Stellenbosch Interest Group v Provincial Minister of Local Government, Environmental Affairs and Development Planning and Others (23747/2024) [2026] ZAWCHC 342 (30 June 2026)

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


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

Reportable/Not Reportable

Case no: 23747/2024
In the matter between:

STELLENBOSCH INTEREST GROUP Applicant

and

PROVINCIAL MINISTER OF LOCAL
GOVERNMENT, ENVIRONMENTAL AFFAIRS
AND DEVELOPMENT PLANNING First Respondent

DIRECTOR: DEVELOPMENT
MANAGEMENT (REGION 1) IN THE
DEPARTMENT OF LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT PLANNING Second Respondent

STELLENBOSCH MUNICIPALITY Third Respondent

BOTMASKOP FYNBOS ESTATE (PTY) LTD Fourth Respondent
(Registration Number:2022/517871/07)

HERITAGE WESTERN CAPE Fifth Respondent

RESET PROPERTIES (PTY) LTD Sixth Respondent

BOTMASKOP HOME OWNERS ASSOCIATION Seventh Respondent

GENERAL FOOD HOLDINGS (PTY) LTD Eighth Respondent
(Registration Number: 1974/000077/07)

SIMON CHRISTOFFEL BOSCH Ninth Respondent
(Identity Number: 6[...])

KINTRO CONSTRUCTION CC Tenth Respondent
(Registration Number: 2007/071321/23)

GRAND MONTET (PTY) LTD Eleventh Respondent
(Registration Number: 2024/203877/07)

VILLABERNER (PTY) LTD Twelfth Respondent
(Registration Number: 2024/203945/07)

THOKOZILE TRUST Thirteenth Respondent
(Trust Number: IT613/2011/PMB)

GREENWORLD TRUST Fourteenth Respondent
(Trust Number: IT10980/1997)

NGALI TRUST Fifteenth Respondent
(Trust Number: IT3318/1998)

THEODORE LE ROUX DE KLERK Sixteenth Respondent
(Identity Number: 6[...])

KOOT SWART TRUST Seventeenth
Respondent
(Trust Number: IT1289/93 (T))

DMM TRUST Eighteenth Respondent
(Trust Number: IT520/2024 (C))

MARKUS OLIVER HUBER Nineteenth Respondent
(Date of Birth: 03 October 1979)

BKE XI (PTY) LTD Twentieth Respondent
(Registration Number: 2014/252840/07)

CORNELISDAL PROPERTIES PTY LTD Twenty-first Respondent

E. D. DULK Twenty-second
Respondent

OCEANIC INVESTMENTS (PTY )LTD Twenty-third Respondent

SCARLET INVESTMENTS (PTY) LTD Twenty-fourth Respondent

MOONRISE INVESTMENTS (PTY) LTD Twenty-fifth
Respondent

WHITELILLY INVESTMENTS (PTY) LTD Twenty-sixth
Respondent

CULTURED INVESTMENTS (PTY) LTD Twenty-seventh
Respondent

NGALA INVESTMENTS (PTY) LTD Twenty-eighth
Respondent

SUNPOWER INVESTMENTS (PTY) LTD Twenty-ninth
Respondent

SMARTWAY INVESTMENTS (PTY) LTD Thirtieth Respondent

RED SUN INVESTMENTS (PTY) LTD Thirty-first Respondent

PUNCH POWER INVESTMENTS (PTY) LTD Thirty-second Respondent

Neutral citation: Stellenbosch;Provincial Minister of Local Government,
Environmental Affairs and Development; Director:
Development Management (Region 1) in the Department of
Local Government, Environmental Affairs and Development
Planning & others

Coram: MANGCU-LOCKWOOD J
Heard: 10 March 2026
Delivered: 30 June 2026

__________________________________________________________________
ORDER
__________________________________________________________________

a. The relief sought at paragraphs 5 to 13 in Part B of the notice of motion is
dismissed.

b. The applicant is ordered to pay the costs of the fourth respondent in Parts A and
B of these proceedings, including costs of two counsel, on scale C and B
respectively.

c. The application to amend the notice of motion to include the review of the
rezoning approval dated 28 November 2022 and related relief (the amendment
application) is dismissed.

d. The applicant is ordered to pay the costs of fourth respondent (Botmaskop),
sixth respondent (Reset) and seventh to thirty -second respondents (the
Purchasers) in the amendment application, on an attorney-client scale.

_________________________________________________________________

JUDGMENT
_________________________________________________________________

MANGCU-LOCKWOOD, J

A. INTRODUCTION
[1] This is Part B of proceedings which were instituted in two parts on 1
November 2024. Part A culminated in a court order dated 16 April 2025, in terms
of which the fourth respondent (Botsmaskop) was interdicted from proceeding
with any construction or building work related to development work on the
property that is the subject of these proceedings, pending the determination of
these proceedings.

[2] The applicant is a voluntary association of concerned citizens of
Stellenbosch which was established in 1996. It brings this application firstly, in
its own interest, secondly, on behalf of Stellenbosch residents in terms of s 38(c)
of the Constitution of the Republic 108 of 1996 (the Constitution) and s 32(1) of

the National Environmental Management Act 107 of 1998 (NEMA), and thirdly,
in the public interest in terms of s 38(d) of the Constitution and s 32(1) of
NEMA.

[3] The matter concerns a proposed building development on the Botmaskop
mountainside, a place of great natural beauty located in Stellenbosch, which
forms part of the broader UNESCO World Heritage site. In 2003 the Department
of Environmental Affairs and Development Planning (the Department) granted
authorization for the construction of a mountain resort on the property (the 2003
EA). In 2021 the Department granted approval for amendment of the 2003 EA to
allow for development of a gated 77-unit residential estate on the property.

[4] The applicant seeks a range of declaratory orders in relation to both
decisions, as well as review relief in the alternative. The application is now
opposed by all the parties except for the fifth respondent (Heritage WC). The first
respondent is the Minister of the Department (the MEC), the second respondent is
the Director of Development Management in the Department (second
respondent)1, and the third respondent is Stellenbosch Municipality (the
Municipality). The fourth respondent , Botmaskop, is the owner of the property,
while the sixth respondent (Reset) is a previous developer of the property. The
purchasers of plots at the property were joined to the proceedings as seventh to
thirty second respondents (the Purchasers).2


1 The first and second respondents are sometimes collectively referred to as ‘the Department’ in this judgment.

2 The joinder of the purchasers was in terms of a court order dated 4 December 2024.

[5] The relief sought in Part B is multifarious, and was augmented as the case
progressed, resulting in those respondents who had not initially directly opposed
the matter entering the fray , as discussed later . The volume of the record makes
the point. While the pleadings amounted to some 2306 pages, the rule 53 record
amounted to 6942 pages, with the Department and the Municipality each having
delivered two rounds of supplementary records.

[6] The applicant seeks the following orders:
a. Declaring that the 2003 EA had lapsed or was no longer valid by
February 2021 (prayer 5);
b. In the alternative to the above , declaring that the 2021 EA lapsed by 19
February 2023 in that the amended activity was not commenced within
two years of the date of authorization (prayer 6);
c. Declaring that the development work, including construction and
building work, being undertaken by Bosmanskop on erf 3[...],
Stellenbosch, and portion of the Remainder of Farm 3[...]2,
Stellenbosch, is unlawful in that no environmental authorisation has
been granted for such work (prayer 7);
d. Declaring that Botmaskop and its predecessor at the time, Reset, acted
unlawfully in failing to inform interested and affected parties of the 2021
EA (prayer 8);
e. Reviewing and setting aside the decision of second respondent of 18
February 2021 to approve the 2021 EA amendment (prayer 9);
f. Reviewing and setting aside the decision of the MEC of 7 June 2024 not
to condone the late filing of the applicant's internal appeal, and to
dismiss the appeal, dated 4 June 2024 (prayer 10);

g. Reviewing and setting aside the decision of the MEC of 11 July 2024
not to condone the late filing of the applicant's internal appeal, and to
dismiss the appeal, dated 4 July 2024 (prayer 11);
h. Directing that the application for the amendment of the 2003 EA be
remitted to the Department to be processed as a Part II amendment with
full public participation in terms of the EIA Regulations (prayer 12);
i. Reviewing and setting aside the Municipality’s approval of Botmaskop’s
land swop application on 30 July 2024 (prayer 13);
j. Insofar as might be necessary, granting orders in terms of section 9( 1)(b)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
extending the 180 -day period for the institution of review proceedings
referred to in s 7(1) of PAJA, in respect of the reviews in paragraphs 9
and 13 above (prayer 14);
k. Directing that those respondents who oppose the relief in Part B of this
notice of motion be ordered to pay the costs of the Part B application,
jointly and severally, the one paying the other to be absolved (prayer
15).

[7] The applicant subsequently brought an application for leave to amend its
notice of motion to include relief reviewing and setting aside the Municipality’s
rezoning approval of 28 November 2022 and related land use approvals,
alternatively, declaring them to have lapsed and in either event , to be of no force
or effect . It also seeks costs against any respondents which the Court in its
discretion believes is liable, regardless of their opposition to the main relief. That
application is opposed by all the respondents, save for Heritage.

B. UNREASONABLE DELAY

[8] As is apparent from the time periods already mentioned , the ‘elephant in the
room’ is that the decisions sought to be challenged date back some 23 years in the
case of the 2003 EA, and five years for the 2021 EA. And as appears from the
relief summarized above, the applicant only seeks condonation in relation to the
review relief ‘ to the extent necessary ’. Nothing is said regarding the delay in
bringing the declarators, to the umbrage of the respondents.

[9] In the case of the 2003 EA, the period of delay was punctuated by
correspondence exchanged between the applicant and the Department resuming
on 8 July 2011, when the applicant’s attorneys drew urgent attention to what they
alleged was ‘an illegal development about to commence on the property ’. The
applicant was an interested and affected party (IAP) which had submitted
comments in the 2002 process that led to the authorization of the 2003 EA.

[10] One of the bases alleged for the illegality was the laps ed 2003 EA and its
concomitant rezoning approval, both of which are some of the issues that are now
before the Court. The MEC’s first response was on 10 October 2011, and he
conveyed his stance that the 2003 EA was valid. The exchange that followed
between the applicant and the MEC continued until 15 January 2014 , with the
applicant repeat ing its contention that the 2003 EA had lapsed, and the MEC
repeating his stance that it had not lapsed and was still valid . The respondents
accordingly state that the applicant had at the latest, since 10 October 2011 to
bring the application for declaratory relief in respect of the 2003 EA. No reason
has been furnished for the delay in instituting the declaratory proceedings relating
to the 2003 EA.

[11] The Department has set out the extent to which it is prejudiced by the late
institution of these proceedings, and states that the declaratory relief raises factual
issues requiring investigation, and due to the lapse of time, some important
documentary evidence cannot be located , despite diligent search. In reply, the
applicant seeks to distinguish the two declaratory orders sought (in respect of the
2003 EA and the 2021 EA) from the review applications, stating that the
declarators do not require analysis of decision -making or production of a review
record, but simply require reference to the terms of the authorizations themselves
which indicate in express terms that they have lapsed.

[12] But this is not correct , because it is clear from the thrust of the challenge
raised in respect of both declarators that the matters involv e factual
determinations of whether or not the prescribed activit ies had commenced within
the prescribed time-period. That is necessarily a factual determination. In fact, the
applicant itself relies on contemporaneous documents and correspondence and, in
the case of the 2021 EA, on the affidavit of a neighbouring witness (Mr Franszen)
to establish the timeline for its attack based on time lapse.

[13] Another belated explanation given in the replying affidavit hints that it
would not have been appropriate to have sought a declaratory order and respect of
the 2003 EA in around 2011 because that did not appear to be a live dispute or of
practical effect. But the existence of a dispute between the parties is not always a
prerequisite for the granting of a declaratory order ,3 provided that the applicant

3 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [ 2005] ZASCA 50 ; [2006] 1 All SA
103 (SCA); 2005 (6) SA 205 (SCA) para 16.

has an ‘existing, future or contingent right or obligation’, and the case is a proper
one for the exercise of the court’s discretion.4

[14] It is trite that a declaratory order is a discretionary remedy. 5 As part of that
discretion, a court is entitled to take into account unreasonable delay. In Pasiya6
the Supreme Court of Appeal (SCA) upheld the decision of the court a quo not to
exercise its discretion in favour of granting the declaratory order sought in
circumstances where the applicants had unduly delayed in approaching the court
for the relief they sought. The applicants only sought the court’s intervention
some eleven years after the event. The court found that , whilst the appellants did
nothing to vindicate their rights, the respondents proceeded to organise their lives,
and planned and conducted the relevant business in accordance with the
transactions sought to be declared invalid.7

[15] The reasoning in Pasiya applies equally to the present matter. The 2003 EA
was issued on 3 November 2003 . T o the applicant’s apparent knowledge, the
window for commencement closed on 1 or 3 November 2005. It has since at least
July 201 1 asserted that the 2003 EA had lapsed. Yet, two decades after the
issuing of the issuing of the 2003, and 13 years after asserting its lapse it
approaches the court for a declarator. Without any explanation for the delay, and
without seeking any form of condonation for the delay.

4 West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and
Others [2010] ZASCA 114; [2011] 1 All SA 487 (SCA) para 45.

5 Section 21(1)(c) of the Superior Courts Act 10 of 2013.

6 2024 (4) SA 118 (SCA).

7 Ibid para [43] – [50].

[16] The delay rule , developed in common law, is applicable to declaratory
orders8 as it is review applications , and is underpinned by the following
considerations discussed in Gqwetha9:

‘[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 - reiterated most recently by
Brand JA in Associated Institutions Pension Fund and Others v Van Zyl and Others 2005
(2) SA 302 (SCA) at 321 - 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 1978 (1) SA 13 (A) at 41E - F (my
emphasis):

“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

8 Louw v The Mining Commissioner, Johannesburg (1896) 3 OR 190 at 200; Beweging vir Christelik-Volkseie

Onderwys v Minister of Education (308/2011) [2012] ZASCA 45 (29 March 2012) paras 1, 41, 45.

9 Gqwetha v Transkei Development Corporation Ltd & others 2006 (2) SA 603 (SCA) paras 22-23.See
also Associated Institutions Pension Fund & others v Van Zyl & others 2005 (2) SA 302 (SCA) para 46.

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).’

[17] All the respondents opposing Part B cite the need for legal certainty as a
strong militating factor against considering this long -delayed declaratory relief.
Since 2006, the property has changed hands several times, with Reset acquiring it
on auction in 2019 , and Botmaskop acquiring it from Reset on 23 March 2023.
The developers state that they have functioned on the accepted premise that the
2003 EA was valid and extant, and have consequently structured their affairs,
incurred costs and expended capital in reliance on the validity thereof.

[18] Adopting the graphic language in Louw, the Department states that by
bringing such a delayed application for declaratory relief, the applicant effectively
wishes to ‘drag a cow long dead out of a ditch’. It is difficult not to agree with
this assertion , given the failure by the applicant to advance any reason for its
lateness. Whilst I agree with the applicant that the delay associated with the 2021
EA stands on a different footing , for reasons discussed later in the review of the
2021 EA, there is no basis on which this Court should exercise its discretion in
favour of determining the declaratory relief sought in respect of the 2003 EA .
Such an egregious and unexplained delay would be materially prejudicial to the
parties and would severely undermine the principle of legal certainty.

[19] For all these reasons, the Court declines to exercise its discretion to grant the
declaratory relief sought. There is, in any event no merit to the declaratory relief
sought in respect of the 2003 EA, as discussed below.

C. THE FIRST DECLARATOR
[20] There are four bases for the declaratory order sought that the 2003 EA had
lapsed or was no longer valid in February 2021 , as follows: the envisaged activity
did not commence within two years of the date of the approval of the 2003 EA;
the legislative and factual context in which the 2003 EA was granted was no
longer applicable; there was a failure to comply with the requirement in the EA
that the development should be commenced with and advanced to completion,
alternatively, substantial steps taken to advance it to completion, within a
reasonable time; and there was a failure to comply with one or more of the
conditions or provisions stipulated in the EA.

[21] The claim that the approved activity did not commence within 2 (two) years
arises from a requirement contained in paragraph J of the 2003 EA, where the
following was stated:

‘ ... this authorisation shall lapse if the activity does not commence within (2) years of
the date of issue of this authorisation’. (my emphasis)

[22] The first issue for determination then is when the ‘date of issue of this
authorisation’ was. The 2003 EA was granted in a letter signed on 1 November
2003 by a Chief Director of the Department, and it refers to itself as the ‘record of
decision’. It states in terms that 1 November 2003 is the ‘date of decision’, while
the other date appearing on the document, 3 November 2003, is labelled as the
‘date of issue’. There is no other way in which to construe these references.

[23] A reading of the 2003 EA indicates that the descriptions contained in the
document have consequences. For example, in terms of paragraph G9, the

applicant was required to do a number of things within 5 days of the date of issue
of the record of decision.

[24] Significantly, the date of issue appears in paragraph J, which is headed
‘DURATION AND DATE OF EXPIRY’ . It is unthinkable that the specific
reference to the date of issue in that context could have been a reference to the
date of signing the decision. That would defeat the very purpose of the paragraph,
which was to provide clarity regarding the extant duration of the authorization.
Had the intention been to refer to the date of decision, a phrase which is also
clearly labeled, the document would have said so. There is no indication that the
reference to ‘date of issue’ in paragraph J was an error. It must therefore be
concluded that the date of issue of the record of decision was 3 November 2003,
as clearly identified in the document. All of this is in line with the well -trodden
principles of interpretation outlined in Endumeni10.

[25] The next issue for determination is the applicant’s argument that the
authorized activity had not commenced , and it requires consideration of what the
‘activity’ referred to in paragraph J entailed. In this regard, the record of d ecision
states as follows:

‘DESCRIPTION OF ACTIVITY:
The project entails the establishment of an 'upmarket lodge with 10 rooms, 15 chalets and
a conference facility as well as a small gymnasium and swimming pool on Portion Q of
the Farm Amal No 4[...], Botmaskop, Helshoogte Pass. Stellenbosch.

