IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
JACOBUS NICOLAAS VAN COLLER
t/a JN VAN COLLER BOERDERY
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR ECONOMIC, SMALL BUSINESS DEVELOPMENT,
TOURISM AND ENVIRONMENTAL AFFAIRS,
FREE STATE PROVINCE
THE FREE STATE DEPARTMENT OF ECONOMIC,
SMALL BUSINESS DEVELOPMENT , TOURISM
AND ENVIRONMENTAL AFFAIRS Not reportable
Case no: 5750/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Jacobus Nicolaas van Coller tla JN van Coller Boerdery v The Member
of the Execetuive Council for Economic, Small Business Development, Tourism and
Environmental Affairs, Freee State and Another (5750/2024) [2025] ZAFSHC 191 (26
June 2025)
Coram: Mhlambi J et Ntanga AJ
Heard: 5 May 2025
Delivered: 26 June 2025
Summary: Civil procedure -review application to set aside an administrative decision -
application for rectification in terms of s 24G of National Environmental Management Act
107 of 1998 (NEMA)- determination of applicant in terms of s 24G of NEMA.
2
ORDER
1 The dismissal of the applicant's appeal to the first respondent against the imposition
of an administrative fine of R1 000 000 (one million rand) for the applicant's
non-compliance with the provisions of the National Environmental Managemen t Act 107
of 1998 by the second respondent , on recommendation of the Department's Fitness
Committee is reviewed and set aside.
2 The first and second respondents are ordered to reconsider the applicant's appeal
for determination of appropriate fine to be imposed on the applicant as a catergory 1
offender in terms of s 24G of the National Environmental Management Act 107 of 1998.
3 The first and second responden ts to pay costs on a party and party scale, including
costs of counsel on scale C.
Ntanga AJ (Mhlambi J concurring)
Introduction JUDGMENT
[1] The applicant launched an application to this court for review of an administrative
decision. This emanates from an appeal by the applicant to the first respondent against
imposition of an administrative fine of R1 000 000 (one million rand) for the applicant's
non-compliance with the provisions of the National Environmental Management Act 107
of 1998 (NEMA).
[2) The applicant is a farmer and conducts farming activities by way of a feedlot on a
portion of the farm known as remaining extent of Rooidam 256 and trades personally as
Van Coller Boedery. The property where farming activities are conducted is owned by Van
Coller Family Trust.
[3] In the notice of motion, the applicant sought an order for the following relief:
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'1. Reviewing and setting aside the dismissal of the Applicant's appeal to the First Respondent
against the imposition of an administrative fine of R1000 000.00 (One Million Rand) for the
Applicant's non-compliance with the provisions of the National Environmental Management Act
107 of 1998 by the Second Respondent, on the recommendation of the Department's Fitness
Committee.
2. Replacing the decision of the Respondents ' decision with a finding that the appeal is upheld
against the amount of the fine and that the administrative fine imposed be replaced with a fine of
R40 000.00.'
The applicant's case
[4] In the founding affidavit, the applicant avers that he commenced with
establishment of a feedlot for cattle on a portion of land on the farm, which was previously
utilised for cultivation. He did this due to the need for more specialised farming practices
and to be able to sustain an economically viable farming operation. At the time, he did not
realise that his conduct triggered the provisions of NEMA as constituting a listed activity
that requires prior authorisation. The applicant averred that the initial transgression and
failure to obtain authorisation for engaging in a listed activity and commencing with the
establishment of the feedlot was done by him in his personal capacity.
[5] The applicant was then advised that a Basic Assessment Report and authorisation
from the Department of Environmental Affairs {the Department) would be required in order
to be compliant with the provisions of NEMA and regulations promulgated in terms of
NEMA. He then engaged and instructed Milnex CC to act as his environmental
consultants and assist him with the application in terms of s 24G to ensure that the
activities are authorised. His application was prepared by Mr Andile Nxumalo, a qualified
environmental assessment practitioner, using a proforma application form provided by the
Department. This application was filed with the Department to rectify the applicant's failure
to comply with the prescribed process entailed in NEMA.
