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[2026] ZAGPJHC 451
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NT55 Investments (Proprietary) Limited and Another v Member of Executive Council of Gauteng Provincial Government Responsible for its Department of Agriculture and Rural Development and Others (A002374/2025) [2026] ZAGPJHC 451 (16 April 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number:
A002374/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
NT55
INVESTMENTS (PROPRIETARY) LIMITED
FIRST APPELLANT
FRANCOIS
NORTJE
SECOND APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE GAUTENG PROVINCIAL
GOVERNMENT
RESPONSIBLE FOR ITS DEPARTMENT
OF
AGRICULTURE AND RURAL DEVELOPMENT FIRST
RESPONDENT
THE
MEMBER OF THE EXECUTIVE
COUNCIL
OF THE GAUTENG PROVINCIAL
GOVERNMENT
RESPONSIBLE FOR ITS DEPARTMENT
OF
ROADS AND TRANSPORT
SECOND RESPONDENT
THE
MINISTER OF THE NATIONAL
GOVERNMENT
FOR THE DEPARTMENT OF
MINERAL
RESOURCES AND ENERGY
THIRD RESPONDENT
THE
NATIONAL ENERGY REGULATOR
OF
SOUTH AFRICA
FOURTH RESPONDENT
EKURHULENI
METROPOLITAN
MUNICIPALITY
FIFTH RESPONDENT
LESEDI
LOCAL MUNICIPALITY
SIXTH RESPONDENT
TRANSNET
SOC LIMITED
SEVENTH RESPONDENT
THE
HEAD OF THE DEPARTMENT OF
AGRICULTURE
AND RURAL DEVELOPMENT
OF
THE GAUTENG PROVINCIAL
GOVERNMENT
EIGHTH RESPONDENT
JUDGMENT
Coram:
Twala J and Marais AJ (Dlamini J concurring)
Introduction
[1]
This appeal
concerns two review applications arising from the grant of an
Environmental Authorisation
(“the
EA”)
by the eighth respondent, the Head of Department of the Gauteng
Department of Agriculture and Rural Development
(“GDARD”)
on 13 December 2016. The EA was granted on application by the second
respondent, the Gauteng Department of Roads
(“GAUTRANS”),
for the construction of a road known as the K148 in terms of the
National Environmental Management Act
[1]
(“NEMA”).
[2]
The second
review application concerns the amendment of the EA
(“the
amended EA”)
by GDARD on 4 January 2021, on application by GAUTRANS, purportedly
in terms of Part 1 of Chapter 5 of the Environmental Impact
Assessment Regulations
[2]
(“the
EIA Regulations”),
promulgated under NEMA, as well as a simultaneous
mero
motu
amendment
of the EA by GDARD. This review also relates to MEC’s
refusal of the appellants’ internal appeal against
that
amendment.
[3]
Both applications served before Vally J in the court
a quo
,
who dismissed
both applications
with
costs in
his
judgment
handed
down
on 16 April 2024. The dismissal rested on the following
findings:
(a)
In terms of
section 7(1)(b) of the Promotion of Administrative Justice Act
(“PAJA”)
[3]
the
appellants ought to have brought the first review application within
a reasonable period, but not later than 180 days, after
they became
aware of the EA, and the reasons for it, or could reasonably have
become aware of the EA and the reasons. In this regard,
the court
a
quo
held that the appellants could reasonably have gained knowledge of
the EA at the time it was granted, or soon thereafter, and held
that
the appellants brought the application out of time. The court also
held that the delay was so gross that condonation in terms
of section
9(1) of PAJA should be refused without having any regard to the
appellants’ prospects of success in the review.
(b)
In respect of the first review application, the court
a quo
also held that the appellants failed to exhaust their internal appeal
remedies in terms of NEMA, with the result that they ought
to be
non-suited in terms of section 7(2)(a) of NEMA, and that exemption
should not be granted in terms of section 7(2)(c).
(c)
Regarding the second review application, the court
a quo
held
that the application was brought within 180 days, but that the timing
of the application nevertheless constituted an unreasonable
delay and
was brought out of time. The court similarly refused condonation
without having regard to the merits of the review.
[4]
The court
a quo
refused leave to appeal. This appeal is with
the leave of the Supreme Court of Appeal.
The
issues on appeal
[5]
Against the bases on which the court
a quo
dismissed the
applications, the questions to be decided, subject to the nuances
that emerge below, include the following:
(a)
Did the appellants fail to exhaust internal remedies in respect
of
the EA for purposes of section 7(2)(a) of PAJA? If so, should
exemption be granted in terms of s 7(2)(c)?
(b)
Was the first review application brought outside the time limits
in s
7(1) of PAJA? If so, which provision applies — s 7(1)(a) or s
7(1)(b)?
(c)
If so, should the delay be condoned in terms of s 9(1)
of PAJA, and
should the court
a quo
has disregarded the prospects of
success in the review application?
(d)
Was the second review application unreasonably delayed after
the
finalisation of the internal appeal against the Amended EA?
(e)
Should the review applications succeed on the merits?
[6]
As will appear below, the intricacies of the matter make it
appropriate to deal first with the merits of the review applications
and thereafter to address the remaining issues, being the question of
the exhaustion of internal remedies and delay.
[7]
The third, fourth, fifth, sixth and seventh respondents are
not participating in these proceedings. In this judgment we refer to
the first and second appellants collectively as “the
appellants”, the first respondent as “the MEC”, the
second respondent as “GAUTRANS”, and the eighth
respondent as “GDARD”.
Factual
Background
[8]
The facts
foundational to this case
are
mostly
common cause
and are as follows.
On 13 December 2016 an EA was issued for
the construction of the K148 road between the K146 and K133,
including its interchange
with the N3/11. The proposed K148 is said
to be an important link to the Tambo Springs Logistics Gateway
project, to form part
of the PWV strategic road network, and to
serve, among others, the Tambo Springs Freight Hub
(“TSFH”)
and surrounding townships.
[9]
The TSFH forms part of a National Strategic Infrastructure
Project aimed at diverting, as far as possible, large freight trucks
carrying containers from Durban Harbour off the N3. According to the
respondents, the project includes, among other things, upgrades
to
the Durban Harbour and to the rail line between Durban and Gauteng,
so that containers can be moved by rail to Gauteng, where
the TSFH is
to receive them, deconsolidate or unpack them, and facilitate onward
distribution by smaller delivery trucks.
[10]
We pause here to point out that no evidence was presented in these
applications regarding the progress of the proposed
upgrades at the
Durban Harbour, nor of the upgrading of the railway line between
Durban and Gauteng.
[11]
The TSFH forms part of the Strategic Infrastructure Programme in the
National Development Plan, in respect of which the
Presidential
Infrastructure Co-ordinating Committee has approved Strategic
Integrated Project SIP2. SIP2 is also included in the
Gauteng 25-year
Integrated Transport Master Plan.
[12]
Road K148
forms part of the PWV Strategic Road Network. Its basic planning was
accepted by the second respondent in the Executive
Committee
Resolution 21 of 28 June 1996 and was published in terms of s 10 of
the Gauteng Transport Infrastructure Act
[4]
(“GTIA”)
in Extraordinary Provincial Gazette.
[5]
[13]
During or about June 2001, Total SA (Pty) Ltd
(“Total”)
applied to the South African National Roads Agency SOC Limited
(“SANRAL”)
to establish two Petroports — one
on the northern side of the N3/11 and the other on the southern side
— within the
future interchange with K148. SANRAL had
jurisdiction over the N3/11, while GAUTRANS would have jurisdiction
over K148 and its
interchange with the N3/11. SANRAL ultimately
approved the proposal, but only after an agreement had been concluded
between Total
and GAUTRANS in terms of which Total provided certain
safeguards for the future construction of the K148 over the N3. Total
also
effectively donated the land on which the Petroports were to be
constructed, namely Portions 18 and 19 of Koppieskraal 157 IR, by
agreeing to sell it to GAUTRANS for R1.00 upon proclamation of the
road.
[14]
Thereafter, the land would have been transferred to SANRAL, which
would control the N3/K148 interchange, including the
N3 bridge and
the K148/N3 interchange, both of which fall within the N3 road
reserve.
[15]
Against that background, GAUTRANS applied in 2016 to GDARD, the
eighth respondent, for an EA in terms of NEMA read with
the EIA
Regulations, because construction of the road fell within the scope
of listed activities prescribed by the Act.
[16]
The K148 project required the full EIA process described in NEMA, and
a scoping report was produced and submitted to
GDARD. For present
purposes it is important to note that the scoping report and the
final EIAR listed the following affected properties:
(a)
Koppieskraal 157-IR Portion l
(b)
Koppieskraal 157-IR Portion 7
(c)
Koppieskraal 157-IR Portion 9
(d)
Uitkyk 159-IR Remainder
(e)
Tamboekiesfontein 160-IR Portion l
(f)
Koppieskraal 162-IR Portion l
(g)
Tamboekiesfontein 173-IR Portion 32
(h)
Tamboekiesfontein 173-IR Portion 44
(i)
Tamboekiesfontein 173-IR Portion 45
(j)
Koppieskraal 157-IR Portion I
(k)
Tamboekiesfontein 173-IR Portion 32
(l)
Tamboekiesfontein 173-IR Portion 34
(m)
Tamboekiesfontein 173-IR Portion 37.
[17]
The EIA Regulations contain extensive Public Participation Process
(“PPP”)
requirements. The process is directed to
ensuring that all potential or registered interested and affected
parties, including the
competent authority and relevant organs of
state, are afforded a real and reasonable opportunity to participate
in the environmental
assessment process. The process must provide
access to all information which reasonably has, or may have, the
potential to influence
the decision on the application, save where
access is protected by law. In substance, the EIA Regulations require
consultation
to be both informative and fair, rather than merely
formal. In the scoping and environmental impact reporting process,
the scoping
report must first be exposed for comment for at least 30
days before it is submitted to the competent authority, and the final
EIAR, together with the Environmental Management Programme
(“EMPr”)
and supporting specialist material, must likewise be subjected to a
PPP of at least 30 days before submission. The same principle
applies
to the basic assessment route. Registered interested and affected
parties must in any event be afforded an opportunity
to comment on
the relevant reports once the application has been submitted to the
competent authority.
[18]
The Regulations prescribe various minimum methods by which notice of
an application or proposed application must be given.
This includes
that, If the activity may have impacts extending beyond the relevant
metropolitan or district municipality, an advertisement
must also be
placed in at least one provincial or national newspaper, unless an
official Gazette notice suffices.
[19]
GAUTRANS complied with some of the prescribed public participation
requirements. However, what is in contention is the
effect on the PPP
of the fact that various directly impacted properties were omitted
from the application, the scoping report,
the provisional EI Report,
the final EI Report, as well as the EA itself. The appellants’
contention is that these property
owners were not properly invited to
participate, nor were they invited. There were other alleged
shortcomings, which will all be
dealt with in the discussion
hereunder.
[20]
The September 2016 final environmental impact report prepared by
Envirolution Consulting proceeds on the basis that the
project is
both a regional road development and enabling infrastructure for the
Tambo Springs freight and logistics initiative.
It accordingly treats
the K148 road as part of a strategic transport corridor rather than a
purely local road.
[21]
The receiving environment was, however, treated as environmentally
sensitive in material respects. The report identified
a grassland
setting associated with vulnerable and endangered vegetation types,
while also stating that substantial portions of
the alignment
traverse already transformed or secondary vegetation of lower
conservation value. It recorded that the road project
triggers listed
activities, including activities associated with infilling or
excavation near watercourses, and it expressly acknowledged
that the
proposal would require a water use licence because wetlands and
seasonal watercourses are crossed. The report thus recognised
at the
outset that the development was only potentially acceptable if the
hydrological and ecological effects were managed through
separate
authorisations, design controls, and mitigation. The specialist
findings on vegetation and fauna were broadly development-supportive,
although not unqualified.
[22]
Wetlands and hydrology were identified as the principal environmental
constraint. The report recorded that six wetlands
would be
intersected by the proposed route, distinguishing between degraded
eastern wetlands and a more sensitive western floodplain.
A 30-metre
buffer was recommended, but the report acknowledged that impacts
could not be entirely avoided.
[23]
The final report provided the following information regarding the
co-ordinates of the two alternative routes:
Option Name / LatDD /
LongDD / LatDMS / LongDMS
1 Start / -26.39114 /
28.26591 / 26° 23 ' 28" / S 28° 15' 57" E
1 Middle / -26.39886 /
28.24569 26° / 23' 56" / S 28° 14' 44" E
1 End / -26.41399 /
28.21939 / 26° 24' 50" / S 28° 13' 10" E
2 Start / -26.38987 /
28.26270 / 26° 23' 24" / S 28° 15' 46" E
2 Middle / -26.39684 /
28.24472 / 26° 23' 49" / S 28° 14' 41" E
2 End / -26.41197 /
28.21954 / 26° 24' 43" / S 28° 13' 10" E
[24]
Importantly, the hydrological maps included in the report indicated
that both the alternative routes terminate inside the floodplain
on
the western side of the proposed development. This accorded with the
above co-ordinates provided in the report. It must be noted
that
these termination co-ordinates were in conflict with the stated aim
of the project, i.e., for the K148 to link up with the
K146, which is
evidently in a further south-westerly direction from the stated
co-ordinates.
