IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 3454/22
In the matter between:
ERF 1050 PATERNOSTER (PTY) LTD Applicant
and
THE MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT First
Respondent
CHIEF DIRECTOR: INTEGRATED ENVIRONMENTAL
AUTHORISATIONS, DEPARTMENT OF FORESTRY,
FISHERIES AND THE ENVIRONMENT Second Respondent
VREDENBURG WINDFARM (PTY) LTD Third Respondent
Neutral citation: Erf 1050 Paternoster (Pty) Ltd v The Minister of Forestry,
Fisheries and the Environment and Others (Case no 3454/22) [2025] ZAWCHC…(09
September 2025)
Coram: LEKHULENI J and NJOKWENI AJ
Heard: 19 May 2025
Delivered: Electronically on 09 September 2025
Summary: Administrative law – review under the Promotion of Administrative Justice
Act 3 of 2000 - decision by the Chief Director to approve Environmental
Authorisations under s 24 of National Environmental Management (NEMA) and
decision of Minister to uphold decision of Chief Director in terms of section 43(6) of
NEMA- Interpretation of Regulation 11(3) and 11(4) of the 2014 EIA Regulations,
read with section 47A(1) of NEMA - substantial compliance sufficient – No merits in
review grounds – Application dismissed.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The applicant’s application is hereby dismissed.
2. Each party is ordered to pay its own costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LEKHULENI J: (NJOKWENI AJ Concurring)
Introduction
[1] This is an application in which the applicant seeks an order review ing and
setting aside the decision made by the first respondent ('the Minister') on 12 October
2021 in terms of section 43(6) of the National Environmental Management Act 107 of
1998 ('NEMA') in which the Minister confirmed t he granting of an environmental
authorisation ('EA') by the second respondent ('the Chief Director') on 17 May 2021
in favour of the third respondent ('Vredenburg') for activities associated with a wind
energy facility in terms of section 24 of NEMA.
[2] The applicant further seeks an order reviewing and setting aside the Minister’s
decision made on 30 August 2020 in which the Minister dismissed several appeals,
including an appeal by the applicant in terms of section 43(1) of NEMA against the
granting on 14 January 2020 by the Chief Director of an EA in terms of section 24 of
NEMA to Vredenburg for activities associated with the wind energy facility (‘WEF’).
[3] Crisply, this application concerns a review of the confirmation on appeal of an
EA granted by the Chief Director to Vredenburg for activities associated with a
proposed wind energy facility (‘the proposed Boulders WEF’ ) approximately 5km
away from the small West Coast town of Paternoster in the Western Cape Province.
The authorisation was granted in terms of section 24 of NEMA. It was confirmed on
appeal by the Minister in terms of section 43(6) of NEMA. The proposed Boulder
WEF would be situated directly adjacent to an existing wind energy facility , which
comprises 47 turbines.
Background Facts
[4] On 28 February 2018, Vredenburg applied with the Department of Forestry,
Fisheries and Environment for an environmental authorisation for the development of
a 140MW wind energy facility, approximately 12 kilometres northeast of the
commercial centre of Vredenburg and 7 kilometres east of Paternoster, within the
Saldanha Bay Municipality, Western Cape Province. The proposed Boulders WE F
was intended to comprise up to 45 wind turbines, with turbine hub heights of 120m,
and blade lengths of 45m. The proposed WEF also comprised certain associated
infrastructure, including a substation and medium voltage cables linking the wind
turbines to each other ('the internal cables'), which would be placed mostly
underground. The proposed Boulders WEF is intended to assist in addressing South
Africa's unreliable supply of electricity.
[5] It is envisioned that the proposed Boulders WEF will be linked by a high
voltage 132kV overhead transmission line to the Fransvlei -Aurora 132kV line on the
ESKOM grid ('the overhead transmission line' or 'grid connection'). The proposed
Boulders WEF will be located adjacent to an existing operating wind energy facili ty,
Boulders WEF will be located adjacent to an existing operating wind energy facili ty,
the West Coast 1 Wind Energy Facility ('the WC 1 WEF'). The WC 1 WEF
commenced commercial operation in June 2015 and generates approximately 94
MW of wind energy and consists of about 47 wind turbines. It is common cause that
the existing WC 1 WEF is visible from Paternoster.
[6] An EA, as contemplated by NEMA, was required before the development of
the proposed Boulders WEF. Vredenburg duly applied for an EA for the proposed
Boulders WEF on 28 February 2018. Subsequent thereto, and in compliance with
the requirements of NEMA, Vredenburg commissioned an independent consultancy
to conduct an Environmental Impact Assessment ('EIA') for its EA application. The
scoping phase of the application for EA took place between December 2017 and
February 2018. The pl an of study for the EIA was accepted by the Department of
Environmental Affairs ('the Department') in June 2018. The initial EIA was
undertaken by about 13 experts and included the preparation of 11 expert reports
and a comprehensive public participation p rocess. During this process, the location
of the turbines was adjusted to mitigate their visual impact on at least two occasions.
[7] In April 2021, an extensive final Environmental Impact Assessment Report
was submitted to the Chief Director. The Department received the Final
Environmental Impact Assessment Report ('EI Ar') and the Environmental
Management Programme ('EMPr') on 16 September 2019. The Chief Director
decided to grant the EA to Vredenburg after considering the final EIAr and the EMPr
on 14 January 2020. ('the Chief Director's 2020 decision'). The Department
subsequently received 16 appeals against the granting of the EA. The applicant in
the present matter was one of the appellants who appealed against the granting of
the EA in favour o f Vredenburg. The first appeal by the applicant was based on
certain legal technical grounds, including that the Chief Director had failed to
approve a layout plan and an EMPr at the time that he granted the first EA, despite
such approvals being required in terms of NEMA.
[8] The appeals were subsequently considered by the Minister in terms of section
43(6) of NEMA. On 30 August 2020, the Minister (then Barbara Creecy) dismissed
43(6) of NEMA. On 30 August 2020, the Minister (then Barbara Creecy) dismissed
several appeals against the first EA, including the one by the applicant. The Minister,
however, upheld an appeal by Aurora Wind Power (RF) (Pty) Ltd ('Aurora') based on
the absence of a Wake Effects Impact Assessment. The Minister set aside the first
EA after a consideration of all the issues raised on appeal, directed Vredenburg t o
commission an independent expert to conduct a Wake Impact Assessment in
respect of the proposed project, and thereafter subject the report thereof to a public
participation process in accordance with the EA Regulations and to submit the
results to the De partment for reconsideration of the application for an EA. The
Minister further directed that comments received from interested and affected
parties, as well as Vredenburg's responses thereto, be incorporated into the final
EIAr for submission to the Department for reconsideration of the EA.
[9] I pause to mention that Vredenburg also proposed to develop a 132 kV
above-ground electricity sub -transmission line to support the proposed Boulders
farm. The sub-transmission line would ensure that the electrical energy generated by
the Boulders Wind Farm can be transmitted to the existing Eskom, Fransvlei -Aurora
for distribution via the national electrical grid network. The sub -transmission line is
required to support the Boulders WEF by ensuring that the WEF is equipped with the
fundamental infrastructure needed for the supply and transmission of electricity to
the national grid. The Chief Director granted the EA for sub -transmission on 8 June
2020.
[10] Pursuant to the Minister's 2020 decision, as instructed b y the Minister, there
was a further limited investigation and assessment of the wake effects of the
proposed Boulders WEF, including two specialist reports. Following further public
participation, including distribution of the revised draft of the EIA and the EMPr for
public review in April 2021, a final environmental impact assessment ('FEIA') was
submitted to the Chief Director. Following consideration of the FEIA, the EA was
ultimately granted by the Chief Director on 17 May 2021.
