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[2019] ZASCA 68
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Gauteng Department of Agriculture and Rural Development and Others v Interwaste (Pty) Ltd and Others (458/2018) [2019] ZASCA 68; [2019] 3 All SA 344 (SCA) (30 May 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 458/2018
In
the matter between:
GAUTENG
DEPARTMENT OF AGRICULTURE
AND
RURAL
DEVELOPMENT FIRST
APPELLANT
MEC
FOR ECONOMIC, ENVIRONMENT, AGRICULTURE
AND
RURAL
DEVELOPMENT SECOND
APPELLANT
CECILIA
PETLANE
NO THIRD
APPELLANT
LOURENS
BADENHORST NO
FOURTH
APPELLANT
GREATER
MIDSTREAM
FORUM FIFTH
APPELLANT
and
INTERWASTE
(PTY)
LTD FIRST
RESPONDENT
MINISTER
OF WATER AND ENVIRONMENTAL
AFFAIRS SECOND
RESPONDENT
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS THIRD
RESPONDENT
Neutral
citation:
Gauteng Department of
Agriculture and Rural Development & others v Interwaste (Pty) Ltd
& others
(458/2018)
[2019] ZASCA 68
(30 May 2019)
Coram:
Navsa ADP and Swain, Zondi and Molemela
JJA and Weiner AJA
Heard:
10 May 2019
Delivered:
30 May 2019
Summary:
Waste management licence issued in
terms of the
National Environmental Management Act 107 of 1998
–
whether expired by effluxion of time – relevance in prevailing
circumstances of a compliance notice issued in terms
of the Act.
ORDER
On
appeal from
:
Gauteng
Division of the High Court, Pretoria (Semenya AJ sitting as court of
first instance):
1
The appeal is upheld with costs, including, where applicable, the
costs of two counsel.
2
The order of the court below is set aside and substituted as follows:
‘
The
application is dismissed with costs, including, where applicable, the
costs of two counsel.’
JUDGMENT
Navsa
ADP (Swain, Zondi and Molemela JJA and Weiner AJA concurring):
[1]
This case demonstrates how, if litigating parties misconceive their
rights and misidentify the main issue for adjudication,
the decision
by the court before which it is presented, inevitably, will be
flawed. The present appeal, with the leave of the court
below,
ostensibly, principally concerns the validity of a compliance notice
issued by an environmental management inspector, purportedly
within
the regulatory structure in terms of s 31L of the National
Environmental Management Act 107 of 1998 (the NEMA).
[1]
The Gauteng
Division of the High Court, Pretoria (Semenya AJ), at the instance of
Interwaste (Pty) Ltd (Interwaste), the first respondent
in the
present appeal, reviewed and set aside the decision of the third
appellant, Ms Cecilia Petlane, an environmental management
inspector
employed by the first appellant, the Gauteng Department of
Agriculture and Rural Development (the GDARD), to issue the
compliance notice. In addition, the court reviewed and set aside a
decision of the GDARD, in terms of which Interwaste’s
objection
to the compliance notice was rejected. Furthermore, the court
remitted the matter to the licencing authority in terms
of the NEMA,
for it ‘to issue Interwaste a licence which complies,
inter
alia
,
with the provisions of section 51(1)
(e)
of
the [National Environmental Management: Waste Act 59 of 2008 (the
NEMWA)] stipulating the period of the validity of the licence
as well
as the period within which any renewal of the licence must be applied
for’. The last mentioned order, rightly, is
not being defended
by Interwaste. It is an aspect to which I shall revert in due course.
[2]
The six respondents in the court below, which included Ms Petlane, Mr
Lourens Badenhorst, who is also an environmental management
inspector, the Member of the Executive Council (the MEC) for
Economic, Environment, Agriculture and Rural Development of the
Gauteng
Provincial Government, the GDARD, the Minister of Water and
Environmental Affairs (the Minister) and the Department of
Environmental
Affairs (the Department) as well the Greater Midstream
Forum (the GMF) were all ordered to pay Interwaste’s costs. The
GMF
applied to intervene but did not file any affidavits. It confined
itself to making written and oral submissions. It is against the
orders referred to above that the present appeal by the GDARD, the
MEC, Ms Petlane and Mr Badenhorst, in their official capacities,
and
the GMF, is directed. The Minister and his department did not
participate in the appeal. The history leading up to the compliance
notice being issued and events that followed are set out hereafter.