[25]
The hydrological study report which forms part of the final report
evaluated various proposed alternatives for the construction
of a
bridge, proposed by Ndodana Consulting Engineers, which would result
in the proposed roadway crossing the river and the floodplain
more
than 4 metres above the ground surface. The study rejected the first
proposed alternative for the construction of the bridge
but indicated
that the other three would be viable, with option two being the
preferred one. The proposed Environmental Management
Programme
(“EMPr”)
adopted these findings.
[26]
The inescapable conclusion is that these proposed bridges would cause
the K148 to extend beyond the stated end co-ordinations which
terminate within the floodplain. Despite this fact, the proposed
alternative 1 route (in particular the end co-ordinates) was not
expressly amended to accommodate the bridge over the river and
floodplain, and the extension of the K148 to join up with the K146.
At the same time, there were also conflicting indications on some of
the diagrams contained in the report, which links the K148
to the
K146.
[27]
On heritage and cultural resources, the report again adopted the
position that the project was manageable. The report also addressed
soils, agriculture, visual character, social and economic
consequences, and cumulative effects. Nothing turns on these aspects.
[28]
The public participation section was presented as having involved
interested and affected parties, surrounding and affected landowners,
and provincial, national, and local government departments. The
report stated that circulation of the draft EI report was intended
to
allow stakeholders to verify whether the issues raised by them had
been captured and adequately considered.
[29]
As regards route alternatives, the report explained that an earlier
alignment was abandoned because its western portion would have
affected the Suikerbosrand Nature Reserve. Two alternatives were then
investigated. Alternative 1, shown as the red alignment,
is
identified as the preferred option. Alternative 2, although initially
favoured, was said to have been displaced because it would
adversely
affect a cemetery and certain existing land uses, including a dairy
facility and buildings. A no-go option was noted
but rejected on the
basis that it would preserve the
status quo
at the expense of
the road and freight-related benefits said to justify the scheme.
[30]
That must be considered together with the conflict in the report
between the stated end coordinate, the diagrams showing the endpoint
within the floodplain that had to be protected, and the proposed
bridge over the floodplain with the road terminating further
south-west where it joins the K146.
[31]
The report's ultimate conclusion was clear. It found no
insurmountable environmental or social constraint to the project,
provided
the recommended mitigation and management measures were
implemented and the EMPr is adhered to.
[32]
On 13 December 2016 GDARD issued an environmental authorisation under
reference number Gaut 002/15-16/E0259
to
GAUTRANS.
The EA stated the holder of the EA to be Ekurhuleni
Metropolitan Municipality
(“EMM”)
, but authorised
GAUTRANS, being the applicant, to undertake the proposed development
of a section of road being the K148, between
roads K146 and K133
which included the N3/K148 interchange on Portions 1, 9 and 7 of the
farm Koppieskraal 157-IR, Portion 1 of
the farm Koppieskraal 162-IR,
Portions 32, 34 and 37 of the farm Tamboekiesfontein 173-IR and
Remainder of the farm Uitkyk 159-IR,
Ekurhuleni Metropolitan
Municipality, Gauteng Province.
[33]
The conditions recorded that authority was granted for Route
Alternative 1, that the K148 was to run from the K146 to the K133,
and that amendments had to be made to the layout plan. Condition 3.3
recorded that any development on the floodplain was excluded
from the
EA.
[34]
In the reasons for the decision, GDARD stated in paragraph 4.c that
although the connection between the K146 and the K148 roads
as well
as future extensions is envisaged by GAUTRANS, GDARD could not
approve this section because it ends next to the sensitive
floodplain
and such development will bring irreversible damage to the
environment.
[35]
The EMPr submitted with the final EIAR, received by the Department on
9 September 2016, was approved. It required compliance with
all
recommendations and mitigation measures contained in it. Compliance
with the approved EMPr was treated as an extension of the
conditions
of the EA. Its contents and objectives had to be made known to all
contractors, subcontractors, agents and other persons
working on
site.
[36]
The EA did not comply with the Regulations. It identified
Ekurhuleni Metropolitan Municipality as the holder of the
authorisation,
while authorising GAUTRANS to undertake the activity.
This internal inconsistency rendered the authorisation defective.
[37]
The EA purported to authorise construction of the K148 between
the K133 and the K146, while simultaneously prohibiting development
within the floodplain. Properly interpreted in light of the reasons,
GDARD deliberately refused to authorise the section extending
into
the floodplain. The authorisation was therefore limited to a
truncated portion of the proposed road.
[38]
A central defect in the process was the failure to identify all
directly affected properties, contrary to the EIA Regulations.
Several such properties were omitted from the application, the
reports, and the EA itself. This defect rendered the EA formally
non-compliant and raised a separate question as to the adequacy of
the PPP.
[39]
Against that background, the questions that arise become more
nuanced. The issue is what legal effect, if any, the EA had once
issued notwithstanding those defects. That question materially
affects the issues before us and is addressed below.
[40]
In August 2019, the appellants became aware of the proposed
development of the section of the K148 road when they obtained a part
of the EIAR from the internet. Between 13 August 2019 and February
2020, the appellants’ attorneys addressed numerous letters
and
emails to GDARD and GAUTRANS expressing the concerns of the
appellants in relation to the proposed construction of the K148
road
and requested information and a copy of the EA that was granted which
the appellants only obtained from the internet. Neither
GDARD nor
GAUTRANS responded.
[41]
On 11 December 2019 the appellants learnt that, on 6 December 2019,
GAUTRANS had issued Tender No:
DRT12/08/2018
inviting
bidders to tender
for the
construction of the K148
construction project
which contained
some of the essential reports and approvals
relating
to
the
consideration and
granting
of the
K148
EA
by GDARD
on 13 December 2016.
[42]
On 20 December 2019 the appellants’ attorney wrote to GDARD and
GAUTRANS demanding an undertaking that construction of the
K148 would
not proceed pending a review of the decision granting the EA. Again,
there was no response. The appellants accordingly
launched urgent
proceedings on 11 February 2020 for an interim interdict restraining
GDARD and GAUTRANS from commencing or continuing
with construction
pending the institution and
finalisation of an
application for reviewing the decision granting the K148 EA.
[43]
By agreement
between the parties,
the
urgent application
for the interdict
was
postponed sine die and
was only
re-enrolled
to be heard
on 2 and 3
February 2022. The appellants were successful
in
their application
and obtained an order interdicting the
commencement of construction of the K148 pending the finalisation of
the review proceedings
and any
appeals flowing
therefrom
.
[44]
On or about 4 February 2020 GAUTRANS applied to GDARD to amend the
EA, relying on Part 1 of Chapter 5 of the Regulations, which
deals
with amendments involving no change in scope or ownership. According
to the notice of 6 March 2020, GAUTRANS intended to
amend the list of
affected farm portions in the EA, because some
farm
portions
were
not listed, and to
bring the EA
in
line with the correct
list of affected properties. It should be noted that Part 2 of
Chapter 5 provides for amendments where a
change in scope occurs.
That process is materially more detailed and onerous. By contrast,
Part 1 is comparatively simple. We return
to this below.
[45]
On 13 April 2020 and 11 May 2020, the appellants objected to this
amendment application. On 9 June 2020, the appellants launched
the
first application to review the decision of GDARD in granting the
K148 EA. On 23 June 2020 Envirolution Consulting, acting
on behalf of
GAUTRANS, notified the registered interested and affected parties
(“I&APs”),
including the appellants, of
the
second
application
for an amendment of
the EA.
The
second application was
intended to
amend the EA to include on the
listing additional
four affected properties
.
[46]
On 27 July 2020 the appellants lodged their objections to the
amendment of the EA on the basis that the K148 EA decision was
invalid
due to the fact that GAUTRANS excluded at least seven
properties that would directly be affected by the construction of the
K148
road from the environmental impact assessment
(“EIA”)
and scoping processes.
[47]
On 4 January 2021, pursuant to the amendment applications, GDARD
granted the amendments and issued an addendum to the EA. The addendum
effectively changed the holder of the authorisation to GAUTRANS and
altered the description of the location of the activity so
as to
include the properties initially omitted.
[48]
Crucially, and although GAUTRANS had not applied for such relief,
GDARD purported
mero motu
to amend the initial EA by removing
condition 3.3 and findings 4(c), (d) and (e). Condition 3.3
prohibited development in the floodplain,
while para 4(c) of the
reasons recorded that, because of the risk of irreversible damage to
the sensitive floodplain environment,
approval could not be granted
for the full stretch of road between the K133 and the K146.
[49]
The MEC and GDARD contend that GDARD had the power under regulation
27(4) to amend the EA
mero motu
, without an application. The
regulation provides that an environmental authorisation may be
amended or replaced without following
a procedural requirement in the
Regulations if the purpose is to correct an error and the correction
does not materially change
the rights and duties of any person. In
the circumstances of this case, reliance on regulation 27(4) is,
however, highly questionable.
We deal with that below.
[50]
Dissatisfied with the amendment, on 16 March 2021 the appellants
launched internal appeals against the amendment decision of GDARD
to
the MEC: GDARD, which appeals were dismissed by the MEC on 3
September 2021. On 18 February 2022 the appellants applied to the
MEC
: GDARD, in terms of section
47C of
NEMA for condonation and extension of
the
period for filing of
an internal appeal against the
granting
of the initial EA
.
The application was
ultimately refused
by the MEC.
[51]
On 2 March 2022 the appellants launched the second review application
seeking to review and set aside the MEC’s decision
of 3
September 2021 dismissing their appeal and upholding GDARD’s
decision to amend the EA. On 16 April 2024 the court
a quo
delivered judgment and dismissed both review applications with costs
on the bases set out above.
Legal
Framework
[52]
To bring matters into the correct perspective, it is now opportune to
restate the relevant provisions of the various acts which
are useful
for the discussion that will follow. Additional provisions will be
referred to later where necessary.
“
(a)
Promotion of Administrative Justice Act
1.
Definitions
Administrative
action means any decision taken, or failure to take a decision, by –
(a)
An organ of state, when –
(i)
Exercising a power in terms of the
Constitution or a provincial constitution; or
(ii)
Exercising a public power or performing
a public function in terms of any legislation or
(b)
…
6.
Judicial review of administrative action
(1)
Any person may institute proceedings in
a court or a tribunal for the judicial review of an administrative
action.
(2)
A court or tribunal has the power to
judicially review an administrative action if-
(a)
the administrator who took it-
(i)
was not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised by the
empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an error of law;
(e)
the action was taken-
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another person
or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f)
the action itself-
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
is not rationally connected to-
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
the action concerned consists of a failure to take a decision;
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance
of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised
the power or performed
the function; or
(i)
the action is otherwise unconstitutional or unlawful.
7.
Procedure for judicial review
(1)
Any proceedings for judicial review in terms of section 6 (1) must be
instituted without
unreasonable delay and not later than 180 days
after the date-
(a) subject
to subsection (2) (c), on which any proceedings instituted in terms
of internal
remedies as contemplated in subsection (2) (a) have been
concluded; or
(b) where
no such remedies exist, on which the person concerned was informed of
the administrative action,
became aware of the action and the reasons
for it or might reasonably have been expected to have become aware of
the action and
the reasons.
(2)
(a) Subject to paragraph (c), no court or tribunal shall review an
administrative action
in terms of this Act unless any internal remedy
provided for in any other law has first been exhausted.
9.
Variation of time
(1)
The period of-
(a)
90 days referred to in section 5 may be reduced; or
(b)
90 days or 180 days referred to in
sections 5 and 7 may be extended for a fixed period,
by
agreement between the parties or, failing such agreement, by a court
or tribunal on application by the person or administrator
concerned.
(3)
The court or tribunal may grant an application
in terms of subsection (1) where the interests of justice so
require.”
[53]
The relevant provisions of the National Environmental Management Act
are the following:
“
24.
Environmental authorisations
(1)
In order to give effect to the general objectives of integrated
environmental management
laid down in this Chapter, the potential
consequences for or impacts on the environment of listed activities
or specified activities
must be considered, investigated, assessed
and reported on to the competent authority or the Minister
responsible for mineral resources,
as the case may be, except in
respect of those activities that may commence without having to
obtain an environmental authorisation
in terms of this Act.
