HFB Junior Beleggings (Pty) Ltd v Minister of the Western Cape Local Government, Environmental Affairs and Development Planning, A Bredell and Others (2025/031763) [2026] ZAWCHC 117 (11 March 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT
Reportable
Case no: 2025-031763

In the matter between:

HFB JUNIOR BELEGGINGS (PTY) LTD Applicant

and


THE MINISTER OF THE WESTERN CAPE
LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING,
A BREDELL

First Respondent
DIRECTOR OF DEVELOPMENT
MANAGEMENT REGION, 3 DEPARTMENT OF
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT PLANNING, G BENJAMIN

Second Respondent
MINISTER OF ENVIRONMENTAL AFFAIRS,
FORESTRY, FISHERIES, AND THE ENVIRONMENT
(DFFE): DR D GEORGE

Third Respondent

JUDGMENT
___________________________________________________________________
Coram: FORTUIN J et NJOKWENI AJ
Heard on: 11 NOVEMBER 2025
Delivered on: 11 MARCH 2026

Summary: Administrative law – judicial review – Promotion of Administrative Justice
Act – legality – rules of natural justice – bias – audi alteram partem - Environmental
law – National Environmental Management Act – National Environmental
Management: Integrated Coastal Management Act – Constitution of the Republic of
South Africa – rationality – applications to strike out – mala fide – abuse of process –
Biowatch principle not applied – punitive costs order - attorney and client costs on
scale B – application dismissed.


ORDER


1. The application is dismissed.
2. The applicant’s application to strike out is dismissed with costs.
3. The Respondent’s application to strike out succeeded only in respect of
paragraphs 43.1 and 47.1 to 47.3 of the applicant’s replying affidavit.
4. The applicant i s directed to pay the respondent’s costs of the application to
strike out.
5. The applicant is ordered to pay the costs of the application for postponement
of the hearing on 15 April 2025.
6. The applicant is ordered to pay respondents’ attorney and client costs on
scale B.

JUDGMENT


NJOKWENI AJ (FORTUIN J, CONCURRING)

INTRODUCTION

[1] The applicant brings this application under the Promotion of Administrative
Justice Act1 (PAJA) for this Court to review, set aside, and substitute the decision of
the first respondent, who dismissed an internal appeal after the second respondent
refused to issue a directive under section 30A(1) of the National Environmental
Management Act 2 (“section 30A directive”). In terms of Section 1 of National
Environmental Management Act “competent authority” in respect of a listed activity or
specified activity, means the organ of state charged by this Act with evaluating the
environmental impact of that activity and, where appropriate, with granting or refusing
an environmental authorisation in respect of that activity . In this case, the second
respondent. The competent authority issues a section 30A directive in emergencies
to mitigate imminent environmental risks. This directive exempts the applicant from
conducting an Environm ental Impact Assessment, which otherwise is generally
required before carrying out activities to mitigate environmental risks.

The parties
[2] The applicant is HFB Beleggings (Pty) Ltd, a private company with limited
liability, registered under the Companies Act of the Republic of South Africa with
registration number 2016/458080/07 (“the applicant”).

[3] The first respondent is Mr. A Bredell, the Minister of Local Government,
Environmental Affairs and Development Planning for the Western Cape, who made
and dismissed the appeal decision (“the Minister”).

[4] The second respondent is Mr. G Benjamin, the Director of Development
Management, Region 3, Department of Environmental Affairs and Development
Planning (“the Director”).

1 Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
2 National Environmental Management Act 107 of 1998 (“NEMA”).

[5] The third respondent is Dr D George, the Minister of Environmental Affairs,
Forestry, Fisheries, and the Environment, who is the national minister responsible for
overseeing and implementing NEMA (“the National Minister”).

Relief sought
[6] The applicant seeks the following relief against the Minister and the Director:
a. That the matter be enrolled as one of urgency in terms of Rule 6(12);
b. Review and set aside the first respondent’s decision on the internal appeal
regarding the section 30A(1) request made under NEMA for an emergency directive
relating to stabilising and erosion protection structures on the boundaries of Erf 4[...]
and the Remainder of Erf 1[...], Wilderness, Western Cape (“the property”); the first
respondent made this decision on 22 January 202 5 (“the impugned internal appeal
decision”);
c. Review and set aside the second respondent's decision, dated 13 September
2024, dismissing the applicant’s request for a section 30A directive under NEMA
(“the impugned first decision”);
d. Substitute the imp ugned internal appeal decision and the impugned first decision
with an order upholding the applicant’s appeal and permitting the applicant to
underpin its property.

[7] The applicant does not seek relief against the National Minister, who is cited
only insofa r as he may have a material interest in the outcome of the matter. The
Minister and the Director oppose the application and the relief the applicant seeks.

FACTS

[8] The applicant’s properties sit above a dune along the beach in the Wilderness,
Western Cape . In September 2023, severe weather conditions affected the
Wilderness area, and on 7 November 2023, authorities declared a national disaster
under section 23 of the Disaster Management Act 3. The applicant claims these
weather events caused exceptional ero sion, which adversely affected the
foundations of Erf 4[...]. It contends that should Erf 4[...] collapse, it will no doubt lead

foundations of Erf 4[...]. It contends that should Erf 4[...] collapse, it will no doubt lead
to structural damage to closely-knit adjacent properties and infrastructure in particular
to Erf 1[...] that operates as a 5-star guest lodge.


3 Disaster Management Act 57 of 2002 (“DMA”).

[9] In and around November 2023, two months after severe weather conditions in
the Wilderness area, the applicant appointed engineers, Prism Environmental,
Environmental Authorisation Practitioner (“EAP”), to assist it to make an application
for an Env ironmental Authorisation (“EA”) in terms of section 24(F) of NEMA to
stabilise the dune. Prism recommended that “a protective barrier or retaining wall
need… be constructed” approximately 2.3 meters outside the applicant’s property
and thus on the dune itself.

[10] On 26 February 2024, almost six months after the September 2023 storm, the
applicant's EAP informed the Department that the applicant would apply for an
exemption under section 30A of NEMA rather than conduct an EA. The EAP
consequently requested th at a site visit be conducted on 5 March 2024. Mr
Fredericks from the Department attended the site visit, while Ms Bekko joined in via a
WhatsApp video call.

[11] After the inspection, these officials, who did not make the initial decision on
behalf of the Dep artment, told the EAP that they were unlikely to approve a section
30A application because, in their assessment, no emergency existed. They also
recommended that the applicant construct a stabilising structure within its property.
[My emphasis]

[12] At a subsequent virtual meeting on 26 March 2024, the Department reiterated
its preliminary view that no emergency existed and stated that constructing a
stabilising structure within the property was more feasible . The officials also
recommended that the applic ant apply for an EA P under section 24 of
NEMA. [Emphasis added]

[13] The EAP appointed Anchor Environmental Consultants (“Anchor”) to produce
a Coastal Impact Assessment Report (“CIAR”). Anchor then concurred with the
Department that the applicant needed to undertake a Basic Assessment Process and
obtain an EA P under section 24 of NEMA to stabilise the dune. In the executive
summary of the CIAR, Anchor expressly stated: “due to the nature and location of the

summary of the CIAR, Anchor expressly stated: “due to the nature and location of the
project, Environmental Authorisation (“EA”) is requir ed and needs to be obtained by
means of a Basic Assessment (“BA”) process which would further necessitate
specialist assessments…”.

[14] Severe weather conditions recurred on 18 July 2024, prompting authorities to
declare a provincial disaster under section 23 of the DMA. The applicant's EAP
claimed that this storm further eroded the dune in front of the property and, as a
result, risked the property collapsing. Accordingly, the applicant’s EAP informed the
Department of the intention to lodge a section 30A application.

[15] On 15 August 2024, the EAP held a virtual meeting with officials from the
George Municipality to enquire whether the municipality would support a section 30A
application. The municipality officials categorically declined, as they did n ot support
the construction of a hard stabilising structure outside the property boundaries.
Instead, the municipality informed the EAP that it would approve only soft
rehabilitation measures.

[16] On 20 August 2024, the applicant’s Environmental Authorisation Practitioner
(EAP) submitted a section 30A application, claiming an emergency due to erosion of
a dune that was causing property boundary instability. The EAP contended that if the
dune collapsed, it could cause the foundation to fail, leading to the coll apse of the
residence, loss of lives, infrastructure, and livelihoods, environmental damage,
pollution, risks to neighbouring properties and human and animal life, economic loss,
and social and environmental impacts. [My emphasis]

[17] On 13 September 2024, the Director refused to issue the section 30A directive
(“the Director’s decision”). Subsequently, the applicant lodged an internal appeal to
the Minister to overturn the Director’s decision and to substitute it with a decision
authorising the issue of a dir ective in terms of section 30A of NEMA. The Minister
also dismissed the appeal (“Minister’s decision”).