[11] Following the Chi ef Director's decision of 17 May 2021, the Appeals
Directorate of the Department received 16 appeals against that decision. The
appeals were received between 18 June 2021 and 25 June 2021. Upon review of the
grounds of appeal, the Minister asserted that th e same issues which were previously
considered in her decision of 30 August 2020 were raised again on appeal in the
considered in her decision of 30 August 2020 were raised again on appeal in the
May 2021 decision. The Minister noted in her second appeal decision that she had
already deliberated on the grounds of appeal and is therefore functus officio in
respect of those issues.
[12] In the second appeal decision, the Minister addressed the grounds of appeal
raised by Aurora and considered the Wak e Impact Assessment submitted by
Vredenburg, following the August 2020 decision and found that: the Wake Impact
Study was conducted and submitted for Public Participation. The Minister found that
interested and affected parties had an opportunity to commen t on the said study, in
which comments were submitted in the Comments and Response Report and were
incorporated into the final EIAr for consideration.
[13] Based on the information that was placed before the Minister, she was
satisfied that Vredenburg had complied with the directives . T he Minister was also
satisfied that there would be a far greater gain than loss for the local community as a
result of the construction and operation of the Boulders WEF, taking into
consideration the energy constraint of th e country. On 12 October 2021, the Minister
dismissed the appeal of Aurora and confirmed the decision of the Chief Director to
grant the EA to Vredenburg. Subsequent thereto, t he applicant lodged the current
review proceedings.
[14] In these proceedings, the applicant seeks to review, set aside and substitute
the Chief Director's EA decision and the two decisions of the Minister upholding the
Chief Director's decision to grant the EA to Vredenburg. The applicant takes issue
with the two appeal decisions ta ken by the Minister namely, the decision dated 30
August 2020, wherein the Minister decided to set aside the EA granted to
Vredenburg on the basis that a Wake Impact Assessment had to be conducted, as
well the decision dated 12 October 2021 in respect of t he second EA wherein she
decided to uphold the decision of the Chief Director to grant the final EA.
Grounds of Review
[15] The applicant initially raised fifteen review grounds impugning the Chief
Director and the Minister's decision to grant the EA to Vredenburg. However, the
Director and the Minister's decision to grant the EA to Vredenburg. However, the
applicant has narrowed its initial fifteen grounds of review to five grounds addressed
in its heads of argument. In the first ground of review, the applicant contends that the
Chief Director granted the second EA on the strength of, among other specialist
reports, the specialist Tourism Report. The applicant contends that the Tourism
Report was based on a deficient Visual Impact Assessment. According to the
applicant, the specialists who prepared a report assessing, inter alia, the impact of
the proposed Boulders WEF on tourism, failed to have regard to one of the two
visual impact assessments prepared for EIA.
[16] In the second ground of review, the applicant impugns the WEF on tourism .
The applicant submits that the assessment of the impact of the proposed Boulders
WEF on tourism was so flawed that, by considering the report concerned, the
decision makers contravened NEMA and took into account irrelevant considerations.
The applicant asserts that the Chief Director and the Minister could not, and did not,
appreciate the true impact of the proposed WEF on Paternoster because the same
specialist tourism report failed to assess the impact of the proposed WEF on tourism
with any degree of reliability. The applicant contends further that the Tourism Report
relied upon by the Chief Director and the Minister was based on inaccurate and
incomplete information.
[17] The third ground of review relied on by the applicant is that the Chief
Director's EA decision and the Minister's EA decision should be set aside because
Vredenburg was obliged by Regulation 11 of the NEMA Regulations to submit one
application in respect o f both the proposed Boulders WEF and the sub -transmission
line which will be constructed for the purposes of transmitting electricity generated by
the proposed Boulders WEF to the Eskom grid.
[18] The applicant's fourth ground of review is that the Minister acted unlawfully by
failing to consider the 'new grounds' of appeal in the Minister's second EA decision.
The Minister found that to the extent that she has made a final decision on the
grounds of appeals, she is functus officio in respect thereof and therefore may not
revisit the matter. The applicant contends that new grounds were raised in the latest
appeal and that the Minister committed an irregularity in failing to consider these new
appeal and that the Minister committed an irregularity in failing to consider these new
grounds.
[19] The fifth and final ground of review advanced by the applicant is that relevant
information regarding Black Harriers was not considered. To this end, the applicant
contended that the Chief Director granted the second EA, and the Minister confirmed
the second EA in the second appeal decision in ignorance of information which has
recently come to light as regards the importance of the WEF site for Black Harrier.
According to the applicant, t his rendered their decisions reviewable on the ground s
of a material mistake of fact.
[20] I will address each of these grounds for review in a sequential manner later in
this judgment. However, before doing so, I find it important to first outline the relevant
constitutional and legislative provisions pert inent to cases of this nature. Additionally,
I will provide a concise explanation of the environmental authorisation process for
listed activities as stipulated in NEMA.
The applicable legal principles
[21] Environmental management is fundamentally anchored in the Constitution,
particularly in s ection 24. This section establishes the principles necessary for
effective environmental stewardship. The Constitution recognises the
interrelationship between the environment and development. The Constitution
recognises the need for the protection of the environment while at the same time it
recognises the need for social and economic development. 1 It contemplates the
integration of environmental protection and socio -economic development. For
completeness, section 24 of the Constitution provides:
‘Environment
24. Everyone has the right—
(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.’
1 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007
(6) SA 4 (CC) para 45.
[22] Section 24(b) of the Constitution obliges reasonable legislative measures for
the protection of the environment. NEMA is the legislation t hat is contemplated in
section 24(b) of the Constitution . NEMA was enacted to give effect to section 24 of
the Constitution. Section 24(b)(iii) of the Constitution provides that the environment
will be protected by securing ecologically sustainable development and use of
natural resources while promoting justifiable economic and social development . In
greater context, the purpos e of NEMA and the EIA Regulations is to protect the
environment and to ensure that only authorised activities can be undertaken.
[23] One of the declared purposes of NEMA is to establish principles that will
guide organs of state in making decisions that may affect the environment. Section 2
of NEMA prescribes a set of principles which guide the interpretation, administration
and implementation of NEMA and which also serve as guidelines for the purposes of
decisions taken in terms of NEMA. 2 The principles require that environmental
management must place people and their needs at the forefront of its concern, and
serve their physical , psychological, developmental, cultural and social interests
equitably. Section 2(3) envisages that development must be socially,
environmentally and economically sustainable. Section 2(4) provides that
sustainable development requires the consideration of ‘all relevant factors’, including
those listed in the sub-section.
[24] The principles set out in section 2 of NEMA further require that the social,
economic and environmental impacts of activities, including disadvantages and
benefits, must be considered, assessed and evaluated, and decisions must be
appropriate in the light of such consideration and assessment.3 Furthermore, there
must be harmonisation of policies, legislation and actions relating to the
environment.4 That Global and international responsibilities relating to the
environment.4 That Global and international responsibilities relating to the
environment must be discharged in the national interest.5 The principles also require
that the beneficial use of environmental resources must serve the public interest.6
2 Section 2 of NEMA.
3 Section 2(4)(i) of NEMA
4 Section 2(4)(l) of NEMA.
5 Section 2(4)(n).
6 Section 2(4)(o).
[25] The process applicable to decisions regarding environmental authorisations
and the requirements applicable to whether or not to grant an EA are set out in
NEMA and its regulations. Significantly, s ection 24(2) of NEMA authorises the
Minister to identify activities which may not commence without environmental
authorisation from the competent authority. The Minister has done this in the form of
listing notices which are published in the Government Gazette. The relevant listing
notices for present purposes are Listing Notices 1, 2 and 3 of 2014. 7 Not all activities
require a scoping report and/or an EIA. It is only those activities that implicat e a
‘listed activity’, that require authorisation.