[3]
Interwaste operated a waste disposal site within the Gauteng
Province, called the FG site, pursuant to a waste management licence
issued in terms of the NEMA on
25 November 2011
. The licence,
peculiarly, under the title ‘conditions’, and itemised as
condition 3.1(h), stipulated ‘[t]his
waste management licence
must be renewed within a period of four years from date of issue’.
That ‘condition’
is at the centre of this appeal. I pause
to note that s 51(1)
(e)
of the NEMWA, under the title
‘contents of waste management licences’, provides:
‘
(1)
A waste management licence must specify –
.
. .
(e)
the period for which the licence
is issued and period within which any renewal of the licence must be
applied for.’
[4]
For a proper appreciation of how the conceptual confusion alluded to
at the commencement of this judgment and more fully explored
later
arose, it is necessary to have regard to clause 3 of the waste
management licence in its entirety. It includes clause 3.1(h)
referred to in the preceding paragraph and reads as follows:
‘
3.
Conditions
3.1
Scope of Licence
a.
Licencing of the activity is subject to the conditions contained in
this licence, which conditions form part of the waste management
licence and are binding on Interwaste (Pty) Ltd.
b.
This licence is for the construction and operation of FG Waste
Disposal site on Portion 15 of the farm Olifantsfontein 410 JR.
c.
The site will receive 215 tons of general waste per day and 77 400
per annum.
d.
Interwaste (Pty) Ltd shall be responsible for ensuring compliance
with the conditions by any person acting on its behalf, including
but
not limited to, an agent, sub-contractor, employee or person
rendering a service to FG Waste Disposal site.
e.
The activities which are licenced must only be carried out at the
property indicated above.
f.
Any changes to, or deviations from, the project description set out
in this licence must be approved, in writing, by the Department
before such changes or deviations may be effected. In assessing
whether to grant such approval or not, the Department may request
such information as it deems necessary to evaluate the significance
and impacts of such changes or deviations and it may be necessary
for
Interwaste (Pty) Ltd to apply for further authorisation in terms of
the regulations.
g.
This activity must commence within a period of
two (2)
years
from the date of issue. If commencement of the activity does not
occur within that period, the licence lapses and a new application
for a waste management licence must be made in order for the activity
to be undertaken.
h.
This Waste Management Licence must be renewed within a period of
four
(4)
years from the date of issue.
i.
This licence does not negate Interwaste (Pty) Ltd’s
responsibility to comply with any other statutory requirements that
may be applicable to the undertaking of the activity.’
These
‘conditions’ mirror, to some extent, the provisions of s
51(1) of the NEMWA in relation to what a waste management
licence
must specify.
[5]
According to the GDARD, the licence, if regard is had to ‘condition’
3.1(h), ought to have been renewed before 26
November 2015. It is
common cause that the licence was not renewed. In the intervening
period, on 12 December 2012, the GDARD,
upon application by
Interwaste, amended the licence. The amendment involved increasing
the total daily and annual tonnage of waste
that the site was
entitled to receive and it involved an increase in the maximum height
of the site. It did not purport to extend
or otherwise affect the
period of validity of the licence.
[6]
On 24 March 2016, after the expiry of four years from the date of
issue, Ms Petlane issued the compliance notice referred to
at the
commencement of this judgment. The material parts read as follows:
‘
I
have reasonable grounds for believing that you Mr. Hanrè Crous
have contravened
Condition
3.1 (a)
and
(h)
of the Waste Management Licence issued to Interwaste (Pty) Ltd in the
following manner:
Condition
3.1 (a):
“
Licensing
of the activity is subject to the conditions contained in this
licence, which conditions form part of the waste management
licence
and are binding on Interwaste (Pty) Ltd”.
Condition
3.1 (h):
“
This
waste management licence must be renewed within a period of
four
(4)
years
from the date of issue”.
In
your representation to me dated 05 February 2016 you responded as
follows:
“
Interwaste
(Pty)
Ltd maintains that the WML must specify the period for which the
licence is issued and period within which any renewal of
the licence
must be applied for. The FG WML does not contain an expiry date or
validity period and it is not possible to infer
the validity period
or expiry of the WML from the renewal period stipulated in the WML”.
