notice was allegedly
also defective for a number of reasons. The relevant section of the particular
Act required two notices at least five days apart. In that particular context the
court said that the correct approach to the objection was to follow a common -
sense approach by asking the question whether the steps taken by the local
authority were effective to bring about the exigibility of the claim measured
against the intention of the legislature as ascertained from the language,
scope and purpose of the enactment as whole, and the statutory requirement
in particular. Legalistic debates as to whether the enactment is peremptory
(imperative, absolute, mandatory, categorical, imperative) or merely directory;
whether ‘shall’ should be read as ‘may’; whether strict as opposed to
substantial compliance is required: whether the delegated legislation dealing
with formal requirements are of legislative or administrative nature, etc. may
be inte resting, but seldom essential to the outcome of a real case before the
Courts. They tell us what the outcome of the Courts’ interpretation of the
particular enactment is; they cannot tell us how to interpret. The proper
approach was to follow the trend a way from the strict legalistic to the
substantive (at 659). This avoidance of a narrowly textual and legalistic
approach was thereafter also followed by the Constitutional Court in African
Christian Democratic Party v Electoral Commission 2006 (3) SA 305 ( CC) para
[25]. This is the modern, correct approach, and has fortunately found its way
into NEMA itself by way of the provisions of section 47A which does not
invalidate the failure to take any steps in terms of this Act as a prerequisite for
any decision or action, if such failure is not material, does not prejudice any
person and is not procedurally unfair. ’

[36] Section 47A of NEMA clearly indicates that failing to take any steps regarding
NEMA’s specific environmental management requirements as a prerequisite
for any decision or action does not invalidate that decision or action if such
failure (a) is not material; (b) does not prejudice any individual; and (c) is not -
procedurally unfair.

[37] The first review ground pertains to alleged non -compliance with mandatory
legal requirements relating to alternatives to building a block of flats . The
applicant contends essentially that:

[37.1] Only one alternative was provided: a six-storey block instead of an
eight -storey block.

[37.2] The developer should have included d ifferent building forms , such as
townhouses or double -storey townhouses. These would not create
the visual issues complained of, and traffic and parking issues would
be ameliorated.

[37.3] The failure of the EAP and the third respondent to properly engage
with and consider alternatives as required by law and the first and
second respondents’ alleged failure to reject the application on this
basis constitutes a material non -compliance with the laws as the
reasons why the impugned decisions should be reviewed and set
aside.

[38] The only other alternatives suggested were fewer storeys or no development,
which the developer termed the ‘No -Go’ alternative. The first respondent
found that the ‘No -Go’ alternative would maintain the ‘status quo’ of the
existing propert ies in their current state and that since the preferred alternative
would not result in an unacceptable environmental impact, it was not
warranted.

[39] As regards the preferred alternative, the first respondent took cognisance of
the comments and recommendati ons made by the I&APs in terms of the
proposed height, potential visual impacts, potential wind impacts and potential
shadow effect of the proposed development . He decided that the preferred
alternative should be six storeys high instead of eight, comprisi ng 75
apartments of varied sizes, including a mix of duplex and simplex residential
units, a small retail area, and parking bays.

[40] As for the impact assessment and mitigation measures, particularly “activity,
need and desirability” , the first respondent fo und that:

‘The subject property is located within an area identified as the urban inner
core in terms of the Cape Town Spatial Development Framework, 2012,
where investment is specially targeted in order to spatially transform and
integrate the City. This will ensur e inward growth and connectivity, as well as
diversification and densification in line with the City’s Transit -Oriented
Development (‘TOD’) Strategy, 2016.

The Integrated Development Plan ( “IDP”) of the City of Cape Town has
established 11 priorities on focus areas of the IDP. One of the priorities
focuses specially on dense and transient oriented urban growth and
development, stating that the transit -oriented development: ‘is about
changing, de veloping and stimulating the built form of the City so that the
movement patterns of people and goods are optimised in order to create
urban efficiencies and enable social equality and economic development’.
The proposed development falls within the urban edge of Milnerton and will
provide much needed high -density residential developments within close
proximity to public transport. The proposed development is located with
close proximity to the Lagoon Beach MyCiTi Bus Station and the R27 transit
route and would therefore aim to contribute to the provision of housing
opportunities with increased accessibility to public transport and economic
opportunities.

