THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1004/2023
In the matter between
MINISTER OF FORESTRY, FISHERIES AND
THE ENVIRONMENT FIRST APPELLANT

CHIEF DIRECTOR: INTEGRATED ENVIRONMENTAL
AUTHORISATIONS, DEPARTMENT OF ENVIRONMENT,
FORESTRY AND FISHERIES SECOND APPELLANT

HIGHLANDS SOUTH WIND ENERGY FACILITY RF
(PTY) LTD THIRD APPELLANT

HIGHLANDS CENTRAL WIND ENERGY FACILITY RF
(PTY) LTD FOURTH APPELLANT

HIGHLANDS NORTH WIND ENERGY FACILITY RF
(PTY) LTD FIFTH APPELLANT
and
HEINRICH JACOBUS BADENHORST N.O. FIRST RESPONDENT

FREDERIC JOHANNES BADENHORST N.O. SECOND RESPONDENT

ETIENNE FRANS BADENHORST N.O. THIRD RESPONDENT

LENE HULL JENSEN N.O. FOURTH RESPONDENT

2

TERTIUS NICOLAAS VAN DER WALT N.O. FIFTH RESPONDENT

FLEMMING GEORG JENSEN N.O. SIXTH RESPONDENT

Neutral citation: Minister of Forestry , Fisheries and the Environment & Others v
Badenhorst N.O. & Others (1004/2023 ) [202 5] ZASCA 68
(28 May 2025)
Coram: MOCUMIE, MBATHA and KATHREE -SETILOANE JJA and GORVEN and
MAKUME AJJA
Heard: 14 November 2024
Delivered : 28 May 2025
Summary: Administrative law – review under the Promotion of Administrative Justice Act
3 of 2000 (PAJA) , s 7(2) – failure to exhaust internal remedies before the institution of
judicial review proceedings – application for exemption in terms of s 7(2)( c) of PAJA –
meaning of ‘exceptional circumstances’ – decision by the Chief Director to approve
Environmental Authorisations under National Environmental Management Act 107 of
1998 (NEMA) – Environmental Authorisations conditional on further steps being taken
before implemented – interpretation of regulations 26(1) (c)(iv) and 26(1) (d)(iv) of the
Environmental Impact Assessment Regul ations, 2014 read with section 47A(1) of NEMA
– purposive interpretation – substantial compliance sufficient – Environmental
Authorisation only final once capable of implementation.

3

______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: The Eastern Cape Division of the High Court, Makhanda (Bloem J,
sitting as court of first instance ):
1 The appeal is upheld with no order as to costs .
2 The order of the high court is set aside and substituted with the following order:
‘The application is dismissed with no order as to costs.’
______________________________________________________________________
JUDGMENT


Mocumie JA (Makume AJA con curring )
[1] This is an appeal against the judgment and order of the Eastern Cape Division of
the High court, Makhanda , per Bloem J (the high court), with the leave of th at court. The
high court reviewed and set aside the decision s of the Chief Director : Integrated
Environmental Authorisations, Department of Environment, Forestry and Fisheries (the
chief director) . The central issue in this appeal is whether the chief director acted properly
in granting Environmental Authorisations ( EAs) to the third , fourth and fifth appellants (the
Highlands companies) . The high court also set aside the refusal of internal appeals by
the first to the sixth respondents (the respondents to the first appellant, the Minister of
Forestry, Fisheries and Environment (the Minister) against the chief director’s impugned
decisions.

[2] The Minister is the cabinet minister responsible for protecting the natural
environment and promoting wildlife conservation. The chief director is responsible for
issuing EAs upon application in terms of s 24 of the National Environment Management
Act 107 of 19 98 (NEMA). They will be referred to collectively as the state appellants. The
third to fourth appellants (the Highlands companies ), are independent wind energy
4

developers who applied for EAs in respect of three proposed Wind Energy Facilities
(WEFs) in the Eastern Cape: the North WEF, the Central WEF and the South WEF.

[3] The first to third respondents are the trustees of Schuster’s River Trust whilst the
fourth to sixth respondents are the trustees of Side by Side Trust. The trusts are the
registered owners of several immovable properties in the proposed development ar ea,
which collectively comprise almost 4,900 hectares. They are registered interested and
affected parties (I&APs) and participated as such in the assessment processes that
preceded the granting of the EAs.

Factual Background
[4] To promote energy generation from renewable resources, the National Department
of Environment Affairs and the Council of Scientific and Industrial Research identified
renewable energy development zones (REDZs) across the country in terms of s 24(3) of
NEMA . This involved assessing regions by industry specialists, considering the
availabil ity of wind energy resources, other necessary technical criteria for renewable
energy facilities, as well as suitable environmental features for large -scale wind energy
placement.

[5] The Minister issued the Wind and Solar Regulations in terms of s 24(5) (a) and (b)
of NEMA ,1 identifying eight REDZs across the country, in cluding the Cookhouse REDZs
where the Highlands companies plan to operate . These regulations prescribe the
procedure to be followed in applying for EAs in respect of large -scale wind energy
development activities occurring within the REDZs.

[6] In September 2018, the Highlands companies proposed establishing a complex of
three WEFs in the Cookhouse area about 20 km west of Somerset East. The facilities
(known as the Highlands Project) were identified as Highlands South, Central and North;
these r equired the Highlands companies to apply for EAs to the chief director as
contemplated in Regulations 19 and 20 of the Environmental Impact Assessment

1 Section 24(5 )(a) and (b) of NEMA provides for the promulgation of regulations.
5

Regulations, 2014 (the EIA Regulations )2 for wind energy development activities with
respect to all three WEFs. Attached to the applications submitted to the chief director were
Basic Assessment Reports (BARs), which included specialist impact studies and
Environmental Management Programmes (EMPrs).

[7] In February and April 2019, due to the in adequacies of the findings and
assessments submitted as part of the environmental impact assessment (EIA) process
for the applications, additional avifauna, ecological and visual assessments were
undertaken. This process entailed submitting representations, raising issues , and making
comments at every stage during public participation. These representations and
comments were all noted in peer review reports. Consequently, in March 2019, the
consideration of the EAs was suspended pending an investigation in terms of r egulation
14(1) (a) of the EIA Regulations .

[8] In April 2019, the Highlands companies were required to conduct further avifauna
assessments , including Verreaux’s Eagle Risk Assessment (VERA) model ling, along with
an amendment of a peer review by Mr John Smallie and an amendment of the BARs to
account for the additional impact assessments and the updated peer review. All potential
registered I&APs , including the respondents , were granted the opportunity to submit
comments on the amended BARs and EMPrs submitted.