[26] The provisions of section 24 of NEMA deals with environmental authorisations
and the requirements for the granting of an EA. Section 24 provides that in order to
give effect to the general objectives of integrated environmental management, the
potential consequences for or impacts on the environment of listed activities or
specified activities must be considered, investigated, assessed and reported on to
the competent authority or the Minister responsible for mineral resources, as the
case may be, except in respect of those activities that may commence without
having to obtain an EA.8
[27] NEMA provides the regulatory framework for environmental management and
establishes principles for good governmental decision -making on matters that affect
the environment. The EIA tool is one of the most critical tools in the integrated
environmental syst em for which NEMA makes provision. The EIA process is
designed to ensure that environmental considerations are properly considered during
the decision-making process on whether an activity that may be harmful to the
environment ought to be authorised.
[28] NEMA thus requires that, where an activity is likely to have an adverse impact
on the environment, an EIA process be followed. This means that the impact of the
on the environment, an EIA process be followed. This means that the impact of the
proposed activity must be carefully considered by an environmental assessment
7 GN R983 in GG 38282 of 4 December 2014; GN R984 in GG 38282 of 4 December 2014; GN R985
in GG 38282 of 4 December 2014.
8 Section 24(1) of NEMA.
practitioner (EAP) who must prepare a report, supported by specialist studies, to
motivate the relevant authority why the activity should be authorised, notwithstanding
the potential harm to the environment.
[29] The Environmental Impact Assessment Regulations, 201 49 (‘the 2014 EIA
Regulations’), which are the relevant regulations for present purposes, contain
detailed provisions pertaining to the environmental impact assessment process
which must be followed after an application has been made. The purpose of the
2014 EIA Regulations is to regulate the procedure and criteria as contemplated in
Chapter 5 of the Act relating to the preparation, evaluation, submission, processing
and consideration of, and decision on, applications for environmental authorisations
for the commencement of activities, subjected to environmental impact assessment,
in order to avoid or mitigate detrimental impacts on the environment, and to optimise
positive environmental impacts, and for matters pertaining thereto.10
[30] In terms of Regulation 12(1), an applicant for an environmental authorisation
must appoint an independent environmental assessment practitioner (an 'EAP') who,
at the applicant's costs, is responsible for the planning, management, coordination or
review of environmental impact assessments. The general requirement of EAP’s and
specialists is set out in Regulation 13(1) which provides that the EAP and specialist
appointed in terms of Regulation 12(1) or 12(2) must be independent, must have
expertise in conducting environmenta l impact assessments or undertaking specialist
work as required , including knowledge of NEMA, the Regulations, and any
guidelines that have relevance to the proposed activity, must ensure compliance with
the Regulations and perform their work in an objecti ve manner, even if this results in
views and findings that are not favourable to the application.
[31] The first step in applications for environmental authorisations for the
[31] The first step in applications for environmental authorisations for the
commencement of activities is the preparation and submission of a scoping report as
contemplated by Regulations 21. If the scoping report is accepted, the competent
authority must advise the applicant to proceed or continue with the plan of study for
9 Published in GN R.982 of 4 Decemb er 2014, as amended by GN 326 in GG 40772 of 7 April 2017
and GN 706 in GG 41766 of 13 July 2018 in terms of NEMA.
10 Regulation 2.
environmental impact assessment. 11 Appendix 2 of the EIA Regulations 2014
provides that the objective of the ‘Scoping Process’ is to, inter alia, identify the key
issues to be addressed in the assessment phase and agree on the level of
assessment to be undertaken, including the methodology to be applied, the expertise
required as well as the extent of further consultation to be undertaken to determine
the impacts and risks the activity will impose.12
[32] The plan of study , on the other hand, must include a description of the
proposed met hod of assessing the environmental aspects to be assessed by
specialists and an indication of the stages at which the competent authority will be
consulted.13 The plan of study, informed by the scoping process, provides the basis
for the environmental impa ct assessment itself. The guiding principle is that an
environmental impact assessment must contain the information that is necessary for
the competent authority to consider and come to a decision on the application.14
[33] Regulation 18 provides for criteria to be taken into account by competent
authorities when considering applications and provides that w hen considering an
application the competent authority must have regard to section 24O and 24(4) of
the Act, the need for and desirability of the under taking of the proposed activity, the
requirements of these Regulations, any protocol or minimum information
requirements relevant to the application as identified and gazetted by the Minister in
a government notice or any relevant guideline published in te rms of section 24J of
the Act.
[34] Evidently, from the discussion above , it is apparent that the process for
applying for an environmental authorisation is a reiterative process. The
environmental impact assessment undertaken is informed by the scoping report and
the plan of study for EIA, which is prepared during that process. Having set out the
legislative framework, and mindful of the provisions of NEMA , its Regulation s and
legislative framework, and mindful of the provisions of NEMA , its Regulation s and
the Constitution, I now turn to deal with the applicant’s five grounds of review. I will
deal with these grounds of review sequentially.
11 Regulation 22(a).
12 Appendix 2(1)(f).
13 Appendix 2(1)(h).
14 Appendix 3(3)(1)(a) to (w).
Was the tourism report based on a deficient visual impact assessment report?
[35] The applicant contends that the Chief Director granted the second EA on the
strength of, among other specialist reports, the specialist tourism report. Mr
Rosenburg SC, counsel for the applicant , submitted that the Minister dismissed the
first appeal on 30 August 2020. The reasons that the Minister gave for dismissing the
first appeal were the finding in the specialist tourism report that the impacts on
tourism would be marginal, and on the summary of the specialist tourism report in
the EIA r that the impacts o n tourism are likely to be low or absent . Counsel
submitted that both the Chief Director and the Minister relied on the specialist
tourism report to dismiss the risk posed to Paternoster by the visual impact of the
WEF. The applicant’s counsel opined that the specialist tourism report had not been
based on the specialist visual impact assessment prepared in accordance with the
plan of study, namely the Logis VIA.
[40] Mr Rosenburg asserted that the specialist tourism relied upon by the C hief
Director and the Minister had been based instead on the visual impact assessment
report prepared in -house by the environmental assessment practitioner - CES VIA.
Counsel submitted that the reliance on the specialist tourism report was flawed
because i t was not based on the specialist impact assessment prepared in
accordance with the plan of study, the Logis VIA. In counsel’s view, the specialist
tourism report was accordingly prepared without a proper appreciation of the true
visual impact. Mr Rosenbur g submitted that although it is correct, as Vredenburg
alleges that the Chief Director and the Minister had both the CES VIA and the Logis
VIA before them when they took their decisions, the problem is that the specialist
who had been appointed to assess o ne of the most significant impacts, namely the
impact of the WEF on the tourism economy of Paternoster, did so without a proper
impact of the WEF on the tourism economy of Paternoster, did so without a proper
appreciation of the true visual impact.
[41] In the circumstances, so the argument proceeded, a material procedure of
conditions prescribed by an empowering provision was not complied with as sections
24(1), 24(4)(iii) and (iv) of NEMA and Regulation 3(1)(j) of the 2014 EIA Regulations
were not complied with, as contemplated by section 6(2)(b) of the Promotion of
Administrative Ju stice Act 3 of 2000 (‘ PAJA’). Furthermore, relevant considerations
were not considered as contemplated by section 6(2)(e)(iii) of PAJA, and the
decisions were not rationally connected to the purpose for which they were taken
and the purpose of the empoweri ng provision (section 6(2)(f)(ii)(aa) and section
6(2)(f)(ii)(bb).
[42] In considering this review ground, I must mention that the visual intrusion of
Paternoster pursuant to the proposed wind farm is unavoidable. A project of this
nature demands a balancing exercise by the competent authority, considering all the
material pla ced before it. It is common cause that the potential consequences for
impacts on the environment of listed activities were considered, investigated,
assessed and reported on to the competent authority. It is also common cause that
there were two reports as sessing the visual impact, as well as the tourism and
impact assessment. It is also common cause that there were two visual impact
reports, both of which were before the Chief Director and the Minister when they took
their respective decisions.
