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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 44180/21
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) DATE: 04 NOVEMBER 2025
(5) SIGNATURE: C.J COLLIS J
In the matter between:
ASTRON ENERGY (PTY) (LTD) Applicant
and
MEC: GAUTENG DEPARTMENT OF
ECONOMIC DEVELOPMENT, AGRICULTURE,
ENVIRONMENT AND RURAL DEVELOPMENT 1st Respondent
ACTING DEPUTY DIRECTOR: GENERAL:
NATURAL RESOURCES MANAGEMENT 2nd Respondent
GAUTENG: DEPARTMENT OF:
AGRICULTURE AND DEVELOPMENT 3rd Respondent
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY 4th Respondent
This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal
representatives by email. The judgment is further uploaded to t he
electronic file of this matter on CaseLines by the Judge or her
Secretary. The date of this judgment is deemed to be 04 November
2025.
JUDGMENT
COLLIS J
INTRODUCTION
[1] This is an application for judicial review, pursuant to sections 6
and 8 of the Promotion of Administrative Justice Act 3 of 2000
(‘PAJA’), for the review and setting aside of two decisions, namely:
1.1 The first, a decision taken 10 March 2021 by the ME C:
Gauteng Department: Economic Development, Agriculture,
Environment and Rural Development (‘the MEC’ or ‘First
Respondent’) in terms of section 28(4) of the National
Environmental Management Act, 107 of 1998 (‘NEMA’) by
means of which the MEC dismissed A stron Energy (Pty) Ltd.’s
(‘Astron’ or ‘the Applicant’s’) appeal1 against the Directive2; and
1.2 Secondly, and to the extent necessary, a decision taken on
26 September 2019 by the Acting Deputy Director General:
Natural Resource Management (‘the Dire ctor’ or ‘Second
Respondent’) in terms of section 28(4) of NEMA by means of
which the Director issued a Directive in relation to the
hydrocarbon contamination of groundwater of the relevant
erven3 (‘the Directive’).
[2] This present application relates to four erven located in Wilropark
Extension 5, Johannesburg 4 which is underlain by complex
1 Annexure LH13 (Astron’s appeal): pp 004-97 to 126.
2 FA: p 003-3, para 7.1; Annexure LH1 (MEC appeal decision): pp 004 -1 to
2.
3 FA: p 003-3, para 7.2; Annexure LH2 (Directive): pp 004-3 to 8
4 Annexure LH3 (site layout): p 004-9.
hydrogeology and a fractured (hard rock) aquifer5, namely:
2.1 Erf 1[...] on which the filling station, Roodekruin Motors, is
situated (‘the fi lling station’) 6. Ebisu Dealers CC owns the
property and retails the sale of petroleum through Sasol 7.
Previously, Astron retailed the sale of petroleum at the property,
but did not own it8;
2.2 Erf 1[...]2 also known as [...] K[...] Avenue owned by Mr
Rabie, the owner of borehole BH1 (‘BH1 – Rabie’)9;
2.3 Erf 1[...]3 also known as [...]2 K[...] Avenue owned by Mr
Masemula, the owner of borehole BH2 (‘BH2 – Masemula’)10;
and
2.4 Erf 1[...]4 also known as [...]3 K[...] Avenue owned by Mr
and Mrs Mpofu, the owner of borehole BH3 (‘BH3 – Mpofu’)11
STATUTORY FRAMEWORK
5 FA: p 003-5.
6 FA: p 003-4, para 9.1.
7 RA: p 035-23, para 54.
8 FA: p 003-5, paras 12-13.
9 FA: p 003-4, para 9.2.
10 RA: p 035-26, para 60.2
11 FA: p 003-5, para 9.4.
[3] Petroleum and/or petroleum products are dangerous, hazardous
substances which are controlled by national legislation, inter alia the
Petroleum Products Act, 120 of 1977 and the Hazardous Substances
Act, 15 of 1973.
[4] Section 28(1) of NEMA, read with se ction 24 of the Constitution,
provides that every person who causes, has caused or may cause
significant pollution or degradation of the environment must take
reasonable measures to prevent such pollution or degradation from
occurring, continuing, or recurring (‘the NEMA duty of care’).
[5] In terms of this obligation, Astron, who handles petroleum and
diesel products,12 must therefore:
“take reasonable measures to prevent such pollution or
degradation from occurring, continuing or recurring, or, insofar
as such harm… cannot reasonably be avoided or stopped, to
minimize and rectify such pollution or degradation of the
environment”.