The
Department is not satisfied with your response and maintains that
Interwaste (Pty) Ltd should have applied for the renewal of
the WML
issued to it for the following reasons:
o
The WML dated 25 November
2011 was for the validity period of 4 years. Condition 3.1(h) is
clear on the fact that the Licence must
be renewed within a four year
period.
o
The addendum issued to
the WML on 12 December 2012 cannot be regarded as a new authorization
as the Addendum clearly makes reference
to the fact that it is an
addendum to the WML dated 25 November 2011 and clearly only amends
certain conditions in the WML as pertains
to activities to be
undertaken. No amendment was made in relation to the validity period
neither is there any reference to a new
validity period in the
Addendum. As such the validity period in the WML continues to find
application – four years from issuance
of the WML of 25
November 2011.
o
The amended application
number (Gaut 006/12 – 13/W0003) referred to on page 4 of
Interwaste (Pty) Ltd’s letter is used
by the Department for
amendments of existing licences and not used for new licences or
authorisations. So the fact that a different
application number was
used for the amendment application does not make it a new application
or a new licence.
o
Regulation 42(5) of the
2010 EIA Regulations which deal with amended applications states: “If
an application is approved,
the competent authority must issue an
amendment to the environmental authorization either by way of a new
environmental authorization
or an addendum to the existing
environmental authorization”. This regulation clearly makes a
distinction between a “new
environmental authorization”
or an “addendum”. The use of the word “or”
denotes this as it implies
that a decision on an amendment
application can either be a new environmental authorization or an
addendum to the existing environmental
authorization.’
[7]
The reference in the compliance notice to the amendment of the
conditions was in response to Interwaste adopting the attitude
that
the four year expiry period, assuming it was stipulated, had to be
calculated from the time of the amendment and that by the
time of the
issue of the compliance notice, that period had not yet expired.
[8]
The compliance notice went further and instructed Interwaste
to,‘[u]pon receipt of this compliance notice
immediately
cease
with all activities on site,
until such time that Interwaste (Pty) Ltd has obtained and is in
possession of a valid Waste Management
License’.
[9]
On the date of the receipt of the compliance notice, Interwaste
applied, under s 31L of the NEMA, for a variation of the compliance
notice so that it did not come into operation immediately. Section
31L reads as follows:
‘
(1)
An environmental management inspector, within his or her mandate in
terms of section 31D, may issue a compliance notice in the
prescribed
form and following a prescribed procedure if there are reasonable
grounds for believing that a person has not complied
–
(a)
with
a provision of the law for which that inspector has been designated
in terms of section 31D; or
(b)
with
a term or condition of a permit, authorisation or other instrument
issued in terms of such law.
(2)
A compliance notice must set out –
(a)
details
of the conduct constituting non-compliance;
(b)
any
steps the person must take and the period within which those steps
must be taken;
(c)
anything
which the person may not do, and the period during which the person
may not do it; and
(d)
the
procedure to be followed in lodging an objection to the compliance
notice with the Minister or MEC, as the case may be.
(3)
An environmental management inspector may, on good cause shown, vary
a compliance notice and extend the period within which
the person
must comply with the notice.
(4)
A person who receives a compliance notice must comply with that
notice within the time period stated in the notice unless the
Minister or MEC has agreed to suspend the operation of the compliance
notice in terms of subsection (5).
(5)
A person who receives a compliance notice and who wishes to lodge an
objection in terms of section 31M may make representation
to the
Minister or MEC, as the case may be, to suspend the operation of the
compliance notice pending finalisation of the objection.’
[10]
On 30 March 2016 Interwaste filed its objection to the compliance
notice and requested the MEC to use the power referred to
in s 31L(5)
of the NEMA, to suspend the operation of the compliance notice, until
the objection was finally considered.
[2]
On 31 March
2016, Mr Badenhorst, in his capacity as an environmental management
inspector, purportedly acting in terms of s 31L(3)
of the NEMA,
granted the application, suspending the operation of the compliance
notice by 21 days. On 15 April 2016, Interwaste
applied, once again,
to have the compliance notice varied. Mr Badenhorst refused to do so.