[43] Importantly, the visual impacts were assessed and dealt with at length during
the public participation process. The applicant's argument that the specialist tourism
report had relied on the findings of a draft in -house visual impact assessment by the
EAP rather than the formal visual impact assessment conducted by the visual impact
specialist, Logis VIA, cannot be correct. It is evident from the report itself that this
assessment also had regard to the Logis VIA. Furthermore, it is the findings and
recommendations on visual impact from the Logis VIA, and not those of the CES
VIA, which are reflected in the FEIA.
[44] As correctly pointed out by Ms Rajab-Bundleder SC, counsel for the third
respondent, the visual impact assessment conducted by CES did not contrad ict the
findings that were made in the Logis VIA. Specifically, the conclusions relating to the
findings that were made in the Logis VIA. Specifically, the conclusions relating to the
nature and extent of the assessed visual impact did not deviate or differ from those
made by Logis. On the contrary, the CES VIA confirmed the findings that wer e made
in the Logis VIA, thereby providing greater certainty in the overall environmental
impact assessment undertaken, specifically regarding the visual impact issue. The
CES VIA confirmed the findings made in the Logis VIA and the conclusions relating
to the nature and extent of the assessed visual impact.
[45] In deciding to grant the EA, the Chief Director took into consideration, among
other things, the information contained in the FEIA, the comments received from
various authorities 15 and interested and affected parties, mitigation measures as
proposed in the EIA r and EMP r and the information contained in the multiple
specialist reports. Having carefully considered all these reports, the Chief Director
found that the identification and assessment of impacts was detailed in the FEIA,
that there was sufficient assessment of the key identified issues and impacts, that
the procedures followed for impact assessment was adequate, that the information
contained in the FEIA was deemed to be accurate and credible, and that the
proposed mitigation of impacts was adequate to curtail the impacts.
[46] It is worth noting that the applicant's ground of review, which concerns the
tourism report's reliance on a deficient visual impact assessment report, was
addressed in the Minister's first appeal decision. One of the appellants in the first
appeal contended that the visual impact assessment (VIA) produced in -house by the
EAP is an unprecedented departure from the procedure and was compiled by
unqualified VIA specialists. The appellant before the Minister also contended that the
visual impact of the project will be unacceptably high for the communities in its
proximity, and will have a dominating and intrusive presence, and will materially and
detrimentally affect the sense of place of its residence.
[47] The Minister noted in her decision on appeal that th e visual impact of the
proposed Boulders Wind Farm was identified as a significant environmental issue
during both the scoping phase of the EIA processes and from the VIA conducted by
Logis. The Minister also noted that an additional VIA was conducted by the EAP ,
Logis. The Minister also noted that an additional VIA was conducted by the EAP ,
CES, to verify the findings of the Logis VIA. It was found that the study was
consistent with the Logis study and that both VIAs can be found as appendices to
the EIAr specialist report. The Minister alluded to the fact that the VIA indicates that
15 The Department of Water and Sanitation, Heritage Western Cape, Birdlife South Africa, Cape
Nature, Western Cape District Municipality, Saldanha Bay Local Municipality, the Department of Rural
Development and Land Reform, West Coast Bird Club, the Departme nt of Environmental Affairs and
Development.
the mitigation of this impact is possible and entails the relocation of the wind turbines
(13 in total) to the east of the road or the outright removal of the wind turbine s in the
event that they cannot be accommodated to the east of the road.
[48] The Minister found that the visual impact of the proposed boulders wind farm
remain high after the implementation of the mitigation measures, but that based on
the assessment of significance, the potential losses of scenic resources are not
sufficiently significant to present a fatal flaw to the proposed project given that,
among other things, the superstructures are technically removable on
decommissioning; and an understanding that although there are local losses there
are also other local, regional and national environmental, social and economic gains.
To this end, the Minister found that while the visual intrusion is unavoidable, the
visual impact associated with the proposed project does not constitute a fatal flaw in
the EIAr process or the issuance of the EA. The Minister concluded that the fact that
the visual impact is treated as high does not entail that the proposed project should
be refused.
[49] From the discussion fo reshadowed above, it is my firm view that there are no
merits in the applicant’s first ground of review. The decision makers considered all
relevant considerations. The Chief Director was satisfied that the prescripts of NEMA
had been met. The Chief Direct or found that, pursuant to the information provided
and considered, the Department was satisfied that, subject to compliance with the
conditions contained in the environmental authorisation, the authorised activities
would not conflict with the general obj ectives of integrated environmental
management and that any potentially detrimental environmental impacts resulting
from the authorised activities could be mitigated to acceptable levels. In addition, the
conclusions in the tourist impact assessment were ultimately based, not on the visual
conclusions in the tourist impact assessment were ultimately based, not on the visual
impact assessment, but on a variety of sources including, particular ly, the fact that
there was no evidence to suggest any adverse impact on tourism from the existing
WC 1 WEF.
[50] In my opinion, the de cisions of the Minister and the Chief Director are
underpinned by sound reasoning. Both meticulously considered all the reports that
were placed before them. Significantly, the CES VIA confirmed the findings made in
the Logis VIA and the conclusions relati ng to the nature and extent of the assessed
visual impact. Even if each visual impact assessment report had not been
considered, it would have had no material impact because ultimately both visual
impact assessments had the same findings . It bears emphasis that the applicant's
disagreement with the opinion expressed by the independent specialist does not, in
itself, mean that relevant considerations were not considered.
[51] Similarly, it does not necessarily follow that the applicant's disagreement wi th
the opinion expressed by the independent specialist indicates that the decisions
were not rationally connected to their intended purpose. The Supreme Court of
Appeal and the Constitutional Court have repeatedly emphasised in numerous
judgments that cour ts should exercise caution, if not utmost deference, in usurping
the decision-making function of a functionary, simply because they are in a position
comparable to that of the functionary to make the decision, especially if motivated by
expediency rather than principle.16 In my view, the applicant’s first review ground has
no merit and falls to be dismissed.
Was the Tourism Report based on inaccurate and incomplete information?
[52] The second ground of review is that the Chief Director and the Minister could
not, and did not, appreciate the true impact of the proposed WEF on Paternoster
because the same specialist tourism report failed to assess the impact of the
proposed WEF on tour ism with any degree of reliability. The applicant contends that
the specialist study on property values, tourism, and economic impacts ( ‘the
specialist tourism report’) had failed to conduct an accurate data gathering process
to identify the important and relevant issues in the tourism industry in Paternoster.
[53] The applicant asserts further that in dismissing the first appeal, the Minister
relied on the finding in the specialist tourism report that the impacts on tourism would
relied on the finding in the specialist tourism report that the impacts on tourism would
be marginal, and on the summary of the specialist tourism report in the EIA r that the
tourism impacts are likely to be low or absent . According to the applicant, the
16 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (40)
SA 490 (CC) para 46-49; Cooper NO v First National Bank of SA Ltd [2000] 4 AII SA 597 (A) para 39;
Freedom Under Law v Judicial Service Commission and Another [2023] 3 All SA 631 (SCA) para 114.
specialist tourism report’ s (Tourism and Economic Issues Assessment) finding as
regards the likelihood of an impact on tourism was unreliable because it was based
squarely on an assumption that the W C 1 WEF has not led to any loss of tourists,
and that assumption itself is founded on the flimsiest of evidence, namely interviews
with 12 tourism product owners, only 7 of which were from Paternoster and that it did
not take into account that the W C 1 WEF is further away from Paternoster, has
smaller turbines, and has a more minor visual impact on Paternoster than the
proposed WEF would have.
[54] Crisply, the applicant asserts that the report was so materially deficient that
the decisions of the Chief Director and Minister are unlawful.