[9] In July 2019, the suspension of the EA applications was lifted due to the Highlands
companies addressing the queries and comments from the I&APs, including the risk
assessment reviews. Consequently, the avifauna assessments were updated, and Mr
Smallie's peer review was revised. These revised avifauna assessments resulted in
changes to the layout of each of the three WEFs, which include d:
(a) reduc ing the number of turbines originally applied for across all WEFs from 49 to 41;
(b) reduc ing the number of sub -stations from two to only one in the South WEF; and
(c) shifting the location of certain turbines and the location of the one remaining substation
in the South WEF.

2 Promulgated in GN R982 of 2014 .
6


[10] On 14 October 2019, the amended BARs were circulated for further public
comments. Amongst others, the revised bird impact assessment recommended that the
turbine layout be changed. This resulted from a report indicating that several turbines fell
within or were on the edge of an area of considerable risk for certain bird species due to
the identification of an active martial eagle nest approximately 4.6 km north of the
development area, within 5.3 km of the nearest turbine.

[11] On 11 , 12, and 13 November 2019, three letters were sent to the Highlands
companies requesting them to address various issues in the final BARs a nd to amend the
EMP rs. The Amended BARs and EMPrs were accordingly submitted in November 2019 .
On 21 and 25 January, and 4 February 2020 respectively, the chief director approved the
EAs of the Highland s companies, subject to several conditions .

[12] In February 2020, the respondents appealed to the Minister in terms of s 43 of
NEMA against the decisions of the chief director approving the EAs of the Highland s
companies. They raised one ground of appeal , that the chief director , in reaching his
decision , acted ultra vires the requirements of NEMA and the EIA Regulations by failing
to require compliance with the peremptory requirements of the legislation pertaining to
the content of the EAs. Specifically, they contended that an EMPr should have been
approved prior to, or at the same time as, the approval of an EA.

[13] After the Highland s companies lodged a responding statement, and the chief
director made further comments, the Minister considered the appeal, concluding :
‘Having carefully considered the above -mentioned information and in terms of s 43(6) of NEMA,
I have decided to dismiss the appeal by the appellants and to confirm the decision of the
Department . . .’

[14] Discontent ed with the Minister’s d ismissal of the appeals , the respondents
approached the high court to review and set aside the decisions of the chief director and
the Minister . The review application was based on the Promotion of Administrative Justice
7

Act 3 of 2000 (PAJA). The three appeals in respect of the three WEFs were treated as
one by the high court.

[15] In their notice of motion, the respondents raised three grounds for review. First, the
chief director granted the EAs witho ut the final plans or maps locating the proposed
activities authorised at an appropriate scale, contrary to the provisions of regulation
26(c)(iv) of the EIA Regulations . Second , the chief director granted the EAs without the
approved EMPrs , contrary to the provisions of regulation 26(d)(iv) of the EIA Regulations .
Third, the EAs were granted pursuant to applications which had been made separately
from the applications for the EAs pertaining to three grid connections required between
the proposed onsite substations for each WEF and the existing Eskom overhead power
lines running over the northern part of the North site (the grid applications) . As such, t he
chief director made decisions without evaluat ing the cumulative impact of the WEFs on
the one Eskom grid that will be relied upon.

[16] Apart from opposing these three contentions on their merits, the appellants raised
a point in limine that the respondents were barred from raising grounds one and three
without an application for exemption as envisaged in s 7(2) (c) of PAJA. This is because
only the second ground had been relied on in the internal appeal and, as such, they had
not exhausted their internal remedies as regards grounds one and three.

[17] The high court reviewed and set aside the impugned decisions . It remitted the
applications for the EAs to the chief director for reconsideration and granted costs orders
against the chief director and the M inister.

Before this Court
[18] The issues before this Court were those raised before the high court. The
appellants contended that the high court erred in failing to uphold the point in limine . This
was to the effect that the respondents could not raise any ground of review unless it had
been raised in the internal appeal to the Minister. The point was based on the provisions
of the regulations under NEMA.

8

[19] The respondents concede d that they raise d only one ground in their form for the
internal appeal before the Minister. They argued that the appeal they lodged with the
Minister was within the scheme of NEMA and provided for in the National Appeal
Regulations3 (Appeal Regulations , 2014 ) in terms of Regulation 4 of the Appeal
Regulations, 2014 ,4 which is clear. They also conceded that no application had been
made for exempt ion from th e obligation to exhaust internal remedies . They submitted that
they had so complied , since they had appeal ed under s 43 of NEMA . Hav ing done so , the
respondents argued, they were not confined to the grounds raised in th at appeal . As a
result, although Uniform r ule 53 was not strictly available to them , as the high court held ,
they proposed that this Court expand the scope of the application of s 7(2) of PAJA to
mean that an applicant , having exhausted internal remedies on one cause of action, may
in a subsequent review , raise new causes of action in attacking an original decision which
has been confirmed on appeal .

[20] The respondents argued that while s 7(2) (c) of PAJA does not expressly include
applicants who h ave not sought an exemption from raising new grounds of review , it also
does not expressly bar them from raising new grounds of review . They contend ed that a
restricted application of s 7(2) would limit the scope of the internal remedy available under
NEMA. They argue d that courts should adopt a generous interpretation of the regulation
since s 39 of the Constitution provides for the development of the common law or law of
general application. However, they did not challenge the constitutionality of the

3 Promulgated in GN R993 of 2014.
4 Regulation 4 of the Appeal Regulations, 2014 provides:
‘Appeal submission 4. (1) An appellant must submit the appeal to the appeal administrator, and a copy of
the appeal to the applicant, any registered interested and affected party and any organ of state with interest
in the matter within 20 days from:
(a) the date that the notification of the decision for an application for an environmental authorisation or a
waste management licence was sent to the registered interested and affected parties by the applicant; or
(b) the date that the notification of the decision was sent to the applicant by the competent authority, issuing
authority or licensing authority, in the case of decisions other than those referred to in paragraph (a).
(2) An appeal submission must be -
(a) submitted in writing in the form obtainable from the appeal administrator; and
(b) accompanied by -
(i) a statement setting out the grounds of appeal;
(ii) supporting documentation which is referred to in the appeal submission; and a statement, including
supporting documentation, by the appellant to confirm compliance with regulation 4(1) of these
Regulations. ’
9

regulation(s). They relied on Helen Suzman Foundation v Judicial Service Commission5
as authority for the generous approach.

[21] The parties agreed that this Court should commence with the point in limine . This
is so because if the point in limine is decided in favour of the appellants (ie if this Court is
with the m that absent an application for exemption from the obligation to exhaust internal
remedies as contemplated in s 7(2)( c), the high court was precluded from reviewing the
impugned decisions on the grounds not advanced before the Minister on appeal ) this
should be partially dispositive of the appeal. The only issue remaining alive for
determination would be that which is captured in the second ground: whether , on a proper
interpretation of NEMA , an EMPr must either be approved prior to , or at the same time
as, when the EA is granted by the competent authority , and whether the failure to do so
invalidates the EA. This, the respondents contend , the high court found in their favour .