He advised that an application should
be addressed to the MEC for
suspension, in terms of s 31L(5) of the NEMA. That
application, as indicated above, had
already been lodged. It was not
responded to. This led to an urgent application by Interwaste to the
high court for an order in
which the suspension of the compliance
notice was sought, pending finalisation of the objection. After the
application was served
the MEC agreed to suspend the compliance
notice. Interwaste subsequently supplemented its representations that
formed part of its
objection.
[11]
During April 2016, Interwaste requested an opportunity to make oral
representations, but that request was not responded to.
On 7 June
2016 the MEC dismissed the objection and upheld the compliance
notice. He directed that it would come into effect within
14 days of
receipt of that decision. In addition, the MEC required that a
rehabilitation plan in relation to the FG site be submitted
within 30
days.
[12]
According to Interwaste it was impossible to comply with the notice.
It took the view that a new waste disposal crisis would
be created.
It insisted that there was no alternative immediately available
landfill site that could cope with the tonnage that
its site received
on a daily basis. Interwaste was concerned, so it said, about the
logistics of transporting and disposing of
waste that the GDARD
appeared not to have taken into consideration. Interwaste faced
financial losses which it estimated at R360 000
per day. It was
also concerned, so it alleged, about reputational damage. Interwaste
considered that it had no choice but to approach
the court below on
an urgent basis to challenge the legality of the compliance notice.
[13]
The application by Interwaste was opposed by the GDARD, the MEC and
the Gauteng Department of Environmental Affairs. They pointed
out
that the conditions of the licence and the recently asserted
uncertainty concerning the expiry of the licence and the period
within which an application for renewal of the licence had to be
made, did not appear to have troubled Interwaste, until it was
faced
with the consequences of the expiry of the licence. In relation to
the Minister’s directive concerning the rehabilitation
of the
site, they were emphatic that there is a statutory obligation to
rehabilitate a site upon closure. The GDARD took issue
with the
assertion by Interwaste that there were no alternative sites to
manage the waste that they had hitherto received and that
a crisis
would arise. It listed a number of alternative sites that could take
up the waste previously destined for Interwaste’s
site. As
stated above, GMF intervened in the dispute and presented written and
oral submissions.
[14]
Initially, the final relief sought by Interwaste was an order in the
following terms:
‘
1.
Reviewing and setting aside the compliance notice issued by the first
respondent dated 24 March 2016 (“
the
Compliance Notice
”),
as amended;
2.
Reviewing and setting aside the decision of the third respondent
dated 31 May 2015 (“
the MEC’s Decision
”),
enforcing the Compliance Notice;
3.
Substituting the MEC’s Decision with a decision to cancel the
Compliance Notice;
4.
Alternatively to prayer 3, remitting the matter to the fourth
respondent for a fresh decision by an official other than the first
or second respondents;
5.
Ordering any respondent who opposes the relief sought to pay the
costs, including the costs of two counsel, on a joint and several
basis.’
[15]
Later, in an amended notice, further relief was sought in the
following terms:
‘
4A.
Reviewing and setting aside the fourth respondent’s decision on
24 November 2011 to impose condition 3.1(h) in the applicant’s
waste management licence with licence register number Gaut:
002/10-11/W0030;
4B.
For the purposes of the review in prayer 4A, granting an extension of
time in terms of section 9 of the Promotion of Administrative
Justice
Act, No. 3 of 2000 (“
PAJA
”) of the time period
prescribed in section 7 of PAJA to the date of the filing of this
amended notice of motion;
4C.
Exempting the applicant from the obligation to exhaust the applicable
internal remedy in terms of section 7(2)
(c)
of PAJA.’
[16]
Semenya AJ, who adjudicated the matter in the court below, had regard
to the nature of a compliance notice within the structure
and scheme
of the NEMA. In his view, Chapter 7 of the NEMA, entitled
‘Compliance, enforcement and protection’, provided
for
the enforcement of the NEMA within the environmental management
setting. He recorded that a compliance notice must, in terms
of s
31L(2)
(a)
,
referred to in para 8 above, provide details of the offending
conduct, and provide an opportunity for corrective steps to be taken
and the period within which that should be done.