Aggrieved by the Director’s impugned decisions and the Minister’s decision,
collectively (“the impugned decisions”), the applicant launched review pro ceedings in

collectively (“the impugned decisions”), the applicant launched review pro ceedings in
this Court on 7 March 2025 (on an urgent basis)4 to be heard on 15 April 2025.
Review grounds
[18] The grounds of review raised by the applicant are as follows:

4 In terms of uniform rule 6(12 and truncated timetable for filing of:
1. Notice of intention to oppose by no later than 18 March 2025
2. Uniform Rule 53 record by no later than 18 March 2025.
3. Answering affidavit by no later than 1 April 2025.
4. Replying affidavit by no later than 8 April.

a. the Minister and the Director, collectively (“the respondents”) allegedly
misinterpreted the statutory definition of ‘an emergency’ and a ‘disaster’ in section
30A of NEMA, and an error of law materially influenced the impugned decisions;
b. the impugned decis ions were allegedly not rational and not connected to any
factual or technical input;
c. irrelevant considerations were taken into account while relevant considerations
were ignored, and the impugned decisions were taken arbitrarily or capriciously;
d. the impugned decisions were allegedly not rationally connected to the purpose of
the empowering legislation, and a section 30A exemption ought to have been
granted instead of requiring the applicant to undertake a basic assessment;
e. the decision makers allegedly made errors of fact;
f. officials allegedly acted in a biased manner by prejudging the section 30A
application; and
g. there was no scientific or lawful basis for the impugned decisions taken.

[19] On 18 March 2025, the Director and the Minister delivered a notice of intention
to oppose the review application. On 15 April 2025, the parties agreed to postpone
the application to 11 November 2025 5. On 1 June 2025, the state respondents filed
their answering affidavit, and the applicant filed its replying af fidavit on 7 July 2025.
However, before I deal with the substantive issues, I first deal with the applications to
strike out those filed by both the applicant and the respondents. I do so because my
findings on these preliminary issues will inevitably dete rmine which facts and
evidence, I need to consider in determining more substantive issues.

Applicant’s application to strike out
[20] The applicant filed an application to strike out certain parts of the respondents'
answering affidavit, including the expert affidavit of Dr Antony Mark Avis (“Dr Avis”), a
coastal ecologist. The applicant initially filed the application to strike under Rule

coastal ecologist. The applicant initially filed the application to strike under Rule
23(2), which pertains to trials. The respondents filed a notice under Rules 30 and
30A to address this irregularity. The applicant subsequently withdrew the incorrect
application but did not tender costs, so the respondents sought costs for the
withdrawal. The applicant later corrected this by filing under Rule 6(15), which
applies to motion proceedings.


5 The events that preceded the postponement by agreement shall be discussed when we deal with

[21] The applicant seeks to strike out portions of the Minister's answering affidavit,
arguing that it contains malicious, unfounded, and irrelevant com ments. The
reasons for the applicant’s striking out application are summarised below.

Costs de bonis propriis against the applicant or its attorney
[22] The respondents claim costs de bonis propriis due to the applicant's conduct
during the proceedings, inter alia, failure to agree to the postponement requested by
the respondents, including the applicant’s refusal to allow the respondents’ expert (Dr
Avis) to conduct an inspection in loco at the applicant's properties both of which the
respondents argue were mala fide and caused unnecessary delays in these
proceedings which is abuse of process. However, the respondents did not persist
with the issue of urgency or the refusal for inspection in their oral submissions during
the hearing. Notwithstanding, they ind icated during oral arguments that the
applicant’s obstructive conduct is evidence of the applicant’s mala fide conduct
throughout the process. Save where this ground is relevant to the determination of
costs, we do not have to decide the striking out of t hese “objectionable” averments
from the respondents' answering affidavit.

Frivolous and unmeritorious application
[23] In the answering affidavit, the respondents alleged that the applicant's
application is frivolous and unmeritorious, because it:
a. Deliberately omitted crucial information about the guesthouse operations.
b. Continued to operate the guesthouse despite claiming imminent danger.
c. Failed to demonstrate the existence of an emergency.
d. Attempted to circumvent the Environmental Authorisation process.
e. Pursued a meritless application, causing unnecessary delays and wasting
resources.
f. These actions are described as mala fide and an abuse of process, warranting
punitive costs, including costs de bonis propriis.
g. The applicant should have withdrawn the review application after receiving the

g. The applicant should have withdrawn the review application after receiving the
respondents’ answering affidavit, which demonstrated the lack of merit in the
application.

[24] We shall first deal with the determination of the objection in the preceding sub-
paragraphs (a) and (b), and later with the remaining objections in sub-paragraphs (c),
(d), (e),(f) and (g). This is because the determination of the latter -mentioned

objections first requires a full determination of the rati onality and lawfulness of the
impugned decisions of both the Director and the Minister.

[25] Reverting to the allegation of the operation of one of the properties as a guest
house and its continued operations during the existence of the alleged “imminent
danger”, this point can be disposed of immediately. Several officials from the
Department, Mr Malcolm Fredericks, Ms Iepteshaam Bekko, and Mr Danie
Swanepoel, conducted site inspections of the properties on 5 March 2024, 10
September 2024, and 4 December 2024. Dr Avis, the respondents' expert, also
attended a site visit. Although access to the property was refused, he communicated
with the applicant’s employees on-site and off-site.

[26] Wilderness is a relatively small town, and these officials could not have fail ed
to notice that one of the applicant’s properties operates a 5 -star guest house.
Accordingly, there is no merit to the alleged applicant’s failure to disclose the purpose
for which one of the properties was used, i.e. a 5 -star guest house. However,
because the applicant claimed an imminent risk of collapse of both implicated
properties due to erosion of the dunes in front of them, the applicant ought to have
disclosed that, despite this imminent risk, it continued operation of a guest house in
one of the “affected” properties and hosted guests . It did not do so because , that
would have undermined its claim of imminent risk of collapse of the properties that
formed the bedrock of its Section 30A directive application.

[27] Accordingly, the omission to disclose the use of one of the properties as a 5 -
star guest house during the claimed emergency (which allegedly presented an
imminent danger of collapse of the properties) is not frivolous and/or vexatious.

Introduction of New Expert Evidence
[28] The respondents contend that, to address the allegations contained in the
founding affidavit, which are based on highly technical and complex issues, they

founding affidavit, which are based on highly technical and complex issues, they
procured the services of Dr Anthony Mark Avis (“Dr Avis”), a coastal ecologist, to
provide an independent expert report. His expert affidavit ad jurat, dated 28 May
2025, was considered by the respondents before they filed their answering affidavit
on 1 June 2025.

[29] On 18 June 2025, Dr Avis' expert affidavit was filed. The applicant objects to
the filing of this report. As a result, on 7 July 2025, the applicant filed an application

to strike out material content of Dr Avis’ expert affidavit, inter alia, on the basis that
the said exp ert affidavit constitutes new information and was not considered by the
Minister and as such, is irrelevant to these review proceedings.

[30] The application to strike was erroneously brought under uniform rule 23(2),
which governs trials, not motion proceedin gs. The respondents filed a notice under
Rules 30 and 30A, asserting that the application was an irregular step. The applicant
later withdrew the incorrect application but did not tender costs, leading the
respondents to seek costs for the erroneous application.

[31] To conclude on this point, for now, the respondents argued that the application
to strike out Dr Avis' affidavit is baseless and fails to meet the requirements for
striking out under Rule 6(15). They request that the application to strike be dism issed
with costs, including costs for the initial erroneous application to strike out. We shall
discuss the complaint relating to the affidavit of Dr Avis later in this judgment.

The respondents’ grounds of opposition
[32] The grounds of opposition raised by the first and second respondents, as can
be gleaned from the answering affidavit, are summarised below:
a. The application is brought in bad faith and constitutes an abuse of court
processes.
b. There is no evidence of an emergency o r imminent danger to the applicant's
property.
c. The applicant misunderstands the definitions of "emergency" under section 30A of
NEMA and "disaster" under section 1 of the DMA.
d. NEMA and ICMA set national norms and standards that override municipal
planning laws and bylaws.
e. The proposed development would damage an ecologically sensitive dune and
negatively impact the environment.
f. The application seeks to avoid the environmental authorisation (EA) process and
public participation requirements.
g. The impugned decisions made by the first and second respondents were lawful,

g. The impugned decisions made by the first and second respondents were lawful,
rational, and reasonable, in compliance with NEMA, ICMA, and PAJA.

The applicant’s replying affidavit

[33] Following the filing of the respondent’s answering affidavit, the applicant
delivered its replying affidavit. The applicant's reply to the respondent's answering
affidavit can be summarised as follows:
a. The applicant argues that the respondent's decision -making process was
procedurally unfair, as new mat erial and allegations were introduced during the
review process without allowing the applicant an opportunity to respond. This
violates the principles of natural justice and the audi alteram partem rule.
b. The respondent introduced new expert evidence (Dr Avis's affidavit) during the
review process, which was not part of the original appeal. The applicant contends
this is an attempt to justify the decision post-facto and is procedurally improper.
c. The applicant refutes the respondent's claim that t he use of the properties was not
disclosed, providing evidence that the respondent was aware of the properties' use
through site visits and consent use applications.
d. The applicant highlights pre -decision statements by the Department indicating a
predetermined outcome, suggesting bias and a lack of impartiality in the decision -
making process.
e. The applicant criticises the respondent for failing to offer any practical solutions to
address the serious issue of coastal erosion and dynamic coastal change, instead
adopting a combative and destructive approach.
f. The applicant rejects the respondent's claims that the Section 30A application was
an attempt to circumvent the Environmental Authorisation process, arguing that the
application complied with all relevant legislative provisions.
g. The applicant seeks to have the impugned decisions reviewed and set aside, with
permission to proceed with the proposed measures to stabilise the properties.
Alternatively, the applicant requests that the matter be rem itted to the Minister for
reconsideration.