This is an activity identified in Schedule 1 of Government Notice No. R1182 of 5

10 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 para 18.

September 1997. as amended, being:

Item 2 (c) the change in land use from agricultural or zoned undetermined use or an
equivalent zoning, to any other land use.

hereinafter referred to as “the activity”’

[26] In addition, pa ragraph G .1, which set out the conditions of approval ,
provides:

‘the activity, including site preparation. may not commence before the statutory thirty
(30) day appeal period expires.’

[27] Although there has been some significant delay in the litigation of this
matter, what had commenced by 3 November 2005 - two years after the date of
issue of the 2003 EA – may be gleaned from the contemporaneous
correspondence. On 20 October 2005, Ecosense Consulting Environmentalists
(Ecosense) on behalf of Fun Deals 16 CQ, the then developer of the property ,
submitted a construction -phase Environmental Management Plan (CEMP) to the
Department, noting that ‘ ... there is a dire threat that the two year expiry date
threatens the validity of the ROD being that the activity must commence by
November 2005. To this end the drafting and consideration of this CEMP is
urgent and that land clearing of eucalyptus stands will constitute the start of
activity (via Ms M Oosthuizen DEA&DP)’

[28] On 3 November 2005 Ecosense sent further correspondence stating as
follows:
‘As the appointed ECO for the site I wish to notify your Department that works have
been started on the project within the required ROD 2 Year period as of this Date . As
agreed work is being undertaken within the approved CEMP requirement & and tree

felling and clearing is being undertaken within the requirements of the framework for
rehabilitation. I will by separate e -mail attach photographs of examples of works to date
and include a single frame here for your immediate benefit.’ (own emphasis)

[29] It is clear from the contents of the above correspondence that its purpose was
to meet the two -year deadline set by the 2003 EA. There was some argument
made that the phrase ‘as of this date’ highlighted in the letter of 3 November 2005
above means ‘from this date onwards’. However, the phrase ‘works to date’,
which is also highlighted above, indicates that the works had commenced by the
date of the letter. Hence the mention of attached photographs to the letter. By the
time the letter was sent, the works had already started, and the intention conveyed
by attaching photographs, was to prove that fact . It could not have meant the
works started after the date of the letter of 3 November 2005. Unfortunately, due
to the lapse of time, t he separate email and photographs that were to follow the
correspondence of 3 November 2005 as proof that ‘works have been started’
cannot be located by the Department. This is one of the instances in which the
Department states it is prejudiced by the delay in the launching of these
proceedings. The applicant can hardly be heard to complain about the misplaced
documents or suggest that that should count against the Department.

[30] But in any event, there is no direct evidence to refute what is stated in the
letter, namely that the works had started. The applicant itself readily admits that it
has no knowledge of when the work started and is accordingly unable to refute
the contents of the letter and version of the Department. As a result, to the extent
that it persists with its claim that the work s had not started, the matter must be
decided in favour the Department in line with Plascon Evans principle, also

applicable in constitutional matters 11. It provides that where in motion
proceedings disputes of fact arise on the affidavits, a final order can be granted
only if the facts averred in the applicant’s affidavits, which have been admitted by
the respondents, together with the facts alleged by the latter, justify such order.12

[31] As regards what works has commenced, the Department points to
documents, post -November 2005 as corroboration of what was stated in the
correspondence that the project activity had commenced in the form of clearing
alien vegetation. One is a draft report by Ms A Blignaut and Dr A Summerfield
entitled ‘Botmaskop Resort Rehabilitation Plan ’ dated July 2006 , which stated at
paragraph 11.2.1 that ‘in the steep north facing slope area of the site ... the alien
trees in this area had been partly felled. The remains of the trees still need to be
removed and some sections still need felling .’ Another is an environmental
compliance report dated 9 February 2011 from Ecosense Consulting
Environmentalists (Ecosense) which recorded, regarding condition 4 of the 2003
EA and section IV of the 2003 EA scoping report, that tree felling and clearing of
alien vegetation on the site had progressed significantly and was ongoing.

[32] The need for the clearing of alien vegetation was identified as far back as the
application form for the 2003 EA, where the then Environmental Assessment
Practitioner (EAP ) noted the need to clear ‘heavy infestation of allelopathic
Eucalyptus trees,’ amongst other things, in order to establish the project. It is not

11 See Rail Commuters Action Group v Transnet t/a Metrorail 2005 (2) SA 359 (CC) at [53].

12 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634; National Director of
Public Prosecutions v Zuma (Mbeki and Another intervening) 2009 (2) SA 277 (SCA) at [26].

disputed that Eucalyptus is listed as an alien invasive species in the National
Environmental Management: Biodiversity Act 10 of 2004.

[33] The 2003 EA itself identified the presence of Eucalyptus trees at the site as a
disturbance which, if left undisturbed, would lead to ‘further soil degradation and
soil loss ’. Furthermore, for purposes of calculation of the appeal period,
paragraph G.1 contemplated that site preparation may form part of the activity
where it prohibited the property owner from commencing with ‘the activity,
including site preparation’ before expiry of the appeal period. There is therefore
no doubt that the clearing of alien vegetation in the form of invasive Eucalyptus
trees was an integral part of the overall project authorised in terms of the 2003
EA, and that, in order to undertake the authorized ‘activity’ that needed to be
attended to first.

[34] This much was confirmed in Ecosense’s letter of 20 October 2005 already
referred to above, where it was stated that the ‘ land clearing of eucalyptus stands
will constitute the start of activity’. It is significant that t his was stated with
specific reference to the duration and expiry dates mentioned in the 2003 EA,
where the writer raised an alarm regarding the ‘ dire threat that the two year
expiry date threatens the validity of the ROD … that the activity must commence
by November 2005’, and requested urgent consideration of the CEMP.

[35] This understanding of the Department and Ecosense accords with the law.
The term ‘commence’ or ‘commenced’ was not defined in the Environment
Conservation Act 73 of 1989 (ECA) in terms of which the 2003 EA was
authorized, nor in its Regulations. Most of the provisions of the ECA have been
repealed and replaced by the provisions of the NEMA, amongst other statutes.

Contrary to what is contended in the applicant’s founding papers, that does not
mean the authorization granted in the 2003 EA became invalid. NEMA provides a
transitional mechanism by deeming an environmental authorization issued in
terms of the ECA as one issued in terms of the NEMA.13

[36] In addition, Chapter 5 of NEMA includes within its ambit environmental
authorizations, and the word ‘commence’ is now14 defined in s 1 as follows:

‘“commence”, when used in Chapter 5, means the start of any physical implementation
in furtherance of a listed activity or specified activity, including site preparation and any
other action on the site or the physical implementation of a plan, policy, programme or
process, but does not include any action required for the purposes of an investigation or
feasibility study as long as such investigation or feasibility study does not constitute a
listed activity or specified activity’.

[37] The clearing of the alien vegetation in the form of Eucalyptus trees meets
the above definition. In Elderberry15 the court adopted a broad definition of
‘commenced’, as is contemplated in the NEMA definition above, holding that

13 In terms of s 1 of NEMA a ‘specific environmental management Act’ includes the environment conservation act,
and an authorization issued in terms thereof is included under the auspices of NEMA. Furthermore, Regulation 50
of the Environmental Impact Assessment Regulations 2014 (Government Notice R982 in Government Gazette
38282 dated 4 December 2014) provides as follows:
‘(1) Any actions undertaken in terms of the ECA regulations and which can be undertaken in terms of a
provision of these Regulations must be regarded as having been undertaken in terms of the provision of
these Regulations.

(2) Any authorisation issued or exemption from obtaining an environmental authorisation granted in terms of
the ECA regulations, must be regarded to be an environmental authorisation issued in terms of these
Regulations.’

Regulations.’

14 The National Environmental Management Amendment Act No. 8 of 2004 amended NEMA’s definition of
‘commence’ when used in Chapter 5.

15 Elderberry Investments (Pty) Ltd and Another v Department of Economic Development and Environmental
Affairs and Others (2919/21) [2021] ZAECPEHC 64 (2 December 2021).

‘any activity associated with any of the components of the listed activity, no
matter how mundane it may seem, should be considered to part of that
construction’.16 In that case the applicant had been granted authorization for
construction of a filling station and associated infrastructure, but had only placed
pegs on the property, strung a rope along the pegs, cleared vegetation and evened
out the ground.17

[38] Similarly, i n Earthlife18, the court accepted the interpretation that the
commencement of an activity comprised ‘any physical activity, including site
preparation and any other activity on site in furtherance of a listed activity or
specified activity as commencing with a project as intended in the authorisation’ .
On the basis of th is statutory and case law , it matters not that the structures
described in the definition of ‘activity’ have not been constructed, as the applicant
seeks to emphasise.

[39] I accordingly conclude that the clearing of the alien vegetation constituted
site preparation, which f alls within the definition of ‘commence’ in NEMA, and
was in any event contemplated by the parties in the application for the EA and in
the 2003 EA itself. The ‘activity’ had accordingly commenced by 3 November
2005. Further, there was no requirement to have completed the ‘activity’ by that
date. It suffices that it had commenced. There was also no requirement for
substantial steps to have been taken to advance the development to completion

16 Elderberry, para [41].

17 See Elderberry, para [26].

18 Earthlife Africa Johannesburg and Another v Minister of Environmental Affairs and Others (51505/2014) [2017]
ZAGPPHC 382 (7 March 2017) para 24.

within a reasonable time, as contended by the applicant. No basis has been
advanced for this argument, which in any event has not been pursued.

[40] There remains for consideration one more basis for the first declaratory
relief, namely a failure to comply with some conditions stipulated in the 2003 EA,
which are itemized as follows in the founding affidavit : (a) The mitigation
measures detailed in the October 2002 environmental report by Ms A de Kock;
(b) The mitigation/rehabilitation measures in the EA and an acceptable
construction phase EMP; (c) The acceptable operational phase EMP (including
provision for the complete removal of all alien invasive plants and fynbos
restoration programmes); (d) The appointment of an Environmental Conservation
Officer with defined roles and responsibilities; and (e) The Directorate had to be
notified within 30 days of any change of ownership and/or of the project
developer. The applicant also states that the following key factors which formed
the basis for the decision have also never been implemented, leading to the
decision lapsing: (a) A social contract between the owner and the community
being signed; (b) The economic empowerment being accepted by the local
authority and other role players; and (c) Job creation being pursued in
consultation with the community of ldas Valley.

[41] Significantly, apart from outlining the list set out above, there is no detail
provided by the applicant in the founding papers as regards the non -compliances
alleged, particularly regarding the 2003 EA . This is impermissible. As was stated
in Honig 19:

19 Exploitatie- en Beleggingsmaatschappij Argonauten 11 BE and Another v Honig 2012 (1) SA 247 (SCA) 253B.

‘...in motion proceedings the affidavits serve as both the pleadings and evidence relevant
to the issues between the parties, and a party can only be expected to deal with averments
raised by the other side and not with allegations possibly anticipated but which are not
made. Had the appellants raised the alleged delays and their contention that the court
should decline to deal with the matter as a result, the respondent may well have offered a
perfectly acceptable explanation. Without the respondent having been called upon to do
so, it would not be proper to decide the application against him by having regard to an
issue that he was not called upon to meet.'

[42] Similarly, the SCA held as follows in Wevell Trust20:

‘It is not proper for a party in motion proceedings to base an argument on passages in
documents which have been annexed to the papers when the conclusions sought to be
drawn from such passages have not been canvassed in the affidavits. The reason is
manifest - the other party may well be prejudiced because evidence may have been
available to it to refute the new case on the facts. The position is worse where the
arguments are advanced for the first time on appeal. In motion proceedings, the
affidavits constitute both the pleadings and the evidence: Transnet Ltd v Rubenstein, and
the issues and averments in support of the parties’ case should appear clearly therefrom.
A party cannot be expected to trawl through lengthy annexures to the opponent’s
affidavit and to speculate on the possible relevance of facts therein contained. Trial by
ambush cannot be permitted.’

[43] Nevertheless, it is said that the non-compliances emanate from conditions 7
and 8 of the 2003 EA, which were set out as follows:

20 Minister of Land Affairs and Agriculture and others v D and F Wevell Trust and others 2008 (2) SA 184 (SCA)
at 200C.

‘7. The applicant must compile and submit an acceptable construction phase
Environmental Management Plan ("EMP") for the installation of the services,
roads, chalets to this Directorate. The EMP must:

7.1 be submitted to this Directorate at least three weeks prior to construction
activities commencing. This must be approved prior to any land clearing
and construction commencing.

7.2 describe the level and type of competency required of the Environmental
Control Officer ("ECO").

7.3 define and allocate responsibilities of the ECO referred to above and the
Environmental Site Agent where applicable.

7.4 determine the frequency of site visits.

7.5 be included in all contract documentation for the construction phase of the
development.’

[44] Condition 8 of the 2003 EA stated as follows:
‘8. The applicant must compile and submit an acceptable operational phase
Environmental Management Plan ("EMP") for the entir e property. This must be
approved by this Directorate before any of the units may be occupied. The EMP
must:

8.1 address the potential for wind and soil erosion.
8.2. plans for fire prevention and control
8.3 plans for the complete removal of all alien invasive plants and fynbos restoration
programmes.
8.4 incorporate the conditions of authorisation given in this Record of Decision, as
appropriate to the operational phase of the project. The operator of the facility
must implement and ensure compliance with this EMP.

8.5 the appropriate management of the property.

[45] The evidence shows that the construction-phase EMP was submitted to the
Department on 20 October 20 05 and a copy thereof appears in the record. This

was approximately three weeks prior to the commencement date, whi ch I have
already held was 3 November 2005. In the EMP, Ecosense provided details of all
the issues itemized by the applicant as instances of non-compliance.

[46] It is otherwise clear from the record that the 2003 EA has never been
revoked or deemed invalid for lack of compliance by the Department or the
Municipality. As I have already mentioned, this much was conveyed to the
applicant in October 2011. As an administrative act which had never been set
aside, it remained valid.21

[47] Furthermore, the 2003 EA was granted in terms of s 22 of the ECA 22, and
subsection (3) thereof provided as follows:
‘(3) The Minister or the competent authority, or a local authority or officer referred
to in subsection (1), may at his or its discretion refuse or grant the authorization for
the proposed activity or an alternative proposed activity on such conditions, if any, as
he or it may deem necessary.

(4) If a condition imposed in terms of subsection (3) is not being complied with,
the Minister, any competent authority or any local authority or officer may withdraw
the authorization in respect of which such condition was imposed, after at least 30
days' written notice was given to the person concerned.’ (own emphasis)

[48] Similarly, s 31L of NEMA provides for a prescribed process for enforcing
compliance with environmental authorizations, as follows:

21 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1
(SCA); 2004 (6) SA 222 (SCA) (28 May 2004).
22 Section 22 has since been repealed by s. 50 (2) of the NEMA, a provision which has yet to be put into operation
by the Minister.

‘(1) An environmental management inspector or environmental mineral and
petroleum inspector, within his or her mandate in terms of section 31D, may
issue a compliance notice which must correspond substantially with the
prescribed form and following a prescribed procedure if there are reasonable
grounds for believing that a person has not complied-
(a) with a provision of the law for which that inspector has been designated in
terms of section 31D; or
(b) with a term or condition of a permit, authorisation or other instrument
issued in terms of such law.

(2) A compliance notice must set out-
(a) details of the conduct constituting non-compliance;
(b) any steps the person must take and the period within which those steps
must be taken;
(c) any thing which the person may not do, and the period during which the
person may not do it; an
(d) the procedure to be followed in lodging an objection to the compliance
notice with the Minister, Minister responsible for mineral resources,
Minister responsible for water affairs, MEC or municipal council, as the
case may be.

(3) An environmental management inspector or environmental mineral and
petroleum inspector may, on good cause shown, vary a compliance notice and
extend the period within which the person must comply with the notice.

(4) A person who receives a compliance notice must comply with that notice
within the time period stated in the notice unless the Minister, Minister
responsible for mineral resources, Minister responsible for water affairs, MEC
or a municipal council has agreed to suspend the operation of the compliance
notice in terms of subsection (5).

(5) A person who receives a compliance notice and who wishes to lodge an
objection in terms of section 31M may make representations to the Minister,
Minister responsible for mineral resources, Minister responsible for water
affairs, MEC or a municipal council, as the case may be, to suspend the
operation of the compliance notice pending finalisation of the objection.’

operation of the compliance notice pending finalisation of the objection.’

[49] It is common cause that, in the intervening 23 years since it was granted, the
2003 EA has never been withdrawn by the M EC or any other authority pursuant
to the provisions above. No written notice of withdrawal was issued either.
Instead, the record indicates that since it was granted, the developers of the

property on the one hand and the Department on the other have continued to
relate and exchange correspondence on the basis that the 2003 EA was ext ant,
and that its conditions were either being attended to or were met.

[50] An example in this regard is correspondence emanating from the developer
on 24 January 2011 enclosing an environmental assessment report after the
Department had conducted an environmental compliance inspection and outlined
certain requirements in a memorandum dated 4 January 2011. The developer
concluded the letter by requesting the Department to indicate whether there were
any further requirements to be met arising from the compliance visit. The report
attached to her correspondence outlined the steps taken in respect of the
conditions attached to the 2003 EA, including conditions 7 and 8. In a response
dated 6 April 2011 the Department thanked the developer for compliance with
condition 11 of the 2003 EA, and ‘look[ed] forward to receiving your co -
operation in ensuring compliance with all the other conditions of the above -
mentioned environmental authorisation’.