[17]
The court below took into account that the compliance notice was
issued on 24 March 2016, after the expiry of the four years
from the
date of issue of the waste management licence. The court reasoned as
follows:
‘
[The
compliance notice] requires Interwaste to comply with the impossible,
the four (4) year period having expired. This could not
be the
intention of the legislature when conferring the power on an
environmental management inspector to issue a compliance notice.
A
compliance notice properly issued must be one that calls on the waste
management licence holder to address . . . conduct that
is found to
constitute non-compliance with a condition of licence. As I make the
finding, there is no obligation on Interwaste
to apply for a renewal
of its waste management licence.’
[18]
Semenya AJ went on to state:
‘
To
call on Interwaste to comply with a condition of a waste management
licence which has expired, is also a contradiction in terms.
It is
either the waste management licence is valid and capable of
enforcement, or that waste management licence has expired by
effluxion of time and therefore cannot be enforced by the
environmental management inspectors. There are other reasons why the
position adopted by the respondents is simply untenable. I deal with
these below.’
[19]
The court below noted that s 56 of the NEMWA deals with the
revocation and suspension of waste management licences in appropriate
circumstances, which it regarded as an indication that the
legislature had made separate provision for a different entity,
namely,
the licensing authority, to deal with a cessation of the
operations of a licence holder. In short, the court reasoned that
there
was justification for concluding that a compliance notice was
the wrong avenue for dealing with the termination of a licence by
effluxion of time.
[20]
Semenya AJ upheld the submission on behalf of Interwaste that the
licence ought to have specified the validity of the licence
period.
This, he reasoned, is especially so, because of the provisions of s
51(1)
(e)
of the NEMA. He considered that the failure to so
specify a period offended against the principle of legality. He
concluded as follows:
‘
I
would then remit the matter back to the licencing authority that the
Interwaste licence amongst others must comply with section
51(1)(e)
of NEMA and provide both for the period of validity of the licence as
well as the period within which a renewal of the
licence must be
applied for.’
[21]
The court below went on to make the following order:
‘
(a)
The decision of the first respondent to issue a compliance notice is
reviewed and set aside.
(b)
The decision of the third respondent rejecting the objection to the
compliance notice, is reviewed and set aside.
(c)
The matter is remitted to the licencing authority to issue a
licence which complies
inter alia
with the provision section
51(1)(e) of NEMA stipulating the period of the validity of the
licence as well as the period within which
any renewal of that
licence must be applied for.
(d)
First to Sixth respondents to pay costs of the applicant in relation
to Part A of this application including costs of the application
to
compel the discovery of the full record.
(e)
The respondents including GMF to pay the costs of this application,
the one paying the other to be absolved, which costs would
include
the costs of employing two (2) counsel.’
It
is against this order and the conclusions on which it is based that
the current appeal is directed. As stated earlier, Interwaste
does
not seek to defend the order set out in (c) above and does not seek
to hold GMF liable for its costs in the court below or
in this
appeal.
[3]
[22]
As stated earlier, ‘condition’ 3.1(h) is central to the
dispute between the parties. The GDARD and the GMF contended
that
3.1(h) does comply with s 51(1)
(e)
, in that both the period of
the duration of the licence and the time within which a renewal could
be applied for are set out therein.
There is substance to the view of
the GDARD, that the period for which the licence was issued and the
period within which a renewal
could be applied for only became
obscure or opaque to Interwaste, when the continued operation of the
site was challenged. In a
letter dated 1 December 2015, the GDARD
wrote to Interwaste as follows:
‘
The
above matter has reference.
According
to the Department’s records the Waste Management Licence (WML)
issued to FG Landfill Site on the 25
th
November 2011
expired on the 24
th
November 2015. Condition 3.1(f) of
this licence states:
“
This
Waste Management Licence must be renewed within a period of four (4)
years from the date of issue
”.
In
view of the above, Interwaste (Pty) Ltd is required to submit proof
to the Department that the WML was renewed prior to 24 November
2015
to allow your facility to continue with its operations within three
(3) days upon receipt of this letter. . . .’
In
response, in a letter dated 2 December 2015, Interwaste wrote:
‘
We
refer to the Department’s letter of 1 December 2015 (attached)
regarding the renewal of an FG Landfill Site Waste Management
Licence
(WML) issued on 25 November 2011 (GDARD Ref: Gaut 002/10-11/W0030).