[22] Regulation 4 (2) of the Appeal Regulations, 2014, provides for an appeal process
under NEMA. It sets out how an aggrieved person must submit an appeal , as the
respondents did, in a standard form. In terms of the regulations , an aggrieved person is
obliged to provide a statement setting out the grounds of appeal. The statement must
disclose the grounds upon which the applicant relies for the appeal. Those grounds raised
in the internal appeal define the ambit of the appeal and therefore the sole issue (s) in an
appeal in terms of s 43 of NEMA.

[23] Section 7(2) of PAJA, the relevant parts of which provide:
‘(2) (a) Subject to paragraph (c), no court or tribunal may review an administrative action in terms
of this Act unless any internal remedy provided for in any other law has first been exhausted.
…
(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if the court or
tribunal deems it in the interest of justice .’ (Emphasis added.)


5 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7)
BCLR 763 (CC) .
10

[24] In DPP Valuers Pty Ltd v Madibeng Local Municipality and Another ,6 this Court
described the internal remedy to be exhausted as a platform in the same organisation
whereby an aggrieved person can have a chance to be heard by another forum or tribunal
which has the powers to vary, substitute or confirm the decision taken by the organisation
at a lower level. It held that these internal remedies , which are part of our law , are
designed to help a public body correct its mistakes before they get to courts or tribunals.

[25] In Koyabe v Minister of Home Affairs and Lawyers for Human Rights as Amicus
Curiae (Koyabe) ,7 the Constitutional Court held that an aggrieved party must take
reasonable steps to exhaust internal remedies for dispute resolution where available. The
Constitutional Court underscore d the importance of exhausting internal remedies in the
same judgment8 as follows :
‘First, approaching a court before the higher administrative body is given the opportunity to
exhaust its own existing mechanisms undermines the autonomy of the administrative process. It
renders the judicial process premature, effectively usurping the exec utive role and function.9 The
scope of administrative action extends over a wide range of circumstances, and the crafting of
specialist administrative procedures suited to the particular administrative action in question
enhances procedural fairness as enshrined in our Constitutio n. Courts have often emphasised
that what constitutes a “fair” procedure will depend on the nature of the administrative action and
circumstances of the particular case.10 Thus, the need to allow executive agencies to utilise their
own fair procedures is crucial in administrative action. In Bato Star , O’Regan J held that ––
“a court should be careful not to attribute to itself superior wisdom in relation to matters
entrusted to other branches of government. A court should thus give due weight to findings

6 DDP Valuers (Pty) Ltd v Madibeng Local Municipality [2015] ZASCA 146; 2015 JDR 2093 (SCA).
7 Koyabe v Minister of Home Affairs and Lawyers for Human Rights as Amicus Curiae [2009] ZACC 23;
2010 (4) SA 327 (CC) ; 2009 (12) BCLR 1192 (CC) .
8 Ibid para 36.
9 Koyabe fn 31 ‘ In Bato Star above n 26 at para 45, this Court affirmed the following: “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.” See
also Burns and Beukes Administrative Law under the 1996 Constitution 3rd ed (LexisNexis, Durban 2006)
471 and Pretorius (above n 28) at 115. ’
10 Koyabe fn 32 ‘ See Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3)
SA 589 (CC); 2005 (4) BCLR 347 (CC) at paras 113 -4; Chairman, Board on Tariffs and Trade v Brenco Inc
and Others 2001 (4) SA 511 (SCA) at paras 13 -4; Minister of Public Works and Others v Kyalami Ridge
Environmental Association [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) at para 101;
President of the Republic of South Africa v South African Rugby Football Union and Others [1999] ZACC
11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at para 219. ’
11

of fact and policy decisions made by those with special expertise and experience in the
field. The extent to which a court should give weight to these considerations will depend
upon the character of the decision itself, as well as on the identity of the d ecision -maker .
. . A decision that requires an equilibrium to be struck between a range of competing
interests or considerations and which is to be taken by a person or institution with specific
expertise in that area must be shown respect by the courts. Often a power will identify a
goal to be achieved, but will not dictate which route should be followed to achieve that
goal. In such circumstances a court should pay due respect to the route selected by the
decision -maker.”11
Once an administrative task is completed, it is then for the court to perform its review
responsibility, to ensure that the administrative action or decision has been performed or taken in
compliance with the relevant constitutional and other legal standards.12
. . .
Internal administrative remedies may require specialised knowledge which may be of a technical
and/or practical nature.13 The same holds true for fact -intensive cases where administrators have
easier access to the relevant facts and information. Judicial review can only benefit from a full
record of an internal adjudication, particularly in [light] of the fact that reviewing courts do not
ordinarily engage in fact -finding and hence require a fully developed factual record.
. . .
The duty to exhaust internal remedies is therefore a valuable and necessary requirement in our
law. However, that requirement should not be rigidly imposed. Nor should it be used by
administrators to frustrate the efforts of an aggrieved person or to shield the administrative
process from judicial scrutiny. PAJA recognises this need for flexibility, acknowledging in section
7(2)(c) that exceptional circumstances may require that a court condone non -exhaustion of the
internal process and proceed with judicia l review nonetheless.14 Under section 7(2) of PAJA, the
requirement that an individual exhaust internal remedies is therefore not absolute. ’


11 Koyabe fn 33 ‘ Above n 26 at para 48. ’
12 Koyabe fn 34 ‘ Section 7(2) of PAJA. See also the preamble of PAJA. ’
13 Koyabe fn 35 ‘ Hoexter above n 30 at 63, suggests that “where the public interest and the application of
policy predominate … it becomes appropriate for appeal to lie to a suitably qualified and politically more
accountable official or body.” (Footnote omitted). She explains that: “Effective administrative appeal
tribunals breed confidence in the administration as they give the assurance to all aggrieved persons that
the decision has been considered at least twice and reaffirmed. More importantly, they include a second
decision -make r who is able to exercise a ‘calmer, more objective and reflective judgment’ in reconsidering
the issue.” ’
14 Koyabe fn 36 ‘ See also section 6(1) of PAJA. ’
12

[26] This Court in Nichol and Another v The Registrar (Nichol)15 explained the
responsibility to exhaust internal remedies as follows:
‘Under the common law, the mere existence of an internal remedy was not, by itself, sufficient to
defer access to judicial review until the remedy had been exhausted. Judicial review would in
general only be deferred where the relevant statutory or contractual provision, properly construed,
required that the internal remedies first be exhausted.16 However, as is pointed out by Iain Currie
and Jonathan Klaaren,17 “by imposing a strict duty to exhaust domestic remedies, [PAJA] has
considerably reformed the common law ”. It is now compulsory for the aggrieved party in all cases
to exhaust the relevant internal remedies unless exempted from doing so by way of a successful
application under s 7(2) (c). Moreover, the person seeking exemption must satisfy the court of two
matters: first, that there are exceptional circumstances and second, that it is in the interest of
justice that the exemption be given. ’18 (Emphasis added).