[51] Another example is dated 23 February 2018 from a Ms Thomas of the
Department, in which she confirmed the Department’s recordal of the facts at that
stage as follows:

‘According to the information provided, the following is noted:
…
2.1 Construction of the resort development as authorised in the Record of
Decision (RoD) issued on 3 November 2003 commenced within the prescribed
validity period and was partially completed by the holder of the RoD.

3. The Department agrees that the initial construction work associated with the
resort development, proceeded within the validity period of the RoD, thereby
rendering the RoD valid and in force beyond the stipulated validity period.’

[52] Far from indicating withdrawal of the 2003 EA or it being left to lapse, this
correspondence shows that there was active management of its compliance by the
Department, and any aspects of non -compliance were dealt with directly with the
developer. There is no indication that the Department exercised its powers in
terms of s 22(4) of the ECA, or of any similar provision.

[53] An issue raised for the first time in the applicant’s heads of argument is that
any commencement of the activity would have been unlawful on 3 November
2005 because the required zoning approval was only granted on 5 October 2006.
Since this argument was not raised in the papers, the respondents have not dealt
with it in their affidavits. And e ven in the applicant’s heads, the argument is
raised as bare assertion, with no substantiation. This is impermissible.

[54] What may be observed, however is that, a t the time that the 2003 EA was
granted, the property was zoned as Agricultural Zone I. On 1 December 2003 the
then property-owners submitted an application to the Municipality to rezone the
property from Agriculture Zone I to Resort Zone II and Open Space Zone Ill in
terms of section 17 of Land Use Planning Ordinance 15 of 1985 (LUPO ). The
application also sought a consent use for a mountain lodge, conference and
restaurant facility and a wellness centre in terms of Regulation 6 of Provincial
Notice 1048/1988. After going through a series of processes which are described
in the Department’s papers, the rezoning approval was granted on 5 October 2006
in terms of sections 16 and 42 of LUPO, subject to certain conditions.

[55] As I have already found, by October 2006 when the zoning approval was
granted, the activity being undertaken at the property was tree-felling and the
clearing of alien vegetation . That is not an unlawful activity on a property zoned

as Agricultural Zone 1. There is accordingly no basis to conclude that the 2003
EA had expired for non -compliance with zoning requirements. For all these
reasons, there is no basis to grant the first declaratory order sought as prayer 5.

D. THE SECOND DECLARATOR
[56] In the alternative to the first declarator, the applicant seeks an order
declaring that the 2021 EA ha d lapsed by 19 February 2023 in that the amended
activity was not commenced within two years of the date of authorization.

[57] The 2021 EA was granted 18 February 2021 by the second respondent,
pursuant to an application dated 30 October 2020 by Reset for the amendment of
the 2003 EA in terms of the NEMA, read with terms of Part 1 of chapter 5 of the
NEMA EIA Regulations. The amendment granted in the 2021 EA changed the
description of the activity 2021 to read as follows:

‘DESCRIPTION OF ACTIVITY:
The project entails the establishment of an upmarket lodge with 10 rooms, 15
chalets and a conference facility as well as a small gymnasium and swimming
pool on Portion 2 if the Farm Amoi No. 4[...], Botmaskop, Helshoogte Pass,
Stellenbosch is amended to read:

The project entails the development of 46 residential units and 14 multi-use
residential erven (containing 31 dwellings) on Portion 2 of Farm Amoi No. 4[...],
Stellenbosch. The 77 residential units and associated infrastructure will have a
development footprint of 36 282m2.'

[58] Regarding conditions for authorisation, section G states as follows:
‘Conditions 7 and 8 are combined and is amended to read:

An updated Environmental Management Programme ("EMPr") that conforms to
Appendix 4 of the EIA Regulations, 2014 (as amended) must be submitted to the
Department for acceptance prior to commencement of the construction activities.
The EM Pr must include an updated Rehabilitation Plan and Fire Management
Plan.’

[59] Section C provides as follows:
‘All other conditions contained in the EA issued on 3 November 2003 (Attached
as Annexure A), remain unchanged and in force.’

[60] The applicant states that section C means the activity was required to
commence within 2 years, since this was a condition of the 2003 EA . It relies on
the affidavit of Mr Gustav Franzsen, who states that he has enjoyed a ‘bird’s eye
view’ of the property from his residence since 2001 , and asserts that no
development or earthworks of any sort commenced before 7 March 2023.

[61] The Department, on the other hand, argues that the commenced activity in
terms of the 2003 EA constituted commenced activity for purposes of the 2021
EA, and that the 2021 EA did not need to include a new lapsing or duration and
date of expiry clause because the works had already commenced in terms of the
2003 EA. And although the development that was approved in 2021 differed from
the one approved in 2003, it utilized the same service infrastructure (e.g. roads &
other infrastructure) that had already been constructed (i.e. commenced with) in
terms of the 2003 EA.

[62] The Environmental Impact Assessment Regulations, 2014 (‘EIA
Regulations’)23regulate the procedure, criteria and decisions relating to
environmental authorisations and amendments thereof . What is notable is that,
even a pre -amended authorization need not include a timeframe. Regulation 26
which prescribes the content s of an environmental authorization has no such

23 Published in GN R982 in GG 38282 of 4 December 2014.

requirement, although sub -regulation (i) permits the competent authority to add
any relevant conditions which it deems appropriate.

[63] Similarly, there is no such requirement in Chapter 5 of the Regulations
which govern amendments, save in the case of authorizations with no operational
aspect. Regulation 27 provides for the general provisions relating to amended
environmental authorisations as follows:

‘(1) The competent authority that issued an environmental authorisation has
jurisdiction in all matters pertaining to the amendment of that environmental
authorisation as long as the environmental authorisation is still valid , provided
that the competent authority that issued such environmental authorisation still
has jurisdiction in terms of the Act.

(2) Where the competent authority decides to amend an environmental
authorisation, the competent authority must-

(a) issue an amendment to the environmental authorisation either by way of a
new environmental authorisation or new environmental authorisations or
an addendum to the relevant environmental authorisation; or

(b) replace an existing valid environmental authorisation with an
environmental authorisation contemplated in this regulation, indicating the
extent of replacement in the environmental authorisation, if the existing
environmental authorisation is directly related to the amendment required.

(3) Where an environmental authorisation granted in terms of these Regulations
does not include operational aspects and the activity has been commenced with,
the period for which such environmental authorisation is granted may only be
extended for a maximum further period of 5 years.

(4) An environmental authorisation may be amended or replaced without following
a procedural requirement contained in these Regulations if the purpose is to
correct an error and the correction does not change the rights and duties of any
person materially.’

[64] What is immediately highlighted when reading these provisions is that a
crucial requirement for the granting of an amendment is that the pre -amended
authorization should be valid at the time that an application for its amendment is
lodged and at the time that the decision to award it is made.

[65] The 2021 EA d oes not contain a clause similar to paragraph J of the 2003
EA setting out a duration and expiry date for the authorization, or any express
mention of a lapsing period of two years or of any other duration. The only
indication of a deadline requirement in the 2021 EA appears at section G which
requires submission of an updated Environmental Management Programme
(‘EMPr’) for acceptance prior to commencement of the construction activities. In
other words, that the construction activities may not commence until approval of
the EMPr. Even in that regard, no timeframes were specified.

[66] It is i n that respect that the Department emphasizes the fact the deadline
requirements of the 2003 EA had already been acted upon and were still in force.
In fact, this is one of the bases on which the application for amendment of the EA
was brought, where the introductory paragraph described the following activities
that were said to have already been undertaken:

‘…2. A 5m wide entrance road was constructed and paved from Helshoogte Pass Road
to the entrance to the Resort (a servitude right of way was registered over the

entrance road, as this is located on Municipal land) see figure 4 which includes
below photos.

3. Services were installed for the development, including the internal roads (4m
wide see photo), sewage, water and electricity (Sub -station photo), fencing and
the parking areas and Hotel site was cleared (photo}. The filling from cut and fill
earthworks on the site was undertaken and various retaining walls were erected to
stabilise the cut slopes (photo).

4. A show-house (photo), security gate house and entrance precinct were also built
(photos).’

[67] Given that the works had already commenced in terms of the 2003 EA , I am
in agreement with the Department that it would make no sense to prescribe a
starting date for the activities authorized in terms of the 2021 EA . As a result, the
statement in section C of the 2021 EA that ‘all other conditions stated in the 2003
EA…remained unchanged and in force’ can only be a reference to conditions
other than those stipulating deadlines. Instead, the deadline, in terms of the 2021
EA was to be determined with reference to approval of the EMPr.24

[68] The works had alrea dy commenced, as already discussed earlier, within two
years of issuing the 2003 EA . The fact that Mr Franzsen witnessed activities
commencing as from 7 March 2023 does not change that legal fact . It is also
contradicted, in any event, by the summary of activities that were said to have
already been undertaken according to the introductory paragraph to the
application I have already mentioned. That summary of activities was supported
by photographs attached to the 2021 EA application, as well as to Reset’s 2019

24 Section 24N(3)(a) of NEMA provides: ‘The environmental management programme must, where appropriate
set
out time periods within which the measures contemplated in the environmental management programme must
be
implemented’.

application for rezoning, subdivision and other applications submitted to the
Municipality which showed the extent of works that were being undertaken as at
September 2019. The photographs show that by 2019, there was a security
entrance gate structure, a visitor/eco-centre of the previously approved resort
development, previously built roads and a previously built retaining wall gabion
at the propery.

[69] None of this corroborated evidence is addressed by the applicant, and I have
no basis to reject it, again on the application of Plascon-Evans. The fact that Mr
Franszen noticed what he noticed on the day that he did, does not mean there was
no other activity on previous days at the property. There is no suggestion that he
was effectively on guard duty of the site and that he was aware of every miniscule
activity at the site. By contrast the descriptions of activities, supported by
photographs, is compelling evidence.

[70] I accordingly find that the second declaratory order has no merit.

E. THE INTERNAL APPEALS AND DELAYS
[71] As already indicated, the Department has raised unreasonable delay as a
point in limine in response to the review of the 2021 EA as well as the review
relief relating to the internal appeals (prayers 10 and 11).

[72] The relevant background is that on 4 June 2024 the applicant submitted an
appeal against the granting of the 2021 EA and a request for condonation for the
late lodging of the appeal in terms of section 47C 25 of NEMA. As a point of

25 Section 47C provides: ‘The Minister or an MEC may extend, or condone a failure by a person to comply with, a

departure, it stated that it had only discovered the existence of the 2021 EA on or
about 17 May 2024. On 7 June 2024 the MEC stated in a letter addressed to the
applicant’s attorneys that he had decided not to condone the late filing of the
appeal.

[73] On 7 July 2024 the applicant lodged a second appeal and second application
for condonation, based on similar grounds as the previous internal applications,
save that it says it had discovered new facts from concerned citizens . On 11 July
2024 the MEC responded that he was functus officio in respect of the appeal and
the condonation.

[74] On 17 July 2024 the applicant requested reasons for the MEC’s decisions of
7 June 2024 and 11 July 2024, in terms of section 5(1) of PAJA. On 31 July 2024
the Minister advised that the reasons for his decisions were set out in his
responses of 7 June 2024 and 11 July 2024.

[75] On 5 November 2024 th e applicant instituted the application for , amongst
others, review of the internal appeal decisions . The Department complains that
the application was instituted 151 days after the decision of 7 June 2024 refusing
to condone the late filing of the applicant’s internal appeal and 173 days after the
applicant became aware of the 2021 EA on 16 May 2024.


period in terms of this Act or a specific environmental management Act, except a period which binds the
Minister
or MEC.’

[76] The Department emphasizes that a delay in instituting review proceedings
may still be unreasonable even when instituted before the lapse of the 180 -day
time period in section 7(1)(a) of PAJA. It states that in this instance,
approximately 83% of the 180 -day time period during which the applicant failed
to institute legal proceedings, elapsed between 7 June 2024 when the first appeal
decision was communicated to the applicant and 5 November 2024 when it
instituted its application.

[77] In relation to all the review applications, the applicant’s reasons for lateness
are stated as follows in its replying affidavit:

‘21. I am advised that the first respondent's complaint of an alleged "unreasonable"
delay subsequent to the dismissal of the internal appeals - raised without any
motivation whatsoever - furthermore disregards the finding of the Honourable
Justice Holderness in the judgment on the interdict, where the Honourable Judge
stated that:

"I am satisfied that the significant interest that all parties have in the outcome of
the interdict application, as well as the actions taken by SIG after it had
exhausted the internal appeals available to it, warrant the condonation of any
delay in launching the application, despite the delay in launching it."

22. In any event, for the sake of completeness, I confirm that, following receipt of the
decision, the applicant sought legal advice regarding the implications of the
approvals and the appropriate remedies, considered the relevant documents,
proceeded to raise funds to meet the costs of review proceedings (which was
necessary given that it is a voluntary association of limited means) and after funds
were secured instructed its attorneys to prepare the court application and to brief
counsel and to institute the review. The applicant submits that this constitutes a
full, reasonable, and bona fide explanation for the time taken.

23. I respectfully submit, too, that, insofar as there may be considered to have been a

23. I respectfully submit, too, that, insofar as there may be considered to have been a
delay by the applicant in seeking to review the first respondent's impugned
decisions (which is disputed): any such delay is not excessive; a full and
reasonable explanation has been proffered for the time taken and what was done
in the relevant time period(s); and there can be no material prejudice to any of the
respondents, particularly as no construction of dwellings of any nature has
commenced.

24. It is germane, too, that the review raises serious questions concerning the
lawfulness of the approvals under challenge.

25. In the circumstances, the applicant submits that, should condonation need to be
granted for any delay in seeking to review the relevant decisions (which is
disputed), the interests of justice plainly favour the granting of condonation to the
extent that it may be required, and that this Honourable Court should consider the
review on its merits.’

[78] Although the applicant waited some 5 months before instituting th e main
review application, the application was still within the 180 days stipulated in s
7(1) of PAJA. I have not found grounds to conclude that the delay was mala fide
on the papers. The applicant was an IAP at some point, and accordingly had a
legal interest in bringing the application. I do accept that the delays incurred after
receiving the MEC’s first and then second decisions in the internal appeals must
be viewed within the broader context of the 23 -year long delay already discussed
earlier. However, this being a review in terms of the provisions of the PAJA, the
starting point must naturally be its provisions. In that regard, the application is not
time-barred. And, ultimately, it is not against the interests of justice for the
applicant’s case to be ventilated, provided of course that the legal requirements
are satisfied.

[79] In relation to the first appeal and condonation, the applicant states the
grounds were compelling. It was an IAP in the process that led to the issuing of
the 2003 EA, and, because of the manner in which the 2021 EA was processed –
as a Part I application instead of a Part II application which is subjected to more
rigorous scrutiny, it was deprived of its right to comment on and to timeously
appeal the 2021 EA. It had not been aware of the 2021 EA because it was not
notified of the outcome of the application for the amended EA despite the fact

that it was an IAP, and despite the fact that the applicant for the amended EA had
previously undertaken (in 2017) to use the collated IAP list from the historic
application.

[80] The M EC states that in reaching his decision regard ing the first internal
appeal, he exercised a discretion in terms of s 47C of NEMA. He took into
account the lateness of the appeal and the condonation application. As recorded in
the letter of 7 June 2024, he considered the fact that the applicant was seeking to
appeal a decision made at least 3 years prior and was of the view that the
application for condonation was excessively and unreasonably late.

[81] While the delay was very long, i t is not disputed that the applicant only
discovered the existence of the 2021 EA on 17 May 2024. Nor is it in dispute that
the applicant had been an IAP in the granting of the 2003 EA. In that respect, the
decision may be criticized for an apparent failure to contextualise the applicant’s
lateness in bringing the appeal.

[82] However, a decision regarding condonation is involved not only with the
extent of the delay, but any other relevant factor s which must be viewed in the
light of the interests of justice. Those factors include considerations of prejudice
caused to other parties by, amongst other things, the delay; the importance of
legal certainty, as already discussed; prospects of success ; and interests of justice.
There is no closed list. In the context of this case, it is understandable that the
issue of the 3 -year time delay would have played a big role before the MEC,
because of its over -arching effect on the other considerations such as prejudice,
legal certainty. It continues to loom large in these proceedings. And, as the MEC
states now, he was of the view that the prospects of success in the appeal were

poor, although I accept that is not contained in his decisions or reasons at the
time.

[83] Thus, even though I am of the view that the consideration of the lateness was
not placed in proper context, that is but one of the relevant factors to be taken into
account. The interests of justice must be considered in relation, not only to the
applicant, but to other parties involved. Given that this was a balancing act, there
is no basis to conclude that there was irregularity in the decision of the MEC, or
that the power was exercised in any manner that is reviewable.

[84] Furthermore, even if the decision on the first condonation were reversed,
there would be no point in remitting it because all the facts are currently before
the Court for consideration in these proceedings. That is more so given my
conclusion on the prospects of success of the review application , discussed
further below.

[85] As regards the second internal appeal, the MEC points out that the grounds
for condonation were a verbatim repeat of the grounds for condonation in the first
request for condonation, save for a reference to a meeting with an unnamed
concerned citizen on 17 June 2024. This is not disputed by the applicant.

[86] The MEC further states that notwithstanding his advice on 11 July 2024 that
he was functus officio , the applicant purported to seek reasons the decisions in
terms of section 5(1) of PAJA on 17 July 2024 even though reasons had been
provided on 7 and 11 June 2024. Section s 5(1) of PAJA allows a person whose
rights are adversely affected by administrative action to seek reasons if he or she
has not been given reasons . The MEC did not view the facts that had allegedly

come to light subsequent to the initial decision as new facts. He assessed the
content of the second appeal to be the same as in the first application, and
concluded they raised the same issues. I t is understandable that the M EC
concluded that he was functus in relation to the appeal. As the Department points
out, no legal basis has been given for the repeated appeals and applications for
condonation under section 47C of NEMA in relation to the same decision when
the decision -maker has already made a prior final decision to dismiss that very
appeal and not condone its late submission. For all these reasons, I do not find the
decisions regarding the internal appeals reviewable.