[55] I must mention that in the EIA for the proposed Boulders Wind Farm , the
Property Values, Tourism and Economic Issues Assessment Report prepared by
Elena Broughton, a specialist of Urban -Econ Development Economists notes that
the purpose of the Tourism and Economic Issues Assessment was to determine the
key economic parameters applicable to the study area, identify potential benefits and
possible negative impacts of the proposed p roject in property values, tourism
activities, and the local economy during the various stages of the project’s life
cycle.17
[56] The structure and method for the purposes of the report included creating a
profile and identifying the trends of the local economy, the tourism industry and
property dynamics in the zone of influence using secondary data, reviewing
concerns raised by inte rested and affected parties during public engagement
including those received during the scoping phase and those obtained during the
comment period following publication of the dra ft EIA report, augmenting the
information concerned to gather further insigh ts and concerns through a structured
interview approach and making use of case studies to gather insight on probable
effects of wind farms.18
17 Para 1.2 of the Report.
effects of wind farms.18
17 Para 1.2 of the Report.
18 Para 1.2 of the Report.
[57] The terms of reference for the Tourism and Economic Issues Assessment and
the extent and nature of what was to be investigated as part of this assessment were
determined in consultation with the authorities as part of the entire EIA process,
which entailed identifying what impacts ought to be assessed and the nature and
extent of investigations required. The stud y relied on both secondary and primary
sources of data to inform its assessment of potential impacts and their significance.
[58] The Tourism and Economic Issues Assessment ultimately found that there
would be a nominal decline in tourism in Paternoster. However, it was found
regarding the extent of that decline and in light of the other relevant considerations
that the low impact on tourism did not provide a basis to preclude the development.
The Tourism and Economic Issues Assessment found that the propo sed Boulder
WEF is expected to have a positive impact on the local and provincial economies,
particularly during the construction phase. It noted that a total of R1 049 million of
business scale was envisaged to be stimulated by the project during the two -year
construction period, leading to the creation of about 931 jobs throughout the principal
economy, which will be sustained for two years. In addition, the report noted that the
Boulders Wind Farm will invest around R9 million on an annual basis into soc io-
economic development.
[59] Significantly, the Minister in her appeal decision, considered the Property
Values Tourism and Economic Issues Assessment report that was placed before her
by the third respondent which noted that the impact on tourism will be marginal while
the effect on property prices will dissolve once the wind farm is dissolved. The
Minister specifically states that in evaluating the grounds of appeal and responses
thereto regarding tourism , she had regard to the Tourism and Economic Issues
Assessment, which found that while the possibility of negative impacts on property
Assessment, which found that while the possibility of negative impacts on property
prices and tourism cannot be ruled out completely, research shows that if any, the
impact on tourism will be marginal whil e the effect on property prices will dissolve -
based on the experience of WC1 WEF and wind farms in the Cape St Francis and
Jeffrey’s Bay area, and other research, there is no clear correlation between property
price dynamics (positive or negative) and the development of wind farms.
[60] The Minister also noted, following from the Property Values Tourism and
Economic Issues Assessment Report, that the experience of nine estate agents
interviewed asserted that wind farm developments have not had a notable e ffect on
the demand and value of surrounding properties. They stated that prospective
buyers have mostly been indifferent to the presence of wind farms. The Minister also
noted that the review of property transfer in Britannica Heights in the past few year s
does not give any indication that the demand or property prices have been
negatively impacted by the development of the West Coast 1 Wind farm, with the
closest wind turbines located some 6 kilometres away from the properties on the
Vasco da Gama Crescent.
[61] From the above , it is abundantly clear that a thorough investigation was
conducted on the impact of the proposed WEF on Paternoster and other property
owners in the area. As correctly pointed out by Ms Rajab-Bundlender, on the
applicant’s version, the impact on tourism was a relevant consideration. It does not
follow that because the applicant disagrees with the opinion expressed by the
independent specialist that relevant considerations were not considered. From the
methodology that was adopted for the purposes of the Tourism and Economic Issues
Assessment as set out above, in my opinion , it cannot be concluded that the
methodology followed was flawed and objectively unreliable . The applicant has not
identified the specif ic respect in which the Tourism and Economic Issues
Assessment has contravened NEMA and its Regulations.
[62] As discussed above, for the purposes of considering whether the Chief
Director and the Minister complied with section 24(1), it is necessary to determine
whether potential consequences for or impacts on the environment of the listed
activities for which authorisation was sought were considered, investigated,
assessed and reported on to the competent authority. It is apparent from the above
assessed and reported on to the competent authority. It is apparent from the above
discussion that the consequences and impact were considered, investigated,
assessed and reported on as required by NEMA. It is also evident that there was a
description of the environment, and an investigation of the potential consequences
for or impacts on the environment as required by section 24(a)(iii) and (iv) of NEMA.
[63] It is worth noting that the applicant, for purposes of the review proceedings,
has commissioned a tourism report which did not serve before the Minister at the
time when the Minister considered the appeal or at the time when the Chief Director
decided to grant the EA. The tourism report that the applicant bases his argument on
was prepared on 9 September 2022, which was two years after the Minister decided
on appeal. The decis ion of the Chief Director and the Minister was made based on
an assessment of the situation at the time. In my view, it is not permissible for the
applicant to contend that the Court should find that the Minister or the Chief
Director’s decision is reviewa ble because it failed to consider information that was
never placed before them when they made their decisions.
[64] It must be stressed that grounds for review cannot be formulated for the first
time in the heads of argument .19 A ground for review raised for the first time in
argument cannot be sustained. Therefore, i t is impermissible for the applicant to
produce evidence or facts that were not before the decision -makers. This Court’s
role as a review court is to assess whether the decision was reasonable, lawful and
procedurally fair, based on the information that served before the original decision -
maker and not to retry the case with new evidence. The applicant’s second ground of
review must fail. I turn to consider the third ground.
Separate applications for WEF and transmission line (interpretation of
Regulation 11(3) and 11(4) of the 2014 EIA Regulations)
[66] The applicant’s third ground of review is that the making of separate
applications for environmental authorisation in respect of the two components of the
development, namely, the WEF on the one hand, and the overhead transmission line
on the other , was non-compliant with regulation 11(3) of the 2014 EIA Regulations .
The applicant contends that the concer ns identified in the Avifaunal impacts arose
The applicant contends that the concer ns identified in the Avifaunal impacts arose
because the applications for environmental authorisation for the two main
components of the development, namely , the WEF (wind turbines) on the one hand,
and the transmission line on the other, were separated . The applicant relies on
Regulation 11(3) of the 2014 EIA Regulations which provides:
19 Mtyala v Motor Industry Bargaining Council and Others (JR 2426/2021) [ 2023] ZALCJHB 352 (8
March 2023).
‘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 a pplication must be submitted for such development and
the assessment of impacts, including 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’ (emphasis added).
[67] Mr Rosenberg submitted that the purpose of the regulation is to ensure that all
the impacts of a development are assessed and considered as part of a single
integrated process before envir onmental authorisation is granted. If any single
component of a proposed development has unacceptably high impacts, so the
argument proceeded, then the development as a whole should not be authorised.
Counsel argued that Regulation 11(3) is framed in mandatory terms and is a material
requirement, with the consequence that non -compliance with it would render any
ensuing environmental authorisation reviewable.
[68] Counsel asserted that on 8 June 2020, six months after the first EA was
granted on 14 January 2020, and about a year before the second EA was granted on
17 May 2021, the Chief Director granted Vredenburg an EA for the construction of
the overhead transmission line pursuant to a s eparate application for environmental
authorisation (the transmission line EA). The granting of the transmission line EA
followed a separate impact assessment process, and the impacts associated with
the overhead transmission line were assessed separately from those associated with
the WEF.