[27] More recently, t he position was explained as follows in Dengetenge Holdings (Pty)
Ltd v Southern Sphere Mining and Development Co Ltd :19
‘The exemption is granted by a court, on application by the aggrieved party. For an application for
an exemption to succeed, the applicant must establish “exceptional circumstances”. Once such
circumstances are established, it is within the discretion of th e court to grant an exemption. Absent
an exemption, the applicant is obliged to exhaust internal remedies before instituting an
application for review. A review application that is launched before exhausting internal remedies
is taken to be premature and t he court to which it is brought is precluded from reviewing the
challenged administrative action until the domestic remedies are exhausted or unless an
exemption is granted. Differently put, the duty to exhaust internal remedies defers the exercise of
the court’s review jurisdiction for as long as the duty is not discharged.’ (Citation omitted.)


15 Nichol and Another v The Registrar of Pension Funds and Others [2005] ZASCA 97; 2008 (1) SA 383
(SCA) para 15.
16 Nichol fn 10 ‘ See eg Shames v South African Railways & Harbours 1922 AD 228 at 233 -234; Welkom
Village Management Board v Leteno 1958 (1) SA 490 (A) at 502D -503D; Local Road Transportation Board
& another v Durban City Council & another 1965 (1) SA 586 (A) at 592F -594C. See also Daniel Malan
Pretorius ‘The Wisdom of Solomon: The Obligation to Exhaust Internal Remedies in South African
Administrative Law’ (1999) 116 SALJ 113 and the other authorities there cited. ’
17 Nichol fn 11 ‘ The Promotion of Administrative Justice Act Benchbook p 182. ’
18 Nichol fn 12 ‘ See Earthlife Africa (Cape Town) v Director -General: Department of Environmental Affairs
& Tourism & another [2005] ZAWCHC 7; 2005 (3) SA 156 (C) para 45. ’
19 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Co Ltd and Others [2013]
ZACC 48; 2014 (5) SA 138 (CC) ; 2014 (3) BCLR 265 (CC) para 116.
13

[28] As alluded to earlier, the respondents did not purport to have taken any steps , let
alone reas onable steps , to exhaust internal remedies on the two additional grounds . Even
before this Court, the respondents did not purport to have taken any steps to exhaust
their internal remedies on these two additional grounds . It is trite that ‘exceptional
circumstances ’ are not defined in PAJA. However, ‘the circumstances must be such as to
require the immediate intervention of the courts rather than resort to the applicable
internal remedy ’.20 Having regard to the facts of this matter, the remedy was available but
was ignored for no reason ; no case was made out that being remitted to the chief director
would be prejudicial to them . Consequently, the circumstances do not shout out for ‘the
interests of justice’ to be invoked.

[29] On the strength of the authorities cited above, i t follows that t he high court ought
to have found that it was precluded by the provisions of s 7(2) of PAJA from reviewing the
impugned decisions on grounds not advanced before the Minister , without an application
for exemption in terms of s 7(2)(c) of PAJA , because the consequence is that such internal
remedy is not ‘effectively exhausted’ in the sense contemplated in s 7(2) (a) of PAJA . It
follows that the high court lacked jurisdiction to entertain the two additional grounds of
review , as the respondents were non -suited on the two grounds of review. The review
ought to have been solely decided on the first ground of appeal . Therefore, these two
grounds must fall away as regards this appea l.

[30] Tritely , once a jurisdictional point is decided in favour of one party, it is dispositive
of the entire matter. However, since the high court was of the view that there was non -
compliance with the regulation in respect of the North EA, albeit that it found the other
two EAs (the South and East) in compliance, it follows that the only ground of review
which this Court ought to consider is whether the high court was correct in that respect.
That is the ground of review to which I now turn.
The law : regulation 26
[31] Regulation 26 of the EIA Regulations sets ou t what an E A makes provision for: the
‘Content of Environmental Authorisation’ , ie what an EA must specify. It states:

20 Nichol para 16 .
14

‘(a) the name, address and contact details of the person to whom the environmental
authorisation is issued;
(b) a description of the activity that is authorised;
(c) a description of the location of the activity , including:
. . .
(iv) a plan which locates the proposal activity or activities authorised at [an] appropriate scale,
or, if it is:
(aa) a linear activity, a description and coordinates of the approved corridor of the activity or
activities; or
(bb) on land where the property has not been defined, the coordinates of the area within which
the activity is to be undertaken;
(d) the conditions subject to which the activity may be undertaken, including conditions
determining:
. . .
(iv) requirements for the avoidance, management, mitigation, monitoring and reporting of the
impacts of the activity on the environment throughout the life of the activity additional to those
contained in the approved EMPr, and the closure plan in the case of a closure activity;’ (Emphasis
added.)

[32] As this ground of review involves interpretation issues under NEMA and the EIA
Regulations, understanding the current state of our law regarding interpretation is
necessary . It is trite that the principles thereof are now settled and unnecessary to repeat
in light of the most recent judgment of the C onstitutional Court in University of
Johannesburg v Auckland Park Theological Seminary and Another,21 citing with approval
the judgment of this Court in Natal Joint Municipality Pension Fund v Endumeni
Municipality .22 Suffice it to reiterate that the interpretation of documents is a unitary
exercise, which means that the interpretation is to be approached holistically:
simultaneously considering the text, context and purpose of the document in question.23

21 University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021
(6) SA 1 (CC).
22 Natal Joint Municipality Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA).
23 University of Johannesburg v Auckland Park Theological Seminary and Another fn 21 above para 65.
15

In the context of this matter, the focus is on the Minister's decisions within the meaning of
the EIA Regulations in the context of NEMA.

Submissions by the respondents
[33] The respondents contend that the chief director granted the EAs without the EAs
containing the final plans locating the proposed activities authorised at an appropriate
scale as required by regulation 26 (c)(iv). They contend that contrary to the provisions of
regulation 1 of the EIA Regulations, at the time that the chief director granted the EAs,
the final location of all the activities identified in the notice published by the Minister in
terms of s 24D(1)( a) of NEMA as listed activities were not fixed or settled. In terms of the
EIA regulations, ‘activity ’ means an activity identified in any notice published by the
Minister or MEC in terms of section 24D(1) (a) of the Act as a listed activity or specified
activity. Section 24D(1) (a) of NEMA provides for the publication of a list of ‘activities or
areas identified in terms of s 24(2)’.