[6] It is averred that Milnex CC was further instructed to proceed with the necessary
water use license applications, and it was decided that all future operations would be
undertaken and concluded by Vancol CC. The necessary applications for future
development and farming operations would be made in the name of Vancol CC.
4
[7] Subsequently , the applicant was informed that an administrative fine in the sum of
R1 000 000 was imposed and the reasons for imposing the fine were provided. He
proceeded to file an appeal to the first respondent as contemplated in the appeal
regulations.
The respondent's case
[8] The respondents averred that the applicant in these proceedings was not the
applicant when application for rectification in terms of s 24G of NEMA was launched and
that the applicant was Vancol BK. It was argued that the applicant was indicated as the
director/owner of Vancol BK in the application in terms of s 24G. It was further argued that
the fact that applicant indicated himself as appellant in the appeal did not detract from the
fact that he was not the applicant in the s 24G application. The respondents further
averred that no trading name was indicated in the s 24G application, instead, full
particulars of Vancol BK were provided.
[9] The respondents denied the applicant's version that the fine was imposed on him
for farming activities which he engaged in. They further argued that, due to the doctrine
of separation of powers, this court does not have requisite jurisdiction to
replace/amend/vary the fine imposed. The respondents also averred that any future
operations and/or applications do not have a bearing on the adjudication of the current
review application as, according to the respondents, the s 24G application was brought
by Vancol CC.
Legal framework and analysis
[10] Section 33 of the Constitution1 provides that everyone has the right to
administrative action that is lawful, reasonable and procedurally fair. In compliance with
the obligations set out in s 33 of the Constitution, enabling legislation in the form of
Promotion of Administrative Justice Act 3 of 2000 (PAJA) was enacted. Section 3 of PAJA
provides for what is a procedurally fair administrative action affecting any person. It is
required that the administrator , subject to subsection 4, must give a person referred to in
subsection 1:
(a) adequate notice of the nature and purpose of the proposed administrative action;
1 The Constitution of the Republic of South Africa, 1996.
(b) a reasonable opportunity to make representations;
(c) a clear statement of the administrat ive action;
(d) adequate notice of any right of review or internal appeal, where applicable; and
(e) adequate notice of the right to request reasons in terms of s 5. 5
[11) The court is authorised, in terms of PAJA, to judicially review an administrative
decision for reasons set out in s 6 of the Act. In Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others ("Bato Star'),2 the Court stated that:
'The cause of action for the judicial review of administrative action now ordinarily arose from the
Promotion of Administrative Justice Act, not from the common law as in the past. The authority of
the Promotion of Administrative Justice Act to ground such causes of action rested squarely on
the Constitution. As the Promotion of Administrative Justice Act gave effect to section 33 of the
Constitution, matters relating to the interpretation and application of Administrative Justice Act
would be constitutional matters.'
[12) The Constitutional Court, in Balo Star, followed the decision of Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parle President of the Republic
of South Africa and Others, 3 where the Court held that under the new constitutional order
the control of public power is always a constitutional matter. There were not two systems
of law regulating administrative action -the common law and the Constitution -but
only one system of law grounded in the Constitution .
[13) The courts' power to review administrative action no longer flowed directly from the
common law but from PAJA and the Constitution itself. The grundnorm of administrative
law was now to be found in the first place, not in the doctrine of ultra vires, nor in the
doctrine of parliamentary sovereignty, nor in the common law itself, but in the principles
of the Constitution. The common law informed the provisions of PAJA and the Constitution
and derived its force from the latter. The extent to which the common law remained
relevant to administrative review would have to be developed on a case-by-case basis
as the courts interpreted and applied the provisions of the Constitution.4
2 In Beto Star Fishing (Ply) Ltd v Minister of Environmental Affairs and Tourism and Others [2004) ZACC
15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) para 25.
3 Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parle President of the Republic
of South Africa and Others [2000] ZACC 1; 2000 (2) SA 67 4; 2000 (3) BCLR 241 (CC) para 44.