(2)
…
(4)
Procedures for the investigation, assessment and communication of the
potential consequences
or impacts of activities on the environment-
(a)
must ensure, with respect to every application for an environmental
authorisation-
(i)
…;
(iv)
investigation of the potential consequences for or impacts on the
environment of the activity
and assessment of the significance of
those potential consequences or impacts; and
(v)
public information and participation procedures which provide all
interested and affected
parties, including all organs of state in all
spheres of government that may have jurisdiction over any aspect of
the activity,
with a reasonable opportunity to participate in those
information and participation procedures; and
(b)
must include, with respect to every application for an environmental
authorisation
and where applicable-
(i)
investigation of the potential consequences or impacts of the
alternatives to
the activity on the environment and assessment of the
significance of those potential consequences or impacts, including
the option
of not implementing the activity;
(ii)
investigation of mitigation measures to keep adverse consequences or
impacts to a
minimum;
47A
Regulations, legal documents and steps valid under certain
circumstances
(1) A
regulation or notice, or an authorisation, permit or other document,
made or issued in terms of this Act or a
specific environmental
management Act-
(a)
but which does not comply with any procedural requirement of the
relevant Act, is
nevertheless valid if the noncompliance is not
material and does not prejudice any person;
(b)
may be amended or replaced without following a procedural requirement
of the relevant
Act if-
(i)
the purpose is to correct an error; and
(ii)
the correction does not change the rights and duties of any person
materially.
(2) The
failure to take any steps in terms of this Act or a specific
environmental management Act as a prerequisite
for any decision or
action does not invalidate the decision or action if the failure-
(a) is
not material;
(b) does not
prejudice any person; and
(c) is
not procedurally unfair.
47C.
Extension of time periods
The Minister or an MEC
may extend, or condone a failure by a person to comply with, a period
in terms of this Act or a specific
environmental management Act,
except a period which binds the Minister or MEC.”
[54]
The relevant provisions of the EIA Regulations 2014 which provide the
following:
“
4.
Notification of decision on application
(1)
Unless indicated otherwise, after a competent authority has reached a
decision on an application,
the competent authority must, in writing
and within 5 days-
(a)
provide the applicant with the decision;
(b)
give reasons for the decision to the applicant; and
(c)
where applicable, draw the attention of the applicant to the fact
that an appeal may be
lodged against the decision in terms of the
National Appeal Regulations, if such appeal is available in the
circumstances of the
decision.
(2)
The applicant must, in writing, within 14 days of the date of the
decision on the application
ensure that-
(a)
all registered interested and affected parties are provided with
access to the decision
and the reasons for such decision; and
(b)
the attention of all registered interested and affected parties is
drawn to the fact
that an appeal may be lodged against the decision
in terms of the National Appeal Regulations if such appeal is
available in the
circumstances of the decision.
(3)
For the purpose of this regulation, the decision includes the
complete environmental
authorisation granted or refused.
Amendments where no
change in scope or a change of ownership occur
29.
Amendments to be applied for in terms of Part 1
An environmental
authorisation may be amended by following the process prescribed in
this Part if the amendment-
(a)
will not change the scope of a valid environmental authorisation,
nor
increase the level or nature of the impact, which impact was
initially assessed and considered when application was made for
an
environmental authorisation; or
(b)
relates to the change of ownership or transfer of rights and
obligations.
Amendments where a change
in scope occurs
31.
Amendments to be applied for in terms of Part 2
An environmental
authorisation may be amended by following the process prescribed in
this Part if the amendment will result in a
change to the scope of a
valid environmental authorisation where such change will result in an
increased level or change in the
nature of impact where such level or
change in nature of impact was not-
(a)
assessed and included in the initial application for environmental
authorisation;
or
(b)
taken into consideration in the initial environmental authorisation;
and the change does not,
on its own, constitute a listed or specified activity.”
[55]
The relevant provisions of the Gauteng Transport Infrastructure Act
(“GTIA”)
are the following:
“
9.
Regulatory measures in respect of accepted preliminary designs
(1)
As from the publication of the notice in respect of the acceptance of
a preliminary
design as contemplated in section 8(7), and despite the
provisions of any law to the contrary—
(a)
no application for the establishment of a township, for subdivision
of land, for any change of land
use in terms of any law or town
planning scheme or for any authorisation contemplated in the ECA or
NEMA may be granted—
(i)
in respect of an area within the road or rail reserve boundaries of
the preliminary design, provided
that the MEC may on written
application by the applicant relax the provisions of this subsection
in respect of an access road on
such conditions as the MEC may deem
fit, including—
(aa) a
condition that the access road be substituted by another road or
street serving the same function as the access
road; and
(bb) a
condition for amending the preliminary design requiring the applicant
to pay all or any of the costs incurred
by the MEC in the process, in
which case section 38 applies;
(ii)
on the basis of future access to the provincial road to which the
said preliminary
design relates, except on the basis of access
provided for in the said preliminary design, or amendment thereof on
application
in terms of section 8(9) or otherwise;
(b)
sections 46, 48 and 49 apply, with the necessary changes, to a
building restriction
area which exists in respect of the road and
rail reserve boundaries, as shown in the preliminary design, inasmuch
as these sections
are applicable to building restriction areas, but
sections 46(4), (5), and (9) and sections 48(7) and (8), do not
apply; and
(c)
no application for a change in land use in respect of a
portion of land adjacent to the road reserve boundary of a
preliminary
design in an urban area may be granted without the
written comments of the MEC first having been obtained and considered
in accordance
with the applicable planning procedure by the authority
empowered to grant changes in land use, which must duly consider such
comments,
and section 7(6), (7) and (8) applies in such a case, with
the necessary changes.”
Submissions
of the Parties
Appellants’
submissions
[56]
As a
preliminary point, the appellants raised a point of law and contended
that GDARD did not have the power to grant the EA to
GAUTRANS since
in terms of section 9(1) of GTIA, as from the publication of the
notice in respect of the acceptance of a preliminary
design and
despite the provisions of any law to the contrary, no application for
the establishment of a township or any change
of land use in terms of
any law or town planning scheme or for any authorisation contemplated
in the Environmental Conservation
Act
[6]
(“ECA”)
or NEMA
may be granted, unless the MEC on written application by an applicant
relaxes the provisions of this subsection as he deems
fit.
[57]
Further, the appellants contended that the court
a quo
erred
in finding that the launching of the first review was unreasonably
delayed and completely out of time in that it was lodged
outside the
180-day period as provided for in PAJA. The appellants contended that
they only became aware that an EA has been granted
for the
construction of the K148 to GAUTRANS on 19 August 2019 when it was
gleaned from the internet. At the time, the appellants
did not have
all the relevant information and the reasons for the granting of the
EA and only obtained that information when they
obtained the tender
documents on 11 December 2019.
[58]
The appellants contend further that the court
a quo
erred in
determining the issue of the undue delay in launching the review
applications without consideration of the merits of the
case.
[59]
Although the respondents were aware that on 7 October 20216 the
appellants registered as interested and affected parties in respect
of the PWV 13 road as the developer of Vredebos Extensions 3; 4 and 5
Townships on the Remainder of Portion 34 of Vlakplaats 138
– IR
and there was litigation continuing between the parties, so it was
contended, the respondents did not find it necessary
to inform the
appellants of the development and construction of the K148 road which
nevertheless traverse the PWV 13. In this regard,
there was complete
non-compliance with the provisions of regulation 4 of NEMA by the
respondents.
[60]
Additionally, the appellants contended that the court
a quo
correctly found that the second review was launched on the 179-day
but erred in finding that this review could have been launched
earlier because the appellants had all the required information. The
court
a quo
disregarded the fact that the appellants were busy
with the urgent application for an interdict against the respondents
restraining
them from commencing and or continuing with the
construction of the K148 road. The court
a quo
failed to
consider that the appellants’ attorney, so the argument went,
is a single practitioner and cannot be penalised
for giving his work
proper and undivided attention.
[61]
The appellants contended further that, it is their persistence with
queries and objections and the application for an interdict
against
the respondent to restrain them from construction of the K148 road
between the period August 2019 and February 2020 that
prompted the
respondents to file the notice of the first proposed amendment of the
EA on 6 March 2022 in an attempt to correct
the wrongs which were
evident from the appellants’ objections to the K148 EA.
[62]
Because of being occupied in raising the queries and objections to
the decision granting the K148 EA and launching of the application
for an interdict, so it was argued, the appellants only managed to
launch their application to review the decision of GDARD to
award the
K148 EA on 15 June 2020. Once the application for review was issued
on 15 June 2020, so it was argued, the respondents
then initiated the
second amendment to the K148 EA.
[63]
As a result of GDARD granting GAUTRANS’ application for
amendment of the K148 EA with an Addendum to the EA, the appellants
launched an appeal to the MEC: GDARD on the same grounds of objection
challenging the decision of GDARD to approve the amendment
of the
K148 EA. This appeal was dismissed on 3 September 2021. Due to being
occupied with the application for an interdict, since
the tender had
already been issued, the appellants only launched their application
to the MEC; GDARD on 18 February 2022, seeking
condonation and an
extension of time to appeal the granting of the K148 EA. This
application was dismissed by the MEC on 20 May
2022.
[64]
The appellants contended that there was no unreasonable delay in the
launching of the second review application which was launched
on 2
March 2022. The court
a quo
erred in finding that the
appellants could have launched this review application earlier than
the last day of the 180-day period
because the grounds of appeal are
similar to those which were submitted for the internal appeal to the
MEC. If the court
a quo
considered the merits of the case when
it was determining the issue of the delay, so it was contended, it
would have found that
there were prospects of success on the review
of this case due to the non-compliance of the respondents with the
provisions of
NEMA. Even the decision of the MEC dismissing the
condonation application was not communicated to the appellants but
they heard
of it when GAUTRANS wanted to start with the project.
[65]
Further, the appellants contended that GAUTRANS was obliged to
consider the liquid petroleum pipeline of Transnet SOC Ltd
(“Transnet”)
which was to be crossed by the
construction of the K148as a relevant factor in its EIAR and EA since
the proposed crossing of the
petroleum pipeline was an environmental
issue which could not merely be dealt with by way of wayleaves by
Transnet, the servitude
holder. The issue of Transnet’s
petroleum pipeline was not dealt with in the EIAR and EA, so it was
contended, because Transnet
was not aware that the construction of
the K148 road was about to take place – hence Transnet only
issued the wayleave two
and half years later after the granting of
the K148 road EA.
[66]
When assessing the application for the EA in respect of the
construction of the K148 road, GDARD should have considered the
economic
viability of the Tambo Springs Freight Hub
(“TSFH”)
since the purpose of the K148 was to join the TSFH to the
highway. The proposed development is, so the argument went,
ill-considered
since it falls within a wetland area previously
outside the urban edge of EMM to which the EMM is unable to provide
bulk municipal
services.
[67]
GAUTRANS was obliged to include the sewer on Portion 18 and 19 in the
EIA process, which it did not do, and it was not scoped as
part of
the EIA and not considered by GDARD as part of its decision to grant
the K148 EA. Furthermore, so it was contended, although
GAUTRANS was
granted an amendment of the EA with the Addendum by GDARD to include
certain affected properties in the EA, it however
excluded further
properties. The appellants contended that GAUTRANS failed to obtain
all the necessary water licences as required
for the K148 activity.
[68]
The appellants contended further that the PPP was not properly
complied with, as the Lesedi Local Municipality
(“Lesedi”),
in whose area of jurisdiction the Transnet petroleum pipeline
runs, was not included in the public participation process to make
an
input with regard to the potential environmental impact and damage
should the construction of the K148 road continue and cause
damage to
the pipeline. The same, so the argument went, applies to Transnet,
who did not make an input to the EIA regarding its
petroleum
pipeline, but only issued a wayleave two and a half years later with
some conditions.
[69]
It was contended further that Total, although concluded an agreement
with GAUTRANS in 2003 and was fully aware of the EIA and provided
the
preliminary intersection design, did not participate in the scoping
and assessment of its property on which the two Petroport
filling
stations are situated. It was argued further that Total did not
participate in the public participation process in relation
to the
construction of the K148 road, as it was neither informed nor invited
as an interested and affected party in the process.
[70]
With regard to the second review, so the argument went, the appeal
authority erred in finding that it was competent of GDARD to
mero
motu
amend certain alleged errors in the EA in terms of the NEMA
Regulation without an application to do so and without notice to
interested
and affected parties that it would do so. Therefore, the
appeal authority erred in finding that GDARD could consider the
amendments
of the EA under a Part 1 amendment application process.
GAUTRANS included only some of the excluded properties in the EA and
failed
to identify, scope and assess and include all affected
properties in the amended EA through the EA amendment process.