F. REVIEW OF 2021 EA
[87] In the review application, the applicant seeks to set aside the decision of the
second respondent of 18 February 2021 to approve the 2021 EA amendment. In
broad terms, t he applicant states that the decision -maker committed a material
irregularity in processing the 2021 EA as a Part I Amendment in terms of
Regulation 29 of the EIA Regulations instead of Part II. Second, that there was a
failure to inform IAP’s.

[88] Some background facts are necessary. On 17 April 2019, the then
Environmental Management Consultant (EMC) of Reset, Mr Withers of Legacy
Environmental consulting ( Legacy), applied for a non -substantive amendment of
the 2003 EA in terms of Part I of Chapter 5 of the EIA Regulations , on behalf of
Reset. This was after some communication with the Department regarding the
intended amendments. T he development was to have a footprint size of 21 780m2
for 67 residential units , including roads ’ footprint of 11 150m 2, all totaling
approximately 33930m 2 in extent . In addition, there was mention of a reservoir
which was to service the development with the capacity of 325kt.

[89] In a letter dated 11 June 2019, t he Department took the view that the April
2019 Part I amendment application entailed a significant increase of the
development footprint, and that, since the capacity w as to exceed the 250m 3
threshold of the listed activity, this would trigger Activity 2 of Listing Notice 3, i.e.
a new listed activity that was not originally assessed or authorised. This latter view
was in light of an Engineering Services Report, dated April 2019 and compiled by
Integrate Structural and Civil Engineering (Integrate), which specified that the
existing municipal reservoir was situated at an elevation that was too low to serve
the development, and therefore a new reservoir with a capacity of 325kL was to be
provided. The Department noted that this exceeded the 250m3 threshold and might
trigger Activity 2 of Listing Notice 3 if the proposed reservoir was to be placed on
a site containing indigenous vegetation.

[90] As a result, the Department stated that the proposed reservoir might require
written authorisation from the competent authority prior to the undertaking of the
said activity. Since the reservoir formed an integral component of the proposed
amended development proposal, the developer was given two options, namely to
lodge a Part II Amendment Application for the change of ownership and the
development of a new residential estate and a basic assess ment application for the
proposed reservoir; or to lodge a basic assessment application for the residential
estate and reservoir.

[91] There followed a meeting between Mr Withers on behalf of Reset on the one
hand, and the Department ’s Ms Thomas, Ms Smidt and Ms Oosthuizen on 3
September 2019, on the other . Mr Withers subsequently summarized what he says

transpired at this meeting in an email dated 13 July 2020 , but the contents thereof
are disputed by the Department.

[92] On 23 September 2019 Legacy submitted, on behalf of Reset an application
for amendment of the 2003 EA in terms of Part 2 of Chapter 5 of the 2014 EIA
Regulations. The description of the footprint of the development was the same
extent as in the April 2019 Part I application.

[93] Notice of the September 2019 Part II Amendment Application was
published in inter -alia the Eikestad News on 19 September 2019. On 24 October
2019 the applicant submitted its objection and comments to the application. The
application lapsed however, due to Reset’s failure to timeously submit a final
amendment report, and in a letter dated 28 January 2020, the Department’s Ms
Smidt advised that no extension was to be granted, and the matter was considered
closed.

[94] On 21 October 2020 a fresh application for amendment of the 2003 EA was
submitted by Mr Conrad Burke of Reset. The application was made in terms of
Part 1 of the E IA Regulations , and was accompanied by amongst others, an
application for an amended subdivision plan . In terms of the application, the
development would now also accommodate a number of smaller units and increase
the total number of units from 67 to 77, without changing the footprint size or
overall square meterage of the development.

[95] It is necessary to interpose by referring to a previous application dated 26
April 2019 by the developer’s planners, for amendment of conditions of approval,
rezoning and amendment of a Subdivision Plan in respect of the property. The

application was submitted to the Municipality shortly after submission of the
developer’s April 2019 Part 1 amendment application . It was approved by the
Municipality on 26 May 2020 , with effect from 14 July 2020 following expiry of
the statutory appeal period and was subject to a number of conditions. The
application was approved without objection , following notice to interested parties,
including the applicant.

[96] In terms of the Municipality’s approval of 26 May 2020 , the previously
approved Subdivision Plan was cancell ed, and the property was rezoned from
Resort Zone II and Agriculture Zone 1 to a Subdivisional Area in accordance with
its Zoning Plan (FP/0618/903 dated April 2019), and in terms of section 15(2)( d)
of the Planning Bylaw of property in accordance with its Subdivision Plan
(FP/0618/903 dated April 2019.

[97] The rezoning permitted the following: (a) 38 Residential Zone I erven
accommodating freestanding single residential units ; (b) 10 Residential Zone IV
erven accommodating 29 residential units; (c) 30 Open Space Zone II erven to
allow for private open space, private roads, outbuildings for storage purposes for
residents of the development, and infrastructure relating to the entrance gate, civil
infrastructure (water & sewer lines, stormwater, sewer, pump, booster pump and a
reservoir); and (d) 1 Transport Zone II portion for Public Road purposes to
accommodate the Helshoogte Road Reserve as a separate entity.

[98] Referring to the approved amended subdivision of 26 May 2020, the
developer’s October 2020 Part I application stated that the approved Subdivision
Plan for the development made provision for a residential estate containing a total
of 67 residential units, of which 38 were intended for Single Residential (now

Conventional Residential) and 29 group dwelling units for Multi -Unit Residential
purposes. The amended proposal was to make provision for 77 dwelling units, of
which 46 were to be for Conventional Residential erven and 14 for Multi -Unit
Residential erven (containing 1 dwelling unit). It was stated that there was not to
be an increase in footprint area because the then a pproved development had a
combined footprint of 31 244 m 2, while the proposed footprint would be 30 373m 2
and accordingly be 871 m 2 less than previously approved. An annexure 14 was
attached to the Part I application, and it described the total footprint area
(coverage) to be 30 373m2.

[99] On 30 November 2020 the Department responded by letter set ting out a
history of its interactions with the developers, and specifically its ‘[a]dvice…given
to the applicant on more than one occasion that the development footprint would
have to be the same or smaller than what was originally authorised and that there
could be no increase in the level of impacts resulting from the new development
when compared to the previously approved development’.

[100] The letter of 30 November 2020 concluded as follows regarding the
proposed amendment:
‘The proposed development w ould result in a change in scope since the increased
development footprint is beyond what was originally authorised. As a result, a Part 1
Amendment process is not available.

Considering the above, you are herewith advised to proceed with one of the following
options:

3.1 Amend the proposal to reduce the footprint so that it is the same or less than
what was originally authorised (as advised previously); or
3.2 Lodge a Part 2 Amendment Application for the amendments as currently
proposed.’

[101] On 7 December 2020 Reset responded, indicating that it would proceed with
option 3.1 provided in the Department’s letter, by amending the proposal to reduce
the footprint so that it would be the same or less than what it was originally. On 23
December 2020 Reset sent amended plans, together with a letter from Integrate
dated 15 December 2020, depicting a total footprint area coverage of 24 122m 2 for
residential dwellings . The letter from Integrate, accompanied by amended plans,
explained that the reduction in total footprint was achieved as follows:

‘Reset Properties instructed INTEGRATE Consulting Engineers and URSA
Urban Designers to adjust the proposed layout such that the total Development
Footprint is less than 36 282 m2.

INTEGRATE reduced the Civil Infrastructure footprint by 1180 m2 to 12 160
m2 by mitting some of the under-utilized sidewalks.

URBA similarly reduced the individual residential footprint coverage to 24 122
m2. Attached herewith please find a copy of URBA Drawing No. 121, Revision
6 dated 14 December 2020 which references both adjustments. The total
development footprint is summarized as follows;

Residential 24122m2

Roads 2160m2

TOTAL FOOTPRINT: 36282m2’

[102] On 18 February 2021 the second respondent issued the 2021 EA. The
following reasons were given for the 2021 EA decision:
1. The amendment applied for is in terms of Part I of the EIA Regulations, 2014 and
will not change the scope of the EA issued on 3 November 2003.

2. The amendment does not trigger any new listed activities in terms of the EIA
Regulations, 2014 (Listing Notices 1, 2 and 3 in Government Gazette No. 40772
of 7 April 2017) promulgated in terms of the NEMA.

3. The overall footprint of the proposed residential development will not result in an
increase of the authorised footprint for the resort development.

4. Botanical, Visual and Traffic Impact Assessments were undertaken to assess the
impacts of the proposed residential development in comparison with the
authorised resort development. Based on the findings of the specialist studies, the
proposed residential development will have a lower visual and traffic impact. The
botanical study concluded that although the site has recovered over the preceding
17 years, the pioneer species present on the site are not representative of the
original vegetation cover, is not deemed as sensitive, and the impact is therefore
still rated is low.

5. The development will result in a lower impact in bulk engineering services.

6. Although the proposed development will result in a change in the scope (different
type of development) of what was authorised, the amendment will not result in an
increase in development footprint, nor will it result in an increased level or nature
of the impacts that were considered and assessed during the initial application for
environmental authorisation.

7. The environment and the rights and interests of interested and affected parties
("l&APs") will not be adversely affected by the decision to amend the EA.’

[103] The second respondent explains further as follows:
‘Based on these documents, and the contents of the October 2020 Part 1
amendment application, I was satisfied that the footprint of the resort
development as authorised by the Municipality was 36 282m 2. I was further
satisfied that the overall footprint of the proposed residential development would

satisfied that the overall footprint of the proposed residential development would
not result in an increase of this authorised footprint for the resort development. I
concluded as such at paragraph 3 of my reasons for the 2021Amended EA
decision.

[104] Elsewhere he also states:

‘I based my decision on the Municipal approved or authorised footprint for the
approved development, on what was stated in the specialist reports in the
October 2020 Part 1 amendment application. I also considered the subsequent
correspondence from the Department and response from Reset regarding the
increase in the authorised footprint for the resort development.’

[105] He explains that the documents that were before him when he made the 2021
EA decision were firstly, d ocuments attached to the October 2020 application,
namely: (a) the letter from Integrate, referred to as Figure 11, which stated that the
2009 approved square meterage was 36 282m 2, compared to the proposed 2020
meterage of 43 686m2, thus amounting to an increase of 7404m 2 ; and (b) The Filia
Visual Assessment, which referred to the previously approved hotel development
as having a total development footprint of 36 282m 2. Secondly, he had the
following d ocuments which were attached to the further communication of 23
December 2020: (a) The letter from Integrate dated 15 December 2020, which
adjusted the infrastructure footprint for roads to 2 160m 2, and the residential
footprint to 24 122m 2, thus arriving at a total footprint of 36 282m 2; and (b) t he
document referred to as URBA Drawing No. 121 Revision 6 dated 14 December
2020, attached to Integrate’s letter of 15 December 2020, which confirmed the
residential total development footprint as 24 122m2.

[106] Part 1 of Chapter 5 of the EIA Regulations, which incorporates Regulations
29 and 30, provides as follows:

‘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.'

30 Process and consideration of application for amendment and decision

(1) Upon receipt of an application made in terms of regulation 29 the competent
authority-
(a) may request additional information within a period determined by the
competent authority and such request must accompany the
acknowledgement of receipt of the application and if such information is
not submitted within such a period the application will be deemed to have
lapsed; and

(b) must refuse the application for amendment if the amendment being applied
for does not fall within the ambit of regulation 29.

(2) The competent authority must within 30 days of acknowledging receipt of the
application or of receipt of the additional information contemplated in
subregulation (1)(a) decide the application.’

[107] Thus, an amendment may be granted in terms of Part I if it will not change
to the scope of a valid environmental authorization; or increase the level of impact
which was initially assessed and considered when application was made for an
environmental authorization; or change the nature of the impact which was initially
assessed and considered when application was made for an environmental
authorization; or if the amendment relates to the change of ownership or transfer of
rights and obligations.

[108] On the other hand, where there is a change of scope which meets the
requirements of Part II, Regulation 31 provides as follows:
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.

[109] Once an applicant has been notified of a decision in terms of Part II,
regulation 4 places certain duties upon the applicant, as follows:
‘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 Appeals 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.

[110] The principle of sustainable development which is specifically recognized
by section 24(b)(iii) of the Constitution, arises in these proceedings, and especially
in the context of the second respondent’s decision in approving the 2021 EA.
Section 24(b)(iii) provides as follows:

‘Everyone has the right to have the environment protected, for the benefit of
present and future generations, through sustainable legislative and other measures
that secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.

[111] In Fuel Retailers26 the Constitutional Court explained the significance of the
principle of sustainable development as follows:
‘[57] As in international law, the concept of sustainable development has a significant
role to play in the resolution of environmentally related disputes in our law. It
offers an important principle for the resolution of tensions between the need to
protect the environment on the one hand, and the need for socio -economic
development on the other hand. In this sense, the concept of sustainable

26 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga Province and Others (CCT67/06) [2007] ZACC 13;
2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007) at paras 57 – 58.

development provides a framework for reconciling socio -economic development
and environmental protection.
[58] Sustainable development does not require the cessation of socio -economic
development but seeks to regulate the manner in which it takes place. It
recognises that socio -economic development invariably brings risk of
environmental damage as it puts pressure on environmental resources. It
envisages that decision-makers guided by the concept of sustainable development
will ensure that socio -economic developments remain firmly attached to their
ecological roots and that these roots are protected and nurtured so that they may
support future socio-economic developments.’

[112] Turning to the applicant’s case, it takes issue with a number of things arising
from the decision to approve the application as a Part I amendment . First, it takes
issue with what it calls ‘an inexplicable reversal of position’ by the Department
from its earlier correspondence in which it held the view that the proposed
footprint had increased and needed to be reduced in order for an amendment to be
granted in terms of Part 1, otherwise a Part 2 application needed to be lodged.

[113] The Department states that it is not bound by the views espoused in its prior
letters of 11 and 17 June 2019 and 30 November 2020, because each application
must be dealt with individually and considered on its own facts and merits, which
is what occurred. Indeed, the letters themselves indicate that they dealt with their
own varied circumstances each time and that the department was dealing with
those specified facts each time. For example, the letter of 17 June 2019 was
confronted with the building construction of a new reservoir exceeding a 250 m 2
threshold with the possibility of triggering activity a listed activity. There is no
basis upon which it can be stated that the Department is so bound even if the
circumstances said out in the correspondence had changed. That would be
irrational.

[114] The applicant takes issue with the conclusion in the 2021 EA that there was
no increase in the footprint of the proposed development, pointing out that the
October 2020 proposal applied for an increase in footprint by 7 404 m 2, including a
total of 77 units with a development footprint of 43 686 m 2, and yet paragraph 2 of
the 2021 EA indicates that the approval was granted subject to a maximum
development footprint of 36 282 m 2, not 7 404 m 2. The maximum development
footprint of 36 282 m 2, according to the applicant, was the sum of 24 122 m 2 for
residential and 12 160 m2 for roads (1 hectare is equal to10 000 square metres.)

[115] There are also suggestions by the applicant that the documents supporting
the October 2020 application constituted deliberate misrepresentations and /or were
fraudulently designed to conceal the true footprint of the development. However,
Mr Burke of Reset who submitted the application explains that he made an error
and has explained how this arose. For his part, the second respondent states that the
error was obvious, and was not relied upon in the decision to grant the 2021 EA.

[116] At the hearing the applicant’s counsel confirmed that the allegations of fraud
were no longer pursued. That much was already indicated by the fact that there was
no mention of these allegations in the applicant’s heads of argument, a point which
was noted by the Department.

[117] Another challenge is that the second respondent ’s decision was based on
documents which do not exist, namely: (a) the approved Site Development Plan of
3 November 2003, also referred to as ‘Figure 3’ ; and (b) the approved 2009 layout
which is variously described as ‘building plan number 09/1091’ and ‘the 2009
building plan approval’. As regards the first of these documents, Mr. Burke, who
referred to it admits he made a mistake in that, wheareas he referred to it as being

annexed to the October 2020 application, the document attached as Figure 3 was in
fact a document entitled "Stellenbosch Mountain Retreat Site Development Plan
2015: Sheet 4 of 4" and depicted a total floor area for 15 lodges and a hotel being
8800m2.

[118] The mistake he made was in stating that Figure 3 was a document which
‘demonstrates the approved Site Development Plan 3 November 2003 ’. He says he
omitted the word 'per', and that he meant to write that Figure 3 ‘demonstrates the
approved Site Development Plan per 3 November 2003 ’. This is because Figure 3
is not a site development plan prepared in 2003, but is the fourth sheet of the
approved 2015 Site Development Plan, and it shows the hotel and 15 lodges
envisaged by the 2003 EA. He explains that his intention was to provide the
document attached as Figure 3 to the Department because it usefully demonstrates,
in the phase 12 plan, all of the development around the hotel, lodges and entrance
precinct necessary to determine the development footprint.

[119] He states that, in any event, it is evident from Figure 3 itself and its label that
it is not an approved S ite Development Plan dated 3 November 2003, but the
fourth sheet of the approved 2015 Site Development Plan, showing the total floor
area for 15 lodges and a hotel . For this reason, he states that his mistake was
obvious, and does not support an inference of fraud. The second respondent agrees
that this was an obvious error which did not have any bearing on his decision. The
fact that figure 3 is labelled as such, and bears a stamp of the Municipality does not
support an inference of fraud. Figure 3 did not contain incorrect measurements of
areas – it contained no measurements of areas. As I have indicated, the allegations
of fraud are no longer pursued after this detailed explanation was provided.