[6] Section 28(3) of NEMA further provides that the kind of reasonable
measures that must be taken may include measures to:
“(a) investigate, assess and evaluate the impact on the
environment;
….
12 FA: p 003-7, para 20.
(c) cease, modify or control any act, activity or process
causing the pollution or degradation;
(d) contain or prevent the movement of pollutants …;
(e) eliminate any source of the pollution or degradation; or
(f) remedy the effects of the pollution or degradation”.
[7] In the event of a concern that inter alia a person, who has a right
to use the land or premises, is causing, has caused or may cause
significant pollution or degradation of the environment, the
administrative procedure followed by the environmental authorities in
terms of section 28 of NEMA is fi rst to issue a notice of its intention to
issue a directive, called a pre-directive, before taking the step to issue
a directive.
[8] The pre-directive gives every person who causes, has caused or
may cause significant pollution or degradation of the envi ronment an
opportunity to submit relevant information. This mechanism ensures
that the relevant authority is appropriately informed before exercising
its discretion to impose the powerful enforcement mechanism of a
directive13. The consequences following the issue of a directive include
potential liability and severe civil and criminal penalties in terms of
13 FA: p 003-9, para 23.
NEMA14.
[9] Section 28 of NEMA does not confer on the relevant decision -
maker an arbitrary and uncontrolled power to issue a directive. The
exercise of this discretionary administrative power must be reasonable
and based on the correct facts and the circumstances of a particular
case.
[10] As mentioned, on 26 September 2019, the Second Respondent
issued a Directive in terms of s 28(4) of the National Environmental
Management Act15 (NEMA) against Astron in relation to the
contamination of underground water in respect of four erven in
Wilropark Extension 5, Johannesburg.16
[11] Astron appealed to the First Respondent in terms of s 28(4)
of NEMA. On 10 March 2021 the First Respondent dismissed
Astron’s appeal.17
RELIEF SOUGHT
[12] In the present application, Astron seeks to have the two
decisions reviewed and set aside, whereas the Respondents in
turn had raised the procedural point of non-joinder of the owners
14 FA: p 003-6, para 16.
15 No 107 of 1998.
16 The Directive is Annexure LH2 to the Founding Affidavit.
17 The appeal decision and reason therefore are set out in Annexure LH1.
of the erven and also whether the applicant has made out a case
on the merits for the review to be granted.
[13] Before this Court i t is only the First, Second and Third
Respondents, who have been cited by the Applicant . The City of
Johannesburg (CoJ) has applied to intervene to be cited as the
fourth respondent and has filed papers opposing the relief sought by
Astron. The intervention application is still to be determined by the
Court.
[14] It is for this reason that this Court deems it prudent to first deal
with the intervention by CoJ and thereafter to deal with the joinder
applications by the remaining respondents before the merits of the
review application are to be determined.
INTERVENTION APPLICATION
[15] The applicant (Astron) has not consented to the CoJ being a
party to these review proceedings. It has adopted an approach that it
will abide by this Court’s decision, this on the intervention
application.
[16] The applicant has also not opposed the intervention application
by the CoJ. Absent any opposition, this Court will accept that on the
merits a case has been made out for the CoJ to have an interest in
these proceedings and that it should be joined to these pending
proceedings as a Fourth Respondent . Consequently, the intervention
application is granted with no order as to costs. The CoJ is now joint
as a Fourth Respondent.
JOINDER POINT IN LIMINE
[17] As mentioned the remaining respondents have raised the
procedural points of joinder as a point in limine.
[18] In this regard the respondents contend that the owners of the
relevant erven, as well as the CoJ, are necessary parties to these
proceedings and should have been joined .18 In the context of the
discussion on joinder the owners of the relevant erven and the CoJ as
shall be referred to as ‘the identified parties’.
[19] Prior to filing its answering affidavit, the third respondents ’
attorneys, in a letter to Astron raised the issue of non -joinder in a
perfunctory fashion.19 Astron took the view that none of the identified
parties have a material interest sufficient to warrant their joinder.
[20] Nonetheless, following a pragmatic approach to avoid any
possible future arguments about joinder, Astron’s attorneys wrote to
18 AA: pp 031-7 to 12, paras 8 to 24.
19 Annexure MT1: pp 032-1 to 2; AA: p 31-12, paras 23 to 24; RA: pp 035-
17, para 34.
the identified parties, copying the third respondents’ attorneys.20 The
identified parties were given informal extra -judicial notice of the
application and an opportunity to intervene in the proceedings.