4 Ibid.
6
[14] The test for a judicial review is that of a reasonable man test, that is, whether a
reasonable decision maker would have reached a similar decision. Should the finding be
that a reasonable decision maker would not have reached that decision, then it becomes
reviewable. It has been held that the court's task is to ensure that the decision taken by
the administrative organ falls within the constitutional framework of reasonableness.
[15] In Power Road Taxi Developers (Ply) Ltd v MEG for Local Government and
Housing, Free State Province and Others (Power Road Taxi Developers), 5 the court
stated that:
'The essence of this review is procedural fairness. The general rule of common law requires that
an individual who has an interest in a matter is entitles to be notified about an administrative
matter that affects him if tabled before an administrative organ for consideration and decision.
The underlying purpose of such a notice is to afford such a person an opportunity of protecting
his interests. The audi alteram partem rule demands that he is entitled to be heard before a
decision is taken by an administrator on the matter that directly affects him.'
[16] Section 24G of NEMA provides that:
'On application by a person who -
has commenced with a listed or specified activity without an environmental authorisation of
section 24F(1);
has commenced, undertaken or conducted waste management activity without waste
management licence in terms of section 20(b) of the National Environmental Management: Waste
Act, 2008 (Act No. 59 of 2008);
is in control of, or successor in title to, land on which a person -
(i) has commenced with a listed or specified activity without environmental authorisation in
in contravention of section 24F( 1) ...
(4) A person contemplated in subsection (1) must pay an administrative fine, which may not
exceed R10 million, and which must be determined by the competent authority, before the
Minister, Minister responsible for mineral resources or MEC concerned may act in terms of
subsection (2)(a) or (b) .. .'
5 Power Road Taxi Developers (Pty) Ltd v MEG for Local Government and Housing, Free State Province
and Others [2007) ZAFHSHC 9 para 9.
7
[17] In Power Road Taxi Developers, the court followed the decision of DE Lange v
Smuts NO and Others, 6 where the Constitutional Court stated that:
'When contemplating the essential purpose of the protection afforded through the notion of
procedural fairness, my sight is arrested by this fact: at heart, fair procedure is designed to prevent
arbitrariness in the outcome of the decision. The time-honoured principles that no-one shall be
the judge in his or her own matter and that the other side should be heard aim toward eliminating
the proscribed arbitrariness in a way that gives content to the rule of law. They reach deep down
into the adjudicating process, attempting to remove bias and ignorance from it. Everyone is
entitled to an impartial Judge, not because this guarantees a correct decision, but because the
human arbiter, not being omniscient , should not be presented with a point of view that his or her
position inherently loads. Everyone has the right to state his or her own case, not because his or
her version is right, and must be accepted, but because, in evaluating the cogency of any
argument , the arbiter, still a fallible human being, must be informed about the points view of both
parties in order to stand any real chance of coming up with an objectively justifiable conclusion
that is anything more than chance. Absent these central and core notions, any procedure that
touches in an enduring and far-reaching manner on a vital human interest, like personal freedom
violation. When the clear basis for committing a person is coercive rather than punitive, warning
lights begin to flash.'
[18] In Van Huyssen and Others NNO v Minister of Environmental Affairs and Tourism
and Others, 7 which was followed in DE Lange v Smuts NO and Others, the Court stated
that:
'It follows from what I have said that even ifs 24(b) is to be regarded as merely codifying the
previous law on the point, a party entitled to procedural fairness under the paragraph is entitled
in appropriate cases to more than just the application of the audi alteram partem and the nemo
iudex in sua causa rules. What he is entitled to is, in my view, what Lord Morris of Borth-Y-Gest
described as "the principles and procedures ... which, in (the) particular situation or set of
circumstances, are right and just and fair''.'
[19] In Shidiack v Union Government (Minister of the Interior), 8 which was followed in
Power Road Taxi Developers, the Court stated that:
6 DE Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 para 131.
7 Van Huyssen and Others NNO v Minister of Environmental Affairs and Tourism and Others 1996 (1) SA
283 (C) at 305B-D.