[120] As regards the second document which the applicant argues must be deemed
to not exist, namely the 2009 document , it has not been produced as part of the
record, and was also not supplied to the applicant when it requested it from the
Department, even though the latter confirmed that it received the information with
the Part II application. The applicant states this missing document is the source
document for the figure of 36 282m 2 mentioned in the 2021 EA, yet there is no
explanation from the documents before the Department for how th is figure was
reached. Specifically, the applicant states there is no information regarding how the
footprints were reduced, as claimed in the letter of Integrate dated 4 September
2020; or how any underutilized sidewalks were omitted ; or which sidewalks were
excluded; and how the individual residential footprints were reduced. In addition to
all this, the applicant states that the drawing attached to the letter of 4 September
2020 provides for 51 erven, and yet the 2021 EA approved 77 dwellings on 60
erven. There remains no explanation for this anomaly, or for how the 77 dwellings
were to fit on a footprint of 36 282m2. Since these queries are unanswered, says the
applicant, it must be assumed that the 2009 layout document does not exist.

[121] But once again, Mr Burke of Reset has provided an explanation. He explains
that in 2017 Reset purchased the property from its previous owner, Transholding
Investment (Pty) Ltd , together with all the valid authorisations and approvals
granted to its predecessors in title. This included the 2003 EA, obtained some years
prior, which did not specify an authorised development footprint. When he
received the Department's letter of 30 November 2020 , he understood that he was
required to determine the development footprint originally authorised by the 2003
EA.

[122] For purposes of calculating the total development footprint of the 2003 EA,
Reset requested the town planner and architect for Transholding Investments , Mr
Burrows, to prepare Site Development Plans for the hotel and lodges which
conformed to the 2003 EA. Mr Burke says the 2015 Site Development Plan
previously prepared by Urban Dynamics Western Cape (Mr Horne) was the correct
plan to consult, because it showed the same configuration reflected in the October
2006 record of decision with a total floor area of 8 800 m 2 for the hotel and 15
lodges.

[123] I note that the applicant also bases its calculations for the floor area
authorized in terms of the 2003 EA on this same figure of 8800m 2. The figure of 8
800 m 2 is visible on the 2015 Site Development Plan which is in the record . The
same figure had been recorded in the approval of the rezoning of the property from
Agricultural Zone I to Resort Zone 11 of 5 October 2006, as well as in a letter from
the second respondent dated 23 February 2018, which confirmed that the
authorized footprint of the 2003 EA entailed an area 8 800m 2 being the sum of 15
resort units of a 400m2 footprint each, and a 2 800m2 lodge and conference centre. I
accordingly accept this to be the floor area authorized for the 2003 EA.

[124] It must be noted, however, that a maximum floor area is not synonymous
with a development footprint. The October 2006 rezoning decision was made in
terms of the now -repealed LUPO, scheme regulations (Provincial notice
1048/1988, Provincial Gazette 5 December 1988) . Regulation 1 thereof defined a
maximum floor area to exclude areas reserved for parking, areas required for
external fire escapes and balconies, terraces, common entrances and common
passages covered by a roof, as was indicated in this case by condition 2.6 of the
October 2006 LUPO approval granted in respect of the property. It did not amount

to an overall footprint for a development. By contrast, a development footprint is
defined in the Regulations as follows:

'in respect of land, means any evidence of its physical transformation as a result of the
undertaking of any activity'.

[125] I have noted the Department’s concern that the 2015 Site Development Plan
documents sometimes refer to a total floor area only and do not refer to a footprint
coverage area , and that as a result, the 2021 EA decision was based on the
documents attached to the October 2020 application.

[126] Returning to Mr Burke ’s explanation of Reset’s calculation of the
development footprint. He continues that o n 4 September 2020 Mr Burrows of
Integrate provided a report on the requested calculations, and it concluded that the
area of the roads, parking, hotel and lodges necessary to support the floor area of 8
800 m 2 was 36 282 m 2. Mr Burrows has provided a confirmatory affidavit in this
regard. According to Mr Burke and Mr Burrows, th e figure of 36 282 m 2 excluded
the cut-and-fill terraces, stormwater infrastructure, footpaths, fence and a large area
of the entrance precinct.

[127] This is how Reset says it reduced the development footprint to be the same
as the area authorised for roads, hotel and lodges in the 2003 EA , as stated in its
communication of 23 December 2020 which included Integrate’s letter and
amended plans. Reset explains that , in order to bring down the development
footprint, it reduced the extent of the roads and parking which the 2003 hotel and
conference centre format entailed, since they were not required for a residential
development. It explains that there was scope for reduction. And this, in turn made
may for Reset to apply for a Part 1 amendment of the 2003 EA.

[128] In addition to all this, Reset says after the launching of these proceedings in
2024, it has since verified the calculation of the development footprint authorised
by the 2003 EA in various ways. First, Mr Burrows measured the areas shown on
the 2015 approved Site Development Plans, depicting a total floor area of 8 800 m 2
and he too confirms this is the appropriate point of departure. Mr Burrows then
identified all areas that would be physically transformed by implementing the 2003
EA, and applied parameters specified in the Stellenbosch Municipality Design
Guidelines as follows:
‘1. The main access road to the hotel consists of a 6,0 m blacktop, 1,2 m sidewalk on
one side, 2,5 m wide gabion retaining wall on one side and a 0,6 m gravel verge
on one side. The road width and sidewalk complies with the minimum
Stellenbosch Municipality Design Guidelines.

2. The side roads leading to the lodges are similar in design but the blacktop is 5,5 m
wide.

3. All paved footpaths are 1,5 m wide.

4. A 2,5 m wide gabion retaining wall behind the hotel is required due to the steep
slopes in excess of 1 in 4.

5. A 3,5 m wide gabion retaining wall on 3 sides of the lodges are required due to
the steep slopes in excess of 1 in 4.

6. An open gravel surface of 1,0 m wide is required along the entire fence on the
prope1iy boundary.

7. The standard measurements of 5,0 m x 2,5 m has been used for the parking
requirements.

8. A 1,8 m wide and 639 m long stormwater cut off ditch is required to protect the
development from sheetflow from higher lying areas.

9. Stormwater attenuation ponds and gabion lined stormwater outflow chutes to the
stream are included.’

[129] Mr Burrows says he calculated that the 2003 EA necessitated physical
transformations totaling 50 305 m 2, and he explains how this is calculated. He then
instructed an independent professional engineer, Mr Francois Harris , to verify his
calculations, and the latter confirmed that the calculations were correct. In fact, the
verification showed that Urban Dynamics ’ calculation had omitted accurately to
measure the terraces, the footpaths, parts of the entrance area, stormwater
infrastructure and fence areas, and accordingly that there is a very large margin of
error to bring the application comfortably within the parameters of an application
to amend the 2003 EA under Part 1 of the EIA Regulations.

[130] Further action taken by Reset in response to this application is that it
instructed Mr Burger of Friedlaender, Burger & Volkmann (FBV) land surveyors
to measure the development footprint in consequence of the 2003 EA. They too
utilised the SDP approved by the Municipality in 2015 depicting a total floor area
of 8 800 m 2. They measured the development, fence, and footpath, excluding the
fire-resistant buffer, storm water cut -off canal, storm water attenuation pond and
outfall chutes, and also arrived at a total development footprint of 50 127 m 2,
which corresponds with the area ascertained by Mr Burrows.

[131] It is therefore not correct to state that there is no explanation of how the
development footprint was reduced, or how the calculations mentioned in the 2021
EA and the 2009 ‘missing document’ were arrived at. The explanation proferred by
Reset answers the questions summarized above, which the applicant claims remain
unanswered.

[132] In accepting Mr Burke’s explanation of how the 2003 EA was determined, I
take into account, firstly, the fact that he ‘inherited’ the 2003 EA from his

predecessor and was accordingly not involved in determining the footprint prior to
the purchase of the property. Secondly, the term ‘development footprint’ was only
introduced by way of a 2008 amendment to NEMA.

[133] The applicant has not been able to seriously dispute this explanation by
Reset, which in my view puts paid to many of the challenges regarding the
development footprint. The applicant has not sought to produce its own experts to
refute these averments. At most for the applicant, what it has raised are disputes of
fact which, are decidedly against it on the application of Plascon Evans.

[134] It has furthermore not been established that the second respondent
committed an y material error of fact when taking into account the documents
before him in the development footprint for the 2021 EA. It has not been
established that the second respondent’s reliance on the documents before him for
determining the approved development footprint amounted to a material error of a
fact which is incontrovertible or objectively ascertainable.27

[135] Apart from the alleged increase in development footprint , the applicant
challenges the second respondent’s conclusion that there was no change in the
scope of the development. In this regard , the applicant points to the previous
instances where the Department informed the developers that a substantive
amendment application was required because it would result in a change of scope,
a significant increase in the development footprints and the number of residential
units. But, as the Department states, the previous instances were each

27 See Airports Company South Africa v Tswelokgotso Trading Enterprises CC (19548/2015) [2018] ZAGPJHC
476; 2019 (1) SA 204 (GJ) (22 June 2018) at para 12.

distinguishable from each other and from the factual circumstances surrounding
the 2021 EA.

[136] A reading of the Regulations indicates that it is not every change in scope
that will necessitate an application in terms of Part 2. The express language of
regulation 31 is that such an application is required-

‘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.’
(my emphasis).

[137] The determining factor is accordingly whether the change will result in an
increased level or change in the nature of impact; provided that the level or change
in nature of impact was not previously assessed, or considered or included in the
initial application for environmental authorization, and that the change does not
constitute a listed activity.

Impact assessments
[138] As regards the impact, the second respondent states that the impacts assessed
and considered in the 2003 EA process were visual impact, traffic impact, impact
on bulk engineering infrastructure (potable water, sewerage, storm water,
electricity), botanical/ecological impact and impact on clearing of alien
vegetation. The specifications of the development whose impacts were assessed in
the 2003 EA, were described as follows in the town planner's specialist report,
which is contained in the record:
‘Die oord sal bestaan uit 'n hotel met tien (10) suites van 50m2 elk asook 'n konferensie
en restaurant fasiliteit wat voorsiening sal maak vir sowat 70 mense. Tesame hiermee
sal in klein gymnasium en swembad ook voorsien word. Die hotel sal van 'n Oordsone I
sonering voorsien word wat dlt toeganklik sal maak vir die algemene publiek. Slegs die
'footprint' van die hotel sal hersoneer word. Addisioneel tot die hotel sal daar 15
losstaande eenhede van 386m2 elk voorsien word (sien argiteksplanne vk detail) en
weereens sal slegs die 'footprints' van die eenhede hersoneer word na Oopruimte II
sonering.’

[139] The 2002 Visual Sensitivity Analysis (VSA) in the 200 3 EA process
contained two architectural drawings, drawing 01 (Master Plan: Botmaskop
Mountain Resort) and drawing 02, which depicted the terrain plan and surface area
of the project and buildings. The VSA concluded that the visual impact of the
proposed 15 chalets, the 10 -room lodge and conference facility (70 -person
capacity) were ‘judged to be of medium intensity if unmitigated and of low
intensity and significance if mitigated’. By November 2007, drawing 01 was still
considered as the then -existing Site Development Plan of the property, when Mr
Horne referred to it in an application for its amendment, which was granted by the
Municipality on 26 February 2008. The second respondent states that the amended

SDP was one of the documents on which the October 2020 application was sought,
and from which the position and orientation of all buildings and infrastructure for
the approved development could be ascertained.

[140] He states further that, when assessing whether the proposed amendments
would result in an increased change or level of visual impact compared to the 2003
EA, he considered the conclusion reached in the 2003 EA, that ‘ ... According to
the visual impact assessment study conducted, the visual impact of the proposed
development would be limited to a short distance when driving along the
Helshoogte Pass, and the proposed buildings will blend with the slope of the
mountain.’

[141] He also had regard to the comparison contained in the October 2020 Filia
Visual Impact Assessment (VIA) Report between the development proposed in the
2002 EA application and the development proposed in the October 2020
application, which stated the following:
‘The visual sensitivity analysis conducted in 2002 by DArch Consulting concluded of
the previously approved hotel development that: "If mitigated the proposed
development will have a low visual impact at a local, close range scale and is judged to
be appropriate within the context of a rehabilitated natural landscape."(Horne,
2002).The Developers and the project Urban Designer consulted with the Cape
Winelands Professional Practices in Association on several occasions to ensure that the
designed transition between approved hotel development and proposed residential
development took cognizance of the potential visual impacts whilst conforming the
strict design and coding principles to mitigate these possible impacts on the heritage and
cultural landscape, and the scenic route.

The currently tabled residential development was therefore intentionally designed to
reduce the potential visual impact and improve mere mitigation measures by proactively
incorporating these into an iterative process of design development. especially in terms
of the smaller bulk and dispersion of the proposed residences in the sloped landscape.
The footprint had to be expanded in the process of mitigating a lessor visual impact
through dividing the large monolithic hotel construction into smaller individua l units
separated by Fynbos, but for the most part, the proposed development occurs in the area
previously approved for development.

The+- 7000m2 increase in total footprint mostly involves adjustments to the previous
approved footprint edges rather than adding additional nodes to the development. and is
consistent with the proposal's aims to reduce visual impact by enabling a more highly
articulated and differentiated built form across the landscape.’

[142] The Filia VIA Report concluded that the development proposed in the
October 2020 amendment application ‘will most likely have a low visual impact at
both a local scale and in terms of the greater receiving environment and is judged
to be appropriate within the land use, historical, cultural , and scenic context.’
Anoher conclusion was that:
‘…the nature of the proposal and iterative approach taken by the professional team to
not only mitigate but preventatively reduce visual impacts has improved on the
assessment made in 2002 by DArch Consulting i n terms of the approved hotel
development. The authors therefore recommend that no further visual and aesthetic
impact assessment is necessary for the proposed project.’

[143] The second respondent states that he also had regard to a document
accompanying the October 2020 application in which the Manager: Spatial
Planning of the Stellenbosch Municipality had approved the Urban Design
Principles and form -based codes for the proposed development, which stated the
following:

‘ The development proposal complies with the criteria for decision making and
desirability as set out in Section 42 of the Stellenbosch Municipality Land Use
Planning By-Law of 2015.

• The development proposal is in line with the land use development principles of
the Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) and
the Western Cape Land Use Planning Act, 2014 (Act 3 of 2014).

• The development is located within the urban edge of Stellenbosch.

• The proposed development represents a considerable improvement of the
previously approved development and was designed in a sensitive way responding
positively to the challenges posed by the landscape.

• The proposal complies with the guidelines and objectives of the Stellenbosch
Municipal Spatial Development Framework.

• The scale and nature of the proposed development is considered to be compatible
with the character of the surrounding area.

• The proposed development will create local employment opportunities and thus
socio economic upliftment.

• The development is guided by a Form-based Design Principles and form codes for
individual dwelling houses which will ensure a high quality urban environment
most suitable for this specific site.

• The proposed development has been informed by various specialist studies of the
Environmental Impact Assessment and the Form -based Urban Design Principles
to ensure minimal impact on the natural, cultural and scenic landscape of the
Stellenbosch area

• There will be no significant impacts on heritage or the bio-physical environment.

• There will be no negative impact on existing Infrastructure and additional traffic
can be accommodated on the local road network.’

[144] It was after considering all of the above information that t he second
respondent says he concluded , firstly, that visual impact assessments were

undertaken to assess the impacts of the proposed residential development in
comparison with the authorised resort development , and secondly, that the
proposed residential development would have a lower visual impact.

[145] The applicant contends that the Filia VIA Report of October 2020 was not
subjected to peer review and was shielded from the public. However, this is not
correct, because the report was part of the Part II process which was subjected to
public participation. Furthermore, and in any event, since the 2021 EA was lodged
in terms of Part 1 of the Regulations there was no requirement to subject it to
public participation.

[146] In the replying affidavit the applicant has raised a number of criticisms
regarding the Filia VIA Report , for the first time . It claims that the report did not
compare the 2020 proposed residential development with the resort development
approved in October 2006 in terms of the 2003 EA. However, as already adverted
earlier, the report did make such a comparison. In any event, as the Department
points out the question is not what was approved and granted in the initial EA, but
rather w hether there has been an increase in impact or level which w as not
assessed or included in the initial application.

[147] Moreover, the decision was consonant with the second and third principles
of sustainable development espoused in s 4(a)(ii) and (iii) of NEMA , namely
avoiding, minimising or remedying pollution and the disturbance of landscapes.
The solutions and suggestions provided in the architectural guidelines
accompanying the application for the 2021 EA provide for significantly reduced
visual and cultural landscape impacts, and overall, minimised and remedied visual

pollution and the disturbance of the landscape. The applicant’s challenge based on
visual assessments therefore lacks merit.


[148] Regarding the traffic impact, the 2003 EA concluded that ‘.. A traffic impact
study was conducted and the report was evaluated by the engineers of the
Stellenbosch Municipality and the District Roads Engineer. One of the main
comments was that the basic principles mentioned in the impact analysis are in
line with the applicable road management guidelines set by the road authority.’

[149] The October 2020 application included a June 2002 report by LawGibb
Group on the potential impact on the traffic generation on the surrounding road
infrastructure (appendix 8) and a 20 October 2020 report by ICE Traffic
Engineering Consultants (appendix 10). The June 2002 LawGibb Traffic Impact
Study had been included as a specialist report assessed in the 2002 EA application
and the subsequent 2003 EA. It concluded that the estimated daily trips for the
hotel and chalet development were a total of 135 estimated daily vehicle trips
during peak AM and PM hours.

[150] The ICE Traffic Impact Study Report concluded that , based on a proposal of
a total number of residential units increasing to 77 units for the proposed
development, ‘…the newly proposed development can be expected to generate one
(1) trip fewer, thus still resulting in a lesser impact than originally approved.’

[151] The second respondent says he had regard to these two reports, and
concluded that Traffic Impact Assessments were undertaken to assess the impacts
of the proposed residential development in comparison with the authorised resort ,

and further that the proposed residential development would have a lower traffic
impact. There does not appear to be any dispute regarding these conclusions.