[34] The respondents therefor e argued, that at the time the EA s were granted, the final
location of the turbines and their associated infrastructure were unknown because inter
alia, as noted by the applications , in respect of South EA for instance, the Highlands
companies still had to ‘submit the “final site layout map” to the Department for the written
approval prior to the commencement of the activities authorised by the EAs’. They
submitted that even if regulation 26( d) of the EIA regulations permitted adjustments to be
made to the turbines after the granting of EAs without the need to amend the EAs, it is
clear that the EAs envisaged something well beyond that. This is particularly true in the
case of the North EA, which contains no layout plan whatsoever , as they argued.

[35] The respondents further submitted that regulation 26(c)(iv)(aa) is not applicable
because the WEFs are not ‘linear activities ’ as defined in regulation 1 of the EIA
Regulations. The turbines , which are the dominant features of the WEFs, occur at discrete
locations with in an approximately 10 000 ha site, unlike the railways etc listed in the
definition. They argued that the character of the unlisted activities that are ‘arranged or
16

extending along one or more properties’ must be eiusdem generis24 with those of listed
activities. Overall , so they submitted , contrary to what the high court found in respect of
the South and the Central EAs, none of the EAs for the WEFs complied with the
requirement in regulation 26 (c)(iv) that they contain a plan which locates the authorised
activities at an appropriate scale.

Submissions by the appellants
[36] The state appellants submitted that regulation 26 merely stipulates the
requirements relating to the content of an EA, once granted. It is not an empowering
provision as contemplated in s 6(2) (b) of PAJA , which requires a certain procedure to be
followed or certain conditions to be met before a decision to grant an EA is taken. And
that ground , therefore , does not avail the respondents. They contend that the y presented
adequate evidence to show that there was compliance with regulation 26 (c)(iv)(aa). Page
8 of the North EA contain s the coordinates of the ‘approved corridor’ of the activities, ie
the coordinates of the entire footprint of the area in which the approved activities will take
place. Furthermore, the North EA contain s a description of the location of the activities
and the coordinates of the location where the activities will take place , as depicted in
AW6.1 , Figure s 1 to 4 of the Development Plan Highlands North, Central and South
WEFs.25 The Highland s companies made common cause with the state appellants on all
the issues.

[37] The high court , however, found that ‘[u]nlike the South EA and Central EA, the
North EA did not describe the coordinates of the activities to be undertaken. The location
of the activities to be undertaken was accordingly not described. The purpose of
regulation 26 (c)(iv) was accordingly not achieved. The applicants’ submission, that there
has been non -compliance with the provisions of regulation 26 (c)(iv)(aa), must therefore
be sustained in respect of the North phase .’ The high court reasoned that this is so
because , in respect of the North EA, no locality map was attached at all.

24 Eiusdem generis rule is an interpretive presumption to the effect that terms with a wide meaning may be
restricted by terms with a narrower meaning with which they are connected if the narrower words in the
provision describe a genus to which the broader word can be restricted.
25 A full-colour and much clearer picture of pages 206 to 213 of the appeal record was handed up during
hearing by consent between the parties.
17


[38] Regulation 1 defines a ‘linear activity’ to mean ‘an activity that is arranged in or
extending along one or more properties and which affects the environment or any aspect
of the environment along the course of activity, and includes railways, roads , canals,
channels , funicular s, pipelines, conveyor belts, cableways, power lines, fences, runways,
aircraft land ing strips, firebreaks and telecommunication lines ’. When one examines
Figure s 1 to 4 of the Development Plan Highlands North, Central and South WEFs
carefully, it describes the coordinates of the approved corridor of all the activities. The
respondents did not lead or produce any evidence to refute this. It is not surprising
therefore , that the high court concluded that ‘there can be no doubt that the development
of the North phase is a linear activity as it extends along more than one property it affects
the environment along the course of the activity and it includes road s and powerlines.’
This is underscored by page 8 of the North EA application .

[39] Regulation 26 (d)(iv) of the EIA Regulations provides that the EA must specify the
conditions subject to which the activities may be undertaken in addition to the conditions
contained in the approved EMPr, not including the conditions contained in the approved
EMPr. It follows that since it is the additional conditions which must be specified, not the
conditions which are included in the approved EMPr, the ‘approval’ of an EMPr does not
necessarily have to precede the ap proval of the EA. It means that although regulation 26
has multiple references to the approved EMPr , as counsel for the appellants correctly
contended, none of these references stipulate or presuppose a ‘final’ approval or that the
EMPr ought to have been approved at the same time or prior to the granting of the EA.
What fortifies this view is that regulation 26(g) of the EIA regulations refers to the necessity
to provide for the frequency of ‘updating the approved EMPr ’. Meaning, an approved
EMPr may have to be continually updated and amended.26


26 Regulation 26( g) of the EIA Regulations provides:
‘The frequency of updating the approved EMPr, and the closure plan in the case of a closure activity, and
the manner in which the updated EMPr and closure plan will be approved, taking into account processes
for such amendments prescribed in terms of these regulations.’
18

[40] I agree with the appellants in that there is no express provision in NEMA, the
regulations, and in particular regulation 26 of the EIA Regulations , which provides that the
EMPr should be approved simultaneously or prior to the granting or approval of an EA.
The respondents too concede t hat there is no such express provision . To appreciate the
scheme of the EIA Regulations, one has to start with regulation 25, which provides for the
issuance of an EA in compliance with regulation 26. The overarching r egulations ,
regulations 19 and 20 , provide for what must be contained in the application and how the
application should be assessed.

[41] Section 24N(1A) of NEMA provides that:
‘Where an environmental impact assessment has been identified as the environmental instrument
to be utilised as the basis for a decision on an application for environmental authorisation, the
Minister , the Minister responsible for mineral resources or an MEC must require the submission
of an environmental management programme before deciding an application for an environmental
authorisation.’
The provision clearly states that in an application for an EA , the relevant official must
require the submission of an EMPr before deciding on an application for an EA.
Expressed differently, t he section does not require approval of an EMPr before deciding
on an application for an EA. What is required is that , before deciding on an application for
an EA, an EMPr must be submitted. The Minister does not have the discretion to exercise
to require an EMPr where an environmental impact assessment is identified as the
environmental instrument. It is a mandatory requirement by operation of law.