8 Shidiack v Union Government 1912 (AD) 642 at 651.
8
'The decision of the Minister being essential, it becomes necessary to consider the circumstances
under which the Courts can properly question his decision. Now it is settled law that where a
matter is left to the discretion or determination of a public officer, and where his discretion has
been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with
the result. Not being a judicial functionary no appeal or review in the ordinary sense would lie;
and if he has duly and honestly applied himself to the question which has been left to his
discretion, it is impossible for a Court of Law either to make him change his mind or to substitute
its conclusion for his own.'
[20) It is common cause that an application was submitted to the respondent for
rectification in terms of s 24G of NEMA. What is in dispute is whether the application was
submitted by the applicant in his personal capacity or whether it was submitted by a juristic
person in the form of Vancol CC. This court is called upon to make examination of the
application submitted to the respondent in terms of s 24G of NEMA. Subsequently, a
determination has to be made whether, based on the information contained in the
application form and any annexures thereto, the applicant was Mr Van Coller in his
personal capacity, or if it was Vancol CC. This will then give a direction on whether a
correct tariff in imposing a penalty was implemented. This court must make a
determination of whether, based on the information submitted to the respondent, a
reasonable decision maker would have concluded in the manner that the respondent did
when concluding that the applicant for rectification was Vancol CC. It is only then that a
decision can be taken by this court on whether the respondent's decision is reviewable or
not.
[21] I have hereinabove referred to the provisions of s 24G and it is equally important
to briefly make reference to the regulations relating to the procedure to be followed and
criteria to be considered when determining an appropriate fine in terms of s 24G (the
Regulations). The purpose of the Regulations is to provide for the procedure to be
followed and criteria to be considered in the determination of a fine pursuant to an
application submitted in terms of s 24G of NEMA.9
9 Regulations relating to the procedure to be followed and criteria to be considered when determining an
appropriate fine in terms of section 24G, GN R698, GG 40994, 20 July 2017.
9
[22] The following factors, taken from s 4 of the Regulations, are to be taken in
consideration when determining quantum of the fine:
'Factors to be taken into account -
4. (1) ...
(a) information submitted by an applicant in terms of section 24G(1)(b) (vii)-(vii);
(b) the completed application form, including Section C of Annexure A, Part 1 of which is to be
completed by the applicant's environmental assessment practitioner;
(f) whether the applicant is a firm or natural person ...
(g) any other representations made by the applicant in terms of Annexure A Section C in respect
of the quantum of the fine.
(2) If the fine committee requires any further information, in addition to that received in accordance
with sub regulation (1) above, in order properly to determine the proposed quantum of the fine, it
may request the competent authority to direct the applicant, within a specified period, to provide
such further information and/or to undertake such further studies as the fine committee deems
necessary.
(3) For the purposes of sub regulation (1)(e) and in Part 2 of Section C in Annexure A the fine
committee and the competent authority must take into account whether or not -
(a) any of the directors of the applicant firm are, or were, at the relevant time, directors of a firm
to whom sub regulation (1 )(e) applies.
(b) an applicant who is a natural person is, or was, at the time a director of a firm to whom sub
regulation (1)(e) applies; and
(4) When calculating the proposed quantum of the fine, or the fine, as the case may be, the fine
committee and the competent authority must use the fine calculator approved by the Minister.'
[23] In the instant case, an application was submitted to the respondent in the
prescribed form for rectification as contemplated in terms of s 24G of NEMA. In the
application form, which is attached to the founding affidavit, in the block where it is
required of the applicant to indicate by marking with an 'X' in the appropriate box, instead,
there is a shading on 'yes' next to a question whether the applicant is an individual. In the
next block where details and name of the project applicant are required, the name of Mr
Jacobus Nicolaas Van Coller and his identity number are indicated. This form is not signed
by the applicant.
10
[24] The record which forms the basis of the respondents ' decision attached the
application form which was considered for the decision. This form is signed by Mr Van
Coller in the designated signature block. There is a difference between the two forms,
that is, the one attached in the founding affidavit and the one attached to the record. In
the form attached to the record, next to company or close corporation , the name of Vancol
BK is indicated. This is below the block where details of Mr Van Coller appear as project
applicant. Similarly, to the form attached in the founding affidavit, there is a shading on
'yes' next to the line where it is stated that the applicant is an individual. There is also an
indication of 'Director/Owner ' where details of position in the company are required. In the
designated signature block on the last page of the form, the name of Mr Van Coller is
written next to applicant and the form is signed by Mr Van Coller.