[21] Accompanying the letter were copies of the plead ings as they
existed at this date, namely the founding and supplementary founding
affidavits. The first to third respondents raised a point in limine for
non-joinder of the CoJ and the owners of the respective affected
sites.21
[22] In this regard, it will be apposite to have regard to the provisions
of Rule 10 which state as follows:22
“(1)…
(2)…
(3) Several Defendants may be sued in one action either
jointly, jointly and severally, separately or in the alternative,
whenever the question arising between them or any of them
and the plaintiff or any of the plaintiffs depends upon the
determination of substantially the same question of law or fact,
which if such defendants were sued separately, would arise in
each separate action.”
20 RA: pp 035-17 to 18, paras 35 to 38; Annexure LH21A: pp 045-1 to 20.
21 Caseline pages 031-7 to 031-8.
22 Erasmus Superior Court Practice 2ed D1-123.
[23] The rule quoted above not only sets out the circumstances under
which a joinder application should be made but also it sets out the
procedure to be followed for the application itself. As such a p arty
would be required to bring a substantive application i n compliance
with rule 6 and afford the party to be joined an opportunity to oppose
such joinder if it elects to do so.
[24] A court when faced with a point of non -joinder the test is
whether or not , a party has a direct and substantial interest in the
subject-matter of the action, that is , a legal interest in the subject
matter of the litigation which may be effected prejudicially by the
judgment of the court.23
[25] In Almalgamated Engineering Un ion v Minister of Labour 24 it was
stated that:
“if a party has a direct and substantial interest in any order the
court might make in the proceedings or if such order could not
be sustained or carried into effect without prejudicing that party,
he is a necessary party and should be joined in the proceedings,
unless the court is satisfied that he has waived his right to be
joined.”
23 Unreported, WCC case no 20317/2017 dated 28 October 2022 at para
[28]
24 1949 (3) SA 637 (A).
[26] In Henry Viljoen (Pty) Ltd v Awerbuch Bros 25 it was held that, a
person might have a substantial interest in the result of the action and
as such interest might be prejudicially affected by a judgment given in
the proceedings, such person or body substantially interested should
be given an opportunity of being heard in defence of such interest if it
should so desire.
[27] In Matjhabeng Local Municipality v Eskom Holdings (Pty) Ltd 26
the Constitutional Court stated:
“The law on joinder is well settled. No Court can make finding
adverse to any person’s interests, without that person first
being a party to the proceedings before it.”
[28] Therefore, the law relating to joinder is clear. Non -joinder of a
party with direct and substantial interest in the legal proceedings is
fatal to the application or action and it will be for that party to make
an election as to whether they wish to join the proceedings or not and
to be given an opportunity to be heard.
[29] On behalf of the respondents on point the following arguments
were advanced in respect of the non -joinder point. In its capacity as
the SASOL lessee, and in their capacity as owners of the properties on
25 1953 (2) SA 151 (O) at 152.
26 2018 (1) SA 1 (CC) (at 33E – F).
which BH1, BH2 and BH3 are situated, the respondents argued that
the setting aside of the impugned decisions has serious consequences
for the owner of the Sasol - branded filling station and the owners of
the land on which the contaminated BH1, BH2 and BH3 are situated.
[30] Various statutory provisions impose obligations on the owners of
land on which the contaminated BH1, BH2 and BH3 are situate d and
the owner of the Sasol - branded filling station which provisions have
quite serious implications for them.
[31] In this rega rd firstly s 19 of the National Water Act 27 (the
“NWA”), which is the over -arching, umbrella legislation for water
resources in the country, provides as follows:
Prevention and remedying effects of pollution
(1) An owner of land, a person in control of land or a person
who occupies or uses the land on which —
(a) any activity or process is or was performed or
undertaken; or
(b) any other situation exists, which causes, has caused or
is likely to cause pollution of a water resource, must
27 No 36 of 1998.
take all reasonable measures to prevent any such
pollution from occurring, continuing or recurring.
(2) The measures referred to in subsection (1) may include
measures to —
(a) cease, modify or control any act or process causing the
pollution;
(b) comply with any prescribed waste standard or
management practice;
(c) contain or prevent the movement of pollutants;
(d) eliminate any source of the pollution;
(e) remedy the effects of the pollution; and
(f) remedy the effects of any disturbance to the bed and
banks of a watercourse.