ISSUES

[34] The issues for determination in this review application have congealed to
whether the respondents:

whether the respondents:
a. Misinterpreted the meaning of emergency and disaster mentioned in section 30A
of NEMA. If so, it was a misinterpretation influenced by an error of law.
b. Acted in a biased manner by allegedly prejudging the section 30A application.
c. Were correct in their contention that t he provisions of the Integrated Coastal
Management Act (NEM: ICMA) are applicable in the present matter .
d. Had scientific or lawful basis for the impugned decisions they took.

e. Breached the applicant’s right in terms of the audi alteram partem rule during the
appeal process.

APPLICABLE LAW

[35] The applicable law in this matter primarily revolves around environmental
legislation and administrative law principles. Section 33 of the Constitution of South
Africa guarantees the right to just administrative action. It provides:
“33. Just administrative action
1. Everyone ha s the right to administrative action that is lawful, reasonable and
procedurally fair.
2. Everyone whose rights have been adversely affected by administrative action has
the right to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must:
a. provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
b. impose a duty on the state to give effect to the rights in subsections (1) and (2);
and
c. promote an efficient administration.”
[36] Section 33 is given effect through the Promotion of Administrative Justice Act
3 of 2000 (“PAJA”), which provides detailed procedures and remedies for ensuring
just administrative action. PAJA , inter alia, outlines the r ight to request reasons for
impugned decisions ; grounds for judicial review of administrative actions; and
remedies for unlawful, unreasonable, or procedurally unfair administrative actions.
The following sections of PAJA are relevant. Section 3(2)(ii) dea ls with procedural
fairness in administrative impugned decisions. Section 6 provides grounds for judicial
review of administrative actions, including procedural fairness, rationality, and
compliance with empowering legislation. Section 8(1)(c)(ii) provides for judicial review
and remedies in cases of administrative action, including the court's power to
substitute administrative impugned decisions in exceptional circumstances.

[37] Section 24(b) of the Constitution provides, inter alia, that:
“24. Environment
Everyone has the right:

“24. Environment
Everyone has the right:
a. to an environment that is not harmful to their health or well-being; 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.”

[38] NEMA is the primary legislative instrument that gives effect to section 24 of the
Constitution, and the Department, as the custodian thereof in the Western Cape,
must give effect to its provisions. Section 2 of NEMA delineates the national
environmental management principles, which balanc es development with the overt
need to protect the environment. The principles relevant to this application are the
following:
“(1) The principles … apply throughout the Republic to the actions of all organs of
state that may significantly affect the environment and –
(a) shall apply alongside all other appropriate and relevant considerations…;
(b) serve as the general framework within which environmental management and
implementation plans must be formulated;
(c) serve as guidelines by reference t o which any organ of state must exercise any
function when taking any decision in terms of this Act or any statutory provision
concerning the protection of the environment;…
(e) guide the interpretation, administration and implementation of this Act, and any
other law concerned with the protection or management of the environment….
…
(3) Development must be socially, environmentally and economically sustainable.
(4) (a)Sustainable development requires the consideration of all relevant factors,
including the following—
(i) That the disturbance of ecosystems and loss of biological diversity are avoided ,
or, where they cannot be altogether avoided, are minimised and remedied;
(ii) that pollution and degradation of the environment are avoided, or, whe re they
cannot be altogether avoided, are minimised and remedied;
…
(vii) that a risk-averse and cautious approach is applied , which takes into account

…
(vii) that a risk-averse and cautious approach is applied , which takes into account
the limits of current knowledge about the consequences of impugned decisions and
actions; and
(viii) that negative impacts on the environment and on people’s environmental rights
be anticipated and prevented , and where they cannot be altogether prevented, are
minimised and remedied.

(b) Environmental management must be integrated, acknowledging that all
elements of the environment are linked and interrelated, and it must take into account
the effects of impugned decisions on all aspects of the environment and all people in
the environment by pursuing the selection of the best practi cable environmental
option…
(g) Impugned decisions must take into account the interests, needs and values of
all interested and affected parties…
(j) The right of workers to refuse work that is harmful to human health or the
environment and to be informed of dangers must be respected and protected…
(l) There must be intergovernmental co -ordination and harmonisation of policies,
legislation and actions relating to the environment…
(o) The environment is held in public trust for the people, the beneficial use of
environmental resources must serve the public interest, and the environment must be
protected as the people’s common heritage…
(r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal
shores, estuaries, w etlands, and similar systems, require specific attention in
management and planning procedures, especially where they are subject to
significant human resource usage and development pressure.” (emphasis added)

[39] These principles clearly establish that devel opment that potentially harms the
environment must be avoided, and, when unavoidable, minimised and remedied.
Consequently, in accordance with the risk -averse, cautious approach, section 24(1)
of NEMA requires that the potential consequences or impacts on the environment of
listed activities must be considered, investigated, assessed, and reported to the
competent authority before those activities may commence.

[40] Section 1 of the Disaster Management Act 57 of 2002 (“DMA”) defines
"disaster" as a natural or human-caused occurrence that causes significant harm and
exceeds the ability of those affected to cope using their own resources.

exceeds the ability of those affected to cope using their own resources.

[41] The following sections of the National Environmental Management: Integrated
Coastal Management Act 24 of 2008 (“ ICMA”) are relevant. Section 5(1) states that
the ICMA must, in relation to coastal management, be read, interpreted and applied
in conjunction with the NEMA. The legislated duty on the applicant is to assess the
possible risks and impacts associated with the proposed activity. Section 7 defines
the composition of coastal public property to consist of:
(a) coastal waters;

(b) land submerged by coastal waters, including:
(i) land flooded by coastal waters, which subsequently becomes part of the bed of
coastal waters; and
(ii) the substrata beneath such land;
(c) any natural island within coastal waters;
(d) the seashore, including:
(i) the seashore of a natural or reclaimed island; and
(ii) the seashore of reclaimed land;
(e) subject to section 66A, any admiralty reserve owned by the State;
(f) (any land owned or controlled by the State declared under section 8 to be coastal
public property;
(g) land reclaimed in terms of section 7C; or
(h) any natural resources on or in any coastal public property of a catego ry
mentioned in paragraphs (a) to (g).

[42] Section 11 deals with ownership of coastal public property - the ownership of
coastal public property vests in the citizens of the Republic and coastal public
property must be held in trust by the State on behalf of the citizens of the Republic
and coastal public property is inalienable and cannot be sold, attached or acquired by
prescription and rights over it cannot be acquired by prescription. Section 15 prohibits
construction or measures on coastal publi c property to prevent erosion unless
authorised. Section 16 defines the coastal protection zone and its purpose to protect
ecological integrity and prevent environmental degradation. Section 63 specifies
factors to consider when granting environmental authorisations for coastal activities.

[43] In 2014, section 14 of the National Environmental Management Laws Second
Amendment Act 30 of 2013 inserted section 30A into NEMA to provide for exceptions
in emergencies. The Environmental Impact Assessment Regulatio ns of 2014, as first
published in Government Gazette No. 38282 of 4 December 2014, identifies harmful
activities that require an environmental authorisation before their commencement.
Regulation 5 of the NEMA National Appeals Regulations (R993 published in GG
39303, 2014) governs the appeal process, including submission of responding

39303, 2014) governs the appeal process, including submission of responding
statements.

APPLICATION OF LAW TO THE FACTS

[44] The applicant contends that the respondents have adopted a narrow and
flawed interpretation of "emergency" and "disaster," ignoring the progressive nature
of disasters and the proactive measures required by law to prevent and mitigate their
effects. This misinterpretation has led to the denial of the applicant's Section 30A
request, which the applicant argues is irrational, unreasonable, and procedurally
unfair.

[45] Section 30A currently provides as follows:
“(1) The competent authority may… on written or oral request from a person, direct a
person verbally or in writing to carry out a listed or specified activity, without obtaining
an environmental authorisation contemplated in section 24(2)(a) or (b), to prevent or
contain an emergency or to prevent, contain or mitigate the effects of the emergency.
…
(3) The competent authority may direct the person to undertake s pecific measures
within a specific time period to prevent or contain an emergency or to prevent,
contain or mitigate the effects of the emergency.
…
(6) If the competent authority decides not to issue a directive provided for in
subsection (1) , the activ ity cannot commence or continue in the absence of an
environmental authorisation.”