[71]
Furthermore, GAUTRANS misrepresented the description of the affected
properties in the scoping and EIA reports and the EA, thereby
misleading landowners and the public. It was contended that the
public participation process was fatally flawed since it was not
conducted with all the registered affected property owners. Through
the amendment process, GAUTRANS included only some of the excluded
properties in the EA and failed to identify, assess and include all
affected properties.
The
respondents’ submissions
[72]
The respondents’ case is that, besides being ambushed by the
appellants in arguing the provisions of section 9 of GTIA which
does
not appear in their papers and heads of argument, section 9 does not
apply to the present case. Section 9 of GTIA is not properly
before
this court, and the respondents were not afforded an opportunity to
deal therewith for it was never raised in the papers
by the
appellants. Nevertheless, section 9 applies to internal processes
when the MEC makes a decision for the development of a
road. Section
6 and 9 of GTIA require an environmental assessment for planning
purposes. The environmental assessment would only
be required for
when the plan is being implemented.
[73]
It was contended by the respondents that the first review was
extraordinarily delayed in that the appellants became aware of the
granting of the EA in August 2019 and only lodged the application for
review in June 2020. The site notices inviting IAP’s
to
register and submit their comments in respect of the EIA and the
public of the scoping and environmental impact assessment for
the
proposed construction of the K148 road were placed on the boundaries
of the relevant area during February 2015. Fliers and
letters of
specialists explaining the purpose and their field of studies and
advertisements in The Star newspaper were all done
in February 2015.
[74]
The question that arises, so the argument went, is why, in 2018, when
the appellants instituted a review application in respect
of route
alignment of the PWV 13 and had full knowledge of the planning of
both the TSFH and the road system serving it, they did
not
participate in the public participation process in respect of the
K148 road. Had the appellants acted diligently, they would
have
reasonably become aware of the decision of the granting of the EA on
13 December 2016 or soon thereafter when the IAP’s
were
informed of the decision. Since the IAP’s and the majority of
other participants were informed of the EA in December
2016, the
appellants, as individuals, cannot be allowed to strangle the
process.
[75]
The court
a quo
correctly found that there was unreasonable
delay in launching the second review. The appellants knew from the
moment their appeal
application was dismissed by the MEC that they
are entitled to review the decision to grant the K148 EA. At the time
the appellants
had all the facts and material to do so but chose to
concentrate their efforts on the application for an interdict and
only launched
the review application on the last day of the 180-days
provided for in PAJA. The delay to launching the second review
application
was unreasonable under the circumstances.
[76]
It is not correct that when there is an application for an amendment
of the EA, so the argument went, it calls for the reconsideration
of
the whole application of the EA. It is within the powers of the HOD
of the GDARD to use the procedure as provided in Part1 of
the
regulations if the amendment does not affect the rights of any or
prejudice the parties in any way but is merely effecting
changes of a
corrective nature. The HOD correctly applied the procedure laid down
in Part1 of the regulations since the amendment
does not change the
scope or increase the nature and impact. It is GAUTRANS as the EA
holder who should give notice of the amendment
approval to the IAP’s
and the other affected parties.
[77]
Although the appellants did not have the reasons of the decision when
they first became aware of it on 13 August 2019 to institute
review
proceedings, so it was contended, they should have approached the
court in terms of Rule 53 to request for the record of
the decision.
It is therefore an unreasonable delay for the appellant to have
launched the review application in June 2020 which
is almost ten
months after they became aware of the granting of the EA.
[78]
Total together with Alzu were fully informed of the development and
construction of the K148 road – hence a representative
from
Total attended the meeting at Middleburg at the premises of Alzu. The
sewer impact in the area of the development was negligible
–
thus as the EIA is not meant to cover more than the relevant portion
of the area that is to be affected by the development
of a
5-kilometre road, so it was argued, this was not covered in the EA.
Total knew of the development and construction of the
K148 road even
at the time it was building Petroport filing stations on the adjacent
property. Alzu, as the occupier of the Petroport
filling stations of,
has been a part of the public participation process.
[79]
The public participation process took place and afforded the members
of the public a reasonable opportunity to participate given
the scale
of the project. It is not correct to say that it was flawed merely
because certain properties did not appear on the EA.
Transnet’s
petroleum pipeline, so it was contended, was not mentioned in the EA
not because it was not scoped and assessed
but because the
construction would not involve any blasting and or excavations near
the petroleum pipeline.
[80]
If any excavations were to be conducted, it would not affect the
petroleum pipeline due to its depth underground and the solid
protective casing around it. Moreover, Transnet knew of the
construction of the K148 road since 2003 when they signed an
agreement
with GDARD – hence Transnet issued a wayleave, with
the necessary conditions normally issued by the holder of rights in
such
circumstances, allowing the construction to continue.
[81]
The Lesidi and Ekurhuleni Municipalities did not make any comment on
the granting of the EA, so it was argued, not because they
did not
receive notices of the development of the K148 road but because there
would be negligible impact on the environment that
could be caused by
the Transnet petroleum pipeline should it burst. The buffer zone set
on the EA does not prohibit construction
but limits that work be done
with caution to some extent – hence the building of a bridge
over the wetlands.
The
sequence of the decision of the various issues
[82]
Ordinarily, in a matter of this kind, a court deals first with delay
and only thereafter with the merits. That is because the delay
enquiry usually does not involve factual or legal complexities that
obscure the true questions to be decided.
[83]
Here, however, delay arises on a different plane. As will appear
below, the nature of the impugned decision and the merits of the
reviews materially influence the delay enquiry. It is therefore
preferable to address the merits first.
Should
this court decide the merits of the reviews on appeal?
[84]
It should be recalled that the court
a quo
did not deal with
the substantive merits of the review applications.
[85]
In
Bruce
and Another v Fleecytex Johannesburg CC and Others
[7]
,
which was quoted with approval in Satchwell v President of the
Republic of South Africa
[8]
,
the Constitutional Court stated the following:
“
It
is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which
matters
are decided without there being any possibility of appealing against
the decision given. Experience shows that decisions
are more likely
to be correct if more than one court has been required to consider
the issues raised. In such circumstances the
losing party has an
opportunity of challenging the reasoning on which the first judgment
is based, and of reconsidering and refining
arguments previously
raised in the light of such judgment.”
[9]
[86]
Recently in
A
Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry
and Fisheries and Another
[10]
the Supreme Court of Appeal stated the following with regard to the
issue of merits not having been dealt with by the court
a
quo
:
“
that
the effect of the High Court’s declining to consider the
merits, meant that the present court could also not entertain
the
substantial aspects of the dispute because it did not have the
benefit of a judgment from the High Court on the merits of the
appellant’s application. Because of the approach followed by
the High Court, the very issue that compelled the application
and
brought the parties to court, remained unresolved. That approach of
the High Court opened the door to a fractional disposal
of issues and
the proliferation of piecemeal hearings and possible appeals”.
[87]
We are fully in agreement that it is undesirable for the court of
appeal to entertain issues on the merits which were never dealt
with
by the court
a quo
for the simple reason that a party affected
thereby will be deprived of an opportunity to challenge the decision
in a superior
court. However, the circumstances of this case are
distinguishable from those in the authorities quoted above. In this
case all
the active parties unequivocally requested this court to
decide the merits of the review applications.
[88]
Moreover, any party aggrieved by the decision of this court, still
has the opportunity to approach the Supreme Court of Appeal
and the
Constitutional Court to appeal the decision if it so desires. The
door is not completely closed to the party who is aggrieved
by the
decision of this court.
[89]
In the present matter the court
a quo
erred in failing to deal
with the merits, to the prejudice of both the parties and this court.
Its approach had the tendency to
produce “a fractional disposal
of issues and the proliferation of piecemeal hearings and possible
appeals”. Were we
now to decline to decide the merits, we would
merely perpetuate that error and cause further costs. This court is
in as good a
position as the court
a quo
to decide the merits,
and, given that the issues are inextricably intertwined, it is in the
interests of justice to do so.
Discussion
– the legal effect of the defects in the EA and the effect on
the questions to be decided.
[90]
The facts already set out show that the EA was seriously flawed. It
recorded as holder a party that had not applied for it and
did not
intend to undertake the listed activity. More importantly, because of
defects in the application before GDARD, it omitted
directly affected
properties.
[91]
In
accordance with the well-known
Oudekraal
-principle,
flawed administrative decisions continue to exist as legal facts and
it has legal consequences that cannot simply be
overlooked until they
have been set aside by a court.
[11]
[92]
After a
careful analysis of the apparent dichotomy between that fact that an
act may be invalid but still recognised as having legal
force until
set aside, SCA proceeded to determine that the proper enquiry in each
case - at least at first - is not whether the
initial act was valid
but rather whether its substantive validity was a necessary
precondition for the validity of consequent
acts. If the
validity of consequent acts is dependent on no more than the factual
existence of the initial act, then the consequent
act will have legal
effect for so long as the initial act is not set aside by a competent
court.
[12]
[93]
But just as
some consequences might be dependent for validity upon the mere
factual existence of the contested administrative act
so there might
be consequences that will depend for their legal force upon the
substantive validity of the act in question.
[13]
[94]
Applying these principles, the defective EA existed as a fact until
set aside. The question is whether lawful acts could be performed
pursuant to it. They could not. GAUTRANS was not the holder of the
authorisation, and the EA did not cover all directly affected
properties. The authorised activity was therefore incapable of lawful
implementation. The EA was a
brutum fulmen
.
[95]
GAUTRANS’ attempt in 2019 to commence the actual construction
process by issuing a tender was therefore unlawful. In our
view, the
tender was correctly interdicted pursuant to the appellants’
application for interim relief. The appellants are
accordingly
entitled to the costs reserved in that application.
[96]
It may be that the consequences of an invalid decision, and the
remedies available, differ according to the position occupied by
the
person concerned. For present purposes the focus is on a party in the
appellants’ position, namely a party seeking to
resist the
implementation of the subject-matter of an EA. What follows does not
necessarily apply where the focus is, for example,
on the applicant
for the EA.
[97]
Because the invalid EA was incapable of implementation, a party in
the appellants’ position could have ignored it with impunity.
Strictly speaking, there was no need to have it reviewed and set
aside. Any application to set it aside would, in those circumstances,
be precautionary rather than necessary.
[98]
Only if the EA applicant could, through some lawful mechanism,
regularise the patently invalid EA so that acts might validly be
performed under it, would the need arise to review it on other
grounds. To require a review before any such regularisation had
occurred would, in these circumstances, be unrealistic and senseless.
[99]
The upshot is that the fundamental defects in the initial EA also
rendered the internal appeal process provided for by NEMA nugatory,
at least as far as parties other than GAUTRANS are concerned.
GAUTRANS may have had reason to appeal the initial EA but did not
do
so. Instead, after more than three years, it sought to breathe
validity into the defective EA through the amendment application.
A
party aggrieved by the grant of a defective and invalid EA, to which
no lawful effect could be given, could reasonably take the
view that
an appeal would be pointless. We stress, however, that this will not
necessarily be true in every case; much will depend
on whether
downstream acts can validly be performed notwithstanding the
invalidity of the original decision. In our view, that
consideration
materially affects the questions that fall to be decided.
The preliminary point
based on section 9 of GTIA
[100]
Regarding the preliminary point raised by the appellants based on
section 9(1) of GTIA, a point of law may be raised at any stage,
provided it emerges from the papers or adequate notice is given so
that the other party has an opportunity to respond. If it is
not
raised in the papers or by formal application, it amounts to trial by
ambush. In this case the point was raised for the first
time in
argument. It took the respondents by surprise and afforded them no
proper opportunity to prepare. It was advanced as a
point in limine
without notice to the other side
– hence
the respondents were taken by surprise. In our view, this is
untenable and cannot be allowed
.
[101]
In
Mhlongo
v Netball South Africa
[14]
the court stated the following when dealing with the issue of a
question of law which is raised late and as a point in limine:
“
Ms
Kriek persisted in reply that points of law in motion proceedings are
akin to a special plea in action proceedings. There is
nothing
contentious about that, except that a special plea is raised before
the defendant takes any further steps and the pleader
then pleads
over on the merits. This is because a special plea is a procedural
device that allows a party to raise a preliminary
issue that, if
decided in their favour, could dispose of the entire matter without
the need to proceed to a full trial. Essentially,
it's a way to
address a defence before the court delves into the merits of the
case. It makes sense therefore that in motion proceedings
these
objections should be raised in the respondent's answering affidavit
and not for the first time in the heads of argument or
from the
bar.
[15]
In
general terms, a point
in
limine
should
not be raised for the first time in heads of argument in motion
proceedings, lest the party so raising it be accused
of “trial
by ambush”. This is considered unfair and prejudicial to the
opposition in that they may not have adequate
opportunity to prepare
a proper response.