Please note that the FG Landfill currently operates
in terms of a WML
for a GLB+ Class Landfill (attached), issued by GDARD on 12 December
2012 (Ref. No: Gaut 006/12-13/W0003), which
needs to be renewed by 11
December 2016.
The
original WML for the site referred to in the Department’s
letter (Gaut 003/10-11/W0030; 25/11/2011) was in fact for a
GMB-
Class Landfill, and has been superseded by the WML issued in December
2012, following an initial appeal and then a licence
amendment
process. Accordingly, the current FG Landfill WML (Gaut
006/12-13/W0003; 12/12/2012) is still valid and only needs to
be
renewed by 11 December 2016.
Interwaste
has however submitted a Waste Licence Variation Application to the
DEA in terms of Sections 43(1)(a) and 54(1)(e) of
the National
Environmental Management: Waste Act (“NEMWA”)(Act 59 of
2008, as amended), the main aim of which is to
ensure alignment of
the landfill’s current WML with the most recent legal
requirements for waste classification and disposal,
most notably GN
R. 634, 635 & 636 (23 August 2013), which were promulgated after
the FG Landfill WML was issued in 2012.’
(My emphasis.)
[23]
Furthermore, in a report by external auditors, Prime Resources
Environmental Consultants, dated May 2015, more than a year
before
the application leading up to this appeal was launched in the high
court, the following appears:
‘
The
FG Landfill Licence must be renewed within a period of four years
from the date of issue, i.e. November 2015. It is recommended
that
Interwaste
urgently
approaches the Department to initiate the review process and update
the licence to be aligned with Waste Classification and Management
Regulations and the Norms and Standards for the Assessment of Waste
for Landfill Disposal and for the Disposal of Waste to Landfill
(2013).’ (My emphasis.)
[24]
Though confusingly characterised as a condition and not elegantly
framed, 3.1(h), properly construed, does state that the licence
is
for a period of four years and that a renewal ‘must’ be
sought before the expiry of that period. In construing the
licence,
regard should be had to the legislative context. In this regard the
provisions of s 51(1)
(e)
are significant. The peremptory provisions of the legislation would
have been uppermost in the minds of the licencing authority
and the
licensee
.
Even the framing of the time-periods as a ‘condition’
appears to have been prompted by the provisions of s 51(2) of
the
NEMWA, which lists conditions that may be specified by the licencing
authority. Moreover, the licence has to be construed sensibly
and not
have an un-business-like result.
[4]
In my view
the court below erred in concluding that there was no compliance with
the provisions of s 51(1)
(e)
.
What might have led to 3.1(h) being stipulated as a condition is a
reading of s 51(1)
(e)
of
the NEMWA as making it obligatory for a licence holder to apply for a
renewal. The sub-section is couched in peremptory terms
by the use of
the word ‘must’. However, it must surely mean that for
the licence to extend beyond the initial licencing
period there must
be an application for a renewal in the event that a licence holder is
so inclined.
[25]
The conclusion that the time periods required to be specified by s
51(1)
(e)
of the NEMWA were indeed specified in the licence, leads to the
ineluctable result that the validity of the licence terminated
because of the
effluxion
of time. In
Minister of Safety and Security v South
African Hunters and Game Conservation Association
[2018] ZACC 14
;
2018 (2) SACR 164
(CC), the Constitutional Court, in
dealing with the provisions of the
Firearms Control Act 60 of 2000
and the expiry period of a firearm licence, said the following (at
para 25):
‘
In
the case of termination by effluxion of time under
section 28(1)(a)
,
the licence-holder would have known, at least from the time the
licence was granted, that it would expire at the end of a specified
period. It was clear from the outset that the licence was temporary.
Furthermore, no administrative action is required to terminate
the
licence under
section 28(1)(a).
It terminates by operation of law.
The procedure is fair without provision for the licence holder to
make representations regarding
the cancellation.’
[26]
There is no substance to the suggestion on behalf of Interwaste that
the four-year period of the validity of the licence ought
to be
extended by a further two years because of the application for an
amendment to the licence, which was granted. The amendment
related to
volume of waste and to the height of the stacking of the waste. It
had no impact on the time period. Ironically, the
suggestion of the
two-year extension must logically and compellingly mean an acceptance
of the validity of a licence period, initially,
of four years.