[46] It is common cause that the applicant submitted to Department/Director a
written request, in terms of section 30A(1), to carry out a specified activity, without
obtaining a n environmental authorisation contemplated in section 24(2)(a) or (b), to
prevent or contain an alleged emergency or to prevent, contain or mitigate the effects
of the alleged emergency.

[47] Section 30A(2) provides:
“The request from the person referred to in subsection (1) must at least include ,
where known:-
(a) the nature, scope and possible impact of the emergency;
(b) the listed or specified activities that will be commenced in response to the
emergency;
(c) the cause of the emergency; and
(d) The proposed measures to prevent or to contain the emergency, or to prevent,

(d) The proposed measures to prevent or to contain the emergency, or to prevent,
contain or mitigate the effects of the emergency. [My emphasis]

[48] In accordance with the provisions of section 30A(2), in its section 30A(1)
application, the applicant specified activities it intended to commence to mitigate the
“emergency”. These activities include:
a. Listed Activity 17, the development within the littoral active zone involving rock
revetments or stabilising structures like walls.
b. Listed Activity 18, planting vegetation or placing material on dunes or exposed
sand surfaces larger than 10 m² to prevent sand movement, erosion, or accretion.
c. Listed Activity 19A, infilling, depositing, dredging, excavating, removing, or moving
more than 5 m³ of mate rials (e.g., soil, sand, shells, pebbles, or rock) from the
seashore, littoral active zone, or within 100 m of the high-water mark.
d. Listed Activity 12, clearing an area of 300 m² or more of indigenous vegetation.
[49] In support of its section 30A(1) applic ation to the Department, the applicant
submitted the following reports and documents:
a. Coastal Impact Report prepared by Anchor Environmental Consultants (“Anchor”).
b. Emergency Impact Report prepared by the applicant's Environmental Authorisation
Practitioner (EAP).
c. Photographs depicting the condition of the property and the erosion caused by the
storms.
d. Expert reports from the applicant's engineer and other experts, including
assessments of the structural integrity of the property and the risks p osed by the
erosion.


[50] The relevant content of these reports is summarised below.

The Anchor Coastal Impact Report (“CIR”)
[51] Anchor’s CIR explicitly stated that due to the nature and location of the project,
an Environmental Authorisation (EA) was required. Anchor, further:
a. Recommended that the EA be obtained through a Basic Assessment Process
(BAP), which would necessitate Specialist Assessments.
b. Highlighted that the dune is considered a very sensitive environment due to its
dynamic nature, vulnerability to erosion, unique flora and fauna, and its crucial role in

dynamic nature, vulnerability to erosion, unique flora and fauna, and its crucial role in
protecting inland areas from storm surges and sea-level rises.
c. Identified that the surrounding vegetation was listed on the IUCN Red List for
plants. It also noted the presen ce of terrestrial animal species on the dune,
including: Duthies golden mole (Chlorotalpa duthieae), Yellow-winged agile

grasshopper (Aneuryphymus montanus), Knysna banana frog (Afrixalus knysnae),
and sensitive species6.
d. Warned that the introduction of hard surfaces, such as a concrete retaining wall,
could result in the reflection and refraction of wave energy onto adjacent dunes. This
could increase dune erosion, compromise the existing infrastructure of neighbouring
properties, and increase the area's vulnerability to flooding and further erosion.
e. Emphasised that the proposed construction could cause environmental impacts
beyond the project’s boundary.
f. Concluded that the proposed stabilisation of the dune required a Basic Assessment
Process and an Environmental Authorisation in terms of section 24 of NEMA.

The EAP Emergency Impact Report
[52] The applicant's Environmental Authorisation Practitioner (EAP) Emergency
Impact Report: a. claimed that the erosion of the dune had led to the undermining
and collapse of the property boundaries. b. stated that if the dune were to collapse, it
could lead to the failure of the foundation and collapse of the residence, potentially
resulting in loss of lives, infrastructure damage, livelihood loss, environmental
damage and pollution. c. highlighted risks to neighbouring properties, including
instability and increased danger to human and animal life, economic loss, and social
and environmental impacts. d. proposed the construction of stabilising structures to
address the erosion and prevent further damage to the property and surrounding
areas. e. identified that the proposed construction would trigger several listed
activities under NEMA, in cluding: development within the littoral active zone (rock
revetments or stabilising structures), planting vegetation or placing material on
dunes to prevent erosion, infilling or depositing material into the seashore or littoral
active zone, and clearance of indigenous vegetation over an area of 300 m² or more.

[53] The EAP argued that the situation constituted an emergency under section
30A of NEMA, requiring immediate intervention to prevent fur ther erosion and
mitigate risks. This report was submitted as part of the applicant's request for a
section 30A directive, aiming to justify the exemption from obtaining an
Environmental Authorisation (EA).

Photographs
[54] The photographs submitted as part of the section 30A application depicted:

6 Sensitive species names withheld for protection.

a. the area in front of the applicant's properties, specifically the dune, which the
applicant claimed had been eroded and was leading to the undermining and collapse
of the property boundaries.
b. stabilising structures that had been developed along the boundary of Erf 4[...].
The area was filled in and partially covered with kikuyu grass, which had been
planted along the boundary.
c. portion of land in front of the Remainder Erf 1[...] contained natural vegetation as
well as vegetation that had been replanted on the slope below the boundary wall.


Other expert reports
[55] The expert reports submitted by the applicant's engineer and other experts
made several claims regarding the structural int egrity of the property and the risks
posed by the erosion. The applicant's engineer reported that erosion in front of the
property had undermined the foundations, posing an imminent risk of structural
collapse.

[56] The engineer recommended constructing a protective barrier or retaining wall
to stabilise the dune and prevent further erosion. They proposed constructing
stabilising structures, includ ing a retaining wall, to mitigate the risks. However, this
would involve excavating the dune, which was described as an ecologically sensitive
environment. The applicant's experts acknowledged that the construction of hard
stabilising structures, such a s a retaining wall, could result in negative environmental
impacts, including the reflection and refraction of wave energy onto adjacent dunes,
increased erosion risks, potential flooding, and further erosion, thereby compromising
neighbouring infrastructure. [Emphasis added]

[57] Before the impugned Director’s decision, the Department, through Mr Danie
Swanepoel, contacted the George Municipality, which stated that the properties were
identified in a coastal encroachment survey. The Municipality supported only the
rehabilitation of the primary dune as a coastal defence measure. It noted
that sandbags had been illegally placed outside the property boundary and washed
away during a storm surge.

[58] Another site inspection on September 10, 2024, revealed that while there was
evidence of coastal erosion, the frontal dune was stable and mostly vegetated.
Stabilising structures had been developed along the boundary of Erf 4[...], and the

area was partially covered with kikuyu grass. The land in front of remaining erf 1[...]
contained natural and replanted vegetation.

[59] Before I address the Director’s decision, I pause to highlight what is required
of a Director before deciding on a section 30A application.

Factors to be considered before a section 30A decision is taken
[60] Before making a decision, the competent authority (in this case, the Director in
the first instance and the Minister on internal appeal) must consider:
a. The nature of the emergency.
b. Information provided in the request.
c. Whether the emergency was caused by or is the fault of the person.
d. The principles in Section 2 of NEMA.
e. The risks and environmental impacts of the emergency and the proposed
measures. f. The risk and impact of the emergency, prevention, control, or mitigation
measures, and any post-event mitigation or rehabilitation measures.

Has the Director considered these factors before making the decision?
The nature of the emergency
[61] Section 30A(7) provides: “In this section ‘emergency’ means a situation that
has arisen suddenly that poses an imminent and serious threat to the environment,
human life or property, including a ‘disaster’ as defined in section 1 of the Disaster
Management Act, 2002 (Act 57 of 2002), but does not include an incident referred to
in section 30 of the Act.” The definition of disaster in section 1 of the DMA
states: “disaster means a progressive or sudden, widespread or localised natural or
human-caused occurrence which:“(a) causes or threatens to cause:(i) death, injury or
disease;(ii) damage to property, infrastructure or the environment;(iii) disruption of life
of a community; and(a) is of a magnitude that exceeds the ability of those affected by
the disaster to cope with its effects using only their own resources.”

[62] Section 2 of the DMA in relevant part, provides:
“Application of Act 2. (1) This Act does not apply to an occurrence falling within the

“Application of Act 2. (1) This Act does not apply to an occurrence falling within the
definition of “disaster” in section 1-
(a) if, and from the date on which, a state of emergency is declared to deal with that
occurrence in terms of the State of Emergency Act. 1997 (Act No. 64 of 1997): or
(b) to the extent that that occurrence can be dealt with effectively in terms of oth er
national legislation-

(i) aimed at reducing the risk and addressing the consequences of occurrences of
that nature; and
(ii) identified by the Minister by notice in the Gazette.

[63] Section 30(1)(a) provides:
“1. In this section: (a) “'incident' means an unexpected, sudden and uncontrolled
release of a hazardous substance, including from a major emission, fire or explosion,
that causes, has caused or may cause significant harm to the environment, human
life or property... “.