[16]
It
is trite that in motion proceedings affidavits serve as both
pleadings and evidence. A newly raised point in limine might not
be
supported by the evidence presented in the affidavit. The proper
procedure is to raise points in limine in the answering affidavit,
or
through a formal substantive application thus allowing the other
party to respond with their own evidence and legal arguments.”
[17]
[102]
But because the point raises an issue of legality and may have wider
consequences, it is prudent to deal with it briefly. Section
9 of the
GTIA is plainly intended to protect an approved route alignment. In
so far as further statutory permissions or authorisations
may later
be needed to construct the road, the section serves to prevent
landowners from complicating the project by altering land
use in the
interim. Likewise, where expropriation of the road reserve may be
required, the section prevents landowners from opportunistically
increasing the value of affected land through rezoning, subdivision,
township establishment or the grant of a separate EA for another
purpose.
[103]
Since GAUTRANS would necessarily have to apply for an EA under NEMA
to construct the road after approval of the route alignment,
it would
be absurd to construe s 9 as also prohibiting GAUTRANS from making
that application. In this instance the purpose of s
9 is to protect
GAUTRANS against the conduct of third parties.
[104]
In our view, the appellants should, in principle, not be permitted to
raise the point in this manner. The appellants’ reliance
on s 9
is impermissible. In any event, it lacks merit and must be rejected.
The
merits of the review applications
General
observations regarding the merits of the review
[105]
The principal considerations on the merits are the following:
(a)
The actions
to be reviewed in this matter constitute “administrative
action” as defined in PAJA and, consequently, the
matter must
be dealt with in terms of PAJA
[18]
;
(b)
Under s 6 of PAJA, the main questions are whether:
(i)
the competent authority was not authorised to do so by
the empowering
provision;
(ii)
the competent authority failed to comply with a mandatory
and
material procedure or condition prescribed by an empowering
provision;
(iii)
the competent authority took irrelevant considerations taken into
account or failed to consider relevant considerations;
(iv)
the action itself was not authorised by the empowering provision;
(v)
the action itself was not rationally connected to-
(vi)
the purpose for which it was taken;
(vii)
the purpose of the empowering provision;
(viii)
the information before the administrator; or
(ix)
the reasons given for it by the administrator.
[106]
Section 2(4)(a) of NEMA provides
inter alia
that sustainable
development requires the consideration of all relevant factors
including that the disturbance of ecosystems and
loss of biological
diversity are avoided, or, where they cannot be altogether avoided,
are minimised and remedied, that pollution
and degradation of
the environment are avoided, or, where they cannot be altogether
avoided, are minimised and remedied, that a
risk-averse and cautious
approach is applied, which takes into account the limits of current
knowledge about the consequences of
decisions and actions; and 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.
[107]
Section 24(1A) of NEMA provides that every applicant for an EA must
comply with the Act’s prescribed requirements concerning,
where
applicable, steps to be taken before submission, prescribed reports,
public consultation and information-gathering procedures,
any EMPr,
the submission of the application for environmental authorisation,
any other relevant information, and any required specialist
report.
[108]
The generation of information and its disclosure to the competent
authority are central to the attainment of NEMA’s purposes
and
to the lawful exercise of public power under the Act.
[109]
Regulation 10 of the EIA Regulations obliges an applicant for an EA
to provide the competent authority with all information that
reasonably has, or may have, the potential to influence any decision
on the application. This is a provision of considerable importance.
It requires disclosure not only of information that reasonably has
the potential to influence the decision, but also of information
that
reasonably may have that effect. It is for the competent authority,
not the applicant, to assess the relevance and weight
of that
information and its impact on the decision. A failure to disclose
information at the level required by the Regulation undermines
the
entire process and will, in all likelihood, vitiate the decision.
[110]
It is equally clear from NEMA and the EIA Regulations that an
effective public participation programme is central to the gathering
of information. A PPP is not concerned only with the interests of
affected parties; it also seeks to ensure that all relevant
information is gathered and placed before the competent authority.
The
Transnet liquid petroleum pipeline
[111]
Regarding the appellants’ submission that GDARD failed to
consider a material environmental and safety issue, namely the
crossing of the Transnet liquid petroleum pipeline by the K148,
although the respondents’ submissions carry some force, they
cannot be accepted. Even if appropriate measures might later be
implemented outside the four corners of the EA, that does not relieve
the applicant of its obligation to place the relevant information
before the competent authority, nor the competent authority of
its
duty to consider the environmental risks of the listed activity
before granting an EA.
[112]
The existence of a liquefied petroleum pipeline, which the proposed
road would cross, and which could potentially be damaged during
construction, plainly presents an environmental risk. It should have
been investigated and reported upon, and the attendant risks
should
have been expressly addressed in the final EIAR, the EMPr and,
ultimately, the EA.
[113]
GAUTRANS accordingly failed to place a relevant consideration before
GDARD, and GDARD failed to apply its mind to that consideration.
Given the potentially serious consequences, that omission is
reviewable.
Economic
viability of the Tambo Springs Freight Hub and its relationship to
the K148
[114]
The appellants contended that the K148 is inextricably linked to the
Tambo Springs Freight Hub and that GDARD was therefore required
to
consider the economic viability and practical sustainability of that
development before authorising the road. Both GAUTRANS
and the MEC in
broad terms contended that the environmental authorisation of the
road did not require GDARD to adjudicate upon
the commercial or
economic viability of the freight hub in the manner suggested by the
appellants.
[115]
Due to the conclusions we reached in this matter it is not necessary
to decide this issue, but the appellants’ attack on
this score
does not seem well-founded.
Sewer
infrastructure on Portion 18 Koppieskraal
[116]
Regarding the appellants’ contention that the existing sewer
infrastructure on Portion 18 Koppieskraal, itself directly affected
land, was not properly identified or assessed, with the result that
environmental implications for neighbouring properties were
not
adequately considered, judicial notice can be taken of the fact that
South Africa is a water-scarce country, and that there
is moreover
widespread pollution of our water resources by defective sewage
treatment plants. The stream on the study area is a
tributary of the
Rietspruit and water from the Rietspruit ultimately end up in the
Vaal River.
[117]
It is troubling that, in argument, the respondents brushed aside this
serious issue as insignificant. It was also suggested that,
had it
really mattered, ALZU, the Petroport operator, would itself have
raised it.
[118]
During the PPP, one of ALZU’s principal concerns was that the
K148 bridge over the N3 would not afford access to the Petroports
as
originally envisaged. Extensive discussions followed about altering
the design to provide such access. Plainly, if access to
the
Petroports is provided, business at the Petroports is likely to
expand, with a concomitant increase in sewage volumes. The
fact that
ALZU did not itself raise the sewer issue is therefore beside the
point. The duty rested on GAUTRANS to investigate the
effect on the
functioning of the sewer system and to report to GDARD. It failed to
do so.
[119]
It is clear that the artificial wetland fed by the French drain would
be affected by the proposed road and gives rise to a potential
environmental risk that ought to have been investigated, reported on
and regulated in the EA. The process was accordingly vitiated
by
GAUTRANS’ failure to comply with NEMA and the Regulations, with
the result that GDARD made an uninformed decision. That
is a
reviewable irregularity.
Excluded
properties
[120]
Regarding the omission of a number of directly affected properties
this issue has two aspects: first, whether there was compliance
with
NEMA and the EIA Regulations; and secondly, what effect the omission
of the properties had on the PPP.
[121]
Regulation 16(1)(b)(vi) provides that an application for an
environmental authorisation must be accompanied by a description of
the location of the development footprint of the activity, including
the 21 digit Surveyor General code of each cadastral land
parcel,
where available, the physical address or farm name, where the
required information in subregulation (aa) and (bb) is not
available,
the coordinates of the boundary of the property or properties.
[122]
GAUTRANS complied with this requirement in relation to some
properties, as already noted, but entirely failed to list several
directly affected properties.
[123]
It may be that the omitted properties fell within the development
footprint required by Regulation 16(1)(b)(vii) and could have
been
scoped as part of the intended road corridor, but this does not cure
the formal defect in the application and EA.
[124]
The EA accordingly did not comply with the empowering legislation and
is reviewable.
Public
participation process: general challenge
[125]
Section 2(4)(f) and (o) of NEMA provides that the participation of
all interested and affected parties in environmental governance
must
be promoted, that all people must have the opportunity to develop the
understanding, skills and capacity necessary for equitable
and
effective participation, and that vulnerable and disadvantaged
persons must be enabled to participate.
[126]
In order to
give effect to the above sections, it is essential to ensure that
there is adequate and appropriate opportunity for
public
participation in decisions that may affect the environment. Section
24(1A) (c) of NEMA allows for this participation by
requiring that
the person conducting the PPP to comply with any regulated procedure
related to public consultation and information
gathering through the
PPP.
[19]
[127]
Regulation 40(1) provides that the PPP to which the basic assessment
report and EMPr, and the closure plan in the case of a closure
activity, submitted in terms of regulation 19, and scoping report
submitted in terms of regulation 21, the EIAR, EMPr, and the
closure
plan in the case of a closure activity, submitted in terms of
regulation 23, was subjected to must give all
potential
or
registered interested and affected parties, including the competent
authority, a period of at least 30 days to submit comments
on each of
the basic assessment report, EMPr, scoping report and EIAR, and the
closure plan in the case of a closure activity,
as well as the report
contemplated in regulation 32, if such reports or plans are submitted
at different times.
[128]
What is important is that all
potential
interested and
affected parties must be afforded an opportunity to participate. The
separate requirement that
registered
interested and affected
parties be given an opportunity is additional to that obligation.
[129]
The EIA Regulations thus required GDARD to ensure a meaningful
process by identifying potential interested and affected parties
and
affording them an opportunity to participate. On the evidence,
GAUTRANS failed to invite the appellants, who were known interested
and affected parties.
[130]
Furthermore, Regulation 40(2) provides that the PPP contemplated in
this regulation must provide access to all information that
reasonably has or may have the potential to influence any decision
with regard to an application unless access to that information
is
protected by law.
[131]
To the extent that GAUTRANS failed, contrary to its obligations, to
place relevant information before GDARD, it equally failed
to make
that information available to potential or registered interested and
affected parties. That defect vitiated the entire
process.
[132]
Regulation 41(2)(d) requires an applicant to place an advertisement
in at least one provincial newspaper or national newspaper,
if the
activity has or may have an impact that extends beyond the boundaries
of the metropolitan or district municipality in which
it is or will
be undertaken: Provided that this paragraph need not be complied with
if an advertisement has been placed in an official
Gazette. On a
proper interpretation, “provincial newspaper” must be
taken as meaning a provincial newspaper circulating
in the areas
which may potentially be impacted. This may imply that a publication
must be placed in more than one provincial newspaper
unless it is
placed in a national newspaper or the Gazette.
[133]
On the evidence, the river within the development footprint is a
tributary of the Rietspruit. The activity may therefore have impacts
extending beyond the EMM and into the Vaal River system, potentially
affecting more than one province.
[134]
The advertisement in The Star was accordingly insufficient to
initiate a compliant PPP. Equally, when we later consider delay,
the
same advertisement was inadequate to bring the process to the
attention of potential interested and affected parties. The court
a
quo
failed to consider the relevant statutory requirements and
erred in this respect.
[135]
In addition, Total, the owner of Portions 18 and 19 of Koppieskraal,
recorded in a letter dated 24 July 2020 to Envirolution Consulting,
the environmental assessment practitioner, that no landowner’s
consent had ever been sought from it, notwithstanding that
it held
title to parts of Portions 18 and 19 that would undeniably be covered
by and affected by the development. That confirms
that Total was not
invited to participate in the PPP as an interested party and
stakeholder.
[136]
Transnet, as the holder of a servitude accommodating a liquefied
petroleum pipeline, was likewise an interested and affected party
in
the development of the K148. Construction of the road would cross the
pipeline and could damage it, resulting in the spillage
of millions
of litres of highly flammable and toxic fuel. Yet Transnet was not
informed of, or invited to participate in, the PPP.
That is borne out
by the fact that the Transnet pipeline does not feature in the
scoping report or the EIAR, and is not mentioned
in the EA. In our
view, Transnet was among the most important interested and affected
parties from whom input should have been
obtained regarding the risks
posed by the pipeline and the precautions required to avoid
environmental harm.
[137]
It is no answer that Transnet issued a wayleave on 16 August 2019,
some two and a half years after the EA was granted. The wayleave
was
in any event conditional and required Transnet to be indemnified
against liability if its pipeline were damaged.
[138]
Consequently, we hold that the PPP process preceding the EA was
wholly deficient and that there was non-compliance with the
empowering
legislation. Consequently, the EA is reviewable.