[69] To this end, Mr Rosenberg relied on the unreported case of Badenhorst N.O.
and others v Minister of Forestry, Fisheries and the Environment and Others,20 (the
Badenhorst N.O matter) handed down on 18 July 2023, in the Eastern Cape Division
– Makhanda, in which the court considered the question of whether the separation of
– Makhanda, in which the court considered the question of whether the separation of
applications for a WEF on the one hand and its associated overhead transmission
20 Badenhorst N.O. & 5 Others vs Minister of Forestry, Fisheries and the Environment & 4 Others
(Case no 2229/2020) (18 July 2023).
line or grid connection on the other, is non -compliant with Regulation 11(3) of the
2014 EIA Regulations. In that matter, as here, the State argued that the applicable
regulation was Regulation 11(4) as opposed to Regulation 11(3). Bloem J found,
however, that each component would be useless without the other and that they
constituted a single development. Having found that Regulation 11(3) was
applicable, he held that the separation of the applications for each component had
been unlawful and that the resultant decisions were reviewable in terms of section
6(2)(b) and 6(2)(f)(i) of PAJA.21
[70] I must highlight the fact that at the time the current application was heard in
this Court, an appeal was pending before the Supreme Court of Appeal concerning
the Badenhorst N.O. matter. The Supreme Court of Appeal subsequently issued its
judgment on 29 May 2025, thereby overturning the decision of the High Court.22 The
Court found that the EA in that matter encompassed a conditional authorisation. As
such, it can be said that the EAs would only be finally granted once all the conditions
had been met and the companies were entitled to c ommence the proposed
activities.23
[71] Mr Jacobs SC, the counsel for the first and second respondents, submitted
that there is no merit in the applicant’s contention that the regulations prohibit the
splitting of applications for grid connections from wi nd energy facilities. The process
and procedure are that EAs be obtained for both the construction of the Boulders
WEF and the associated sub -transmission line. Mr Jacobs asserted that Regulation
11(3) relates to ‘more than one activity’ as a part of the s ame development. In this
case, two developments were contemplated: firstly, the development relating to the
generation facility, that is, the Boulders WEF and secondly, the development relating
to the transmission line. The two developments have distinct a ctivities. According to
to the transmission line. The two developments have distinct a ctivities. According to
Mr Jacobs, the contention has been derived by defining the grid connection and the
wind energy facilities solely with reference to Regulation 11(3) of the EIA
Regulations, when in fact it should more properly be construed as ‘interr elated
activities’ as contemplated in Regulation 11(4).
21 Paras 50-58.
22 Minister of Forestry, Fisheries and the Environment & Others v Badenhorst N.O. & Others
(1004/2023) [2025] ZASCA 68 (28 May 2025).
23 At para 71.
[72] In this regard, Regulation 11(4) stipulates as follows:
‘11(4) If one or more proponents intend undertaking interrelated activities at
the same or different locations within the area of jurisdiction of a competent
authority, the competent authority may, in writing, agree that the proponent or
proponents submit a single application in respect of all of those activities and
to conduct a consolidated assessment process but the potential
environmental impacts of each activity, including its cumulative impacts, must
be considered in terms of the location where the activity is to be undertaken.’
[73] Mr Jacobs further submitted that from the ordinary meaning of the words in
Regulation 11(4), it is clear that it envisages a separate application process unless
the Department agrees in writing for a single application. M s Rajab-Budlender, the
counsel for the third respondent, shared the views expressed by Mr Jacobs
regarding the interpretation of this regulation. In addition, Ms Rajab -Budlender
submitted that the proposed Boulders WEF and the development of the sub -
transmission line are related in the sense that the sub -transmission line is necessary
to convey the electricity generated by the proposed Boulders WEF into the grid.
[74] 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.24 The approach to interpreting legislative provisions, whether Acts or
regulations made pursuant to an Act, is well settled and unnecessary to repeat in
light of the most recent judgment of the Constitutional Court in University of
Johannesburg v Auckland Park Theological Seminary and Another ,25 citing with
approval the judgment in Natal Joint Municipality Pension Fund v Endumeni
Municipality.26
24 Minister of Forestry, Fisheries and the Environment & Others v Badenhorst N.O. & Others
(1004/2023) [2025] ZASCA 68 (28 May 2025) para 32.
(1004/2023) [2025] ZASCA 68 (28 May 2025) para 32.
25 University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC)
para 64.
26 Natal Joint Municipality Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
[75] Suffice it to emphasise 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.27 One must start with the w ords, 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.28
[76] It is essential for this court to underscore that the objective of Regulation 11 is
to ensure that all activities associated with a development or taking place within the
same area are evaluated in a holistic manner. This approach guarantees that all
pertinent facts are considered in their entirety. Regulation 11(3) is framed in
mandatory terms. In my view, Regulation 11 must be interpreted purposively and as
a whole and not compartmentalised. From the wording of Regulation 11(3), it is
apparent that this r egulation envisages a situation where the applicant intends to
undertake more than one activity as part of the same development. In such a
situation, a single application must be submitted for such development. However, the
assessment of impacts, including cumulative impacts, where applicable, and
consideration of the application, will include an assessment of all such activities
forming part of that development.
[77] Simply put, I agree with the respondents’ argument that Regulation 11(3)
requires a single application only where an applicant for an EA intends to undertake
more than one activity as part of the same development. It is not applicable where
there are two developments, each with its distinct activities. In the present matter,
the applicant woul d have been required to submit a single application for the
proposed Boulders WEF and for the sub -transmission line only if the development of
the proposed Boulders WEF and the development of the sub -transmission line are
the proposed Boulders WEF and the development of the sub -transmission line are
part of the same development as en visaged in Regulation 11(3). It bears emphasis
that the transmission of electricity, which is a linear activity, is self -evidently distinct
from the generation of electricity.
27 University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC)
para 65.
28 AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa
2023 (2) SA 1 (CC) para 36.
[78] As Ms Rajab-Budlender points out, t he separation of the EIA processes for
the development of WEFs and for the development of the associated electrical
infrastructure has become standard and accepted practice for renewable energy
projects. Generation and transmission are distinct. The development of the proposed
Boulders WEF and the development of the sub -transmission line are not activities
forming part of the same development. The construction of the proposed Boulders
WEF and the construction of the sub -transmission line are not subject to the same
activities as defined, nor do they form part of the same development.
[79] As correctly propounded by the respondents, t he purpose of regulation 11(3)
is to prevent multiple applications relating to the same thing where a development
triggers more than one activity, such as, for example, an application for
environmental authorisation for the development of facilities to generate a renewable
resource where the electricity output is 20 megawatts or more (that is in respect of
wind turbines) which will also require other identified activities such as the clearance
of indigenous vegetation on which the wind turbines will be placed. Although ‘the
applicant int ends undertaking more than one activity as part of the same
development’ Regulation 11(3) avoids unnecessary multiple application by requiring
that a single application must be submitted for such development.
[80] Regulation 11(4), by contrast, deals with interrelated activities. Where an
applicant for an EA intends to undertake interrelated activities, it may submit a single
application in respect of both interrelated activities – but only with the prior consent
of the competent authority. From the ordinar y meaning of the words in Regulation
11(4), it is evident that it envisages a separate application process unless the
Department agrees in writing to a single application. Therefore, the default position is
Department agrees in writing to a single application. Therefore, the default position is
that separate applications are required to be sub mitted for interrelated activities. In
other words, Regulation 11(4) places an obligation on an applicant to obtain written
consent to allow it to submit a single application for all interrelated activities should it
wish to submit a single application. As stated, even where activities are interrelated,
absent written permission in terms of Regulation 11(4), an applicant must submit a
separate application in respect of each such activity unless they form part of the
same development. Therefore, the separate application of the EAs by the third
respondent, in relation to the grid connection and wind energy, is indeed justified, as
these activities are interrelated.