[64] The Director found that the alleged risk of collapse of the applicant’s property
did not meet the definition of an “emergency” under NEMA or a “disaster” under the
Disaster Management Act (DMA), inter alia because:
a. The threats described by the applicant were neither imminent nor serious enough
to qualify as an emergency under Section 30A of NEMA nor as a disaster under the
DMA.
b. The site had remained stable over the previous year, which contradicted the
applicant's claims of an immediate and serious threat to the property.
c. A significant amount of time had passed since the initial storm in September 2023,
which the applicant claimed caused the erosion.
d. The extended time elapsed undermined the applicant's claim of an emergency, as
the site showed no signs of imminent collapse during this period.
e. During Department-conducted site inspections, officials observed that the frontal
dune was stable and mostly vegetated.
f. Stabilising structures had already been developed along the boundary of Erf 4[...],
and the area was partially covered with kikuyu grass.

[65] The evidence that the erosion and instability of the dune were not solely
caused by natural coastal processes or storm surges, but were exacerbated by

caused by natural coastal processes or storm surges, but were exacerbated by
unauthorised activities and unsuitable vegetation planted by the applicant on the
dunes adjacent to the property. This suggested that the alleged emergency was
self-created rather than a sudden and unforeseen events.

[66] Alternative solutions were available to the applicant: it could construct
stabilising structures within the confines of its property, which would not require a
Section 30A directive. This indicated that the proposed measures were not the only
solution to address the alleged risks. [My emphasis]

[67] The applicant’s own environmental consultant, Anchor, does not support the
construction of hard stabilising structures outside the property boundaries and
instead recommended soft rehabilitation measures. This report was a critical
document in the assessment of the applicant's Section 30A application, as it provided
technical and scientific input on the environmental sensitivity of the dune and the
potential impacts of the proposed development.

[68] Further, the applicant’s reliance on the declarations of the Western Cape state
of disaster on 7 November 2023 and 18 July 2024 does not assist it. This is so,
section 41(5) of the DMA provides: “(5) A provincial state of disaster that has been
declared in terms of subsection (1):(a) lapses three months after it has so been
declared.”

[69] The applicant’s EAP informed the Department on 26 February 2024 of the
applicant’s intention to submit a section 30A application on substantially the same
grounds as those contained in its section 30A application submitted on 21 August
2024. The state of disaster declared on 7 November 2023 lapsed on 7 February
2024. The information provided in the section 30A request, and the reports and
information served before the director, faile d to establish any legal basis for the
authorisation of a section 30A directive.

[70] In fact, the information at the Director’s disposal suggested that the
environmental degradation of the dunes adjacent to or in front of the applicant’s
property was due to activities undertaken by the applicant and not due to natural
disaster or severe weather conditions. To compound the applicant’s difficulties, the
reports indicate that some unauthorised developments on the applicant’s properties
and the dunes were conducted in an environmentally sensitive area . These inter alia
include wooden stairs erected on the dunes, protruding storm water pipes and
unsuitable vegetation.

[71] In this regard, Section 30A Regulations7 also indicates that a directive will not

[71] In this regard, Section 30A Regulations7 also indicates that a directive will not
be issu ed in circumstances where a listed or specified activity has ensued without
an environmental authorisation. Therefore, this procedure cannot be used to rectify

7 Section 30A Regulations, published in Government Gazette 38684 under Notice Number 310 of 10
April 2015.

the unlawful commencement of a lis ted or specified activity. The section 24G NEMA
process must be followed in such circumstances.

[72] The applicant's properties (Erf 4[...] and Remainder Erf 1[...], Wilderness) are
situated above a dune and within 100 meters of the high -water mark of the sea.
This places them within the Coastal Protection Zone (CPZ) as defined under Section
16(1)(e) of ICMA. The properties are also located within the littoral active zone,
characterised by dynamic, unstable landforms such as dunes, beaches, and
sandbars.

[73] ICMA aims to protect the ecological integrity, natural character, and value of
coastal public property, avoid increasing the severity of natural hazards, and maintain
the natural functioning of the littoral active zone. The applicant's proposed activities,
such as constructing stabilising structures, could harm the sensitive coastal
environment, which ICMA seeks to protect.

[74] Section 15(2) of ICMA prohibits the construction, maintenance, or extension of
any structure on coastal public property to prevent or promote erosion unless
specifically authorised. The applicant's proposed construction of stabilising
structures would encroach on coastal public property and potentially damage the
ecologically sensitive dune.

[75] Section 63 of ICMA requires that environmental authorisations for coastal
activities consider the impact on coastal public property, the coastal protection zone,
and the coastal environment. The applicant's proposed activities involve the actions
listed under NEMA that cou ld harm the coastal environment; therefore, an
Environmental Authorisation (EA) is required.

[76] Section 6 of ICMA states that if there is a conflict between ICMA and other
legislation concerning coastal management, ICMA prevails. This includes municipal
by-laws, which are invalid if they conflict with national legislation. The Department
determined that the road known as Beach Street, located in front of the applicant's

determined that the road known as Beach Street, located in front of the applicant's
properties, falls within the CPZ and is regulated by ICMA, despite being privately
owned and zoned as Transport II.

[77] In summary, ICMA applies because the applicant's properties are located in
areas governed by its provisions, and the proposed activities would have significant

environmental impacts on the coastal protection zone and litt oral active zone.
Compliance with ICMA and NEMA, including obtaining an Environmental
Authorization, is required for any activities in these sensitive coastal areas.
[78] As a result of the above, I agree with the director's findings that the applicant
failed to establish an emergency or a disaster that militates against the granting of a
section 30A application. On 15 September 2024, the applicant was informed of the
decision and advised of their right to appeal under section 43 of NEMA and the 2014
Appeal Regulations.

The internal appeal to the Minister
[79] On 4 November 2024, the applicant duly lodged a detailed appeal
(accompanied by supporting documents) to the Minister in terms of section 43 of
NEMA read together with regulation 4 of the 2014 National App eal Regulations 8,
2014 (GNR. 993 of 8 December 2014, as amended). The appeal was accompanied
by the following expert reports from the applicant.

[80] A report by a town planner, Delacon Planning, compiled by Professor Susan
Bouillon (Delacon), a Supplemental Report by an Environmental Authorisation
Practitioner, EAP, compiled on 31 October 2024, and a Supplemental Report by an
Engineer, Strydom & Malan (the Engineer), dated 31 October 2024. The aforesaid
reports were not presented to the Director during the i nitial section 30A application
but were submitted for the first time during the internal appeal to the Minister. The
summary of the reports is set out below.

Delacon's report
[81] This report shows two aerial photographs of the properties with a designated
road in front of the applicant's properties. This is known as Beach Street. The
properties are bordered by two roads, namely Sands Street to the north and Beach
Street to the south. Beach Street is on all relevant maps and cadastral systems.
Beach Street is reflected in the survey general's diagrams and on the compilation

Beach Street is reflected in the survey general's diagrams and on the compilation
plans. Beach Street is lawfully owned by a corporation, but the municipality indicated
that it is maintaining all roads for the owner. Beach Street is in Zone II, with the
primary uses being a proclaimed street and a public street.

The engineers supplemented the report.

8 National Appeal Regulations, 2014 (GNR. 993 of 8 December 2014, as amended).

[82] The report highlights current climatic conditions affecting the properties,
leading to dangerous erosion in front of them. This constitutes a progressive disast er
that falls within the DMA's definition of a disaster. There is imminent structural
collapse of the properties, which, if nothing is done urgently, will have a direct,
harmful impact on property, life, and the environment. A reinforced concrete retaining
wall is proposed within the applicant’s properties . The hard variation proposed is one
of the accepted forms of intervention encouraged by George Municipality itself, and
the engineer refers to a diagram from a George Municipality presentation on the
engineer's supplemental report. The George Municipality presentation of 16 October
2024, compiled by L Josias, is attached to the appeal (Municipality presentation).
Regarding access, the engineer states it will be across Beach Road, which is a
zoned public road. [My emphasis]

The EAP supplementary report
[83] The EAP, in this supplementary report, states that there is an imminent risk of
collapse for the properties, as they are destabilised and eroded by a pattern of
extreme weather events. The collapse would have considerable risk to neighbours,
human and anim al lives and the natural environment. In terms of the supplemental
report, only activities 17(v)(d) and 19A(ii) would be triggered. The director's decision
is debated in the EAP's report. It is contended that the decision is not underpinned by
expert input. The decision-maker is also not a qualified engineer and cannot properly
speak to the structural risks of imminent collapse. It is asserted that the EAP
expresses the objective opinion that a remedy must be sought as a matter of
urgency.

[84] The EAP further expressed a view, as per the engineer enjoining, that the
situation of the erosion and risk of structural collapse to the properties falls within the
legislative definition of an emergency, being a situation that has arisen suddenly that

legislative definition of an emergency, being a situation that has arisen suddenly that
poses an imminent and serious threat to the environment, human life or property,
including a disaster defined in Section 1 of the Disaster Management Act, but does
not include an incident referred to in Section 30 of NEMA.