Construction
towards the K146, floodplain constraints and wetland sensitivity
[139]
We have already set out the final EIAR, according to which the
proposed preferred route (Alternative 1) would terminate in the
floodplain, a sensitive environment. GDARD consequently imposed a
condition in the original EA that no development may take place
in
the floodplain. The reasons for the decision make it clear that GDARD
consciously decided not to approve the entire stretch
of road up to
the K146, and to limit the K148 to a point short of the floodplain,
because authorising the full stretch was considered
likely to cause
irreparable environmental damage.
[140]
The rationality of that decision must be considered. Given the
unamended end coordinates of the preferred route, which terminated
in
the floodplain, it was to that extent rational to limit the route as
GDARD did. The question is whether that limitation went
far enough.
The application expressly sought authorisation for construction of
the K148 from the K133 to the K146, but the material
placed before
GDARD did not support the grant of that authorisation or did so in a
conflicting manner. From that perspective, the
rational response
would have been to refuse the application.
[141]
It must be borne in mind that regulation 24(1)(a) empowered GDARD to
grant an EA for all or part of the activity applied for. On
a proper
interpretation, GDARD granted authorisation for only part of the
activity, and was formally empowered to do so. Whether
that partial
grant was, however, a rational response is doubtful. GAUTRANS never
asked GDARD to limit the EA in that manner. Given
that the main
purpose of the K148 was to create a link between various roads, the
partial grant entirely frustrated the stated
purpose of the road.
[142]
The limited EA would of course have been reviewable at the instance
of GAUTRANS, provided the final EIAR supported a grant of the
full
relief and NEMA and the EIA Regulations had been complied with. But
GDARD brought no review proceedings. The reason why GAUTRANS
itself
did not apply for review is obvious. Such a review could only have
succeeded if the legal requirements for the grant of
the EA had been
met. Because the EA application and the supporting reports omitted
directly affected properties, a review at GAUTRANS’
instance
would have been abortive.
[143]
As will appear below, GAUTRANS then sought, more than three years
after the grant of the EA, to force a square peg into a round
hole by
attempting unlawfully to render the invalid EA valid through an
amendment application.
[144]
It is particularly disquieting that, while the EA was patently
invalid, GAUTRANS nevertheless expropriated properties for the road
reserve and published a tender for construction of the road. GAUTRANS
should consider whether those steps ought not themselves
to be
subjected to legality review at its instance.
[145]
Consequently, GDARD failed on multiple levels to apply its mind to
relevant considerations in relation to the initial EA. For that
reason, it should be reviewed.
The
amendment process and alleged mero motu or ultra vires changes
[146]
The question is whether GAUTRANS could invoke the amendment procedure
in Chapter 5 of the EIA Regulations, and in particular Part
1, to
cure the defective EA.
[147]
As already recorded, Part 1 deals with uncomplicated applications for
amendments. Regulation 29(a) provides that an environmental
authorisation may be amended by following the process prescribed in
Part 1 if the amendment will not change the scope of a valid
environmental authorisation, nor increase the level or nature of the
impact, which impact was initially assessed and considered
when
application was made for an environmental authorisation.
[148]
Regulation 29(a) makes it abundantly clear that an application can
only be made for an amendment in terms of Part 1 in respect
of a
valid
EA. This process is expressly not intended to remedy
defects in an invalid EA and to render it valid. It is not a
substitute for
a review. We have held above that for various reasons
the initial EA was invalid. Consequently, it was not competent for
GAUTRANS
to apply for an amendment in terms of this provision, nor
was it competent for GDARD to grant such amendment.
[149]
It should also be noted that, despite some submissions to the
contrary, the amendment could not have been effected under the more
onerous Part 2 process either, because regulation 31 likewise limits
amendment applications to valid EAs. Consequently, the attempt
by
GAUTRANS and GDARD to remedy the invalidity of the EA by way of a
Chapter 5 amendment was entirely misconceived and invalid.
[150]
The invalidity of the actions of GAUTRANS and GDARD is compounded by
the fact that GDARD decided to
mero motu
remove condition 3.3
and paragraph 4c of the reasons for the decision. In this regard it
is argued that the removal of the condition,
read with the reason,
constituted an enlargement of the scope of the EA, and could not be
validly effected unless on application
in terms of Part 2 of the
amendment regulations. As indicated above, the respondents relied on
Regulation 27(4) to justify the
course of action.
[151]
The appellants are clearly correct in submitting that the removal of
condition 3.3, supported by paragraph 4c of the reasons, constituted
an enlargement of the scope of the EA. Whereas the initial EA, on a
proper interpretation, authorised the limited construction
of the
K148, the amended EA authorised the entire section applied for.
[152]
The respondents’ reliance on regulation 27(4) is misplaced.
GDARD could correct an EA
mero motu
under that provision only
if it was correcting an error and the correction did not materially
change any person’s rights
and duties. Read in context, an
“error” in regulation 27(4) can only mean a patent,
clerical-type error. An obvious
example is the reference to the
municipality as the holder of the EA, which could have been corrected
under that provision.
[153]
By no stretch can GDARD’s original decision to exclude
development in the floodplain, and deliberately to limit the extent
of the road, be described as an “error”. It was a
substantive and reasoned decision. It curtailed GAUTRANS’
entitlement to construct the full stretch of road originally applied
for and correspondingly obliged it to refrain from development
in the
floodplain. The purported amendment therefore materially altered
rights and duties.
[154]
In this context the provisions of section 47A of NEMA must be
considered. It provides that a regulation or notice, or an
authorisation,
permit or other document, made or issued in terms of
this Act or a specific environmental management Act (a) but which
does not
comply with any procedural requirement of the relevant Act,
is nevertheless valid if the noncompliance is not material and does
not prejudice any person and may be amended or replaced without
following a procedural requirement of the relevant Act if-
(a)
the purpose is to correct an error; and
(b)
the correction does not change the rights and duties of any
person
materially.
[155]
The section also provides that the failure to take any steps in terms
of the Act or a specific environmental management Act as
a
prerequisite for any decision or action does not invalidate the
decision or action if the failure-
(a)
is not material;
(b)
does not prejudice any person; and
(c)
is not procedurally unfair.
[156]
We have held that the irregularities in the EA application process
and the EA were material. It cannot be said that nobody was
prejudiced thereby. Having regard to the amended EA as a whole, the
amendment is not solely to correct an error and indeed changed
the
rights and duties of GAUTRANS materially, as we have held.
Furthermore, the irregularities cannot be said to be immaterial,
or
does not prejudice anybody, or was not procedurally unfair. Our
findings above exclude the possibility that the impugned decisions
could be validated by the considerations mentioned in section 47A.
[157]
Consequently, this on the part of GDARD was contrary to the
empowering legislation and unlawful. It must be reviewed. The
decision
of the MEC on appeal, rejecting the appeal in respect of
this issue, must suffer the same fate.
Discussion
of the PAJA delay / internal remedy issues
[158]
The court
a quo
’s treatment of the procedural issues
then remains to be decided and requires some consideration of PAJA
and NEMA. Those enactments
are the focus of this part of the
judgment.
[159]
The preamble to PAJA records the constitutional setting and purpose
of the Act. It reflects that s 33(1) and (2) of the Constitution
guarantee the right to administrative action that is lawful,
reasonable and procedurally fair, and, where rights are adversely
affected, the right to written reasons, while s 33(3) requires
national legislation to give effect to those rights by providing
for
judicial review, imposing a duty on the state, and promoting
efficient administration. Item 23 of Schedule 6 required such
legislation to be enacted within three years of the Constitution
taking effect. PAJA was enacted for that purpose, namely, to promote
efficient administration, good governance, and a culture of
accountability, openness, and transparency in the exercise of public
power and public functions.
[160]
In
JDJ
Properties CC and Another v Umngeni Local Municipality and
Another
[20]
the Supreme Court of Appeal held that the interpretation of PAJA must
begin with s 33 of the Constitution and must advance its
purpose of
creating “a coherent and overarching system for the review of
all administrative action”. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[21]
the Constitutional Court held that because PAJA was enacted to give
effect to s 33, matters concerning its interpretation and application
are constitutional matters. Similarly, in
Joseph
and Others v City of Johannesburg and Others
[22]
,
endorsing the approach in
Walele
v City of Cape Town and Others
[23]
,
the Constitutional Court confirmed that PAJA must be interpreted
generously and purposively, and not with undue formalism.
[161]
A further
relevant consideration in the interpretation of PAJA is that in
Commissioner,
South African Revenue Service and Another v Richards Bay Coal
Terminal (Pty) Ltd
[24]
it was confirmed that our law still recognises a strong presumption
against th
e
ouster
of a court's jurisdiction. The curtailment of the powers of a court
of law is, in the absence of an express or clear implication
to the
contrary, not to be presumed.
[162]
Legislation
must also be interpreted against the background of the common law, to
the extent that the common law is consistent with
the Constitution.
In
Richards
Bay Coal Terminal
reference was made to the fact that there were instances under the
common law where, despite its powers of judicial review, a court
could suspend or defer a litigant's right to pursue review until an
internal statutory remedy had been exhausted. One such
requirement was the duty to exhaust internal remedies, which was, and
remains, a factor relevant to whether a court ought to exercise
its
review jurisdiction. The court’s inherent power was
sufficiently wide to exempt a party from pursuing internal or
domestic
remedies on various grounds. Mootness or delay could
likewise result in a court declining to exercise its review
jurisdiction.
[25]
[163]
In
interpreting PAJA, and other legislation, it is trite that a unitary
approach must be adopted, in terms of which the language
of the
statute, read in accordance with the ordinary rules of grammar and
syntax, the context in which the provision appears, the
apparent
purpose to which it is directed, and the material known to those
responsible for its production are considered together.
The
interpretation adopted must be sensible and must avoid absurd or
unbusinesslike results.
[26]
[164]
An
important consideration is context. Where the language used elsewhere
in the relevant legislation is material for purposes of
context, s
6(1) of PAJA provides that any person may institute proceedings in a
court or tribunal for the judicial review of administrative
action.
Section 6(2) provides that a court or tribunal has the power to
judicially review administrative action if the requirements
set out
in that subsection have been met. The Constitutional Court has held
that this is a jurisdiction-conferring provision framed
in wide and
unrestricted terms.
[27]
These
provisions confer jurisdiction in general to entertain applications
for judicial review. They contain no indication that
the court’s
jurisdiction is ousted. That consideration must necessarily inform
the enquiry whether any provision of s 7,
or any provision of another
law, limits or excludes that jurisdiction.
The
exhaustion of internal remedies – the first review application
[165]
Section 7(2)(a) of PAJA provides that no court or tribunal
shall review administrative action in terms of the Act unless any
internal
remedy provided for in any other law has first been
exhausted.
[166]
Given the material defects in the initial EA, which rendered it
nugatory and incapable of implementation, the question is what
effect
this has on the requirement that internal remedies must be exhausted.
Can s 7(2)(a) of PAJA be interpreted to require that
an internal
appeal must be exhausted where the decision to be appealed against is
not only invalid, but also patently incapable
of lawful
implementation while it exists only as a fact? In the present
circumstances the internal appeal remedy provided by NEMA
was from
the outset illusory. Given the purpose of s 7(2)(a), it would be
absurd to interpret it to mean that, in a given set of
circumstances,
an illusory internal appeal process must of necessity be exhausted
before a court may be approached. This would
be an entirely
unjustified ouster of the court’s jurisdiction.
[167]
The respondents’ contention that the appellants should be
non-suited for that reason is rejected, and the court
a quo
erred in this regard.
[168]
In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd
and Others,
[28]
the
Constitutional Court, dealing with the issue of whether a party
should first exhaust internal remedies, stated the following:
“
The
question that arises is what should be done in the peculiar
circumstances of this case. Ordinarily, if the court before which
the
review proceedings are brought is not satisfied that internal
remedies have been exhausted, it must refuse to entertain the
review
until those remedies are exhausted or an exemption has been granted
to the applicant. Here the High Court did not insist
that section 96
of the MPRDA and section 7 of PAJA be complied with, probably because
Dengetenge had withdrawn its opposition to
the application.
[29]
It
is apparent from the special circumstances of this case, set out
fully in the main judgment, that if Southern Sphere had applied
for
exemption, in all probability the High Court would have granted it.
In these circumstances to remit the matter to the High
Court for an
application for an exemption to be made would be tantamount to
placing form above substance. This is so because Dengetenge
has
conceded on the merits that the rights were granted to it unlawfully
and in contravention of an interdict. Therefore, on the
present
facts, a remittal to the High Court would serve no purpose other than
granting an exemption which is already justified
on record.
[30]
Accordingly,
I hold that a remittal solely for that purpose is neither justified
nor warranted. Ordering a remittal here would constitute
a waste of
time and resources. Scarce judicial resources must not be spent on
mere formalities which are not dispositive of a real
dispute in
particular litigation.”