[42] The submission of an EMPr is a requirement in terms of a statute. It does not
require a factual inquiry , contrary to what the high court found . The contention of the
Highland s companies in the high court , their statement before the Minister , and before
this Court stands uncontroverted that all the assessments were undertaken at the relevant
stages as guided by the Department of Environment, Forestry and Fisheries (the
Department) . This contention is underpinned by regulation 8 of the EIA Regulations . The
regulation provides that:
‘A competent authority, subject to the payment of any reasonable charges, if applicable -
19

(a) may advise or instruct the proponent or applicant of the nature and extent of any processes
that may or must be followed or decision support tools that must be used in order to comply with
the Act and the se Regulations ;
(b) must advise the proponent or applicant of any matter that may prejudice the success of
an application;
(c) must, on written request, furnish the proponent or applicant with officially adopted minutes
of any official meeting held between the competent authority and the proponent, applicant or EAP;
and
(d) must, on written request, provide access to the officially adopted minutes of meetings
contemplated in paragraph (c), to any registered interested or affected party.’

[43] To make matters even clearer, s 24N(5) of NEMA provides that:
‘The Minister , the Minister responsible for mineral resources or an MEC may call for additional
information and may direct that the environmental management programme in question must be
adjusted in such a way as the Minister , the Minister responsible for mineral resources or the MEC
may require.’
Section 24N(6) of NEMA stipulates that at ‘any time’ after the approval of an EA, an
amended EMPr may be approved.

[44] Section 47A(1) (a) of NEMA requires two factors before EAs are validate d:
(a) materiality and (b) prejudice. The section provides:
‘(1) A regulation or notice, or an authorisation, permit or other document, made or issued in
terms of this Act or a specific environmental management Act –
(a) but which does not comply with any procedural requirement of the relevant Act, is
nevertheless valid if the non -compliance is not material and does not prejudice any person.’
(Emphasis added.)

[45] The section provides that the prejudice must be against any person . It does not
expressly state when the prejudice should be suffered by an aggrieved person. However,
the section certainly does not make reference to the anticipated or future detrimental
impact of the proposed activities on the environment , which the respondents relied on
from the bar . Prejudice in this context cannot be implied. It must be specifically pleaded
and substantiated with evidence , which is common cause ; the respondents did not plead .
20


[46] Furthermore, the evidence presented on behalf of the state appellants include s:
(a) The location of the activities had already been determined and the impact on the
environment had already been assessed based on the entire footprint of the activities as
described in the EA;
(b) A condition was attached to the EA that a final layout plan should be submitted for
approval prior to the commencement of the activities; and
(c) The impact studies and investigation that preceded the granting of the EA were
adequate and all relevant environmental factors were taken into account by the chief
director as he set out in detail the amendments which were required.

[47] Section 47A(1) (b) of NEMA provides that an EA may be amended or replaced at
any time without following any procedural requirements if the ‘correction does not change
the rights and duties of any person materially ’. It follows that an EA can be amended to
include the final layout map once the chief director approves this. It may be that the EA
application form is not a model of perfection. However, the pragmatic approach is to
consider the overall application. And to see whether it is good and acceptable that nothing
can be done until the Highlands companies have shown the chief director eg that the
public participation process has been dealt with. It cannot be expected of the chief director
to hold back the EA until absolutely all processes are in place. To do so would be to put
form above substance. It is a value judgment.

[48] Most significantly, one of the fundamental principles in legislative interpretation is
that regulations are subordinate legislation and cannot override legislation, for example,
an Act of Parliament. In this context, where there is ambiguity, uncertainty o r lack of clarity
or express provision in the regulations, the provisions of NEMA should prevail.
Contextually, when the provisions of the regulations are interpreted, NEMA should prevail.
E A Kellaway in Principles of Legal Interpretation of Statutes , Contracts and Wills at 374 -
375 state s parenthetically as follows :
‘A provision in a statute must be interpreted before the regulation is considered, and if the
regulation purports to vary the provision as so interpreted , it is ultra vires and void. Also , the
regulation cannot be used to cut down or enlarge the meaning of the statutory provision.’
21


[49] This Court in Moodley and Others v Minister of Education and Culture, House of
Delegates and Another27 stated:
‘It is not permissible to treat the Act and the regulations made thereunder as a single piece of
legislation; and to use the latter as an aid to the interpretation of the former.’
This approach is affirmed by this Court most recently in Optivest Health Services Pty Ltd
v Council for Medical Schemes and Others , albeit in a different context, it emphasis es the
interrelationship between the Act and its regulations in applying ‘a contextual and
purposive interpretation .’28

[50] The purpose of NEMA and the EIA Regulations , is to protect the environment and
to ensure that only authorised activities can be undertaken . Therefore, neither t he
approval of the EAs in the form issued by the chief director, nor t he Minister’s dismissal
of the appeals , give rise to a material failure to implement the legislation . The respondents
would not suffer any prejudice if the EAs are not reviewed and set aside because they
still have the opportunity to comment on the further steps taken toward final layout maps
and EMPrs.

[51] As such, the appeal must succeed and the order of the high court set aside and
substituted with an order dismissing the application .

[52] The issue of costs remains . The appellants accepted that the respondents meant
no malice in challenging the regulations and the interpretation adopted by the appellants,
especially the chief director and the M inister. Neither were the applications frivolous or
vexatious. For that reason, they proposed that this Court either adopt the Biowatch
approach29 or make no order of costs against the respondents if the appeal is successful.
I agree that there should be no such order against the respondents .


27 Moodley v Minister of Education and Culture, House of Delegates 1989 (3) SA 221 (A) at 233.
28 Optivest Health Services Pty Ltd v Council for Medical Schemes and Others 2024 (6) SA 106 (SCA)
paras 38 -40 and 82 .
29 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009
(10) BCLR 1014 (CC) para 56.
22

[53] In the result, the following order issues :
1 The appeal is upheld with no order as to costs .
2 The order of the high court is set aside and substituted with the following order:
‘The application is dismissed with no order as to costs.’



_______________________
B C MOCUMIE
JUDGE OF APPEAL


Gorven AJA ( Mbatha and Kathree -Setiloane JJA concurring)

[54] I agree with the order proposed by my colleague Mocumie JA. However, I prefer
to arrive at it by a different path. I do not think it best to decide the first and third grounds
by upholding the point in limine . In the light of the conclusion to which I have come on the
merits, it is not necessary to deal with the point in limine. I shall assume, without deciding,
that the respondents were entitled to rely on the three substantive grounds for review
raised by them in the high court and before us even though t hey were not referred to in
the internal appeal to the Minister.

[55] Before addressing these three grounds, it is important to sketch the legislative
backdrop to the approval of EAs. Section 24N(1A) of NEMA provides that:
‘Where an environmental impact assessment has been identified as the environmental instrument
to be utilised as the basis for a decision on an application for environmental authorisation, the
Minister, the Minister responsible for mineral resources or an M EC must require the submission
of an environmental management programme before deciding an application for an environmental
authori sation’.
That was clearly the case in the present circumstances. EMPrs were required for each
WEF.
23


[56] And s 24N(5), stipulates that
‘The Minister, the Minister responsible for mineral resources or an MEC may call for additional
information and may direct that the environmental management programme in question must be
adjusted in such a way as the Minister, the Minister responsible for mineral resources or the MEC
may require.’