The City of Cape Town’s Densification Policy recognises the need for
appropriate densification across the City to promote longer term sustainability
of Cape Town’s natural, urban and rural environments. The Densification
Policy was approved in February 2012 to specifically, amongst others, guide
decision -making with regards to density related application s. The
Densification Policy identifies various Density Priority Zones of the subject
property being located within such a zone. ’

[41] In the appeal decision, the second respondent considered the issue of
alternatives in terms of section 24(4)(b)(i) of NEMA an d, in particular, all the
issues raised during the public participation process , the I&AP’s documents
and recommendations in this regard as well as the EAP’s comments and
responses.

[42] It is evident from the comprehensive decisions made by the first and seco nd
respondents that the scoping in the EIA processes was broad in its scope and
took into account a variety of factors and impacts, with numerous professional
opinions and reports sourced on different issues, especially concerning the
alternatives.

[43] Of further particular importance to this judgment is that the second respondent
reasoned and considered the first ground of appeal regarding alternative land
use in great detail as follows:

‘4.32 The Final BAR states, inter alia, the following with regards to the
consideration of alternatives:

4.32.1 Alternative land uses were investigated in the Basic
Assessment Process to inform the best land use option for
this site are in line with the 2014 EIA Regulations.

4.32.2 The preferred development site comprises of the following
properties: Erf No. 2[...] and Erf No. 2[...]2 , Milnerton,
Western Cape. No other site or property alternative has been
investigated as the subject property is owned and has been
the owned by the applicant for numerous years. The
proposed development site is located within the urban edge of
Milnerton. The property is also currently used and zoned for
residential purposes.

4.32.3 The proposed development is aimed at densification within
the urban edge. Providing much needed high -density
residential developments in the Western Cape within close
proximity to major nodes and public transport.

4.32.4 From a biophysical aspect, the subject property has been
degraded and therefore does not support sensitive habitats.
The proposed develo pment site is of no conservation
importance, with little to no environmental significance to the
functioning of the surrounding estuarine system because the
site falls within a transformed area of residential development
that contains little or no estuarin e vegetation or fauna and are
no longer functionally linked to the estuary.

4.32.5 Mitigation measures have been recommended and included
in the EMPr to ensure that the proposed development does
not cause adverse impacts on the receiving environment.

4.32.6 The development will create new employment opportunities
during the construction phase. The job opportunities created
will result in positive economic and social effects for the local
area.

4.32.7 During the preliminary investigation of the proposed
development, it was indicated by the CoCT’s Environmental
Management Department that they are not in favour of an
eight -storey apartment building. The proposed development
was therefore lowered to six -storeys in total to accommodate
the recommend ation of the CoCT’s Environmental
Management Department.

4.32.8 The proposed development will be 1 -storey lower than the
tallest buildings within its immediate surrounds and therefore
be in -line with the context of the area. The preferred
alternative wil l have the lowest impact on the receiving
environment, while optimising the socio -economic benefits of
the proposed development.

4.32.9 The positive impacts will include:

4.32.9.1 Densification of the urban edge.

4.32.9.2 Creation of high -density resid ential development
within close proximity to public transport.

4.32.9.3 Creation of both short -and long -term employment
opportunities.

4.32.9.4 The preferred alternative incorporates all the
findings of the specialist studies, these include that
the prop erties which have already been
transformed will be developed to result in the best
possible socio -economic outcome while ensuring
that no sensitive/protected areas are impacted
upon.

4.32.10 The negative impacts:

4.32.10.1 There will be increased noise and dust levels
experienced during the construction phase of the
proposed development. Mitigation measures have
been incorporated in the EMPr to lower these
impacts to acceptable levels.

4.32.10.2 The proposed development will have Medium
Visual impact significance on its surroundings
before mitigation. A Landscaping plan has also
been compiled that will further mitigate the visual
impact of the proposed development.’

[44] It is also clear that the environmental, social , and economic factors have all
been satisfied and are in line with the object of NEMA. Regulation 18 of the
EIA Regulations read with sections 24(4) and 24O of NEMA are couched in
peremptory terms, but there has been substantial compliance by the first and
second respondents in that their decisions took into consideration the purpose
of the Regulation 18 read with sections 24(4) and 24O of NEMA when
assessing the EIA application and the appeal.