[27]
As can be seen from the terms of the compliance notice set out in
para 6 above, it was somewhat confused as to its purpose.
The period
for renewal had passed. Compliance could thus not be enforced. In the
circumstances set out above, the compliance notice
was superfluous.
It served no practical purpose.
[5]
Focusing on
the validity of the compliance notice misconstrued the central
issues, which were whether the licence had expired by
the effluxion
of time or whether there was ever a valid licence in existence. It is
clear that the validity of the licence terminated
because of the
effluxion of time.
[28]
Furthermore, the conundrum faced by Interwaste, and not sufficiently
recognised by the court below, is that in the event that
its
submission concerning the failure of the licence to comply with the
provisions of
s 51(1)
(e)
were to be upheld, it would result, as held by the court below, in
the FG site being operated without a valid licence. In those
circumstances, it was not for a court to order the issue of a
licence, but for Interwaste to take such steps as the NEMWA
permitted,
to legitimise its position as a waste operator. That it
could only do by applying for a new licence. That did not occur. It
is
thus no wonder that Interwaste abandoned the order by the court
below, in terms of which the licencing authority was ordered to
issue
a licence. It was, as pointed out above, legally untenable.
[6]
[29]
Interwaste, as indicated in its response to the compliance notice,
set out in para 21 above, applied to the Minister for a
variation of
the waste management licence in terms of
s 54(1)
of NEMWA, which
reads as follows:
‘
(1)
A licensing authority may, by written notice to the holder of a waste
management licence, vary the licence –
(a)
if
it is necessary or desirable to prevent pollution;
(b)
if
it is necessary or desirable for the purposes of achieving waste
management standards or minimum requirements;
(c)
if
it is necessary or desirable to accommodate demands brought about by
impacts on socio-economic circumstances and it is in the
public
interest to meet those demands;
(d)
to
make a non-substantive amendment;
(e)
at
the written request of the holder of the waste management licence; or
(f)
if
it is reviewed in terms of
section 53.
’
That
application has no impact on the period of validity of the licence in
terms of which Interwaste was granted permission to operate
the FG
site. It is common cause that no steps were taken by Interwaste to
apply for a new licence or for a renewal. The licence,
which is in
issue in this appeal, expired by the effluxion of time. At the time
that the case was heard in the high court, on 7
December 2017, the
initial four-year period had expired and, even if one were to have
added a further two years to that period,
as contended by Interwaste,
which, for reasons set out above, one could not do, the validity of
the licence would, by the time
of the hearing, already have expired.
In the absence of a new licence or a valid renewal, Interwaste had no
statutory authority
to continue operating the waste disposal site.
[30]
Although there appears to be some force in the reasoning of the court
below, that in conventional terms one would not think
of a compliance
notice being used for the purpose of dealing with the expiry of a
licence, there are, however, the provisions of
s 31L(1)
(a)
of the NEMA, which are couched in terms wide enough to encompass any
contravention of the law relating to waste disposal sites,
including
operating a waste disposal site without a licence. For the reasons
set out above, that is an issue that it is not necessary
to grapple
with or finally settle.
[31]
When the licencing authority and officials entrusted with the
management and enforcement of the provisions of the NEMA and
the
NEMWA are rightly concerned about issues of public health and safety
and environmental rights they should be given their due.
In the
present case they were fulfilling their statutory and constitutional
duties. A waste disposal licence had expired or was
otherwise
invalid. There had been no application for renewal and there was no
other authorisation for the continued operation of
the FG site. In
light of what is set out above, the high court ought not to have
granted Interwaste any relief at all and ought
to have concluded that
there was no purpose or profit to be gained in dealing with the
question of the propriety of the compliance
notices. The application
by Interwaste should have been dismissed with costs, including the
costs of two counsel.
[32]
The following order is made:
1 The appeal is
upheld with costs, including, where applicable, the costs of two
counsel.
2 The order of the court below is set
aside and substituted as follows:
‘
The
application is dismissed with costs, including, where applicable, the
costs of two counsel.’