(3) A catchment management agency may direct any person
who fails to take the measures required under subsection (1)
to—
(a) commence taking specific measures before a given date;
(b) diligently continue with those measures; and
(c) complete them before a given date.
[32] As such counsel for the respondents has argued that, as owners
of the land on which the boreholes are situate d, the owners of BH1,
BH2 and BH3 are required to take the measures identified in s 19(1)
and that if they fail to do s o, directives may be issued against them in
terms of s 19(3). They accordingly have a direct and substantial
interest in the outcome of the review application.
[33] Secondly, s 40(1) of the National Environmental Management:
Waste Act28 (the “Waste Act”), which came into effect on March 2009,
provides as follows:
Transfer of remediation sites
“(1) No person may transfer contaminated land without informing the person
to whom that land is to be transferred that the land is contaminated and, in
the case of a remediation site, without notifying the Minister or the MEC and
28 No 59 of 2008.
complying with any conditions that are specified by them.”
[34] In relation to the above section and in determining the disclosure
obligations that s 40(1) imposes on the transferor of land, it is
submitted that it bears emphasi zing that the owner of the Sasol -
branded station and the owners of land on which the contaminated
BH1, BH2 and BH3 are situated remain obliged to disclose to potential
buyers the following: the underground water from BH1, BH2 and BH3
located near the Sasol -branded filling station is contaminated with
petroleum hydrocarbons present in the area; Astron had instructed
the owners of the contaminated BH1, BH2 and BH3 to cease the use
of the boreholes which were decommissioned and had reached
agreements with them on 5 May 2017, 17 March 2020 and 30 July
2020; these agreements had been made without involving the
environmental authorities (DWS, DFFE and GDARD) and CoJ; and that
Astron had been issued with a Directive to address the underground
water contamination at these sites.
[35] Thirdly the respondents relied on, clause 37 (b) of the COJ Public
Health By-laws, which provides:
Every owner or occupier of premises must ensure that any well,
borehole or other excavation located on his or her premises . . . is not
filled in a way, or with material, that may cause any adjacent well,
borehole or underground water source to be polluted or contaminated
to an extent that may create a public health nuisance or a public
health hazard.
[36] In support of their non-joinder point, the respondents had placed
reliance on the Harmony Gold Mining 29 decision, where the Supreme
Court of Appeal held that a property owner is responsible for averting
groundwater contamination.
[37] For the above reasons the respondents had argued that it is
ultimately the responsibility of the owner of the Sasol -branded filling
station and the owners of the land on which the contaminated BH1,
BH2 and BH3 are situate d to address the issue of underground water
contamination.
[38] The owners of the land on which the contaminated BH1, BH2 and
BH3 is situated and the owner of the Sasol -branded filling station on
account of their direct and substantial interest in th is review
application, Astron was required to join them as parties and mere
letters sent to them enquiring whether they are willing to participate
in the review application is neither prescribed by the rule no r
protective of their rights and interests. Astron further had no
discretion to exercise in this regard. These arguments advanced by
29 Harmony Gold Mining Company Limited v Regional Director Free State
Department of Water Affairs 2014 (3) SA 149 (SCA).
the respondents this Court agrees with.
[39] Astron at the time when the respondents raised a point in limine,
should have prepared an application to join them, and not merely to
dispatch letters to them informing them to join the proceedings if they
elected to do so. The conduct adopted by Astron, offends the provision
and procedure envisaged by the rule.
[40] Accordingly, the in-limine point of non -joinder raised by the
respondents falls to be upheld and the review application adjourned
until Astron regularizes the position by effecting the requisite joinder.
[41] In the result the following order is made:
41.1 The City of Johannesburg Metropolitan Municipality is hereby
admitted as the Fourth Respondent, with no order as to costs.
41.2 The R espondents point in limine of non -joinder is upheld with
costs, including the costs of two counsel where so employed.
41.3 The review application is postponed sine die until the applicant
formally complies with the provisions of Rule 10.
___________________
C.J COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
Counsel for the Applicant: Adv. R Michau SC
Adv. A E Erasmus
Instructing Attorney: Richard Summers Inc.
C/o Koekemoer Attorneys
Counsel for the
First to Third Respondents: Adv. V Soni SC
Adv. L Gumbi
Instructing Attorney: Office of the State Attorney,
Pretoria
Counsel for the Fourth Respondent: Adv. W Mokhare SC
Adv. M Mokwena
Instructing Attorneys: SMM Attorneys
Date of Hearing: 13 August 2024
Date of Judgment: 04 November 2025