[45] In terms of 47A(2) of NEMA, the decisions taken by the first and second
respondents are therefore not invalidated by their alleged failure to requ est
further reports setting out further alternatives to the ones already presented by
the qualified professionals in the EIA process and that such alleged failure is
not material, does not prejudice any person, including the applicant, and is not
procedura lly unfair.

[46] Fabricius J in Golden Falls Trading 125 (Pty) Ltd v MEC Gauteng Department
of Agricultural and Rural Development and others19 recognised that NEMA
imposes a great responsibility on any competent authority such as the first
and second responde nts to apply environmental management principles in
implementing the strict procedural requirements and standards prescribed in
the Act and Regulations. Fabricius J further held that:

‘Before I continue with Applicant’s grounds for review, it is clear fro m the Act
and the Regulation that the word “must” is mentioned in dozens of sections
and regulations, in the context of what is required of an Applicant for an
environmental authorisation. ’20

[47] The issue of whether provisions are peremptory or merely directory is a matter

19 [2012] ZAGPPHC 361
20 Golden Falls ebit para 7 and 8
of construction and interpretation. In Telkom v CSARS21 the SCA interpreted
and applied the well -known dictum of Endumeni as follows:

‘Endumeni asserted that the interpretive technique to be utilised in
establishing the meaning of words, as between contracts, statutes and other
documents, was essentially a unitary exercise in methodology, but did not
assert that it was a uniform one. The exercise was unitary in that whatever the
nature of the document, consideration had to be given to the language used in
the light of the ordinary rules of grammar and syntax; the context in which the
provision appeared; the apparent purpose to which it was directe d and the
material known to those responsible for its production. The exercise was not
uniform, because the background to the preparation and production of the
particular document, whether contract statute or other document, had to be
conserved from the ou tset.’22.

[48] The correct approach is to question whether the steps taken were effective in
bringing about the objective of the legislation. The proper approach to follow
away from strict legalistic substantive compliance is to avoid a narrow textual
and le galistic approach. The modern constitutionally correct approach has
found its way into NEMA itself by way of the provisions of s 47A which does
not invalidate the failure to take any steps as a pre -requisite for any decision
or action if such failure is n ot material, does not prejudice any person and is
not procedurally unfair.23

[49] Section 2 of NEMA lists the principles that should be applied throughout the
Republic to the actions of all organs of State that may significantly affect the
environment. Sectio n 2(2) provides that:

‘Environmental Management must place people and their needs at the
forefront of its concern, and serve their physical, psychological,
developmental, cultural and social interest equitably.’

21 2020(40 SA 480 (SCA)
22 At 488 B to C [15b]
23 Golden Falls ebit para 10 and African Christian Democratic Party v Electoral Commission
2006 (3) SA 305 (CC) at 317, para 25

[50] Section 2(3) further provides that developm ent must be socially,
environmentally, and economically sustainable, requiring that new
development avoid the disturbance of ecosystems and loss of biological
diversity or minimise its effects .

[51] Section 6(2) of PAJA authorises a Court to judicially review an administrative
action if a mandatory or material condition prescribed by an empowering
provision was not complied with. Based upon this the applicant argues that
alternative forms of development should have been considered. The
appli cant argues that there is no evidence that the developer or the
respondents considered for example the feasibility or reasonability of a so -
called duplex or low -rise development instead of a multi -storey building.
Apply ing s 6(2) is however not a simple m atter. It does not entail a binary tick
box exercise given that certain requirements are classified as mandatory and
compliance need to be substantial or adequate. Ultimately the Court must
decide if the objects of the Act were achieved. If this questio n is answered in
the affirmative , one would not be bothered by nebulous concepts such as
substantial or adequate. It is further so that statutes cannot be interpreted in a
manner that will lend itself to an impractical, unbusinesslike or oppressive
interpretation .24

[52] The issue of alternative forms of development have been raised throughout
the EA application, the internal appeal and in the judicial review. The
applicant and other interested parties had more than one opportunity to
participate in the public participation process and the appeal in forwarding
concrete facts of further alternatives that should be considered. It would be
unbusinesslike and oppressive if a developer had to investigate and provide
detailed information regardin g each and every plausible alternative form of
development. The second respondent considered the issue of alternatives in
terms of s 24(4)(b)(i) of NEMA and, in particular, all the issues of consideration
of alternatives raised during the public participat ion process and the IAP’s

24 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at 606G
and 610B to C
documents and recommendations in this regard.