[152] Turning to Botanical Impact Assessments, the second respondent state s that.
he took them into account to assess the impacts of the proposed residential
development in comparison with the authorised resort development. The botanical
study concluded that, although the site ha d recovered over the preceding 17 years,
the pioneer species present were not representative of the original vegetation cover,
was not deemed sensitive, and the impact was therefore still rated is low.

[153] The second respondent states he considered the following specialist reports
regarding the ecological / botanical impact of the proposed development, which
were included in the October 2020 application: (a) A 2002 report entitled ‘An
Assessment of the Ecological Importance of Portion 2, Amoi, Stellenbosch ’ by
Anel Blignaut of Horace Wildlife Consultants (appendix 2) ; a 2002 report entitled
‘Clearing of Alien Vegetation and Restoration of Indigenous Vegetation
Botmaskop Report’ prepared by Chittenden Nicks de Villiers (appendix 3) ; and a
report entitled ‘Botanical Impact Assessment, Fijnbosch Estate, Stellenbosch,
Western Cape Province ’, dated March 2019 by Dr J Macdonald of Bergwind
Botanical Surveys and Tours (appendix 4).

[154] The second respondent states he also had regard to annexure 14 to the
application, which was a letter from the EAP in the 2003 EA process, Ms Anneke
De Kock, dated 21 August 2020 and addressed to Reset. In th e letter, Ms De Kock
confirmed that she ‘had assessed the property in its entirety. More specifically the
attached footprint was closely and thoroughly assessed. I trust that this will be of
assistance to you regarding the area that was assessed as Study Site. ’ (my

emphasis) The second respondent states he considered the ‘attached footprint ’ to
Ms De Kock's letter, which was a drawing for the Fijnbosch Estate with the title
‘Footprint Areas Coverage’ and stating that the total footprint area (cov erage) was
30 373m2 On the basis of this report the second respondent disputes the applicant’s
claim that his decision was based on reports which did not assess the entire site in
the 2003 EA process.

[155] The 2003 EA had concluded that ‘[t]he proposed clearing of alien
vegetation, and the subsequent restoration of the indige nous fynbos vegetation,
will irrefutably enhance the general landscape around the Helshoogte entrance to
Stellenbosch, and enhance plant and ani mal biodiversity on the site .’ This was
after the Department had taken into account the findings and recommendations of
the 2002 reports of Ms Blignaut and of Mr De Villiers referred to earlier, which
were also considered by the second respondent in arriving at the conclusion on the
2021 EA.

[156] Ms Blignaut’s report was not challenged in the 2003 EA process where the
applicant was an IAP. It stated as follows:
‘The area has been used for the commercial planting of Eucalyptus species and also as
an informal 4 x 4 route. These activities caused opportunities for erosion and resulted in
an extremely disturbed and converted site. The flora is dominated by alien vegetation
with only a few remnants of fynbos remaining. Therefore, in terms of the biodiversity,
the study area is highly impoverished.
…
It is recommended that all alien plant species should be removed from the site. The
removal should be performed in an ecologically sound manner. This will entail a proper
eradication plan, inclusive of management of regrowth after removal. A restoration plan
should be in place to ensure the return of indigenous vegetation. It would also allow

faunal species to return to the area, if their habitat is restored. This plan would involve
the selection of appropriate plant species for seeding and also the planting of whole
plants.

Indigenous plant species that might be damaged due to the development of the site
should be removed as far as possible and kept alive in an on -site nursery for replanting
after the development has been completed. Simultaneously, seeds could be collected
from adjacent undisturbed areas, and seedlings can be grown in the nursery for
replanting.

Considering the impoverished state of the site proposed for development and how it can
be improved if alien eradication and restoration programs are included in the plans of
the development, there is no ecological reason why the proposed development should
not take place.

The planned donation of excess land, where the fynbos has been restored, to the
Stellenbosch Municipality for incorporation into the Botmaskop Reserve, will add to the
benefits of the development to the area. We are of the opinion that the area could only
be better off in terms of biodiversity if the development does take place.’

[157] The second respondent points out that the report of Chittenden Nicks de
Villiers Landscape Architects ( the landscaping report) agreed with Ms Blignaut’s
report that most of the site had been utilized for the production of Eucalyptus
species and that the area showed clear evidence of disturbance over a considerable
period of time with many alien plant species present. The second respondent states
further that the 2021 EA incorporated the recommendations made in the
landscaping report . They included the restoration of indigenous vegetation and
principles for restoration of vegetation in natural areas , and applied the
precautionary principle, which requires that areas be allowed to re -vegetate

naturally without artificial interference wherever possible to avoid unforeseen
impacts due to accidental importing of pathogens or unwanted seeds and weeds.
Other principles identified in the report included minimizing soil disturbance
measures in order to prevent stimulating the alien vegetation seedbank, focusing
re-vegetation actions on areas most in danger of soil erosion or at least likely to
recover naturally such as waterways and gullies or excavated areas, selection of
appropriate naturally occurring species for seeding or cultivation and planting with
the seasons.

[158] Another recommendation made in the landscaping report , which was
incorporated into the 2021 EA, was that restoration areas should be zoned, existing
vegetation in areas where development is going to take place be surveyed to
identify species for transplant to a temporary nursery. The report also set out soil
preparation and erosion control measures and restoration methods by seeding and
handplanting.

[159] With regard to landscaping, the landscaping report recommended that all
parts of the site where excavations were made or where new roads, or
embankments were created, should be landscaped with indigenous plants found in
the area ; that all cut and fill areas were to be graded to as natural contour as
possible and landscaped with indigenous plants found in the area ; that plant
material should be carefully selected to be weed and pathogen free as far as
possible; and that all areas where soil disturbance was caused by the proposed
development should be landscaped and provision made for automatic irrigation.
All of this was included in the 2021 EA, according to the second respondent.

[160] The second respondent states he further had regard to the conclusions of Dr J
McDonald in his March 2019 Botanical Impact Assessment, where he noted that
there were areas that had previously been disturbed that had recovered to contain a
high cover of indigenous species with low diversity. These areas were mapped as
‘degraded fynbos.’ Areas of degraded fynbos had been cleared of invasive species
and were a dominated by indigenous pioneer species with scattered invasive
species reappearing. The report further noted that ‘the entire site has been
disturbed to some extent and most of the species found on the site are hardy
pioneer species often associated with disturbed areas.’

[161] Dr McDonald's report concluded with the following conclusions and
recommendations:
‘The study area originally supported Cape Winelands Shale Fynbos and Bolan Granite
Fynbos, both Vulnerable vegetation types.

The vegetation condition on the site varies from completely transformed to semi -intact.
The entire site has been subject to various disturbances and much of it is currently
highly degraded. Small areas are in a degraded to semi-intact condition.

The development area has been partially mapped as CBA 1 (intact vegetation),
however, no part of the site contains intact vegetation.

Parts of the development area contain degraded to semi -intact vegetation, whereas the
greater part is highly degraded. Some of the better -condition vegetation would persist
on the site particularly where connectivity between the units has been allowed along the
drainage lines. The loss of vegetation associated with the construction phase of the
proposed development would have a Medium -High Negative Impact without mitigation
and a Medium Negative Impact with mitigation. The intention is that the operational
phase of the project would include extensive rehabilitation and this would have a

Medium Positive impact. The recommended mitigation measures should be set as
conditional for authorization and should form part of the environmental management
plan to ensure that they are followed.

Although some habitat with Medium Conservation Value would be lost as a result of
the development. the extensive rehabilitation that would be required as mitigation would
have an overall positive impact on the ecological functioning of the area. The proposed
development would not have an impact on the future conservation potential for the
vegetation types present and if the proposed mitigation measures are adhered to, the
development is supported from a botanical perspective.’

[162] It was based on these reports that the second respondent says he reached the
conclusion as follows in his reasons for the 2021 EA: ‘the botanical study
concluded that although the site has recovered over the preceding 17 years, the
pioneer species present on the site are not representative of the original
vegetation cover, is not deemed as sensitive, and the impact is therefore still rated
as low’.

[163] The applicant states that the botanical report is fatally flawed for numerous
reasons aimed at the conclusions reached in the report, which the applicant says it
raised in the internal appeal. This is one of the instances in which the applicant has
listed the grounds of its internal appeal in respect of which it is not clear whether
those grounds are relied upon for a review in these proceedings. The Department
complains about this and also points to the fact that neither the founding affidavit
nor the supplementary affidavit raises grounds of review in relation to the second
respondent’s conclusions regarding the botanical and ecological impact. It is in any
event not clear, on the basis of what expertise the applicant raises these challenges
against the specialist reports , since its deponent is a geographer. Accordingly , it

has not been established that the second respondent’s conclusion as regards the
botanical and ecological impact assessments was unreasonable or irrational.

[164] Furthermore, the decision of the second respondent accords with principle of
sustainable development espoused in s 4(a)(i) of NEMA , to the effect that the
disturbance of ecosystems and loss of biological diversity should be avoided, or,
where they cannot be altogether avoided, are minimised and remedied. While the
evidence shows that i mplementing both the 2003 EA and the 2021 EA would
remove alien vegetation and re -introduce locally indigenous vegetation , the
implementation of the 2021 EA was to improve that situation , because the
roadways and buildings to be constructed would be smaller. This is compared to
the large monolithic buildings that were previously approved for the resort
development, and which permitted no vegetation over their entire area.

[165] As to bulk engineering services, t he 200 3 EA process had assessed the
impact of the proposed development on bulk engineering infrastructure and
services. The 2002 application for the 2003 EA included a document entitled
‘Botmaskop Lodge: Engineering and Services Report ’ prepared by Arcus Gibb:
dated June 2002. The report had dealt with the required engineering infrastructure
and the suitability of the site from an engineering perspective , and made a number
of recommendations. The second respondent states that the October 2020
application was accompanied by additional specialist reports and evidence relating
to the impact of the proposed development on bulk municipal engineering
infrastructure and basic services , which the Department considered when making
the decision on the 2021 EA , namely: (a) a June 2002 report by LawGibb on the
potential impact on the use of bulk Municipal services; (a) 2009, 2014 and 20
October 2020 reports by Integrate Civil Engineers; (c) a n October 2020 report by

CKR Electrical Engineers (appendix 13); (d) a June 2002 report by LawGibb
Group on the potential impact on the traffic generation on the surrounding road
infrastructure (appendix 8); (e) a 20 October 2020 report by ICE Traffic
Engineering Consultants (appendix 10) ; (f) a document titled ‘Calculation of
annual average daily water demand (AADWD) by Integrate referred to as ‘ figure
17’; and a document titled ‘Appendix 12: Document from D de la Bat of
Stellenbosch Municipality’.

[166] The document attached as Figure 17 set out the variances in traffic,
electrical, water and sewerage impact between the 2002 proposed development and
the 2020 proposed development. It recorded that the 2020 proposed development
improved on the electrical impact by 31%, on the water impact by 22%, on the
sewerage impact by 22%, and on the traffic impact by 1%. These variances were
summarised in the 2020 Filia Visual Impact Report.

[167] The second respondent states that it was on the basis of all these reports and
impacts assessments that he concluded that the proposed development will result in
a lower impact in bulk engineering services . The applicant has not raised any
challenge regarding the second respondent ’s conclusions that the new residential
development would generate less traffic and have a lower impact on electricity
consumption, water usage and sewage generation.

[168] I am of the view, in any event, that the second respondent’s decision relating
to the lower impact on electricity consumption, water use and sewage generation
are consistent , in particular, with the need to ensure that finite natural resources
should be protected for future generations. Section 2(4)(a)(v) of NEMA provides
that, amongst other things, the use and exploitation of non -renewable natural

resources should be responsible and equitable, and takes into account the
consequences of the depletion of the resource . The second respondent’s decision is
consonant with those principles.

[169] From the summary above, I am satisfied that the second respondent
appropriately considered the visual, ecological and botanical, traffic generation,
footprint, electricity consumption, water consumption and sewage generation
impacts of the resort development assessed and included in the application
process for the 2003 EA. Furthermore, that he assessed those impacts against the
impacts of the proposed residential development. I can find no reviewab le
irregularity or irrationality or unreasonableness about the manner in which he
considered these impact assessments, or about the manner in which he assessed
and compared their conclusions. The evidence establishes that was no change of
scope which met the requirements of regulation 31.

[170] Rather, in granting the 2021 EA, the second respondent authorised an
activity with a lower impact on the environment in respect of water consumption,
traffic generation, ecological impact, visual impact, electricity consumption and
sewage generation; imposed conditions for the execution of an activity, aimed at
preventing future risks such as wildlife fires and which have improved
environmental conditions on a substantially degraded site which was an ecological
disaster due to previous environmental abuse

[171] There is also no thing idiosyncratic about the following statement made by
the second respondent: ‘… Although the proposed development will result in a
change in the scope different type of development) of what was authorised, the
amendment will not result in an increase in development footprint, nor will it result

in an increased level or nature of the impacts that were considered and assessed
during the initial application for environmental authorisation. ’ As I have already
mentioned, it is not just a change in scope that triggers a Part II process, but rather
a change of scope that has the consequences mentioned in regulation 31.

[172] The applicant states there was non -compliance with the provisions of the
National Heritage Resources Act 25 of 1999 (Heritage Act). Section 38(8) thereof
provides as follows:
‘(8) The provisions of this section do not apply to a development as described in
subsection (1) if an evaluation of the impact of such development on heritage resources
is required in terms of the Environment Conservation Act, 1989 (Act No. 73 of 1989), or
the integrated environmental management guidelines issued by the Department of
Environment Affairs and Tourism, or the Minerals Act, 1991 (Act No. 50 of 1991), or
any other legislation: Provided that the consenting authority must ensure that the
evaluation fulfils the requirements of the relevant heritage resources authority in terms
of subsection (3), and any comments and recommendations of the relevant heritage
resources authority with regard to such development have been taken into account prior
to the granting of the consent.’

[173] On the basis of this provision, the applicant states that the Department was
only empowered to grant and issue the 2021 EA after considering the views or
requirements of Heritage WC. This is because the amendment application by Reset
raised a possible impact on the physical environment and/or upon heritage.

[174] The applicant further points out that, in response to Reset’s Part II
application of September 2019 to amend the 2003 EA, a Heritage Officials
Meeting of 9 December 2019 resolved that a Heritage Impact Assessment (HIA)
which satisfies the provisions of s 38(3) of the Heritage Act was required for the

development, as the site is located within a grade II cultural landscape. The HIA
was required to enable H eritage WC to formulate a recommendation for
submission to the Department. The resolution of 9 December 2019 was reduced to
writing by the then CEO of H eritage WC, in a letter dated 11 December 2019.
Reset appealed against the decision, but the appeal was dismissed on 22 January
2020.

[175] The applicant states that no HIA has been conducted in respect of the
subsequent Part 1 application to amend the 2003 EA. The HIA was required, it
says, to enable H eritage WC to formulate a recommendation for submission to the
Department. Since the December 2019 the Heritage WC decision stands until it has
been set aside, and Botmaskop is acting unlawfully in proceeding with the
development of the site without conducting an HIA (which would allow for public
participation).

[176] But, as the facts outlined above indicate, and as is evident from the Heritage
WC decision itself, the decision of December 2019 pertained to the September
2019 amendment application which subsequently lapsed on 20 January 2020. That
application was made in terms of Part II of the regulations , and it was in terms
thereof that the developer was required to notify the Heritage WC in the first place.
I have not been referred to any authority suggesting that the H eritage WC decision
was similarly binding on the subsequent application which was made in terms of
Part 1 of the regulations.

[177] By contrast, t here is no requirement for an application lodged in terms of
Part 1 to be submitted to the H eritage WC. In fact, the indication from s 38(8) of
the Heritage Act is that the provision is excluded if evaluation of the impact of a

development on heritage resources is required in terms of other legislation or the
integrated environmental management guidelines, and the consenting authority
ensures compliance therewith. The effect is to exempt developers in such
circumstances. Since there is no requirement to submit a heritage resources impact
assessment report for purposes of an amendment application brought in terms of
Part 1 of the regulations, these provisions do not appear to apply to Reset’s 2021
EA. In terms of the current regulatory scheme, specifically s 24(4)(b)(iii) of
NEMA, such an assessment must be undertaken when considering the initial
application for an environmental authorization, not at the stage of its amendment.

[178] It does not appear that the applicant persists with its contentions that the
2021 EA triggered new listed activities. In any event, the Department had noted in
its letter of 30 November 2020 that Reset had reduced the capacity of the proposed
reservoir from 325kl to 162kl, which brought the application within the specified
threshold for the listed activity for the construction of a reservoir. There is
accordingly no basis on which the second respondent’s conclusion to the effect that
the amendment did not trigger any new listed activities in terms of the Regulations
can be impugned. The basis on which he made that determination is not disputed.

[179] As appears from regulation 31, the purpose of the power afforded by Part 1
of the Regulations is to grant an amended environmental authorisation which is
valid, and where no listed activities are triggered by the proposed amendment; and
the proposed amendment will not result in an increased level or nature of
environmental impacts which was not assessed and included in or taken into
consideration in the initial environmental authorisation. I am of the view that the
manner in which the second respondent exe rcised this power, in the circumstances

of this case, was reasonably capable of achieving the purpose for which the power
was conferred.

[180] Moreover, the decision was consonant with principles of sustainable
environmental management outlined in chapter 1 of NEMA, as already adverted to.
It is also evident that the decision was taken after considering complex factors
relevant to whether the residential development would result in an increase in
environmental impacts of the resort development and which were not considered
and included in the initial 2003 EA process. On this score, it is worth stating the
oft-repeated fundamental principle emphasised in Bato Star that decisions of
administrators such as the second respondent, ought to be accorded appropriate
respect especially when the administrator has to balance a range of competing
interests involving factual and policy considerations. 28This principle applies
strongly in the context of section 24 of the Constitution, which involves the
balancing of competing rights, socio -economic considerations, sustainable
development and the protection of the environment.29

[181] In Pharmaceutical Manufacturers it was made clear that rationality is the
minimum threshold requirement applicable to the exercise of public power.