[31]
[169]
Even if it were to be said that internal remedies existed, the
circumstances are exceptional, and it would plainly be in the
interests
of justice to exempt the appellants from exhausting them in
terms of s 7(2)(c).
[170]
To the extent that we may be wrong in the above interpretation of
PAJA, the court
a quo
’s judgment cannot be upheld on an
alternative basis. In this regard the same dictum from In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd
and Others
is also instructive.
[171]
It came to the attention of the appellants that their failure to take
the first decision on internal appeal was a potential problem,
and
then attempted to exhaust their internal remedies, by pursuing an
appeal, while the application was pending. What would the
position be
if the internal appeal was finalised by the time the matter was
heard? Should a court succumb to formalism and decline
to hear the
matter? The approach by the Constitutional Court in
Dengetenge
is
clearly that formalism should be avoided. After concluding that the
internal remedies ought to have been exhausted, the majority
of the
court in
Dengetenge
held that if there was an application for
exemption from internal remedies before the High Court (there was no
such application
in this case), it would probably have been granted.
[172]
We are of the view that it would be inappropriate to refuse to hear a
review application,
regardless of the circumstances
, merely
because the internal remedy had not been exhausted before the review
application was instituted. It is also apparent that
where the
internal remedy was exhausted only after the review application had
been launched, any exemption that may still be required
in terms of s
7(2)(c) falls to be considered against the facts as they existed when
the matter came before the court.
[173]
If section 7(2)(a) is to be interpreted that there was an internal
remedy that ought to have been exhausted, the question is whether
they failed to do so, given that they were required to initiate that
appeal within 20 days of the date on which the initial application
for the EA, or the registered interested and affected parties, were
informed of the decision in terms of regulation 4(1) of the
Nation
Appeal Regulations, 2014.
[174]
In the present matter the internal appeal process was governed by the
National Appeal Regulations, 2014
.
Regulation 4(1)
provided that an
appellant must submit the appeal to the appeal administrator, and a
copy thereof to the applicant, any registered
interested and affected
party, and any organ of state with an interest in the matter, within
20 days from the date that the notification
of the decision for an
application for an environmental authorisation or a waste management
licence was sent to the registered
interested and affected parties by
the applicant or the date that the notification of the decision was
sent to the applicant by
the competent authority, issuing authority
or licensing authority.
[175]
There is no evidence before the court that either GAUTRANS or GDARD
complied with
Regulation 4(1)
and that the internal appeal process
was triggered thereby. The onus was on the respondents to demonstrate
that the appellants
failed to exhaust the internal remedy, and they
failed to discharge that onus.
[176]
Furthermore, in terms of
s 47C
of NEMA, the Minister or MEC has the
power to extend or condone non-compliance with the period prescribed
for lodgement of the
appeal or any other internal remedy as provided
by the act. The question that arises is therefore whether the
internal remedy processes
would be regarded as having been exhausted
if the extension or condonation of non-compliance with the prescribed
period is denied
by the Minister or the MEC.
[177]
When the Minister or MEC determines whether to grant condonation in
terms of
s 47C
, considerations similar to those applicable to
condonation applications before a court should ordinarily arise,
including the degree
of non-compliance, the explanation for it, the
importance of the case, the prospects of success, the respondent’s
interest
in finality, and the need to avoid unnecessary delay.
[178]
Given the basic principle that a court’s jurisdiction is not
readily ousted, together with the common-law recognition that
the
exhaustion of internal remedies must not be applied rigidly, a court
should be slow to hold that a refusal of condonation necessarily
means that internal remedies have not been exhausted. To oust the
court’s jurisdiction there would have to be express language
to
that effect, or at least language which, by necessary implication and
viewed against the purpose of the enactment, has that
effect. In
casu, we find neither such language nor such implication. Nor do we
consider that treating a refusal of condonation
as exhaustion of the
internal remedy is contrary to the practical purpose of the
enactment.
[179]
The unavoidable conclusion is therefore that the internal remedies
provided by NEMA are brought to an end by the by the Minister’s
or MEC’s refusal of an extension of time or condonation of
non-compliance.
[180]
In the authorities quoted above, especially in
Dengetenge
, the
Constitutional Court stated the following when dealing with the time
when the 180-days prescribed by PAJA starts to run:
“
In Bengwenyama
this Court assumed that the failure to decide an internal appeal
meant that the internal process had been concluded.
And this finding
was made in the context of
section 7(1)(a)
of PAJA which requires
that the review application be instituted within 180 days after the
date on which the internal remedies
have been concluded. It was for
this limited purpose that the Court assumed the date of conclusion of
the internal appeal concerned.
Based on the calculation of the period
from that date, this Court held that there was no delay in
instituting the review application.
This is different from saying
that if the administrative functionaries wish that the matter be
decided by the court the aggrieved
party is relieved from the duty to
exhaust domestic remedies. Nor does it mean that they have the power
to waive statutory requirements.”
[32]
[181]
Consequently, on the alternative approach the court
a quo
also
erred in determining the issue of the time frames in terms of
s
7(1)(b)
of PAJA. On the alternative approach, the appellants had an
internal remedy in respect of the first decision. The first line of
defence by the first and eighth respondent was indeed that the
appellants had to be non-suited due to failure to exercise the
internal remedy. This defence evidently had merit initially. That
being the case, the issue of the time limits provided for in
section
7(1)
was initially entirely irrelevant – the review was in
principle prohibited.
[182]
However, by the time the application was heard, the appellants had
made an attempt to exhaust the internal remedy, which the MEC
effectively prevented from being ventilated by refusing to grant
condonation. Thereby the appellants’ attempt to exercise
the
internal remedy was terminated for purposes of calculating the time
period provided in
section 7(1)(a).
Thus, the calculation of the time
frames should start from the date on which the MEC refused to grant
condonation.
[183]
It appears from the reasons of the MEC refusing the extension of time
that no consideration was given to the importance of this
case, the
prospects of success, or the interest in finality and the prejudice
that would flow from not granting the extension of
time. The reasons
for refusal of the extension were that the application was made five
years after the initial decision, no good
cause has been shown by the
appellants, that they failed to submit the application for
consideration immediately they became aware
of the decision on 11
December 2019, the representations made by the appellants were
unreasonable and unfair since there was extensive
public
participation conducted in respect of the application of the EA.
Further, that, in view of the appellants having referred
the MEC’s
appeal decision, the granting of the extension of time would be
prejudicial the court’s process.
[184]
The issue of non-exhaustion of internal remedies, together with the
fact that the appellants had applied for an extension of time
and
that the extension had been refused, was therefore placed squarely
before the court by the MEC. The relevant facts were in
essence
common cause, and the parties argued those issues, which were largely
legal, before us.
Although the
appellants had not exhausted their internal remedies when the
application was launched, they had done so by the time
the matter was
heard. The relevant facts, together with the parties’ competing
contentions, were therefore sufficiently ventilated
to enable the
court to determine the issue fairly.
[185]
In these circumstances, we hold in the alternative that the
appellants exhausted the internal remedies available to them, and
that no exemption in terms of
s 7(2)(c)
of PAJA was necessary.
Because the appellants launched the review application before
their internal remedies had been exhausted, and given the peculiar
facts of the present matter, no question of delay under
s 7(1)(a)
arises. Nor could
s 7(1)(b)
ever become applicable.
Consequently, insofar as the court
a quo
dismissed the
application mainly on the basis of non-compliance with
s 7(1)(b)
,
that decision cannot stand.
Discussion
of the court a quo’s assessment of the delay in respect of the
first review application
[186]
Our findings above make it unnecessary to assess the court
a quo
’s
assessment of the delay in respect of the first review application.
However, for the sake of completeness, and because
the court’s
judgment was largely based on the assessment of the delay, we deem it
prudent to deal with this issue in any
event.
[187]
Recently
the Supreme Court of Appeal in
Jurnic
Properties CC and Another v Victor Khanye Local Municipality and
Others
[33]
,
dealing with the issues of unreasonable delay in launching the review
application under
section 6
of PAJA dealt extensively with the
provisions of
section 7
including
section 9
with regard to
condonation and stated the following:
“
Section 7(1)
of
PAJA provides that proceedings for judicial review in terms of
s 6(1)
must be instituted without unreasonable delay and, if no internal
remedy exists, not later than 180 days after the date ‘on
which
the person concerned was informed of the administrative action,
became aware of the action and the reasons for it or might
reasonably
have been expected to
become aware of the action and the reasons’.
Importantly, it is
not only the knowledge of the administrative act that triggers the
180-day period but also knowledge of the
underlying reasons.
[34]
This, however, is not the
end of the enquiry.
Section 7(1)
of PAJA provides that a review
application must be brought without unreasonable delay, contemplating
that the issue of unreasonable
delay may arise even if the
application is brought within the prescribed period.
Section 9(1)
of
PAJA allows for the condonation of the late institution of review
proceedings ‘by agreement between the parties or, failing
such
agreement, by a court on application by the person or administrator
concerned’.
Section 9(2)
provides that a court may grant
condonation in terms of
s 9(1)
‘where the interests of justice
so require’.
[35]
Condonation
for delay in terms of PAJA is dealt with on a similar basis to
condonation for delay in terms of the common law. The
first enquiry
is whether there has been a delay of more than 180 days, as opposed
to the more elastic concept of an unreasonable
delay in the
common-law rule. The second, discretionary, stage follows on a
finding that a delay of more than 180 days has occurred.
The question
is then whether that delay should be condoned. If the review
application was not brought within the 180-day period
and there is no
application for condonation, it is the end of the inquiry, and the
Court is constrained to dismiss the application.
[36]
If a court is required to
consider the issue of unreasonable delay in the context of a review
application launched within the 180-day
period, the approach is
similar to that under the common law. As the Constitutional Court
explained in Khumalo – which has
become known as the ‘Khumalo
test’ – the common law delay rule involves a two-stage
enquiry. First, a court must
determine whether a delay in the launch
of a review application was unreasonable. If not, the enquiry ends
there, and the court
proceeds to the remaining issues. If so, the
court proceeds to the second leg or stage of the enquiry. That is,
whether the unreasonable
delay ought to be condoned. If good grounds
are put up for condonation, the court proceeds to the remaining
issues. If inadequate
grounds are put forward, the court will decline
to hear the application and dismiss it on account of the undue delay
in its institution.”
[37]
[188]
We are of the firm view that the court
a quo
erred in its
assessment of the alleged delay. On the facts of this case, it cannot
be disputed that the appellants became aware
of the first EA only on
11 December 2019 and the GDARD also accepts this date in its letter
refusing the extension of time that
the appellants became aware of
the decision and reasons therefor on 11 December 2019. The court
a
quo
also accepted the 11 December 2019 as the date when the
appellants became aware of the decision and reasons therefor.
[189]
However, clouded by the various measures taken by the respondents in
bringing to the attention of the public the application in
relation
to the EA, the court
a quo
rejected the appellants’
contention that the period contemplated in
s 7(1)(b)
commenced only
then. The court
a quo
further referred to appellants’
involvement in a competing development and held that the appellants,
as businesspersons rather
than lay persons, ought to have become
aware of the EA application and to have registered as interested and
affected persons by
December 2016 when the decision was published.
But because their failure to do so was their own making, and had they
so registered,
they would have had full opportunity to participate in
the process.
[190]
It is undisputed that the appellants were involved in another dispute
with the respondents concerning the relocation of the proposed
PWV 13
road which dispute had escalated to the extent that a review
application was launched together with an application for an
interim
interdictory relief. However, it is clear from the correspondence
that the appellants were not aware of the K148 process
until August
2019 when, as they allege, gleaned it from the internet.
[191]
In our view the court
a quo
erred in making the finding that
the appellants should have had knowledge of the decision by December
2016. It must be emphasized
that the court
a quo
’s
finding was based on facts and it did not exercise its discretion. It
is our respectful view that the court erred in conflating
its
findings concerning the participation that could supposedly have been
expected of the appellants in the EA application process
with the
distinct question when the appellants could reasonably have become
aware of the EA decision and the reasons for it.
[192]
In
Opposition
to Urban Tolling Alliance v South African National Road Agency
Limited
[38]
the Supreme Court of Appeal stated the following:
“
In
its terms
s 7(1)
envisages asking when ‘the person concerned’
was informed, or became aware, or might reasonably be expected to
have
become aware, of the administrative action. This admits of an
answer where the act affects and is challenged by an individual but
does not readily admit of an answer where it affects the public at
large. In that situation it would be anomalous – if not
absurd
– if an administrative act were to be reviewable at the
instance of one member of the public, and not at the instance
of
another, depending upon the peculiar knowledge of each. It seems to
me that in those circumstances a court must take a broad
view of when
the public at large might reasonably be expected to have had
knowledge of the action, not dictated by the knowledge,
or lack of
it, of the particular member or members of the public who have chosen
to challenge the act.”