[85] The EAP submits that the situation has arisen su ddenly as a direct
consequence of the weather. This has indeed presented an imminent threat to the
properties, which threat should be urgently mitigated and prevented. The EAP further
indicated that to the extent that the decision maker is at variance with the

suddenness of the situation. The DMA definition of a disaster, in any event, provides
for a progressive situation.

Grounds of internal appeal
[86] The grounds of appeal to the Minister were that the province:
a. Failed to consider the merits of the application;
b. Had already expressed a view on the application before receipt thereof, indicating
bias, alternatively a failure to apply their minds to the matter objectively and
impartially.
c. There is no scientific or lawful basis for the decision.
d. The decision is based on findings that are vague, unsubstantiated, and
contradictory.
e. There was no fair procedure in reaching the decision, namely audi alteram partem.

Respondents’ responding statement on appeal
[87] The respondents' statement filed during the appeal process was submitted by
the Second Respondent, Mr Gavin Benjamin, the Director of Development
Management (Region 3), Department of Environmental Affairs and Development
Planning, to the First Respondent, the Minister of the Western Cape Local
Government, Environmental Affairs and Development Planning. This statement was
part of the appeal process initiated by the applicant following the Second
Respondent's refusal of the Section 30A application on 13 September 2024.

[88] On 2 October 2024, the applicant requested an extension to file its appeal
against the Second Respondent’s decision to refuse the Section 30A application. The
Second Respondent communicated to the First Respondent that the Department had
no objection to granting the applicant an extension to file its appeal.

Additional information regarding the applicant's properties
[89] The Second Respondent provided background information about the
applicant’s properties, specifically regarding a previous application made by the
former owner of the properties to the George Municipality. The previous owner of the
properties had applied to the George Municipality for the relaxation of the southern

properties had applied to the George Municipality for the relaxation of the southern
boundary line from 1 meter to 0.3 meters to permit the construction of a swimming
pool on Erf 4[...]. The George Municipality refused this application, citing concerns
that relocating the swimming pool would have a detrimental impact on the ability to
mitigate the effects of dune erosion and sea-level rise in the long term.

Purpose of the respondents' statement
[90] The statement was submitted to provide context and additional information to
the First Respondent regarding the history of the applicant’s properties and the
environmental concerns associated with them. The statement was submitted in
accordance with Regulation 5 of the National Appeal Regulations, which governs the
appeal process under the National Environmental Management Act (NEMA).
Regulation 5 allows the decision -maker to submit a responding statement to the
appeal authority and the appellant within 20 days of receiving the appeal submission.

Respondent statements regarding coastal erosion and development
[91] In the statement, the Department stated that storm events and surges are
common along the coastline, with regular occurrences in past decades. These
events are expected due to changing climate patterns. In 2018, the department
published coastal risk lines based on scientific data, showing expected wave run -up
and erosion risks. ERF4[...] and the remaining ERF1[...] are identified as at risk from
coastal erosion and wave run-up.

[92] A “road” is a way for vehicles and people to travel, including the shoulder. A
“road reserve” is an area set aside for road development. A “proclaimed road” is a
developed road within its res erve. No evidence supports the claim that "Beach
Road" exists on the remaining ERF 1[...]2. Access to the southern property boundary
along the undeveloped road reserve for the construction of the boundary wall may
require road development, given the dune syst em. Moreover, the applicant's
submitted EMPr is generic and does not meet the minimum requirements, lacking
specific contractor method statements and measurable outputs. Land zoning does
not exempt individuals from complying with applicable legislation and local authority
by-laws.

[93] The properties are in a high -risk intercoastal area for erosion. Claims of

by-laws.

[93] The properties are in a high -risk intercoastal area for erosion. Claims of
imminent building collapse are contestable, as no material consequences have
occurred since March 2024. Landowners must follow environmental management
practices, comply with legislation, obtain authorisations, and exercise their duty of
care. The proposed solution provides some certainty for ERF 4[...] and ERF1[...] but
conflicts with state land (the remaining ERF 1[...]2). Stabilising wal ls on private
property may trigger Activity 17 of Listing Notice 1 (rock revetments/stabilising

structures) on ERF 1[...]2. Proposed activities on dune areas and state land require
further detailed assessment.

[94] Development near buffer areas and the high wate r mark must be considered.
GIS imagery from May 2022 shows properties transformed with structures and stairs
leading to the beach. ERF4[...]’s dune area shows disturbance, partial revegetation,
exposed dune material, and a stormwater pipe extending onto ERF 1[...]2.
Development activities on the properties and ERF 1[...]2 may have contributed to
dune degradation. Activities on ERF1[...]2 may conflict with Section 20(4)(f) of NEMA
and Sensitive Coastal Areas Extension Regulations if undertaken without approval.
Development on ERF4[...], ERF1[...], and ERF1[...]2 may be unlawful if local by -laws
were not followed.

[95] No rational link exists between the applicant’s alleged causes and storm
surges affecting dunes. Stormwater management measures may stabilise dunes
rather than cause erosion. Structural failure due to dune cracks is linked to
transformed dune areas with rocks, foreign material, and stabilising structures.

[96] Vegetation planted on ERF4[...] was unsuitable for rehabilitation. Activities on
the dune may require investigati on under EIA Listing Notice 1. Issues appear to
stem from development actions on the properties and adjacent dune area
(ERF1[...]2), not natural coastal processes. No compelling evidence links storm
surges to the imminent threat.

[97] Mr Swanepoel concludes that these actions have directly impacted the natural
coastal processes and contributed to the degradation of the dunes and the
surrounding environment. Claims that coastal threats are unexpected or sudden are
unsubstantiated. The information on coastal ris ks has been publicly available for
years, and the applicant’s EAP consultant was aware of the study months before the
request submission.

Applicant's Response to the Respondents' Statement

request submission.

Applicant's Response to the Respondents' Statement
[98] On 17 October 2024, the applicant requested the appeal section t o provide
reasons for the Director’s decision, including: a copy of the inspection conducted by
the Department; any minutes or photographs of the inspection; and a full explanation
and supporting documentation from the George Municipality’s investigation and

report on the mitigation of coastal erosion, specifically regarding the applicant’s
properties.

[99] The appeal section responded that the applicant could have requested this
information from the Department or the Director upon receiving the notice of th e
Director’s impugned decision. The appeal section advised the applicant to contact
the original decision -maker or request the information through the PAIA (Promotion
of Access to Information Act) process.

[100] The applicant sought leave from the Minister to file an answer to Mr
Swanepoel's response statement. The application for leave was refused. The
Minister considered all relevant information, reports, photographs, and the reasons
given by the Director for refusing to issue the section 30A directive. In t he end, the
Minister dismissed the appeal and the Director’s decision was upheld.

[101] The above reports, photographs and information that served before the
Minister (on internal appeal), including additional reports that were not before the
Director. The Minister considered all of the information, reports, and documents
summarised above when she took the impugned decision.

[102] In these proceedings, the respondents filed an expert affidavit of Dr Avis.
(“Avis report”). The respondent argued that the Avis report was procured to address
the highly technical and complex issues raised in the applicant's founding affidavit.
They fur ther argued that the Avis report was intended to provide an independent
expert opinion from Dr Anthony Mark Avis, a coastal ecologist, to assist this court on
the rationale behind the Minister’s decision to dismiss the appeal. At this juncture, I
pause to revert to the applicant’s application to strike out the Avis report as
containing new matter that did not serve before the Minister.

[103] The Avis report and the Department’s response statement to the appeal
before the Minister did not contain new matter as such but confirmed several

before the Minister did not contain new matter as such but confirmed several
negative findings and arguments against the approval of the Section 30A application
that were already raised before the Director. Specifically:

Anchor Coastal Impact Report (CIR)
a. Although this report was initially submitted t o the Director, its findings were
reiterated in the appeal process. It emphasised the environmental sensitivity of the

dune, the need for an Environmental Authorisation (EA) through a Basic Assessment
(BA) process, and the potential negative impacts of c onstructing hard stabilising
structures, such as a retaining wall. It warned that such construction could lead to
increased erosion, damage to the dune, and harm to neighbouring properties.

Engineer’s Supplemental Report
b. While this report supported t he applicant's claim of an emergency, it also
acknowledged that the proposed construction of hard stabilising structures could
result in negative environmental impacts, including altering shoreline dynamics,
increasing erosion risks, and potentially causin g flooding and further erosion that
could compromise neighbouring infrastructure. These concerns were consistent
with the Anchor CIR's findings and the Director's decision.

EAP Supplemental Report
c. The EAP acknowledged that the proposed activities wou ld trigger several listed
activities under NEMA, which require an EA. This aligned with the Director's
conclusion that the activities were harmful to the environment and required proper
assessment through the EA process.

Dr Avis Expert Affidavit
d. Although this report was submitted during the review proceedings, it confirmed the
findings of the Director and the Department. Dr Avis concluded that the frontal dune
was stable and mostly vegetated, and that the erosion was not caused by natural
coastal processes but by unauthorised activities and unsuitable vegetation planted by
the applicant. He also highlighted the potential disastrous environmental
consequences of constructing the proposed retaining wall, including altering
shoreline dynamics, damaging the dune, and displacing erosion onto neighbouring
properties.