[25] The respondents argued that Vancol CC is indicated as applicant and Mr Van
Coller is indicated as the Director/Owner . According to the respondents, this is a clear
indication that a close corporation is the applicant. Hence the decision to conclude that
the applicant is a firm not an individual. This is notwithstanding indication of Mr Van Coller
as the applicant in the top part of the form as well as shading on 'yes' next to the question
whether the applicant is an individual. There is no doubt that there is conflicting
information as to who is the applicant in the rectification application in terms of s 24G of
NEMA.
[26] The applicant argued that any issue or dispute on the part of the respondents
regarding who the applicant was or who it regarded as the applicant was never
communicated to the applicant or his environmental assessment practitioner who was his
consultant. On the face of possible confusion as to who the applicant was, the
respondents ought to have afforded the applicant opportunity to make representations
before making a decision. In Administrator, Transvaal and Others v Traub and Others, 10
the Court stated that:
'The right which is generally referred to by means of the maxim audi alteram partem has been
discussed and analysed in a number of recent judgments of this Court ... The maxim expresses
a principle of natural justice which is part of our law. The classic formulations of the principle state
10 Administrator, Transvaal and Others v Traub and Others (1989] 4 All SA 924 {A); 1989 (4) SA 731 (A);
(1989) 10 ILJ 823 (A) at 8278-D; see also South African Roads Board v Johannesburg City Councif(1991]
ZASCA63 ; 1991 (4) SA 1 (AD); [1991] 4AII SA 722 (AD)(SouthAfrican Roads Board) at 10G-I.
11
that, when a statute empowers a public official or body to give a decision prejudicially affecting an
individual in his liberty or property or existing rights, the latter has a right to be heard before the
decision is taken ... unless the statute expressly or by implication indicates the contrary.'
[27] In South African Roads Board v Johannesburg City Council,11 the Court stated
that:
'It seems to me that such a departure from formal classification as a criterion not only would be in
accordance with modern trends in administrative law but also would provide a more rational
foundation for the application of the rules of natural justice in this area. For the audi principle
applies where the authority exercising the power is obliged to consider the particular
circumstances of the individual affected. Its application has a two-fold effect. It satisfies the
individual's desire to be heard before he is adversely affected; and it provides an opportunity for
the repository of the power to acquire information which may be pertinent to the just and proper
exercise of the power.'
[28] In Muller and Others v Chairman, Minister's Council, House of Representatives,
and Others, 12 the court stated that:
'It has been emphasised by the Appellate Division in the case of Attorney-General , Eastern Cape
v Blom and Others 1988 (4) SA 645 (A) and in the Zenzile case supra at 404-G that the fact that
a hearing might in particular circumstances have to be circumscribed, even very appreciably so,
is no reason to say that no right to a hearing exists. Moreover, in Traub's case supra it was said
(at 750O-E) that in exceptional cases a hearing can be given even after the prejudicial decision
has been taken. I therefore agree with Wade's comment supra that "in principle the arguments for
a fair hearing are unanswerable". In my view the interests of fairness demand a hearing before
an officer is suspended .'
[29] The respondents argued that there exists no duty to direct an applicant in a s 24G
application to provide further representations. However, the respondents submitted that
applicant in terms of s 24G applications may be directed to provide representations. It
was further argued that the duty is on the applicant in a s 24G application to provide a
completed document , furnishing all relevant information. I cannot agree with the stand
taken by the respondents. The Constitution guarantees a right to administrative action
that is lawful, reasonable and procedurally fair. Organs of state are prohibited from making
11 South African Roads Board at 13A-C.
12 Muller and Others v Chairman, Minister's Council, House of Representatives, and Others (1992] 3 All SA
373 (C); 1992 (2) SA 508 (C) at 523G-I.
12
arbitrary decisions inimical to the rights guaranteed by the Constitution, unless when
acting within the scope of limitation of the rights.