[57] The purpose of these provisions is abundantly clear. Section 24(b) of the
Constitution, 1996 provides:
‘Everyone has the right –
(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.’
NEMA was promulgated in order to give effect to s 24. Its stated purpose was:
‘To provide for co -operative environmental governance by establishing principles for decision -
making on matters affecting the environment, institutions that will promote cooperative
governance and procedures for co -ordinating environmental functions exerci sed by organs of
state; to provide for certain aspects of the administration and enforcement of other environmental
management laws; and to provide for matters connected therewith.’30
The preamble to NEMA included the provisions of s 24 of the Constitution.

[58] The approach to interpretating legislative provisions, whether Acts or regulations
made pursuant to an Act, is well settled. It was recently restated in AmaBhungane Centre
for Investigative Journalism NPC and Another v President of the Republic of South Africa :
‘(O)ne must start with the words, affording them their ordinary meaning, bearing in mind that
statutory provisions should always be interpreted purposively, be properly contextualised and
must be construed consistently with the Constitution. This is a unita ry exercise. The context may
be determined by considering other subsections, sections or the chapter in which the keyword,
provision or expression to be interpreted is located. Context may also be determined from the

30 Long title of NEMA.
24

statutory instrument as a whole. A sensible interpretation should be preferred to one that is absurd
or leads to an unbusinesslike outcome. ’31 (Citations omitted.)

[59] In order to consider this appeal, and the interpretation to be placed on various
legislative provisions in NEMA and the EIA regulations, it will be illuminative to set out
some of the salient features of the EAs and, in particular, the conditions to which they
were made subject. Each of them recorded the decision as follows:
‘The Department is satisfied, on the basis of information available to it and subject to compliance
with the conditions of this environmental authorisation , that the applicant should be authorised to
undertake the activities specified below.’ (Emphasis added.)
As conditions, each EA provided:
‘Authorisation of the activity is subject to the conditions contained in this environmental
authorisation, which form part of the environmental authorisation and are binding on the holder of
the authorisation.’

[60] As regards layout maps, all of the EAs provided:
‘A copy of the final site layout map must be made available for comments by registered Interested
and Affected Parties and the holder of this environmental authorisation must consider such
comments. Once amended, the final development layout map must be submitted to the
Department for written approval prior to commencement of the activity.’
There followed a detailed set of requirements in drafting the final layout map. The South
EA listed twelve items to be indicated on the final layout map, the Central EA listed seven
items and the North EA listed eleven.

[61] As regards EMPrs, the EAs for the South and North WEFs provided:
‘The Environmental Management Programme (EMPr) submitted as part of the revised BAR is not
approved and must be amended to include measures as dictated by the final site lay -out map and
micrositing, and the provisions of this environmental authorisation. T he EMPr must be made
available for comments to registered Interested and Affected Parties and the holder of this
environmental authorisation must consider such comments. Once amended, the final EMPr must

31 AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South
Africa [2022] ZACC 31; 2023 (2) SA 1 (CC) ; 2023 (5) BCLR 499 (CC) para 36.
25

be submitted to the Department for written approval prior to commencement of the activity. Once
approved, the EMPr must be implemented and adhered to.’
That for the Central WEF provided:
‘The Environmental Management Programme (EMPr) submitted as part of the Application for EA
must be amended to include the information that will be obtained after the final walkthrough of the
site and be submitted to the Department for written approval prio r to commencement of the
activity. The recommendations and mitigation measures recorded in the BAR dated
18 November 2019 must be incorporated as part of the EMPr. Once approved, the EMPr must be
implemented and adhered to.’

[62] A plain reading of these provisions makes it clear that the EAs were not final,
unconditional authorisations which would allow the Highlands companies to commence
with the activities of the WEFs. It is equally clear that, before any action could be taken,
each WEF would be obliged to:
(a) Make a copy of the final layout map available to registered I&APs for comment;
(b) Consider any comments made by the I&APs;
(c) Thereafter submit the final layout map to the Department, along with the comments
received; and
(d) Receive the written approval of the Department.
Only then, and if other conditions have been met, would the WEFs be able to commence
activities.

[63] In addition, it is clear that, even once a final plan had been approved and prior to
commencing activities, the North and South WEFs would be obliged to:
(a) Amend the previous EMPrs to include measures as dictated by the final site lay -
out map and micrositing, and the provisions of th e respective EAs;
(b) Make the amended EMPrs available for comments to registered I &APs;
(c) Consider any comments made by the I&APs;
(d) Thereafter submit the final EMPrs to the Department, along with the comments
received;
(e) Receive the written approval of the Department;
(f) Only then commence activities; and
26

(g) After commencing activities, implement and adhere to the approved EMPrs.

[64] As for the Central WEF, even once a final plan had been approved and prior to
commencing activities, it would be obliged to:
(a) Conduct a final walkthrough of the site;
(b) Amend the submitted EMPr to include information obtained after the final
walkthrough of the site ;
(c) Incorporate as part of the EMPr the recommendations and mitigation measures
recorded in the BAR dated 18 November 2019 ;
(d) Thereafter s ubmit the amended EMPr to the Department ;
(e) Receive the written approval of the Department ;
(f) Only then commence activities; and
(g) After commencing activities, implement and adhere to the approved EMPrs.

[65] The language of the EAs was that ‘[a]uthorisation of the activity is subject to the
conditions contained in’ the EAs. This, in contractual terms, is a classic expression of a
suspensive condition. The effect of this in contract was explained by Hoexter JA in Peri-
Urban Areas Health Board v Tomaselli and Another :32
‘If the contract is subject to a casual suspensive condition, then it is impossible to say, before the
condition is fulfilled, whether or not the making of the contract disposed of the right concerned. If
the condition is fulfilled, then the making of the contract was the legal act of disposal, and if the
condition is not fulfilled the making of the contract had no legal effect at all; but the fulfilment of a
casual condition can never constitute an act of disposal on the part of either party to a contract.
This view is entirely in keeping with what the authorities have to say as to the effect of the fulfilment
of a casual suspensive condition (see e.g. Pothier on Obligations , sec. 220; Goudsmit on Roman
Law, sec. 61; Wessels on Contract , sec. 1352).’
I am not saying that the provision in question in the EAs is contractual in nature. I refer to
this to illustrate that the grant of the EAs did not have the effect that the WEFs were,
without more, entitled to commence with the activities to which the EAs related. This could
only be done once all the steps set out above had taken place.