[81] Mr Rosenburg argued that even if the Court were to find that the WEF and
overhead transmission line are more accurately described as ‘interrelated activities’
and that Regulation 11(3) did not apply, the Minister in any event took the second
appeal decision o n 12 October 2021, after the transmission line EA had been
granted on 8 June 2020, without taking into account what the impact of the overhead
transmission line would be. Neither the Arcus avifaunal assessment nor the FBAR
served before her. The findings contained in those reports were, however, relevant
considerations since the WEF would only ever be constructed together with its
overhead transmission line. To this end, counsel argued that the second EA and the
Minister’s confirmation of the second EA are therefore reviewable in terms of section
6 of PAJA.
[82] This argument , in my view, fundamentally misses the point and cannot be
correct. The applicant has not challenged the sub -transmission line EA. The sub -
transmission line EA was the subject of a jud icial review by Aurora, the owner and
operator of the WC1 WEF, in which Aurora s ought to protect its own economic
interests. The applicant has not challenged the decision granting the sub -
transmission line EA and is not a party to that review. The review relating to the sub-
transmission line EA has been withdrawn. 29 Accordingly, the sub -transmission line
EA is unchallenged and will remain extant regardless of the outcome of these
proceedings. As there is no challenge to the sub -transmission line EA, it should be
accepted that the application for authorisation and the EA concerned complied with
NEMA and its regulations. The Minister dismissed an appeal brought by Aurora Wind
Farm (Pty) Limited and confirmed the sub -transmission line EA on 29 Sept ember
2020. There was n o appeal against the sub -transmission line EA lodged by the
2020. There was n o appeal against the sub -transmission line EA lodged by the
Applicant.
29 The notice of withdrawal in terms of rule 41(1) in Case Number 5447/2021 in which Aurora Wind
Power (RF) (Pty) Limited was the sole applicant was withdrawn by the applicant in that application on
10 September 2024.
[83] Therefore, the impacts and cumulative impacts relevant to that development
have been investigated, considered and assessed and were ultimately found to be
acceptable and consistent with the requirements of NEMA . Furthermore, as the
respondents posit, since there is already an EA for the sub-transmission line, it is not
possible for Vredenburg to now, as the applicant requests, submit an application for
the development of the sub -transmission line, together with an application for the
development of the proposed Boulders WEF.
[84] In any event, the cumulative impacts that the powerline will have on the
animal and plant species were assessed with reference to developments that are
similar in nature. These developments are the Boulders Wind Energy Facility, the
WC 1 W EF and associated infrastructure, and the Isi vunguvungu WEF. The
assessment found that there are numerous potential negative impacts associated
with the proposed sub -transmission line; however, all of these can be reduced to an
acceptable level by implementing appropriate mitigation measures. CES not ed that
there are no fatal flaws that are currently associated with the proposed 132KV sub -
transmission line development, as all identified impacts can be adequately mitigated
to reduce the risk or significance of impacts to an acceptable level.
[85] In the first appeal decision in relation to the proposed Boulders, the Minister
noted that there are important and vulnerable bird communities located within the
project area. The Minister noted that impacts could not be completely eliminated.
However, the y could be minimised to the maximum extent possible through the
avoidance of no -go areas and the implementation of the recommended mitigation
measures. It was noted that the EIAr suggests that with the implementation of the
proposed mitigation measures, th e project will not cause irreplaceable loss of
avifauna biodiversity, and no fatal flaws were identified in the project.
avifauna biodiversity, and no fatal flaws were identified in the project.
[86] It is abundantly clear from the above that the cumulative impact of the
Boulders WEF and the sub-transmission lines on the birds in the area was assessed.
Importantly, NEMA does not require complete and absolute knowledge of all
potential consequences of a development proposal before environmental
authorisation may be granted. An applicant for environmental authorisation must
indicate the possible mitigation measures that could be applied and the level of
residual risk and describe any assumptions, uncertainties, and gaps in knowledge
which relate to the assessment and mitigation measures proposed. Consequently,
this ground of review must also fail.
Did the Minister fail to consider the applicant’s new grounds of appeal?
[87] Mr Rosenburg argued on behalf of the applicant that when the Minister took
the second appeal decision, she considered herself functus officio as regards
grounds of appeal which had already been raised in the first round of decision -
making and failed to appreciate that there were several new grounds of appea l
arising directly from the second EA, with the result that she failed to consider them at
all. According to Mr Rosenberg, the Minister assumed wrongly that there were no
new grounds of appeal contained in the other fifteen appeals (being the appeals
which were unrelated to wake effects). Having made that incorrect assumption , so
the contention proceeded, the Minister failed to consider the new appeal grounds
which had been raised by the applicant, and which pertained directly to the amended
layout plan and the amended EMPr.
[88] The new appeal grounds allegedly not considered by the Minister identified
and relied on by the applicant are that the amended layout plan lacked the
information which the first EA had required should be included in the layout plan
before it could be approved and that the amended EMPr did not contain the
information which the first EA had required should be included in the EMPr before it
could be approved.
[89] In evaluating this ground of review, it is important to cons ider the decision of
the Minister in the first appeal (2020 Appeal decision) to determine if indeed the
Minister erred in her finding that the appeal grounds raised by the applicant were
dealt with in the first appeal. In the Minister’s 2020 appeal decisio n dated 30 August
2020, the Minister considered the layout plan and the grounds of appeal relating
2020, the Minister considered the layout plan and the grounds of appeal relating
thereto raised by the eighth and tenth appellant in those proceedings.
[90] The Minister also considered the complaint that the EMPr and final layout
provided insufficient information to decide the application. To this end, the Minister
noted that the site layout was refined to produce a final mitigated layout and found
that the E IAr indicates that the layout alternatives were adequately assessed. The
Minister referred, particular ly, to paragraph 12.4 of the EIAr, which stated that in
reaching the current proposed layout, the placement of turbines was refined on two
occasions further to reduce the visual impact of the wind farm.
[91] Importantly, the Minister found that the EMPr was submitted to the competent
authority, as per Regulation 19(1), and secondly that the EMPr contained all the
information set out in section 24N of NEMA. Further to this, the final EMPr was
submitted in support of the EA application and sufficiently evaluated by the
Department. The Minister further found that she was accordingly satisfied that the
Department considered, evaluated and assessed all relevant information and the
applicable law before deciding to grant the EA to the applicant. The Minister further
found that the final EIAr and EMPr adequately assessed the potential impacts
associated with the proposed project and could not find that the granting of the EA
without the approved EMPr constitutes a fait accompli as argued by the appellants.
[92] In the second EA appeal decision, the Minister specifically refer red to the
Minister’s 2020 decision, and the reasons set out in that regard insofar as the
grounds of appeal before her for the purposes of the Minister’s EA decision were
concerned. The Minister specifically asserted that in reaching her decision she has
taken into consideration and carefully considered, inter alia, t he Minister’s 2020
decision, sixteen appeals lodged by the appellants and the information contained in
the project file with specific reference to the FEIA, EMPr, the wake effect
assessment, the socio -economic assessment of 17 May 2021 and the Chief
Director’s EA decision. The Minister alluded to the fact that the grounds raised by the
Director’s EA decision. The Minister alluded to the fact that the grounds raised by the
appellants in the second appeal against the granting of the second EA (the 2021 EA)
are similar to those grounds raised by the appellants against the granting of the 2020
EA and are unpersuasive.
[93] Evidently, the Minister considered all the grounds placed before her, including
the grounds raised by the applicant. The argument that the applicant’s grounds of
appeal were not considered is accordingly contradicted by the Mini ster’s second
appeal decision. It cannot be said that the Minister acted mala fide or with an ulterior
motive, or that she failed to apply her mind or disregarded the express provisions of
NEMA. From the above discussion, the Minister considered everything that was
placed before her, including the applicant’s complaint on this ground of review.