[53] The decision process was extensive in its reach and considered a range of
factors, including numerous professional opinions and reports obtained on
different issues and, in particular , alternative forms of development. If there
are shortcomings , they are limited to the issue of alternatives, which the first
and second respondents competently and comprehensively addressed .

[54] A finding that the decision should be judiciary reviewed on th e narrow basis
that alternatives such as townhouse development should have been
considered or that the developer was obliged to show that these would not be
feasible, reasonable or sustainable, would be a narrow textual and unduly
legalistic approach to th e provisions and objectives of NEMA. The application
process and public participation procedure were fair, and I cannot foresee that
the alleged failure to consider specifically the development of townhouses on
the properties tainted the ultimate decision or rendered the process unfair.

SECOND GROUND OF APPEAL – EAP’S INDEPENDENCE

[55] Regulation 14(2) of the EIA Regulations gives interested and affected parties
the right to notify a competent authority of non -compliance with Regulation 13
(which sets out the requirements that an EAP must meet), including:

[55.1] Being independent (Regulation 13(1)(a)),

[55.2] Being objective (Regulation 13(1)(d)); and

[55.3] Taking into account the matters referred to in Regulation 18
(Regulation 13(1)(e)) which incorporates the requi rements in
sections 24O and 24(4) of NEMA (discussed above).

[56] Regulation 14(3) is peremptory and states that the competent authority “ must
investigate the allegation promptly ”. It is common cause that there was no
investigation performed by the competent authority into the alleged bias and
the appeal authority did not identify this as problem. The applicant argues that
the respondents failed to apply mandatory legal requirements, and the
decisions must therefore be reviewed and set aside on this ground alo ne. It
was submitted that t he respondents also failed to address this ground
adequately. The respondents, on the other hand, submitted that the applicant
and other interested parties bore some onus of proving a lack of
independence, and the competent authority would only be required to
investigate the complaint if it established that such onus or threshold had
been met.

[57] Opposed hereto the first and second respondents argue that t he question of
whether an EAP is/was biased is a ques tion of fact. On the other hand, a
reasonable suspicion of bias is tested against the perception of a reasonable,
objective and informed person. In order to establish a lack of objectivity or to
establish bias on the part of the EAP, the applicant had to satisfy the following
factors:

[57.1] There must be a suspicion that the EAP might, not would, be biased.

[57.2] The suspicion must be that of a reasonable person in the position of
the person affected.

[57.3] The suspicion must be based on reasonable grounds.

[57.4] The suspicion must be one which the reasonable person would, not
might, have.

[58] Accordingly, the respondents submitted that the applicant failed to address
any of these factors. The EAP attached a copy of his curriculum vitae to the
BAR which showed that the EA P had 17 years of experience in the area of
environmental impact assessment reports. Investigations were also done in
order to confirm whether the EAP was registered with the Environmental
Assessment Practitioners Association of South Africa (‘ EAPASA ’) and the EAP
is in fact registered therewith.

[59] In Sea Front For All the applicants also relied upon the alleged lack of
independence as a ground of review. In that matter , it was common cause
that the independent consultant had a financial interest in the successful
development of the property. The Court held that:

‘On Track does not dispute that, in principle, reg s 3(1)(a) and (c) of the 1183
ECA Regulations also apply to an independent specialist such as Commlife
(as opposed to an independent consultant). However, On Track contends
that the requirement of independence should not be interpreted to mean that
such independence specialist must, of necessity, have no involvem ent
whatsoever with the applicant for an environmental authorisation. Mr
Newdigate further argued that, in any event, it has not been shown that
Commlife had a direct and substantial interest that warranted declaration to
the MEC.’ 25

[60] The Court rejected the contention by the applicant , ruling that

‘To allow for a lesser degree of independence on the part of such a specialist
would, in my view, seriously compromise the impartiality and integrity of the
specialist’s report, and thereby undermine the legitimacy and efficacy of the
environmental impact assessment process. I conclude that, in the prevailing
circumstances, Commlife did not meet the requirement of independence
stipulated by regulation 3(1)(c).’