32 Peri-Urban Areas Health Board v Tomaselli and Another 1962 (3) SA 346 (A) at 351H –352A.
27

[66] In all cases, the WEFs were obliged to give written notification of commencement
fourteen days prior to commencement. In addition, provision was made for the EMPrs to
be updated after approval where findings of the obligatory environmental audit reports
‘indicate insufficient mitigation of environmental impacts associated with the undertaking
of the activity or insufficient levels of compliance with’ the EAs or EMPrs. The updated
EMPrs ‘must contain recommendations to overcome the shortcomings identified in the
environmental audit report.’ The updated EMPrs must then be subjected to a public
participation process and submitted to the Department for approval. Prior to approval, the
Department may request any amendments to the amended EMPrs ‘as it deems
approp riate to ensure that the EMPr[s] sufficiently provide for avoidance, management
and mitigation of environmental impacts associated with the undertaking of the activity’
giving a date on which it was proposed that the activity would commence.

[67] After all of these steps had been taken, a pre -construction walk through ‘must be
conducted by a heritage specialist, aquatic specialist, ecologist, bat specialist and
avifaunal specialist, to ensure that the micro -siting of the facility infrastructure, including
the turbines, access roads, onsite substation and power line alignments have the least
possible impact, that all protected plant species and sensitive habitats impacted are
identified and that any nests/breeding/roosting activity of priority species are iden tified.’
There follows a detailed list of requirements bearing on this aspect.

[68] Turning, then, to the submissions of the respondents. They relied on the provisions
of regulation 26 (d)(iv) of the EIA Regulations, contending that it required finally approved
EMPrs before issuing the EAs to the Highlands companies. The regulation provides:
‘(d) An environmental authorisation must specify the conditions subject to which the activity
may be undertaken, including conditions determining -
. . .
(iv) requirements for the avoidance, management, mitigation, monitoring and reporting of the
impacts of the activity on the environment throughout the life of the activity additional to those
contained in the approved EMPr, and the closure plan in the case of a closure activity’.
28

As is clear from the conditions to which the EAs were made subject, they could only be
acted on once the EMPrs had been amended and approved. They also made provision
for ‘the avoidance, management, mitigation, monitoring and reporting of the impacts of
the activity on the environment throughout the life of the activity’ to take place after
approval of the amended EMPrs following the process set out to amend them. I see no
lack of compliance with the regulation in question as a result. It is clear that the purpose
of NEMA and the EIA regulations is given effect. The high court erred in finding that it had
not been complied with.

[69] As regards the second issue, the respondents relied on the provisions of
regulation 26(c)(iv) of the EIA Regulations which requires:
‘. . . a plan which locates the proposed activity or activities authorised at an appropriate scale,
or, if it is -
(aa) a linear activity, a description and coordinates of the approved corridor of the activity or
activities; or
(bb) on land where the property has not been defined, the coordinates of the area within
which the activity is to be undertaken ’.
There was much debate before us whether the activity was a linear one as mentioned in
regulation 26(c)(iv)(aa) of the EIA Regulations and whether the description and
coordinates of an approved corridor of activity was reflected in the North EA. The short
answer is that we do not need to determine that issue. Once more, the EAs all envisaged
the submission of final layout plans after taking the detailed steps set out as conditions to
the EAs prior to commencing the proposed activities. Once the activities commenced, the
EAs would contain final layout plans arrived at after a further public participation process
in which the respondents, as registered I&APs, could register any comments. The
purpose of NEMA and the EIA regulations was given effect.

[70] The third ground of complaint is that the WEF EAs were considered without taking
into consideration the grid applications. For this proposition, the respondents set store by
regulation 11(3) of the EIA Regulations which provides:
29

‘If a proponent or applicant intends undertaking more than one activity as part of the same
development within the area of jurisdiction of a competent authority, a single application must be
submitted for such development and the assessment of impacts, incl uding cumulative impacts,
where applicable, and consideration of the application, undertaken in terms of these Regulations,
will include an assessment of all such activities forming part of the development. ’
It seems clear that the WEFs and the grid applications are hit by this provision. However,
the uncontroverted evidence was that the Department had insisted on separate
applications being brought for the WEFs and the grid connections. This did not do away
with the need for the assessment to take into account all of those activities. Once more,
however, the unchallenged evidence was that the chief director had regard to the grid
connection applications at the time the EAs were being considered. This is furthe r
buttressed by the requirement in each of the EAs for the final layout maps to include the
depiction of connection routes to the grid.

[71] The upshot of this is that none of the three grounds relied on by the respondents
formed a valid basis for reviewing and setting aside the impugned decisions. The high
court erred in arriving at that conclusion. In summary, this resulted from a failure to
properly analyse what the EAs encompassed and the explicitly conditional nature of the
authorisations contained in them. As such, it can be said that the EAs would only be finally
granted once all of the conditions had been met and the Highlands companies were
entitled to commence the proposed activities.

[72] Even if, on a highly technical reading of the various provisions, it can be said that
the chief director and Minister failed to give effect to the legislative provisions governing
the grant of the EAs, s 47A(1)( a) of NEMA requires two factors before EAs are invalidated.
This section provides:
‘A regulation or notice, or an authorisation, permit or other document, made or issued in terms of
this Act or a specific environmental management Act –
(a) but which does not comply with any procedural requirement of the relevant Act, is
nevertheless valid if the non -compliance is not material and does not prejudice any person ’.
In the light of the purpose of the legislation, viz to protect the environment and to ensure
that only activities which are authorised can be undertaken, it can hardly be said that the
30

approval of the EAs in the form issued in the present matter amounted to a material failure
on the part of the chief director. The Minister’s dismissal of the appeals likewise does not
give rise to a material failure to implement NEMA and the EIA regulatio ns. Since the
respondents still have the opportunity to comment on the further steps taken toward final
layout maps and EMPrs, it can also not be said that they would suffer any prejudice if the
EAs are not reviewed and set aside.

[73] As a result of all of the above, the impugned decisions are not susceptible of
review. As such, the appeal must succeed and the order of the high court set aside and
substituted with an order dismissing the application. I am in respectful agreement with my
colleague Mocumie JA on the issue of costs, both in the high court and in this Court.



_______________________
T R GORVEN
ACTING JUDGE OF APPEAL

31

Appearances

For the First and Second Appellant s R G Buchanan SC with G Appels
Instructed by : State Attorney , Gqeberha
State Attorney , Bloemfontein

For the Third, Fourth and Fi fth Appellant s J J Nepgen SC
Instructed by : Cullinan & Associates Inc. , Cape Town
Honey Attorney , Bloemfontein

For the Respondents A M Breitenbach SC with G A Du Toit
Instructed by : Nicholas Smith Attorneys , Cape Town
Webbers Attorneys Bloemfontein.