Similarly, this ground of review must also fail.
Did the Minister ignore relevant information regarding black harriers?
[94] The applicant contends in his fifth ground for review that the Chief Director
granted approval for the second EA, a decision subsequently affirmed by the
Minister in her second appeal. The applicant maintains that this decision was made
without adequately considering newly available information regarding the ecological
significance of the site designated for the wind energy facility, particularly in relation
to the Black Harrier species. According to the applicant, this rendered their decisions
reviewable o n the ground of a material mistake of fact. The applicant based its
contention on two reports that Dr Rob Simmons and Dr Megan Murgatroyd prepared.
[95] In summary, Dr Rob Simmons of the Fitzpatrick Institute of African
Ornithology, University of Cape Tow n, made the point that two Black Harrier nests
were found in November 2021 within 5km of the proposed Boulders WEF, close to
the first nest recorded in 2020 in the Paternoster Nature Reserve. Dr Megan
Murgatroyd, on the other hand, stated that the new info rmation regarding known
nests near the Boulders WEF, and the fact that the greater area represents an
important breeding ground for the species, may constitute a fatal flaw militating
against the granting of environmental authorisation.
[96] It must be stressed that this ground of review is based on information which
has recently come to light as regards the importance of the WEF site for Black
Harrier. The reports relied upon by the applicant did not serve before the Minister
and the Chief Dire ctor at the time of the first and second decisions to grant the EAs
and the Chief Dire ctor at the time of the first and second decisions to grant the EAs
and were prepared in November 2022 after the decisions were taken. As was
pointed out by the respondents during the argument, the review court's role is to
assess whether the decision was reasonable, lawful, and procedurally fair, based on
the information that was before the original decision -maker at the time the decision
was made, and not to retry the case with new evidence. This argument, in my view,
is spot on and cannot be faulted.
[97] In any event, avifaunal impacts of the proposed Boulders WEF were
investigated and considered during the EIA process. The impact on Black Harriers
and their habitat was appreciated, assessed, and considered by the independent
expert, Bioins ight South Africa and the ir report was before the decision makers .
There is no claim by the applicant of any impropriety, bias or malice on the part of
the decision makers which might justify usurping their authority.
[98] While it was acknowledged that collisions may occur, based on the thorough
assessment that was undertaken, the resulting effects on the overall bird community
are not expected to be significant. The specialist Avifaunal Impact Report
recommended a list of mitigation m easures according to the predicted negative
impacts, as well as a monitoring programme to be implemented throughout the
proposed Boulders WEF operational phase. This monitoring programme will, in turn,
allow for an assessment of the need to define any addi tional mitigation measures.
Given all these considerations, I am of the view that this ground of review must fail.
Conclusion
[99] As a result of the foregoing, the impugned decisions are not susceptible to
review. Even if, on a highly technical reading of the various provisions, it ca n be said
that the Chief Director and Minister failed to give effect to the legislative provisions
governing the grant of the EAs, s ection 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’. (emphasis added)
[100] In the light of the purpose of the legislation, namely, to protect the
environment and to ensure that only authorised activities can be undertaken, it can
hardly be said that the approval of the EA in the form issued in the present matter
amounted to a mat erial 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 2014 EIA Regulations. Consequently, it is my firm view that there is
no merit to any of the review grounds raised by the applicant and the applicant’s
application must be dismissed.
Costs
[101] As regards costs, Mr Rosenberg su bmitted that section 32(2) of NEMA and
the Biowatch principle ought to be applied, namely that: should the applicant
succeed in its review, the Minister should be directed to pay the applicant’s costs,
including the costs of two counsel and should the applicant fail in its review, no
adverse costs order should be made against the applicant. Mr Jacobs and Ms Rajab-
Bundlender prayed that the applicants’ application must be dismissed with costs
including the costs of two counsel on Scale C.
[102] It is a trite that a court considering an order of costs exercises a discretion
which must be exercised judic iously after due consideration of the salient facts of
each case .30 The general rule is that costs should follow the result. However,
the Biowatch principle is an exception to that general rule. As explained above, t he
applicant relies on the Biowatch principle and on section 32(2) of NEMA.
The Biowatch principle comes from Biowatch Trust v Registrar, Genetic Resources,
and Others .31 It states that parties that seek to vindicate constitutional rights as
against the state are not liable to pay the state' s legal costs if they are
unsuccessful.32 However, this approach does not apply where an application is
30 Ferreira v Levin NO and Others; Vrey enhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC); Motaung v Makubela and Another, NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) at 631A.
31 2009 (6) SA 232 (CC).
32 At para 57.
frivolous or vexatious, or in any other way manifestly inappropriate which includes
where an applicant unreasonably delays.33
[103] Section 32(2) of NE MA, on the other hand , buttresses the Biowatch principle
and provides that courts may decide not to award costs against a party who failed to
secure the relief sought in respect of a breach of NEMA as long as it acted in the
public interest or in the interests of protecting the environment. Like Biowatch, this is
dependent on whether the court is of the opinion that the party acted out of public
interest, or in this particular instance, in the interests of protecting biodiversity and
the environment.
[104] In the present matter, t he applicant sought to vindicate a right in terms of
section 24 of Constitution read with the provisions of NEMA. There is no suggestion
in this case that the applicant’s application was frivolous or vexatious. The third
respondent argue d that the assertion by the applicant, ‘a wealthy businessman
protecting his own claimed interests in large tracts of land, of what he considers to
be the interests of ‘vulnerable and disadvantages communities’ (albeit without having
sought any mandate from such communities, and despite the opportunity of such
communities to participate in the public participation process and express such
concerns had they wished to) is cynical and self -serving’. I do n ot agree with this
proposition.
[105] It may be so that the application is partly self -serving. However, the issues
raised by the applicant in this application relating to Avifaunal impact and the risk of
collision of certain birds’ species against the pr oposed pylons underscore the
authenticity of this application. While the first and second respondents have been
successful in this application, I am of the view that the Biowatch principle must apply.
As discussed, above, the Biowatch principle ordinarily applies where a private entity
As discussed, above, the Biowatch principle ordinarily applies where a private entity
is unsuccessful against the State. However, as between two private entities, such as
the applicant and the third respondent, that principle does, ordinarily, not apply.
33 Beweging vir Christelike-Volkseie Onderwys and others v Minister of Education and others [2012] 2
All SA 462 (SCA) para 68; See Biowatch Trust v Registrar Genetic Resources and Others 2009 (6)
SA 232 (CC) paras 23 – 24.
Notwithstanding, section 32(2) of NEMA embraces the Biowatch principle and
applies between private entities.
[106] Therefore, in environmental litigation, the essence of the Biowatch principle is
applicable, and extends to litigation between private entities such as the ap plicant
and the third respondent.34 Consequently, s ection 32(2) of NEMA brings the
applicant herein within the protection of NEMA. From this analysis, it follows
therefore that each party must pay its own costs.
Order
[107] Given all these considerations, the following order is granted:
107.1 The applicant’s application is hereby dismissed.
107.2 Each party is ordered to pay its own costs.
__________________________________
LEKHULENI J
JUDGE OF THE HIGH COURT
I agree:
__________________________________
NJOKWENI AJ
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
34 South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and
Environmental Affairs, Kwazulu-Natal Provincial Government and Another 2020 (4) SA 453 ( SCA)
para 70.
For the Applicant: Adv Rosenberg SC
Adv Aymone du Toit
Instructed by: Hofmeyr Attorneys
For the first and second Respondents: Adv Jacobs SC
Adv Mokhoaetsi
Instructed by: State Attorney - Mr Leon Manuel
For the third Respondent: Adv Rajab-Budlender SC
Adv D Smith
Instructed by: Warburton Attorneys