_________________
M S Navsa
Acting Deputy President
APPEARANCES
For
First Appellant: T J Bruinders SC (with him N Muvangua)
Instructed
by:
State
Attorneys, Pretoria
State
Attorneys, Bloemfontein
For
Fifth Appellant: G W Amm
Instructed
by:
Tim
Du Toit & Co Inc., Pretoria
Phasthoane
Henney Attorneys, Bloemfontein
For
Respondent: D A Loxton SC (with him D Watson)
Instructed
by:
Edward
Nathan Sonnenbergs Inc c/o McRobert Attorneys, Pretoria
Symington
De Kok Attorneys, Bloemfontein
[1]
The long title to the National Environmental Management Act 107 of
1998 (the NEMA) reads:
‘
To provide for co-operative
environmental governance by establishing principles for
decision-making on matters affecting the environment,
institutions
that will promote co-operative governance and procedures for
co-ordinating environmental functions exercised by
organs of state;
to provide for certain aspects of the administration and enforcement
of other environmental management laws;
and to provide for matters
connected therewith.’
It
is clear that the NEMA has to be viewed as central legislation
together with associated environmental legislation and common
law
principles.
[2]
Section 31L(5)
of the
National Environmental Management Act 107 of
1998
reads as follows:
‘
A person who receives a
compliance notice and who wishes to lodge an objection in terms of
section 31M
may make representations to the Minister or MEC, as the
case may be, to suspend the operation of the compliance notice
pending
finalisation of the objection.’
Section
31M
provides:
‘
(1) Any person who receives a
compliance notice in terms of
section 31L
may object to the notice
by making representations, in writing, to the Minister or MEC, as
the case may be, within 30 days of
receipt of the notice, or within
such longer period as the Minister or MEC may determine.
(2) After considering any
representations made in terms of subsection (1) and any other
relevant information, the Minister or
MEC, as the case may be-
(a)
may confirm, modify or
cancel a notice or nay part of a notice; and
(b)
must specify the period
within which the person who received the notice must comply with any
part of the notice that is confirmed
or modified.’
[3]
It is not for a court to order a licence to be issued when the
legislation contemplates an informed decision being made by a
specialised licencing authority. There are, of course, exceptional
circumstances in which such an order may be made, provided
that the
jurisdictional facts are present and the result is a foregone
conclusion, or where further delay would cause unjustifiable
prejudice or the licencing authority cannot be relied upon to act in
accordance with the law. That is not the case here. The
order
offended against the doctrine of the separation of powers and did
not give due deference to the licencing authority. In
this regard,
see the discussion in C Hoexter
Administrative
Law in South Africa
2 ed
(2011) at 148 et seq, as well as 552-557 and the authorities
referred to. In respect of costs, there is of course the decision
in
Biowatch Trust v Registrar,
Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC), on which the Greater Midstream
Forum (the GMF) could rely. The GMF is a non-profit voluntary
association of companies and
homeowners associations responsible and
representing members, residents and businesses situated near and in
close proximity to
the FG site. It was concerned about Interwaste’s
activities at the FG site and its impacts on residents. It sought to
protect
environmental rights. The GMF thus sought to vindicate
constitutional rights and Interwaste correctly did not seek to
pursue
the costs order.
[4]
See
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA
593
(SCA) para 18. See also,
The
City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners
Association
[2018] ZASCA
176
;
[2019]
1 All SA 291
(SCA)
at
61 and 77.
[5]
In
J T Publishing (Pty) Ltd
& another v Minister of Safety and Security & others
[1996] ZACC 23
;
1997 (3) SA 514
(CC), the Constitutional Court said the following at
para 15:
‘
. . .I interpose that enquiry
because a declaratory order is a discretionary remedy, in the sense
that the claim lodged by an
interested party for such an order does
not in itself oblige the Court handling the matter to respond to the
question which it
poses, even when that looks like being capable of
a ready answer. A corollary is the judicial policy governing the
discretion
thus vested in the Courts, a well-established and
uniformly observed policy which directs them not to exercise it in
favour of
deciding points that are merely abstract, academic or
hypothetical ones. . . .’
See
also the decision of this court in
Rand Water Board v Rotek
Industries (Pty) Ltd
2003 (4) SA 58
(SCA), which, with reference
to
Geldenhuys and Neethling v Beuthin
1918 AD 426
pointed out
that, in general terms, courts will not make determinations that
have no practical effect.
[6]
See footnote 4 above.