28 O’ Regan J thus said the following in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others (2004 (7) BCLR 687 (CC) at para 48: “… in treating the decisions of administrative agencies
with the appropriate respect, a court is recognising the proper role of the executive within the Constitution. In
doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to
other branches of government. A court should thus give due weight to findings of fact and policy decisions made
by those with special expertise and experience in the field. The extent to which a court should give weight to these

considerations will depend upon the character of the decision itself, as well as on the identity of the decision -
maker. A decision that requires an equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution with specific expertise in that area must be
shown respect by the courts. Often a power will identify a goal to be achieved, but will not dictate which route
should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected
by the decision-maker.”

29 Fuel Retailers at para 45 and paras 79 to 81.

Rationality review does not however vest the courts with the powers to substitute
their own opinion as to what would be appropriate because-

“as long as the purpose sought to be achieved by the exercise of public power is
within the authority of the functionary, and as long as the functionary’s decision,
viewed objectively, is rational, a court cannot interfere with the decision simply
because it disagrees with it, or considers that the power was exercised
inappropriately.”

[182] I am of the view that the applicant’s rationality challenge to the second
respondent’s decision has no merit.

[183] The result of all the above is that there was nothing irregular or reviewable
about the second respondent’s decision that the 2021 EA process should proceed in
terms of Part 1 of the Regulations. The provisions of regulation 31 were not
triggered and there was no requirement to proceed in terms of Part II. That includes
the requirement to subject the process of the amendment authorisation to public
participation, which is a requirement only in terms of Part II of the regulations. As
a result, the declaratory order sought at prayer 8, which according to a reading of
the papers is based on the same facts as the review of the 2021 EA, similarly lacks
merit.

[184] Since this was not an application in terms of Part II of the regulations there
was no requirement to inform IAPs of the 2021 EA. This explains why there was
no condition stipulated in the 2021 EA to inform IAPs of its authorisation . Plus,
paragraph 7 of the Department ’s reasons clearly stated that the environment and
the rights and interests of IAPs would not be adversely affected by the decision to
amend the EA.

[185] The fact that this was not an application in terms of Part II of the
Regulations also explains why Mr Burke was subsequently advised by the
Department’s officials that there was no need to inform IAPs thereof. Mr Burke
says soon after obtaining the 2021 EA, on 21 April 2021, he telephonically
contacted Ms Smidt of the Department to confirm that there was no such obligation
and the latter confirmed it to be so. He confirmed that advice in an email contained
in the record . But a gain, on 17 May 2021, Reset, through its environmental
consultant Mr Jeffrey, sought and obtained Ms Smidt’s written confirmation that
there was no requirement to inform IAPs of the 2021 EA. This, in addition to the
independent view and advice of the environmental consultant Mr Jeffrey, that
Reset was not obliged to inform IAPs of the decision. None of these events are
disputed.

[186] The 2012 Public Participation Guideline for the EIA 30 process states that in
the case of EA amendments, an applicant must conduct a public participation
process ‘to the extent indicated by the [competent authority]’ . There is no basis to
conclude that Reset was unreasonable in relying on the advice of the Department
and of Mr Jeffrey.

G. THE LAND SWAP
[187] The applicant seeks the review and setting aside of the Municipality’s
approval of Botmaskop’s land swap application of 30 July 2024. The brief history
of the land swap is that the then developers of the property requested the municipal
council of the Municipality to consider a possible land swap in respect of Portions
of erf 3[...] (erf 3[...]) and Remainder of Farm 3[...]2 Stellenbosch (erf 3[...]2), for a

30 Government Gazette 35769, 10 October 2012.

portion of land higher up against the mountain of Portion 2 of Farm 4[...]
Stellenbosch (erf 4[...]).

[188] At the time of the request Botmaskop enjoyed use of a portion of the
municipality’s land pursuant to the terms of an encroachment agreement dated 16
April 2018. Botmaskop explains that it wished to erect a fence around its property,
including the lawfully encroached upon municipal land, and since the
encroachment agreement could be terminated on a mere three months’ notice, it
sought to secure the municipal portion on a permanent basis in return for a
similarly sized portion of land higher up on the Botmaskop slope.

[189] The request was first tabled at a mayoral committee meeting of 16
November 2023, where it was noted that valuations of the properties had not yet
been obtained. The valuation report was thereafter obtained and was considered at
a subsequent series of meetings of the municipal council held on 14 and 21
February 2024. The valuation report concluded that the properties were the same in
hectares as well as in value. The extent of the erven was recorded as follows in the
valuation report: portion of Erf 4[...] was 4.69 hectares; Erf 3[...] was 4.02
hectares, and Erf 3[...]2 was 0.67 hectares.

[190] At the meetings of 14 and 21 February 2024 the municipal council
recommended approval of the land swap, subject to a public participation process,
which was subsequently held between 19 April 2024 and 17 May 2024. Thereafter,
the matter served before the municipal council on 24 and 30 July 2024, where the
land swap was approved, subject to certain conditions.

[191] On 17 May 2024 the applicant lodged objections, and it relies on those
objections for its ground of review in these proceedings, which are set out as
follows in the founding affidavit: (a) a mandatory and material procedure or
condition prescribed by an empowering provision was not complied with; (b) it
was procedurally unfair; (c) it was materially influenced by an error of law; (d)
irrelevant considerations were taken into account or relevant considerations were
not considered; (e) it was not rationally connected to the purpose for which it was
taken as well as the purpose of the empowering provisions, and the information
before the decision maker; (f) it was grossly unreasonable; and (g) it was based on
one or more material errors of fact, which are uncontentious and objectively
verifiable. In the alternative, in the event that the decision did not constitute
administrative action, the same grounds of review are advanced (with the changes
appropriate to the context) in terms of the principle of legality.

[192] There is a muted debate between the applicant and the Municipality
regarding whether the land swap decision is reviewable in terms of PAJA or the
principle of legality. I am of the view that t he land swap decision, being an
executive decision taken by the municipal council of the Municipality, is not
subject to the provisions of the PAJA. Such decisions are expressly excluded from
the definition of an ‘administrative action’ in terms of s 1(c)(c) of the PAJA, where
it states that an administrative action ‘does not include… the executive powers or
functions of a municipal council’ . There is no basis to conclude otherwise . It is not
disputed that the decision, which was taken by the elected members of the council,
in open plenary session and by majority vote, was taken in the exercise of original
or direct authority and has its origin in s 160 of the Constitution.

[193] When taking into account, in particular, the source of the power exercised , I
am of the view that the decision did not constitute administrative action within the
meaning of the PAJA. Rather, the review falls to be determined in accordance with
the applicant’s alternative claim of legality. As the SCA confirmed in Ethekwini
Municipality31, the principle of legality requires that the decision should satisfy all
legal requirements (or be lawful), and not be arbitrary or irrational.

[194] In the first place , the applicant claims that the land sw ap was based on the
false premise both properties have similar valuations. Whilst the founding affidavit
states that the swap was based on a false premise that the properties have similar
valuations, the replying affidavit expounds that the fact that the portions of land
were of equal size does not mean they were equal in value. The applicant states
that the equal size of the properties fails to take into account the extremely steep
slope of the land that was to be acquired by the Municipality, which was so steep
that it was unsuitable for development wh ilst the municipal land requested by the
developers runs along a ridgeline and is extremely valuable. It is thereafter stated
that it is self-evident that the two properties are vastly distinct in value.

[195] The difficulty with the applicant's case in this regard is that it is not
supported by evidence of an expert of any kind and seems to rely on the say -so of
the applicant’s deponent Mr Donaldson, who is a Geography professor. On the
other hands, the valuation report already referred to was produced by Mr Hendrik
Coenraad Botha of HCB Property Valuations, a professional valuer who valued the
portions of land proposed to be swapped and concluded that the properties in

31 Democratic Alliance v Ethekwini Municipality (887/2010) [2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1
All SA 412 (SCA) (30 November 2011) para 21.

question to be of the same size and determined them to be of the same value. In
the valuation report Mr Botha pointed out that using the municipal valuations of
the subject portions was not appropriate because only portions of the erven were to
be valued. Amongst other considerations, he took into account the location of the
erven, including the ir topography, and noted that neither would have a negative
impact on the market value of the portions. He concluded the report as follows:
‘Properties are comparable and have the same characteristics. I could not find
that one of the properties would be more sought after than the other. I believe a
straight swap is possible.’ All of these are indicators that the position and location
of the erven was taken into account, and the applicant has not established the basis
for its assertion that this was not done.

[196] There is otherwise no indication of a study undertaken or conclusions
reached or calculations undertaken to support the applicant’s averments, and to
contradict the professional valuer’s professional opinion that the properties in
question were of equal value.

[197] Furthermore, t he conditions placed upon the land swap approval included
the following: (a) a restrictive condition against the title deed prohibiting any
further developments on the swapped land; and (b) the developer restoring the
area's natural fauna and flora. There was to be no further development on the
municipal land exchanged.

[198] The applicant also claims that the evaluation report should not be relied
upon because Mr Botha is a municipal valuer who is remunerated by the
Municipality, and accordingly cannot be seen as objective or as an expert. There is
no evidence to sustain this attack on Mr Botha ’s professional integrity , who

indicates in his report that he is a registered Professional Valuer in terms of the
Property Valuers Profession Act 47 of 2000. The fact that he may have received an
instruction from the Municipality to undertake the valuation does not diminish the
value of his professionalism and it has not been shown to be the case. In any event,
nothing prevented the applicant from instructing a valuer in support of its case and
it has failed to do so.

[199] The next basis for the review of the land swap is that the encroachment
agreement in respect of erf 3[...]2 and erf 3[...] permitted the developer to access
and occupy municipal land without following due process and without providing
for a proper process of public consultation . There is no specific relief sought in
respect of the encroachment agreement, whether by review or declaratory remedy.
And save for the bald averments that no due process was followed and no proper
process of public consultation was provided for, no detail is provided by the
applicant, contrary to the trite principle that an applicant must make out its case in
its founding papers . The principle also applies in review proceedings, where
litigants are required to identify clearly both the facts upon which they base their
cause of action and their legal basis of their course of action. 32 Both the
Municipality and Bosmanskop made this point in their answering papers, but the
applicant has not substantiated this ground in its reply. Accordingly, this ground
must fail.

[200] It needs stating that this complaint arises in respect of all the grounds relied
upon by the applicant in relation to the land swap. Save for listing the objections it

32 See for example, Bato Star (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA
490 (CC) para 27.

raised on 17 May 2024 in response to the Municipality’s invitation for comments
regarding the land swap, it has provided no substantiation for its review complaints
regarding the land swap. Understandably, the Municipality complained about this
approach in its answering affidavit, stating that it was manifestly prejudiced
because it did not know what case it was required to meet.

[201] The prejudice arising from the manner in which the applicant has pleaded its
case in this regard is evident from the fact that the Municipality and Botmaskop
have sought to answer the applicant's case by referring to different parts of the
applicant’s founding affidavit, with the former responding to paragraph 87 and its
subparagraphs and the latter responding to paragraphs 169 and following , both at
which the applicant has summarized its objections, though not in exact terms. As a
result, some aspects are not dealt with at both references. This is due to the
applicant setting out this aspect of its case by cross referencing to its grounds of
objection dated 4 May 2024 and two appeals thereto. The resulting complaints of
prejudice are therefore not unwarranted.

[202] Another ground raised is that t he application for the land sw ap was
premature pending the resolution of a complaint lodged on 4 May 2024 with the
Western Cape Environmental Law Directorate regarding the development footprint
impacting the watercourse. It is not clear how the land swap, which relates to land
other than the main property that is the subject of this case, has an impact on the
watercourse complaint, and the applicant has provided no detail in that regard.
Instead, it appears that the watercourse issue relates to the development of the main
property, whose relevance has not been shown to the land swap. The two decisions
were distinct and were taken by different bodies, the one relating to environmental
impact and decided by the P rovincial Government, while the other relating to a

land swap was made by the municipal council. It has not been shown, in any event,
why the complaint regarding the watercourse should have suspended the municipal
council’s decision on the land swap. It will be remembered that one of the
conditions of the land swap approval was that no further development was
permitted or planned on the former municipal land.

[203] The applicant also asserts, without substantiation, that t he development
rights relied upon by the developer had lapsed. Presumably, this is a reference to
the applicant’s claim that the 2003 EA has lapsed, which I have found to be
without merit. In any event, the same considerations already mentioned regarding
the restrictive conditions apply, namely that no further development was permitted
or planned on the former municipal land, and the land that is the subject of the land
swap is not the same as the property that is the subject of the 2003 EA.

[204] Next, the applicant states that n otwithstanding a formal request, the
Municipality withheld from IAPs critically relevant information (detailed in the 17
May 2024 objection) relating to: (i) the current development rights; (ii)
environmental authorisations, if any; and (iii) the HIA applicable to the property .
The Municipality has pointed out that the applicant's request for information was
made well before the land swap issue was even contemplated, and the information
requested did not pertain to the land swap but pertained to a situation before that,
namely the granting of the 2021 EA. Similar to the other complaints, the applicant
has failed to explain why the information request was relevant to the land swap
consideration and decision. The Municipality also states in its answering affidavit
that the information complained about is now contained in the rule 53 record of
these proceedings, yet the applicant has failed to deal with it in its supplementary
founding affidavit, an indication that the issue has been abandoned.

[205] In addition, Botsmaskop points out that, to the extent that this complaint
refers to the applicant ’s contention that th e Municipality’s notice published on 19
April 2024, ‘referred the public to further information to the website for the
agenda dated 21 February 2024 but no information was to be found in this
agenda’, the full record of the council meeting of 21 February 2024, includ ing the
material relating to the proposed land swap, was made available on the
Municipality’s website, and has provided the link for such access. Botmaskop adds
that, even if the applicant experienced difficulties in accessing the information, the
Municipality’s notice contained the contact details for the persons at the
Municipality dealing with the matter , and the applicant has provided no evidence
that it contacted any one of them to complain about its difficulty in getting access
to the relevant information or requested to be provided with same. None of the se
averments are gainsaid in reply.

[206] Next is consideration of the applicant’s complaint that t he requirements of s
14(2) of the M unicipal Finance Management Act 56 of 2003 were not met in that
the fair market value of the respective properties had not been established. Section
14(2) provides that-

‘A municipality may transfer ownership or otherwise dispose of a capital asset other
than one contemplated in subsection (1), but only after the municipal council, in a
meeting open to the public-

(a) has decided on reasonable grounds that the asset is not needed to provide the
minimum level of basic municipal services; and

(b) has considered the fair market value of the asset and the economic and community
value to be received in exchange for the asset.’

[207] As already indicated, the valuation report considered the fair market value
of the property and concluded that each of the properties was worth R1 950 000,
per hectare, excluding VAT. The contents of the report have not been challenged.

[208] The applicant claims that n o department or division of the Municipality had
any need to acquire the land on offer by the developers . There is no substantiation
for this bald assertion , and no reference to a specifi c legal stipulation as its basis,
and its relevance has not been established.

[209] The applicant states that the land swap application aimed to change certain
land uses without following the appropriate legal process. In this regard, the
applicant points to t he encroachment agreement which only allowed for the land
uses of "gardening and security purposes" and expressly prohibited all commercial
uses. As Botmaskop correctly points out, the applicant approbates and reprobates
in that, while seeking to impugn the validity of the encroachment agreement, it also
relies on its terms . In any event, the land swap did not change the zoning of the
land, or its use. As already stated, it was a condition of the land swap that the
owner of the swapped land be prohibited from any further development on the
swapped land and that the area’s natural fauna and flora be restored.

[210] Finally, in answer to the applicant’s complaint that the transaction was
premised on the developer having obtained a lawful environmental authorisation
for a residential development on the site in February 2021 , it has not been
established that the land swap was premised on, or conditional upon the existence

of development rights . I have already addressed the importance of distinguishing
between the two regulatory schemes elsewhere.

[211] In the replying affidavit and heads of argument the applicant has raised the
fact that the portion of land obtained from Botmaskop included a reservoir, which
was referred to by the municipal council when it approved the land swap. The
complaint in that regard is that the reservoir was never referred to when the land
swap agreement was motivated and was not referred to in the valuation report. As a
result, the alleged benefit of the reservoir was not considered by the decision
maker at the time and amounts to impermissible ex post facto justification.

[212] Once again, this is one of the instances in which the applicant’s case is
impermissibly and inexplicably made for the first time in reply. Nevertheless, the
evidence indicates the contrary. A s appears from the agendas of the municipal
council meeting s of 14 and 21 February 2024 , and of 24 and 30 July 2024, the
reservoir was mentioned at paragraph 6.8.2 and 6.7.2 respectively, as follows:

‘There is currently a municipal water line and reservoir under construction on the
municipal land that is proposed to be swapped. This will have to be protected by a
servitude should the land swap go ahead to ensure the municipality always has access.
Any servitude registration to protect our assets and access to it will have to be for the
cost of the applicants.’

[213] This shows that the reservoir was taken into consideration by the decision -
maker, the municipal council, and the applicant has not placed any evidence to
contradict that.

[214] To conclude on the review relating to the land swap decision, I have found
no basis to conclude that it was unlawful, irrational or arbitrary, for any of the
reasons relied upon by the applicant.

[215] The same considerations apply in respect of the declaratory order sought i n
prayer 7 of the notice of motion, to the effect that the development work, including
construction and building work undertaken by Botmaskop on erf 3[...] erf 3[...]2 is
unlawful in that no environmental authorization was granted. This claim appears to
be based on the applicant’s belief that the land swap was rendered invalid or
unlawful because it was premised on an invalid environmental authorization,
whether in respect of the 2003 EA or the 2021 EA. I say ‘appears to be’ because
there is no distinguishable case, whether factually or otherwise, made out for the
declarator, and the case in that regard seems to rely on the same claims as those
made in the review application considered above. As I have already found, there is
no case made out for the relief. Given the special conditions placed upon the land
swap, it has not been established, in any event, that there is any construction or
building work undertaken on the two erven.