[104] In summary, the new reports submitted during the appeal process confirmed
and reinforced the negative findings and arguments made before the Director,
particularly regarding the environmenta l sensitivity of the dune, the lack of evidence

particularly regarding the environmenta l sensitivity of the dune, the lack of evidence
of an emergency, and the potential environmental harm posed by the proposed
activities.

[105] I accordingly agree that the Avis report does not introduce new material. In
fact, it paints a clear picture that the erosion that the applicant is complaining about

and which it claims is an emergency, was not created by the climate changes,
weather patterns and storm surges, but rather by the unauthorised activity or
development and plantation of unsuitable vegetati on on the dunes adjacent to or in
front of the applicant’s property. Simply put, the emergency, if it exists at all, is self -
created.

[106] In any event, the respondents did not refuse the applicant permission to take
reasonable measures to stabilise its proper ty, provided that such measures occur
within the boundaries of the said property. The applicant’s obstructive attitude, in
refusing the Department’s officials access to the property, speaks volumes. This is
so, there is evidence of foreign, unauthorised material on the dunes that the applicant
installed.

[107] In National Energy Regulator of South Africa and Another v PG Group (Pty)
Limited9 (“NERSA”), it was held to be permissible for a respondent to appoint an
expert in certain circumstances. In the NERSA ma tter, the SCA found that the expert
reports relied on by NERSA played no part in NERSA’s actual decision but were
relied on in an ex post facto attempt to either justify or condemn it. Leach JA
therefore held that the relevant reasons were those set out in NERSA's decision, and
that any others were irrelevant for the review application.

[108] In the appeal to the Constitutional Court, while not denying the principle
against ex post facto reasons, Khampepe J held that an expert report is permissible
to explain t he rationale of reasons provided before the decision . In this regard, the
Constitutional Court held:
“[39] The Supreme Court of Appeal found that the reports by economic experts
submitted by NERSA were an impermissible attempt to justify the decision after the
fact and therefore could not be considered by the Court. I disagree. Indeed, reasons
formulated after a decision has been made cannot, by themselves, render the

formulated after a decision has been made cannot, by themselves, render the
decision rational, reasonable, or lawful. However, a report by an expert will not
necessarily constitute ex post facto (after-the-fact) reasons; it may merely explain the
rationale for the reasons provided before the decision was made. Economics is a
specialist field and, to the extent that the reports provide explanations of the process
followed by NERSA in reaching its decision, this Court can benefit from those
explanations. Moreover, the respondents submitted economic reports to challenge

9 National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others 2019
(10) BCLR 1185 (CC).

NERSA’s decision. Significantly, the reports the applicants rely on are meant to fen d
off the alleged faulty analyses and conclusions found in the reports the respondents
rely on.”10 (Emphasis added)

[109] It appointed Dr Avis, who specialises in dune ecology, to consider the
applicant’s founding affidavit and to review the findings of its exp ert. In the
circumstances, I find that the expert affidavit of Dr Avis does not introduce new
information but seeks not to amplify but to clarify, as it did, the reasoning behind the
respondent's decision in accordance with the parameters set by the Consti tutional
Court in NERSA. As a result, the application to strike out is dismissed in toto.

The alleged violation of the audi alteram partem rule
[110] The applicant argues that the respondent's decision -making process was
procedurally unfair, as new material and allegations were introduced during the
review process without allowing the applicant an opportunity to respond. This
violates the principles o f natural justice and the audi alteram partem rule. This
complaint is premised on the “refusal” by the Minister to afford the applicant a right of
reply to the response statement filed by the Department on appeal (which the
appellant claims contained new m aterial that did not serve before the Director and
which refusal prejudiced the applicant), thereby violating the applicant's right to be
heard.

[111] This argument is not sustainable. First, the appeal regulations of 2014 do not
contain any provision that crea tes the applicant’s right of reply. Second, the Minister
did not consider the new material in the response statement in her decision -making
process. Further, the response statement, by way of evidence, brings to bear and
clarifies the Department’s submissi ons to the Director. Even if the Minister had
considered the response statement, there would have been nothing unprocedural for
doing so.

[112] It is also contended that the Department’s officials acted in a biased manner

[112] It is also contended that the Department’s officials acted in a biased manner
by prejudging the section 30A application. There is just no merit to this contention.
First, the officials did not decide on the applicant’s Section 30A application. They only
expressed a prima facie view based on what they observed on the applicant’s
property. In fact, it was the applicant who approached them for a prima facie view
before submitting the section 30A application. Uniform Rule 53 provides:

10 NERSA at para 9.

“The notice of motion shall set out the decision or proceedings sought to be reviewed
and shall be supported by an affidavit setting out the grounds and the facts and
circumstances upon which the applicant relies to have the decision or proceedings
set aside or corrected. There was no scientific or lawful basis for the impugned
decisions taken.”

[113] Save for the impugned Director’s decision, the alleged decision of the
Department’s officials is not set out in the applicant’s founding papers as a decision
sought to be reviewed. Certainly, the notice of motion contains no such prayer. As a
result, on total analysis of the facts and the applicable law, I find that the
respondents:
a. did not misinterpret the statutory definition of ‘an emergency’ and a ‘disaster’ in
section 30A of NEMA, and an error of law did not influence their impugned decisions;
b. impugned decisions were rational and connected to factual or technical input;
c. took into account relevant considerations while they ignored irrelevant
considerations;
d. impugned decisions were not taken arbitrarily or capriciously;
e. impugned decisions were rationally connected to the purpose of the empowering
legislation, and a section 30A exemption was objectively refused; and
f. Impugned decisions to insist that the applicant must undertake a basic assessment
before conducting the listed activities must not be altered.
g. did not violate the audi alteram partem rule.
h. Did not prejudge the section 30A application and, as such, were not biased.
i. Impugned decisions are lawful, rational and based on objective scientific evidence.

[114] Having made the findings in the preceding paragraphs, I revert to the reserved
issue of the respondent's application to strike out specified averments in the
applicant’s replying affidavit.


Respondents’ application to strike out
“new matter” in the replying affidavit
[115] The respondents argued that the applicant introduced new information in its

[115] The respondents argued that the applicant introduced new information in its
replying affidavit that it had not included in its founding affidavit. These paragraphs
provide details about the applicant's interactions with the Municipality that were not
mentioned in the founding affidavit. Those averments sought to justify (post decision -

making process of the impugned decisions). All of this information was available to
the applicant when the section 30A application was submitted.

[116] It is trite that all necessary allegations upon which an applicant relies must
appear in its founding affidavit, as it will not generally be allowed to supplement the
affidavit by adducing supporting facts in a replying affidavit 11. In the exercise of this
discretion, a court should in particular have regard to:
a. Whether all facts necessary to determine the new matter raised in the replying
affidavit were placed before the court by the applicant;
b. Whether the determination of the new matter will prejudice the respondent in a
manner that could not be put right by orders in respect of postponement and costs;
c. Whether the new matter was known to the applicant when the applicant launched
the application (emphasis added); and
d. Whether this disallowance of the new matter will result in an unnecessary waste
of costs12.

[117] Thus, a party must distinguish a case in which the new material is first brought
to light by the applicant who knew of it at the time when the applicant’s founding
affidavit was prepared by the deponent and a case in which the facts alleged in the
respondent’s answering affidavit reveal the existence of possible further grounds for
relief sought by the applicant. The new information provided in the applicant’s
replying affidavit is clearly information the app licant had before deposing to its
founding affidavit, and it constitutes new matter that falls to be struck out.

[118] An application to strike out objectionable matter in affidavits is dealt with only
at the hearing of the main application, and a party must, i n the opposing affidavits,
address the allegations sought to be struck out. By doing so, such a party does not
waive its right to object to the offending allegations in the affidavit. A party must
direct the court’s attention to the statements of which s uch party complains and

direct the court’s attention to the statements of which s uch party complains and
specify the grounds on which such party objects to each paragraph 13[13]. The sub-
rule is not exhaustive of the grounds upon which a party may bring an application to
strike out a matter from an affidavit. Accordingly, it is not only a scandalous,
vexatious and irrelevant matter that may be struck out, but also inadmissible

11 Titties Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368H -369B;
Mostert v First Rand Bank Ltd trading as RMB Private Bank 2018 (4) SA 443 (SCA) at 448D-E
12 Erasmus: Superior Court Practice at D1-64.
13 Erasmus: Superior Court Practice at B1-58.

evidence, argument, attacks on credibility, and new matter, where the affidavit i n
question is a replying affidavit14.

[119] In light of the foregoing, the application to strike includes the striking out of
new matter contained in the replying affidavit. These paragraphs contain averments
regarding discussions with the municipality regardin g structures constructed on
environmentally sensitive areas adjoining the property or on the dunes in front of the
property on the seaside. They seek to shift the blame (if any) to the previous owners.
Those averments are contained in paragraphs 14, 15, an d 16, where the applicant
now addresses its interactions with the Municipality, of whom no mention is made in
the founding affidavit. The content of those paragraphs is struck from the replying
affidavit.