[30] In my view, and considering conflicting versions on who the applicant was, the
respondents ought to have invited the applicant to make representations before taking a
decision that would prejudice the applicant. The respondents missed an opportunity to
acquire information which was pertinent to the just and proper exercise of their power. The failure
by the respondents to afford the applicant opportunity to make representations is irrational
and unreasonable.13 Whilst NEMA does not expressly require a hearing for the applicant ,
I do not think that the intention of the legislature was to deny applicant a hearing prior to
taking a decision which may prejudice the applicant. The failure to afford applicant
opportun ity to be heard goes to the heart of procedural fairness and validity of the decision
taken. The decision taken by the respondents when concluding that the applicant is not
an individual is procedurally unfair.
[31] The applicant argued that, as a result of the failure to administer fair administrative
action together with the amount of the fine that would have been imposed if the applicant
was treated as an individual, there is no need for deference to the decision-maker and
the court is entitled to replace the fine imposed with the correct fine of R40 000. This was
opposed by the respondents who argued that, due to the doctrine of separation of powers,
the court does not have the requisite jurisdiction to replace, amend or vary the imposed
fine. The respondents referred to the decision of lntertrade Two (Ply) Ltd v MEG for Roads
and Public Works, Eastern Cape and Another where the Court stated that:14
'These constitutional principles mean that courts, when considering the validity of administrative
action, must be wary of intruding, even with the best of motives, without justification into the terrain
that is reserved for the administrative branch of government. These restraints on the powers of
the courts are universal in democratic societies such as ours and necessarily mean that there are
limits on the powers of the courts to repair damage that has been caused by a breakdown in the
administrative process. This case is an ironic example of that: if the Provincial Government had
done a better job of administering the tender process there might have been more information
available to this court, it might well have been concluded that exceptiona l circumstances were
13 Ntshontsho v Municipality of Umtata [1998] JOL 2206 (TK).
14 fntertrade Two (Pty) Ltd v MEC for Roads and Pubfic Works, Eastern Cape and Another [2007] ZAECHC
149; [2008] 1 All SA 142 (Ck); 2007 (6) SA442 (Ck) para 46.
13
present and it might then have been possible to have taken a decision to award the tenders to
the appellant.'
[32] The respondents further argued that remittal is still the most prudent and proper
course. The trite principle is that courts are cautioned from assuming duties reserved for
administrative authority. This can only be done when exceptional circumstances exist. In
the present case, I do not agree that exceptional circumstances exist for this court to
replace the fine imposed by the respondents and substitute it with a fine proposed by the
applicant. There is no evidence supporting how the proposed amount of R40 000 is
computed. The respondents are better placed to determine appropriate fine as they have
competent expertise that this court does not possess. I agree with the respondents that
remittal will be a prudent and proper course.
[33] After considering the evidence, submission by both parties and applicable legal
authorities, I am satisfied that the applicant has made out a case to justify the review and
setting aside of the respondents' decision.
Costs
[34] Concerning the costs of this matter, I see no reason to depart from the general rule
that the successful party should be awarded costs. The respondents should therefore pay
the applicant's costs.
Order
[35] In the circumstances, the following order is made:
1 The dismissal of the applicant's appeal to the first respondent against the imposition
of an administrative fine of R1 000 000 (one million rand) for the applicant's
non-compliance with the provisions of the National Environmental Management Act 107
of 1998 by the second respondent, on recommendation of the Department's Fitness
Committee is reviewed and set aside.
2 The first·and second respondents are ordered to reconsider the applicant's appeal
for determination of appropriate fine to be imposed on the applicant as a catergory 1
offender in terms of s 24G of the National Environmental Management Act 107 of 1998.
14
3 First and Second Respondents to pay costs on a party and party sea
costs of counsel on scale C.
NTANGAAJ
I concur and it is so ordered.
Appearances
For the plaintiff:
Instructed by: GJ Scheepers SC
Jappie Van Zyl Attorneys, Potchefstroom
c/o Honey Attorneys , Bloemfontein
For the respondents: D De Kock
Instructed by: State Attorney, Bloemfonte in. 15