[39]
[193]
The court
a quo
also overlooked that, although the
appellants had a known interest in the PWV 13, which is linked to the
broader project of which
the K148 forms part, GAUTRANS failed to
identify them as potential interested parties, as it was required to
do under the EIA Regulations,
and failed specifically to invite them
to participate.
[194]
Given that the EA purported to have been issued to the Ekurhuleni
Metropolitan Municipality rather than GAUTRANS, the general public
would not necessarily have appreciated that an EA had been granted on
GAUTRANS’ application.
[195]
Since
locus standi
to pursue an internal appeal or a review is
not confined to persons with a direct interest in the decision but
may extend to a
wider class of persons who might never have been
aware of the underlying administrative processes, it is unrealistic
and wholly
unreasonable to impute constructive knowledge merely
because the administration complied with some of the formal steps
preceding
the decision.
[196]
Further, given the appellants’ success on the merits — a
consideration which the court
a quo
ignored — and given
the nature and effect of the invalidity of the impugned decision,
condonation ought to have been granted
if it was needed.
[197]
In the premises we hold that the court
a quo
erred in this
regard.
The
delay issue in respect of the second review
[198]
Under s 7(1)(a) of PAJA, the appellants were required to institute
the second review application within a reasonable time and,
in any
event, no later than 180 days after they obtained knowledge of the
decision on the internal appeal and the reasons for it
or could
reasonably have acquired that knowledge and those reasons.
[199]
In dealing with the second review, the court
a quo
found that,
notwithstanding that the appellants launched the review application
on the 179
th
day, they had nevertheless delayed
unreasonably in bringing the application and therefore declined to
exercise jurisdiction without
considering the merits. The court
a
quo
held that there was no reason for the delay since the
application had substantially the same facts and content as the first
application
and that all the relevant facts were available to the
appellants as soon the MEC’s decision on the internal appeal
had been
communicated to them.
[200]
The court
a quo
erred in its finding that the appellants sat
on their hands and did nothing until the last day because there were
facts before
the court that the appellants were busy with an urgent
application for an interim interdict to restrain the respondent from
continuing
with the development and construction of the K148 road
which application was set down for February 2020 and by agreement
between
the parties was postponed and was only heard in February
2022. It should be recalled that GAUTRANS had already issued a tender
in December 2019 for the construction of the K148 road.
[201]
In the
Outa
case quoted above, the Supreme Court of Appeal
dealing with the issue of prejudice to the respondents as a result of
the delay stated
the following:
“
As
to the purpose and function of the delay rule under s 7(1) of
PAJA and its common law predecessor, Nugent JA explained in
Gqwetha
v Transkei Development Corporation Ltd and others
(SCA) paras
22-23:
‘
[22]
It is important for the efficient functioning of public bodies . . .
that a challenge to the validity of their decisions by
proceedings
for judicial review should be initiated without undue delay. The
rationale for that longstanding rule . . . is twofold:
First, the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view more
importantly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
at 41E-F
(my translation):
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed
-
interest reipublicae ut sit finis litium
. . . .
Considerations of this kind undoubtedly constitute part of the
underlying reasons for the existence of this rule.”
[23]
Underlying
that
latter aspect of the rationale is the inherent potential for
prejudice, both
to
the efficient functioning of the public body and to those who rely
upon its decisions, if the validity of its decisions remains
uncertain. It is for that reason in particular that proof of actual
prejudice to the respondent is not a precondition for refusing
to
entertain review proceedings by reason of undue delay, although the
extent to which prejudice has been shown is a relevant consideration
that might even be decisive where the delay has been relatively
slight (
Wolgroeiers
Afslaers
,
above, at 42C)’
[40]
[202]
What prejudice resulted from that limited delay? It should be
recalled that, at that stage, the construction of the K148 road had
been interdicted and could not proceed. In our view the interim
interdict was, with respect, correctly granted, as the initial
EA was
fatally flawed, and the attempted amendments were similarly abortive.
No legal effect could be given to any of these decisions.
There was
therefore no legally cognisable prejudice and the delay ought not, in
the circumstances to have weighed heavily in the
court’s
decision. The court
a quo
erred in not considering the reasons
for the delay and appellants’ prospects of success without
deciding the review on the
merits. Since there was no unreasonable
delay in the second review application, the appellants ought not to
have been non-suited
on that basis.
[203]
In
South
Durban Community Environmental Alliance v MEC for Economic
Development, Tourism and Environmental Affairs, KwaZulu-Natal
Provincial Government and Another
[41]
the SCA held that although a delay of more than 180 days is per se
unreasonable, this does not mean that a delay within the 180-day
period set out in s 7(1) of PAJA is necessarily reasonable. However,
the court cited with approval the following dictum by
Plasket J
in
Joubert
Galpin Searle v RAF
[42]
:
“
Notionally,
therefore, it is possible that a delay in launching a review
application of less than 180 days after the cause of action
arises
can be an unreasonable delay, but I think it is fair to say that
cases of this sort will be rare and have exceptional circumstances.
I
say this because in practice, prior to the PAJA coming into force,
delays of anything between six and nine months were generally
regarded as not being unreasonable and, since PAJA came into force,
the 180-day limit has tended to be regarded as the dividing
line
between reasonable and unreasonable delay.’
[204]
In our view the court
a quo
adopted the wrong approach.
Instead of enquiring whether there were circumstances sufficiently
unusual to require the second review
to be instituted materially
earlier than 180 days, it attached undue weight to a relatively short
delay that caused no prejudice.
[205]
We find that the appellants did not delay the second review
application beyond the time limits of s 7(1)(a) and that no
condonation
was necessary. If condonation was necessary, it ought to
have been granted in any event.
Conclusion
regarding the appeal
[206]
For all these reasons the appeals must succeed.
[207]
This court has the power in terms of s 8(1) of PAJA to set aside the
administrative action and remit the matter for reconsideration
by the administrator, with or without directions, or in exceptional
cases substitute or vary the administrative action or correct
a
defect resulting from the administrative action.
[208]
It will be appropriate for the reviewed decisions to be set aside.
[209]
As regards the decisions of GDARD and the MEC on the amendment
application, remittal would serve no purpose. They had no
jurisdiction
in law to entertain the applications, nor did it have
power
mero motu
to grant the amendment that it did. The
applications should simply have been refused. In these exceptional
circumstances it is
appropriate for this court to substitute the
decisions with a refusal of the amendment applications.
[210]
As to the initial EA, we have found that the process leading to its
grant was fundamentally flawed. There was fundamental non-compliance
with the law in respect of the inclusion of affected properties.
Important environmental concerns were not addressed at all in
the
EIAR. The PPP was non-compliant. In those circumstances remittal to
GDARD would likewise serve no purpose. The only proper
outcome is a
refusal of the application. If GAUTRANS wishes to pursue construction
of the K148, it must bring a fresh and compliant
application for an
EA.
[211]
The appropriate order appears below.
Costs
[212]
There is no reason that the
Costs should
not
follow the result.
We
are persuaded by the parties that, due to
the complexity of
the
case, the
costs should be on Scale C
and should include the costs of two counsel where so employed.
Order
[213]
In the premises,
the following order is
made:
1.
The appeal is upheld.
2.
The decision and order of the court
a quo
are set aside and
replaced with the following:
I.
The decision of GDARD, acting through the office of the HOD, made on
13 December 2016
in terms of NEMA under reference number Gaut
002/15-16/E0259 (“the environmental authorisation” or
“EA”)
is reviewed and set aside.
II.
The decision of GDARD of 13 December 2016 is substituted with a
decision refusing the environmental
authorisation.
III.
The decisions of the first respondent on 3 September 2021 dismissing
the appellants’ appeals
and upholding GDARD’s decisions
to amend the EA for the proposed development and construction of the
K148 road, Phase 1,
between the K146 and K133, including the N3/K148
interchange, as reflected in the letter read with the Addendum to EA
dated 4 January
2021 in terms of NEMA under reference number GAUT
006/19-20/E0142, are reviewed and set aside.
IV.
The first respondent’s decision of 3 September 2021 dismissing
the appellants’ appeal
is substituted with a decision refusing
the amendment of the EA granted by GDARD on 4 January 2021.
V.
The decision of the Head of Department of GDARD to amend the EA (GAUT
002/08-09/N0916) in
the respects set out in the addendum thereto
(amended register number GAUT 006/19-20/ED0142), as reflected in the
letter and addendum
dated 4 January 2021, is reviewed and set aside
and replaced with a decision dismissing the applications.
VI.
GAUTRANS is ordered to pay the costs of the interim interdict
reserved under case number 4478/20
on Scale C, including the costs of
two counsel where employed.
VII.
The first, second and eighth respondents are ordered, jointly and
severally, the one paying the others
to be absolved, to pay the
appellants’ costs on Scale C, including the costs of two
counsel where employed.
MPOSTOLI
TWALA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
DAWID
MARAIS
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
I
CONCUR:
JABULANI
DLAMINI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
DATE
OF HEARING:
4 February 2026
DATE
JUDGMENT DELIVERED:
16 April
2026
APPEARANCES
:
Attorney
for the Appellants:
Tel
No:
Email
:
Counsel
for the Appellants:
WP
STEYN ATTORNEY
082 852
6798
[email protected]
Advocate
G Kairinos SC
Advocate
S Martin
Attorney
for the First and Eighth
Respondents:
Email:
Counsel
for the First and Eighth
Respondent:
THE
STATE ATTORNEY
Tel
No: 011 330 7635
[email protected]
Advocate
MM Oosthuizen SC
Attorneys
for GAUTRANS:
Tel:
Email:
Counsel
for Second Respondent:
MALATJI
& CO ATTORNEYS
011 072
2600
[email protected]
Advocate
GL Grobler SC
Advocate
I Hlalethoa
Delivered:
This judgment and order were prepared and authored by the Judges
whose name is reflected and is handed down electronically by
circulation
to the Parties/their legal representatives by email and
by uploading it to the electronic file of this matter on Case Lines.
The
date of the order is deemed to be the 16 April 2026.
[1]
Act 107 of 1998
[2]
2014
published under (GN R982 in GG 38282 of 4 December 2014)
[3]
Act No. 3 of 2000
[4]
Act No. 8 of 2001
[5]
No 331 of 20 August 2003
[6]
Act No. 73 of 1989
[7]
1998 (2) SA 1143 (CC)
[8]
[2003] ZACC 2
;
2003 (4) SA 266
(CC) para 6
[9]
Id para 8
[10]
JOL 53519 (SCA)
[11]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) par [26]
[12]
Paragraph [31]
[13]
Paragraph [32]
[14]
(071849) ZAGPPHC 727 (8 May 2025)
[15]
Id para 16
[16]
Id para 17
[17]
Id para 18
[18]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
2004 (4) SA 490 (CC)
[19]
Public participation guideline in terms of NEMA, Environmental
impact assessment regulations
[20]
JDJ
Properties CC and Another v Umngeni Local Municipality and Another
2013 (2) SA 395
(SCA)
,
referring to
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
2006
(2) SA 311 (CC)
(2006
(1) BCLR 1
;
[2005] ZACC 14)
para 118 (Chaskalson CJ) and para 446
(Ngcobo J);
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison
and Another
2011
(4) SA 42
(CC)
(2011
(2) BC
LR
121)
para [51]
[21]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others - 2004 (4) SA 490 (CC)
[22]
Joseph
and Others v City of Johannesburg and Others
2010 (4) SA 55
(CC) par [41]
[23]
Walele
v City of Cape Town and Others
2008
(6) SA 129 (CC)
[24]
Commissioner,
South African Revenue Service and Another v Richards Bay Coal
Terminal (Pty) Ltd
2025 (5) SA 617
(CC) at par [69]
[25]
Par [87]
[26]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) par [18] and various decisions thereafter in
which the judgment was followed.
[27]
See
Commissioner,
South African Revenue Service and Another v Richards Bay Coal
Terminal (Pty) Ltd
2025 (5) SA 617
(CC) par [68]
[28]
2014
(5) SA 138 (CC)
[29]
Id
para 134
[30]
Id
para 135
[31]
Id
para 136
[32]
Id
para 133
[33]
(652/2024)
[2025] ZASCA 196
(18 December 2025)
[34]
Id para 34
[35]
Id para 36
[36]
Id para 37
[37]
Id para 38
[38]
[2013] ZASCA 148
(9 October 2013)
[39]
Id para 27
[40]
Id para 25
[41]
South Durban Community Environmental Alliance v MEC for Economic
Development, Tourism and Environmental Affairs, KwaZulu-Natal
Provincial Government and Another
2020 (4) SA 453
(SCA) par [64]
[42]
Joubert
Galpin Searle Inc and Others v Road Accident Fund and Others
2014 (4) SA 148
(ECP) par [40]