[61] The facts in Sea Front For All are distinguishable from the facts herein. There
is no direct evidence supporting the compliant of bias, or lack of
independence. The applicant addresses the independence of the EAP boldly
in three paragraphs in the founding affidavit. No facts are provided to
substantiate the alleged complaints made by interested parties about the lack
of objectivity and/or independence of the EA P. The EAP is registered with the
Environmental Assessment Practitioners Association of South Africa

25 Sea Front For All [51] 67B to C
(EAPASA) and this issue was addressed in the appeal decision in paragraphs
4.35 to 4.38. The applicant accordingly failed to establish this ground of
review.

THIRD GROUND OF REVIEW – OWNERSHIP OF THE BURMEISTER CIRCLE
DEVELOPMENT

[62] The developer is related and/or controlled by the same persons who own the
nearby Burmeister Development, which is similarly a multi -storey block of
flats. The applicant contend s that the third respondent and/or the EAP should
have disclosed this ‘ otherwise the argument that an area is going through a
densification process with tall buildings beginning to be built is not correct and
that instead, it is one group of people who hav e decided to develop in this
way, starting on an easier site for approval and then using past approvals to
motivate future ones, all without properly disclosing the shared ownership and
control in this clear motivation. ’

[63] With respect, this submission makes no logical sense since it is not a legal
requirement. There is nothing in law that obliges the developer to have
disclosed any commercial relation with other previously approved
developments. It is also not a valid ground of review as it does not fall within
the categories as defined in se ction 6 of PAJA.

[64] The ownership of the Burmeister Circle Development is irrelevant to this
development as each application for an EA is assessed on its own merits. The
proximity of the site to the Burmeister Circle Development was mentioned in
the appeal d ecision in the context of these developments being the beginning
of densification in the area.

[65] In any event, the existing Burmeister Circle Development was not the only
motivating factor. The primary consideration was the fact that the site is
locate d in an area earmarked for densification , and it was aligned with the
City’s Densification Policy and the TOD. There is no legal objection on related
companies developing properties in the same area to disclose it, and no
procedural fairness issues arise o n this ground for review, which should be
dismissed.

ENVIRONMENTAL CONCERN

[66] The broad ground that the first and second respondents did not take into
account or attribute sufficient weight to certain environmental concerns related
inter alia to:

[66.1] The impact of increased flow of treated wastewater along the Diep
River and estuary when the Potsdam plant which discharges into it,
doubles in capacity, as planned by the City.

[66.2] The absence of testing the water during wet weather conditions with
consideration of consequences for construction and soil con dition;
and

[66.3] The alleged failure of the EAP to model the potential loads, potential
wave run -ups.

[67] The applicant’s contention in this regard seems to be that given that the
Potsdam Waste Water Treatment Works (“the Potsdam WWTW”) is going to
be upgraded an d that the Milnerton Lagoon and the Diep River catchment are
targeted for the discharge of the high -quality treated wastewater , which will
significantly increase the water flow into the Diep River Estuary and double
the flow, that the EAP failed to address this in the final BAR and that the final
BAR did not model the above and did not provide the first respondent and me
with this crucial information and the consequences arising therefrom.

[68] The applicant assumes that just because the Potsdam WWTW upgrade wi ll
double its capacity to handle the needs of a growing city, from 47 million litres
to 100 million litres, that this will automatically double the flow of treated water
into the Diep River and the estuary. It is not clear upon what evidence t he
applicant relies on that the Potsdam WWTW upgrade will cause the discharge
of high -quality treated water into the Diep River catchment and will double the
flow to the Diep River estuary.

[69] The first and second respondents considered the Weir Road Impact
Assessment Re port prepared by Anca Environmental Consultants dated June
2021 which refers specifically to the five impacts of the proposed development
on the Diep River estuary ranging from two being “very low” before mitigation
(and rated insignificant after mitigatio n), two being rated low (and rated “very
low” after mitigation), and one rated as medium (and rated low after
mitigation).

[70] The report also sets out the recommended mitigation measures to be
implemented to reduce the severity of the impacts during the cons truction and
the decommissioning phase. There was no basis for the first and second
respondents to doubt the veracity of the prepared report .