Scandalous and Vexatious Material
[120] The respondents contended that certain paragraphs in the applicant’s replying
affidavit contained scandalous and vexatious material that was prejudicial to the
respondents. Specifically, they pointed to allegations that were abusive, defamatory,
or intended to harass or annoy, such as accusations against the State Attorney of
being “exceptionally acrimonious and aggressive.” These allegations were deemed
baseless, offensive, and irrelevant to the matter at hand. The respondents argued
that the inclusion of such materi al could sidetrack the main issue and, if left
unanswered, potentially defame them. The respondents submitted that the inclusion
of new matter and scandalous material was prejudicial and irrelevant. Therefore, the
Court should strike these paragraphs in a ccordance with Rule 6(15) of the Uniform
Rules of Court.

[121] The applicant argues that the averments in its replying affidavit are justified
and necessary to address the respondents' new claims and to uphold the principles
of fairness and justice. Paragraph 4 3.1 replies to paragraphs and sub -paragraphs 26

of fairness and justice. Paragraph 4 3.1 replies to paragraphs and sub -paragraphs 26
to 31 (all inclusive) and 32 to 39 of the answering affidavit. On perusal of the said
paragraphs and sub -paragraphs (in context of the answering affidavit (“AA”) as a
whole), I could not find any justificatio n to accuse the decision -maker of adopting an
exceptionally vexatious and malicious stance. Accordingly, the Court struck the

14 Erasmus: Superior Court Practice at D1-91 to D1-92.

content of paragraph 43.1 of the replying affidavit (“RA”) as being scandalous and
vexatious.

[122] Paragraphs 47.1 to 47.3 of the RA replies to paragraphs 76, 77 and 78 of the
AA which addresses the apparent contradiction of an imminent risk of collapse of Erf
4[...] (which will inevitably collapse on Erf 5[...], the 5 star guest lodge) due to erosion
that all egedly destabilise Erf 4[...] so much so that their “imminent” collapse could
lead to a loss of life, property, destruction of neighbouring properties and
environment) and the continued operation of one of the property as a guest house.

[123] Logic dictates that i f there is an imminent danger of collapse of a property (to
the extent of seeking a section 30A directive), one cannot continue hosting guests in
such a property. This issue has nothing to do with the absence of a provision in
section 30A (i.e., requiring such evacuation). It is simply common sense. Similarly, I
could not find any justification for accusing the decision -maker of abuse, defamation,
bullying, vexatious manoeuvring, or intimidation. Accordingly, the content of
paragraphs 47.1 to 47.3 in the RA is struck as being scandalous and vexatious.

COSTS

[124] The first and second respondents have requested costs against the applicant
on the basis that the review application is deemed frivolous and unmeritorious. They
argue that the applicant failed to establish any reviewable irregularities in respect of
the eight grounds of review and continued with the application despite receiving the
respondents' answering affidavit, which highlighted the lack of merit in the case. The
respondents seek costs on a punitive scale, or, in the alternative, on a scale C, given
the complexity of the matter. They also request costs related to the withdrawal of
the incorrect application to strike, which was initially filed under the wrong procedural
rule.

[125] In its section 30A application, the applicant alleged an emergency invo lving

rule.

[125] In its section 30A application, the applicant alleged an emergency invo lving
the imminent collapse of Erf 4[...] and Erf 1[...] (due to their proximity) caused by
erosion from extreme weather conditions that destabilised the foundation on Erf 4[...].
However, failed to disclose in its section 30A application that, notwithstanding the
imminent danger of collapse that could, inter alia, lead to loss of life and limb, it
continued and continues to operate a 5 -star guest house in Erf 5[...]. This non -
disclosure must be distinguished from the alleged non -disclosure of Erf 5[...] being

operated as a guest house in general. The non-disclosure at issue specifically relates
to the continued uninterrupted operation thereof in circumstances of claimed
imminent danger that could cost lives. This non -disclosure was intentional because
had the continued op eration of the guest house been disclosed in the section 30A
written submission, the emergency of the situation would have been undermined and
thus fatal to the application. In this regard, the applicant acted mala fide.

[126] I find the aforementioned nondisc losure material and raise serious doubts
about the applicant's genuine intentions and the existence of an actual emergency.
The respondents' submissions persuade me that the applicant's true intention in filing
the Section 30A application was to circumvent the Environmental Authorisation (EA)
process under Section 24 of NEMA, including the Basic Assessment process, which
involves public participation. The applicant sought to avoid scrutiny of its proposed
development, which could potentially cause permanent damage to an ecologically
sensitive dune.

[127] The applicant's deliberate omission of the uninterrupted operation of the
guesthouse, in tandem with the section 30A application (based on the imminent
collapse of properties that could lead to loss of life and l imb), was clearly an attempt
to mislead the court and the respondents about the nature of the alleged emergency.
The applicant even denied Dr Avis access to the properties. What is more, the
respondent has been permitted to construct stabilising measures w ithin the
boundaries of its property. It has not done so.

[128] The conduct constitutes an abuse of the court process. It is trite that ex turpi
causa non oritur actio (the unclean hands principle), which holds that a party
approaching the court with dishonest intentions or improper conduct should not be
granted relief. Accordingly, the ex turpi causa non oritur actio finds application. This

granted relief. Accordingly, the ex turpi causa non oritur actio finds application. This
Latin maxim translates to "no action arises from a dishonourable cause." It is a
doctrine that prevents a party from pursu ing legal remedies if their claim arises from
their own illegal or unethical conduct. In Villa Crop Protection (Pty) Ltd v Bayer
Intellectual Property GmbH15, the CC held that:
“Our courts have long recognised their power, in exceptional circumstances, to
prevent an abuse of process . That power has more recently been affirmed [in
Beinash v Wixley 1997 (3) SA 721 (SCA) at 734D -G, cited with approval by this
Court in Lawyers for Human Rights v First respondent in the Presidency 2017 (1) SA

15 Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2024 (1) SA 331 (CC).

645 (CC) at para 20] and an abuse of process may include a litigant who comes to
court with unclean hands. The power is an incident of the court’s inherent power to
ensure that those who use the process of law do not do so for ulterior ends that
undermine what the courts are established to secure. It is a power most sparingly
used. That is so because the exercise of the power prevents a litigant from having
their dispute resolved before the courts, the very essence of their right under section
34 of the Constitution. But the authorities do bear out the proposition that dismissing
a claim that a litigant would pursu e before the courts on the grounds of abuse is not
precluded, because that claim exists in law. The claim is dismissed because the
litigant who would bring it is disqualified from doing so by reason of their abuse .”
[emphasis added]

[129] This approach was recently applied by the Full Court in this Division in Blacher
v Josephson 16 and in the environmental law matter of Topup Property Investments
and Another v First respondent of Local Government, Environmental Affairs and
Development Planning and Others17.

[130] The applicant cites the Biowatch principle that generally protect litigants in
constitutional matters from adverse costs orders as articulated in Biowatch Trust v
Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) . However, in this
case, the respondents argue that the principle does not apply when the application is
frivolous or constitutes an abuse of process.

CONCLUSION

[131] To conclude, having considered the conspectus of the evidence, this review
application is frivolous and unmeritorious, as none of the eight grounds of review
raised in the founding affidavit are legally sustainable. The applicant's true complaint
is its subjective disagreement with the respondents' impugned decisions and its
relentless, unsuccessful efforts to circumvent the requirement to obtain an EA under

relentless, unsuccessful efforts to circumvent the requirement to obtain an EA under
section 24 of NEMA. Accordingly, the review must fail.

ORDER

16 Blacher v Josephson (A15/22) [2023] ZAWCHC 17 (14 February 2023) at para 35. Also see Jajbhay
v Cassim 1939 AD 537; and Pottie v Kotze 1954 (3) SA 719 (A).
17 Topup Property Investments and Another v Minister of Local Government, Environmental Affairs and
Development Planning and Others (2024/149740) [2025] ZAWCHC 6 (6 January 2025), paras 91 -100.

[132] As a result, I propose to make the following order:
1. The application is dismissed.
2. The applicant’s application to strike out is dismissed with costs.
3. The Respondent’s application to strike out succeeded only in respect of
paragraphs 43.1 and 47.1 to 47.3 of the applicant’s replying affidavit.
4. The applicant is directed to pay the respondent’s costs of the applica tion to strike
out.
5. The applicant is ordered to pay the costs of the application for postponement of the
hearing on 15 April 2025.
6. The applicant is ordered to pay respondents’ attorney and client costs on scale B.

________________________________
P. NJOKWENI
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE

I agree and it is so ordered.
__________________________
C. FORTUIN
JUDGE OF THE HIGH COURT
WESTERN CAPE


Appearances
Counsel for Appellant: Ms S Martin
Instructed by: Van Heerden & Brummer Inc.

Counsel for Respondents: Ms S Mahomed
duly assisted by: Mr M Vassen
Instructed by: The State Attorney