[71] In addition, the first and second respondents considered the memorandum by
the City dated 8 October 2020 relating to the Potsdam WWTW , wherein no
mention is made of the Milnerton Lagoon or the Diep River catchment, nor
does the Memorandum say anything about doubling the flow to the Diep River
estuary.

[72] If regard is had to the memorandum from the City’s Water and Sanitation
Service dated 17 August 2022 which was attached to the final BAR, they set
out their comment to this development, wherein they clearly stated that the
City’s Water and Sanitation Department has no objection to the proposed
development provided certain conditions and additional technical
requirements are met . This means that if the developer does not comply with
these conditions, they will not be able to proceed with the development.

[73] Since it is the City who is upgrading the Potsdam WWT W, it would be best
placed to know what the increased flow of treated water will be flowing into
which catchment. Had this been a danger to this development and if the
impact of the Potsdam WWTW upgrade will have negative impacts on the
surrounding areas close to where the plant will discharge the wastewater into
the catchments at Diep River or Milnerton, the City would have mentioned this
in their correspondence.

[74] However, until the Potsdam WWTW has been upgraded, the applicant’s
contention in this regard is nothing but speculation and the applicant itself
speaks of “potential impact” and not actual impact.

[75] The second respondent addresses this issue in some detail in the appeal
decision. The second respondent considered the geotechnical report by Core
Geotechnical Consultants dated 11 March 2021 where a geotechnical
investigation was conducted in order to determine the site geology and
geotechnical conditions of the site and to provide recommendations for the
design and related geotechnical aspects.

[76] There was also no basis to doubt the veracity and accuracy of this report.
The geotechnical report provides recommendations for design and
construction which take into consideration the depth of the water table rising
during wet periods and the fact that t he re -compaction of soil close to or at the
water table being difficult, but it also provides recommendation to overcome
these issues.

[77] The geotechnical specialist did not deem it necessary to test the water table in
winter, but they did include their rec ommendations in light of the predicted
change in water table in winter. It appears from their report that the rise in
water table will impact excavations only. In any event, this will be an issue at
the time of the detailed design phase of the project and the actual construction
of the development and it was not a crucial issue for the purposes of
determining whether the EA should be granted or refused.

[78] The second respondent considered the flood lines , coastal edge and climate
changes in light of the issues raised by the I&APs during the public
participation process of the basic assessment process. The second
respondent also took into consideration the comments and responses set out
in the reports as well as the final BAR and the first respondent’ s decision in
this regard found that considering all of the above, the issues in this regard
had been adequately addressed. All cumulative impacts and potential impacts
were thoroughly assessed.

[79] For all of the reasons set out above, including the summary of the three
aspects that make up the fourth ground of review, it is submitted that the
alleged impact of the increased flow of treated wastewater into the Diep River
and estuary and the possible flooding by the wave run -ups, the low sand bar,
the high st ill water level and long period waves are all unsubstantiated by any
expert reports or factual information produced by the applicant.

[80] It is clear from the first and appeal decisions that each of these three issues
was considered in detail. The applicant provided no basis for the first or
second respondents to doubt the veracity and accuracy of the expert reports
provided by the EAP.

FIFTH GROUND OF REVIEW – HERITAGE AND CITY’S POLICY

[81] Heritage Western Cape (“HWC”) is the provincial heritage resources authority
established by the Minister of Cultural Affairs and Sport of the Government of
the Western Cape province in South Africa and which is a public entity set up
under the terms of the National Heritage Resources Act 25 of 1999 (“NHRA”).
It is mandated to care for that part of South Africa’s national estate that is of
provincial and local significance in the Western Cape.

[82] HWC is also best known as the custodian of approximately 2 500 provincial
heritage sites but is also responsible for the administration of other forms of
heritage protection established under the NHRA's terms . On 10 June 2021,
the HWC assessed the EAP’s ap plication for a permit for the total demolition
of the existing structure on Erf 2[...]2 , […] W[…] Road, Milnerton, in terms of
section 34(1) of the NHRA.

[83] In terms of this letter , the matter was discussed at the Built Environment and
Landscape Committee meetin g on 10 June 2021, and it was resolved to
approve the demolition as the building had insufficient significance to warrant
retention. The committee noted further that the surrounding area does not fall
within the proposed or declared HPOZ. Furthermore, th e area lacked
architectural cohesion. The decision was made after considering the draft
heritage statement compiled by Aikman Associates Heritage Management
dated March 2021.

[84] There was an appeal lodged in terms of section 49 of the NHRA and
Regulation 3( 3)(a) of the Provincial Notice 298 (of August 2003) and the
outcome of the application in terms of section 34 of the NHRA. The appeal
was dismissed on 17 August 2021. Given that the HWC is the provincial
authority in respect of heritage issues, the first and second respondents were
at liberty to accept the approval granted by HWC in respect of the proposed
development. The position of the EMD was noted but given the decision of
HWC, the first and second respondents did not consider it necessary to re -
canv ass the issue of heritage when granting the first and the appeal
decisions. In any event, the heritage issue was responded to in the
comments and responses report.

CONCLUSION

[85] The appeal record before the second respondent when taking the appeal
decision, included three BARs, numerous expert studies and reports which
span over 6 000 pages. The index to the Rule 53 record speaks for itself. In
opposing the review, the first and second respondent s both state that they
had regard to all the relevant considerations and information in making their
respective decisions . From the detailed reasons for their respective decisions,
it is clear that they applied their minds and discretions. The applicant co ntends
that the six grounds of review fall within the scope of sections 6(2)(b), 6(2)(c),
6(2)(d), 6(2)(e)(iii), and/or 6(2)(f)(ii) of PAJA.

[86] Nothing in either of these decisions would prompt a court to second -guess the
evaluation of the EIA application pr esented to the first respondent or the
appeal submitted to the second respondent. The process was fair and just,
and the applicant failed to demonstrate that their application fell within the
scope of s 6(2)(c) of PAJA. The application d oes not justify the judicial review
of the respondents’ decisions. Section 6(2)(b) of PAJA provide s that the court
has the power to conduct a judicial review of an administrative action if there
is non -compliance with a mandatory and material procedure or con dition, or
according to section 6(2)(d), if a legal error materially influenced the action.
The respondents considered all relevant statutory and regulatory provisions,
and I found no material error in the interpretation and application of the
provisions or any material non-compliance. There is simply no evidence that
the action was taken for an ulterior purpose or motive as per section 6(2)(e)(ii)
of PAJA. The legal arguments presented by the applicant do not support a
conclusion that the action itself is irrationally disconnected from the purpose
for which it was taken or the purpose of the empowering provision based on
the information available to the administrator, nor do they establish that the
reasons provided are irrational under section 6(2)(f)(ii) o f PAJA.

COSTS

[87] The applicant places reliance on Biowatch Trust v Registrar, Genetic
Resources and Others,26 but to reiterate, all six grounds of review are
frivolous and have no merit. When the applicant received the first and second
respondents' answering affidavit, they could and should have considered their
position carefully and withdrawn this review. Inste ad, it forges ahead.

[88] The Biowatch rule states that if a litigant acts bona fide in protecting
constitutional rights, they should be immune from a costs order if
unsuccessful. The rationale for this rule is that an award of costs might have a
chilling effe ct on litigants who might wish to vindicate their constitutional

26 2009 (6) SA 232 (CC).
rights27. Litigants such as the applicant in this matter should not be
discouraged from seeking to vindicate of their constitutional rights against
government institutions. The Full Court of The Free State Division held that ‘It
would be an injustice if litigants have to fear approaching court with matters
relating to constitutional litigation28 In exercising my discretion, I recognise that
the applicant is a community -based organisation representing the residents of
the Milnerton area and that a cost order is not intended to compensate for the
risks one has been exposed to but rather to reimburs e the actual expenses
incurred. The risk associated with litigation of this nature is something both
parties must bear themselves . If it were not for the public interest in the
development’s location and the significance of community participation, I
would have awarded costs to the respondents.

[89] In the premises , the following order is granted:

(1) The application is dismissed .

(2) Each party is ordered to pay its own costs.


VAN DEN BERG AJ

Appearance for applicant
Adv C Fehr
On instructions from Erleigh and Associates Inc

Appearance for respondents
Adv S Mahomed
On instructions from The State Attorney , Cape Town

27 Affordable Medicines Trust and Others v Minister of Health and Another 2006(3) SA 247 (CC)
28 Afriforum NPC v Ngwathe Local Municipality and others [2024] JOL 63938 (FB)