[216] It is worth reiterating that the environmental authorisations were factually
and legally distinct decisions made by different government bodies. They were not
consequential decisions. They were not part of a multiphase decision -making
process. It has not been established that the land swap decision was premised in
any way on the environmental authorisations . Nor was there such a legal
requirement.

[217] A distinction between these processes is important and is, by now, well -
recognised. In LagoonBay Lifestyle 33 the Constitutional Court held that, whilst
similar issues might be considered in a rezoning application and an environmental
authorization, the different decision makers are statutorily obliged to reach their
own conclusions in relation to each application. In that case, the court held that it
was not a reviewable error for the provincial minister in that case to make a
decision which seemingly rejected positive recommendations from other
functionaries in the broader process. 34 By approving a rezoning, the Municipality
does not approve a residential development. It approves the use of land for
residential purposes, subject to specific conditions of approval.

[218] The Municipality’s zoning approval legislative scheme is not subservient to;
or even subject to, the environmental authorisation scheme. The two are
complimentary and no more. A failure to refer to one; or even an incorrect
reference, does not invalidate the other.35

[219] And, in terms of s 65 of the Municipality’s By -Law, it is not a requirement
that the Municipality should receive or consider any environmental authorisation.
In other words, the zoning approval is not dependent on environmental
authorisation from a municipality’s point of view.

H. AMENDMENT TO REVIEW REZONING DECISION
[220] Under this heading, the applicant seeks leave to amend its notice of motion
to introduce three further heads of relief as follows: (a) Reviewing and setting

33 Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others 2014 (1) SA
521 (CC) at para 65.
34 Ibid para 63.

35 Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd 2014 (1) SA 521 (CC).

aside the Municipality’s rezoning approval dated 28 November 2022 and the
related land use approvals; alternatively, declar ing the same to have lapsed and, in
either event, to be of no force or effect; (b) that the applicant’s late review of the
rezoning approval be condoned under section 9(1) of the PAJA; and (c) that this
Court should exercise its discretion in identifying which respondents should be
ordered to pay the costs of the Part B application, jointly and severally, the one
paying the other to be absolved. The applicant also asks that its founding affidavit
in this application be admitted as a further supplementary affidavit in support of
the amended relief in its Part B application.

[221] The grounds for the intended review may be summarized as follows: (a) the
rezoning approval authorises a larger building footprint and total development
footprint than the 2021 EA; (b) ‘Annexure A’ which is a subdivision plan
accompanying Reset's application for the rezoning approval, is misleading in that it
depicts a greater development area than claimed in its title, and authorises a larger
building footprint than allowed under the 2021 EA; (c) The Municipality failed to
consider the 2021 EA when it made its decision regarding the rezoning approval;
(d) the rezoning approval should have included a condition that the conditions of
the 2003 EA and/or 2021 EA be adhered to; (e) the rezoning approval does not
grant authority to deviate from the footprint authorised in the 2021 EA; (f) the
2021 EA has lapsed and the rezoning approval has also lapsed, and the setting
aside of the rezoning approval would be consequential relief following the setting
aside of the 2021 EA, because no development can take place without
environmental authorisation.

[222] The application is opposed by the MEC, second respondent, the
Municipality, Bo tmaskop, Reset and the Purchasers. In fact, Reset and the

Purchasers, who did not initially oppose the Part B application, have been actuated
into these proceedings by this amendment application, though Reset does so on a
conditional basis. They have been impelled, in particular by the applicant’s request
for a possible costs order against them, despite their not having opposed the main
matter.

[223] There are many challenges raised regarding the manner in which this
application was brought, and indeed, it leaves much to be desired. Although the
main proceedings were instituted in November 2024, and an interim interdict was
granted, it was only on 2 October 2025, 3 months after delivering its
supplementary affidavit that the applicant delivered a notice of intention to amend
its notice of motion to include a prayer to review and set aside a rezoning approval
of 28 November 2022. There was no notice that it also sought to amend the costs
order it seeks in the main application.

[224] On 16 October 2025 the Municipality objected to the intention to amend,
stating that this was a new cause of action which would prejudice it and, was in
any event, time barred. By then, Reset had withdrawn its opposition to the Part B
proceedings, having given such an intention on 13 October 2025, and the
Purchasers had not opposed the proceedings.

[225] In terms of Uniform Rule 28(4) the applicant was required to bring the
amendment application within 10 days, by 30 October 2025. It was only on 5
December 2025 that the applicant delivered an application for leave to amend, but
the application sought broader relief than what was presaged in the notice of
intention to amend. The relief sought in the application for leave to amend is as
follows:

‘Reviewing and setting aside the [Municipality’s] rezoning approval of 28/11/22, and
related land use approvals alternatively declaring same to have lapsed, and in either
event to be of no force or effect; Directing that the respondents identified in the
discretion of the above honourable court to be ordered to pay the costs of the Part B
application, jointly and severally, the one paying the other to be absolved’.

[226] When the applicant delivered its heads of argument on 17 February 2026 in
the main application it asserted that it would file subsequent heads in respect of its
amendment application and the relief sought therein at a later stage. When the
respondents delivered their heads of argument, the applicant had not delivered its
replying affidavit in this amendment application, such that the respondents were
not sure whether the application was still pursued. Then, on 4 March 2026, 3 court
days before the hearing t he applicant delivered its Heads of Argument (Related
Relief and Challenge to the Land Swap Agreement). No condonation was sought
and no explanation offered.

[227] In the replying affidavit which was out of time and in the subsequent heads
of argument, the applicant sought to expand the amended relief it seeks even
further. It now seeks, not only to have the November 2022 zoning approval set
aside, but also the May 2020 zoning approval, arguing that this should be inferred
from the words ‘ and related land use approvals’ which appear in its proposed
amended prayer. In court, Mr Farlam SC who appears for the applicant seemed to
tone down this latest ask and confirmed that the applicant only seeks what is
contained in the notice to the application for amendment. However, by then the
respondents had delivered supplementary heads of argument at the eleventh hour in
answer to the applicant's latest heads where all of this is contained.

[228] Apart from the tardiness already mentioned, the application for amendment
was not served upon the Purchasers or their attorneys of record, despite the
amended relief having a material impact on them, and this is not disputed. The
Purchasers point out that the amendment now sought is different and broader than
the initial relief sought in the applicant’s notice to amend dated 2 October 2025
because, in that notice, it did not seek an amendment to review any related land use
approvals, or a declaration that the rezoning approval had lapsed, or its proposed
special costs order. They were placed in what they refer to as an invidious position
of being forced to respond to the applicant’s proposed amendments, without the
benefit of a full record of the Municipality's decision to grant the rezoning
approval. The prejudice is patent.

[229] To make matters worse, the applicant has not addressed its failure to deliver
a notice of intention to amend to, or to have served the application for leave to
amend on, the Purchasers. Nor has it addressed its failure to apply for the
condonation of its failure to comply with Rule 28 and for bringing its application
for leave to amend out of time. In its replying affidavit its simply asserts that it is
not required to do so.

[230] Rule 28 makes no distinction between opposing and non -opposing parties. It
provides that: ‘Any party desiring to amend any pleading or document other than a
sworn statement, filed in connection with any proceedings, shall notify all other
parties of his intention to amend ....’ In Hein36 it was held that:

‘It is not only prejudicial but unfair for a party to invite the other, on the strength of relief
sought in the notice of motion, to show cause why such relief should not be granted, and

36 Webber N. O and Others v Hein [2021] ZAECGHC 76 (10 August 2021).

then, after the other party has ventilated itself by way of opposing papers, to sneak in an
extended notice of motion seeking relief to which the other party was not directed. ’

[231] In the circumstances of this case, where some respondents elected not to
oppose the main application because they were led to believe that the matter
concerned only environmental authorisations and a land swap transaction, it should
be obvious that they must be given notice of any attempt to extend the relief
sought, so that they may consider whether to oppose the amended relief or persist
with their decision to abide.

[232] The granting or refusal of an application for an amendment is a matter for
the discretion of the court, to be exercised judicially in the light of all the facts and
circumstances before it. 37 In Affordable Medicines Trust v Minister of Health , the
Constitution Court said (emphasis supplied):38

‘The practical rule that emerges from these cases is that amendments will always
be allowed unless the amendment is mala fide (made in bad faith) or unless the
amendment will cause an injustice to the other side which cannot be cured by an
appropriate order for costs, or “unless the parties cannot be put back for the
purposes of justice in the same position as they were when the pleading which it is
sought to amend was filed”.’

[233] The central consideration is whether the amendment will cause the other
party ‘such prejudice as cannot be cured by an order for costs and, where
appropriate, a postponement’. 39An applicant for an amendment seeks an
indulgence and ‘ must offer some explanation for why the amendment is required

37 Robinson v Randfontein Estates Gold Mining Company Ltd 1921 AD 168 at 243; Ciba-Geigy (Pty) Ltd v Lushof
Farms (Pty) Ltd 2002 (2) SA 447 (SCA) at [33].

38 2006 (3) SA 247 (CC) at para [9].

39 Affordable Medicines Trust supra para [9]; Trans-Drakensberg Bank Ltd (Under Judicial Management) v
Combined engineering (Pty) Ltd 1967 (3) (D) at p. 638A.

and, more especially if the application for amendment is not timeously made, some
reasonable satisfactory account for the delay.’40

[234] The amending party must also show that the amendment is bona fide and
will not prejudice the other parties. 41 Prejudice in this context refers to an injustice
which cannot be compensated by costs. An amendment which causes an injustice
which cannot be compensated by costs arises where the parties cannot be put back
for the purposes of justice in the same position as they were when the pleading
which is sought to be amended was filed.42

[235] Where an amendment is sought at an advanced stage of proceedings, an
applicant must show that it has not delayed their application after becoming aware
of the evidentiary material on which they rely. 43 It must also show that it raises a
triable issue. 44 The prospects of success in relation to the amendment are also
relevant.

[236] As the facts outlined above indicate, the application for amendment falls
woefully short of these standards emanating from the case law. Apart from the
issues already discussed, the amendment also seeks to introduce the determination
of a new cause of action that is not before the Court.

40 Brandon v Minister of Law and Order & another 1997 (3) SA 68 (C) at 75A-B.

41 Moolman v Estate Moolman 1927 CPD 27 at 29, as endorsed in Ascendis Animal Health (Pty) Ltd v Merck
Sharp Dohme Corporation and Others 2020 (14) SA 327 (CC) at para 89.

42 Moolman supra at 29.

43 Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd and Ander 2002 (2) SA 447 (SCA) at paras 34, 36. Trans-
Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA
632 (D) at 641A-B.

44 Ciba-Geigy op cit para 43.

[237] There are also issues of delay as already highlighted earlier. It remains
unknown when exactly the applicant became aware of the November 2022
decision, and the applicant is silent on that information. But it is common cause
that during July 2019 it was given notice of the planning application that led to the
May 2020 zoning approval, and it raised no objection and also did not appeal the
May 2020 zoning approval. It now seeks to have the rezoning approval set aside
almost six years later, with no explanation for its delay.

[238] Some of the respondents have provided estimates that, at the very latest, the
applicant was aware by 1 November 2024, when Mr Donaldson deposed to the
applicant’s founding affidavit in the main application, and in that case the 180 -day
period within which it should have instituted the review as required by s 7(1) of
PAJA, expired on or about 30 April 2025, at the latest.

[239] The Municipality points out that, apart from the issues related to an
Annexure A, which the applicant states it received on 29 August 2025, most of the
information on which it bases the intended review was available to it on at least the
date of its founding affidavit, or, at the very latest, the date of its supplementary
founding affidavit, being 30 July 2025. It has not explained these delays.

[240] An applicant seeking an extension of the 180-day period is required to give a
full and reasonable explanation for their delay, covering the entire period. The
applicant has not given any explanation for its delay in bringing a review of the
November 2022, let alone a full and reasonable explanation, which comprises a
period of approximately five months at a minimum.

[241] The standard for considering an application for condonation is undergirded
by the interests of justice. This depends on the facts and circumstances of each
case. Factors relevant to this enquiry include but are not limited to: the nature of
the relief sought; the extent and cause of the delay; the effect of the delay on the
administration of justice and other litigants; the reasonableness of the explanation
for the delay; the importance of the issue to be raised in the matter; and the
prospects of success. 45The principles applicable to condonation applications were
summarised by Plewman JA in Darries v Sheriff, Magistrate’s Court, Wynberg 46
(emphasis added):47

‘Condonation of the non -observance of the Rules of this Court is not a mere
formality … In all cases some acceptable explanation, not only of, for example,
the delay in noting an appeal, but also, where this is the case, any delay in
seeking condonation, must be given. … Nor should it simply be assumed that,
where non-compliance was due entirely to the neglect of the appellant’s attorney
condonation will be granted … In applications of this sort the appellant’s
prospects of success are in general an important though not decisive
consideration. When application is made for condonation it is advisable that the
p etition should set forth briefly and succinctly such essential information as may
enable the Court to assess the appellant’s prospects of success. … But the
appellant’s prospects of success is but one of the factors relevant to the exercise
of the Court’s discretion, unless the cumulative effect of the other relevant
factors in the case is such as to render the application for condonation obviously
unworthy of consideration. Where non -observance of the Rules has been
flagrant and gross an application for condonation should not be granted,
whatever the prospects of success might be.48


45 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472

(CC) para [20].

46 1998 (3) SA 34 (SCA) at 40I-41E.

47 Approved must recently in SA Express Ltd v Bagport (Pty) Ltd 2020 (5) SA 404 (SCA) para [14].

48 In respect of the latter, see also Commissioner for the South African Revenue Service v Van der Merwe 2016
(1) SA 599 (SCA) para [19].

[242] There is no basis upon which to condone the applicant’s delay in instituting
its review of the November 2022 decision. This is especially the case when
considering the other aspects referred to above, relating to non -compliance with
the requirements for an amendment and the prejudice to other parties. It would not
be in the interests of justice to grant condonation.

[243] Besides, there is no merit to the application, and the evidence shows that the
relief sought will have a hollow effect. The background facts are that on 26 May
2020, the Municipality granted a land use approval. It approved the rezoning of the
property to allow for the development of: Residential Zone I erven for freestanding
single residential units; Residential Zone IV erven for 29 residential units which
were envisaged to form part of sectional title units; 30 Open Space Zone II for,
inter alia, private open spaces, private roads, outbuildings, and estate
infrastructure; and 1 Transport Zone II portion for public road purposes.

[244] In August 2022, Reset, through First Plan, submitted the application for the
amendment of the rezoning approval. The main amendment sought was the
subdivision of the ten existing Residential Zone IV erven into additional freehold
residential erven, through an amendment to the approved subdivision plan. Reset
states that this was necessitated by changed market dynamics and a change in the
Municipality's zoning scheme. There would be no other substantive impacts on
other elements of the estate, such as traffi c density or engineering services. The
Municipality approved the rezoning approval on 28 November 2022.

[245] In granting the approval, the Municipality approved the subdivision of the
ten existing Residential Zone IV erven into twenty -nine Conventional Residential
Zone erven with Consent for Group Housing. Thus, the November 2022 decision

was not a substantive decision to approve the development of an estate at
Botmaskop. Rather, it was a formal amendment to the previously -approved
subdivision plan.

[246] As a result, as the respondents opposing this application point out, since the
applicant has not challenged the May 2020 land use approval, it will remain valid
regardless of the outcome the intended review application. Should the November
2022 approval be set aside, the position under the 2020 land use approval would
simply be re -instated. The estate development on the property would still stand as
approved and the majority of the existing zoning infrastructure would remain.
Hence the reference to the hollow effect of the relief sought.

[247] On the other hand, the Purchasers state that the impact upon them would be
significant if the relief sought by the applicant were granted in that the setting aside
of the November 2022 would be that the subdivided erven would revert back to
their previous state as part of the ten Residential Zone IV erven and would no
longer exist. This will affect at least twenty of the Purchasers, who are listed in
another table, and whose sale agreements with Botsmaskop may in turn be
invalidated. By reverting to the May 2020 subdivision, the newly -subdivided erven
would revert to their previous states.

[248] The Purchasers also state that the amended prayer to review and set aside the
rezoning approval would cause them prejudice in a manner which cannot be cured
by a costs order and would not introduce a triable issue. They explain that they
have all purchased erven on the property from Botmaskop, and they intend to
construct residential housing on these erven. As at the date of their answering
affidavit, several of them had taken steps to advance their planned construction

projects, by submitting building plans to the Municipality in terms of the National
Building Regulations and Standards Act 103 of 1977, and in some cases approval
for those plans has been granted. In a table , they have provided expenditure
incurred in respect of the properties, which do not include the actual costs of
purchasing the erven or other losses incurred as a result of the delays in the
development, but do include rates and taxes and levies paid in respect of those
erven. The amount s range between R949,488.90 and R4,728,664.69, and amount
to a total of R9,556,310.02.

[249] The Purchasers state that if the rezoning approval is set aside, this may
invalidate certain of their sale agreements with Botmaskop . Yet the applicant’s
intended review does not include any consequential relief to address the practical
consequences for the Purchasers, and accordingly, the amendments have a direct
and material impact on them.

[250] Further prejudice arises from the fact that the Purchasers and Botmaskop
concluded contracts relying on the validity of the November 2022 rezoning
approval, which may now be unwound. Where erven have already been transferred
to Purchasers, they would need to engage with the Deeds office to reverse those
transfers. If a further sub -division is granted, and they wished to continue with
their respective transactions, they would need to negotiate new transactions for
different erven.

[251] The circumstances arising in this amendment application call to mind the
case of Harrison49. There, the applicant sought to set aside building plans approved

49 Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another (560/08) [2010] ZASCA
3; [2010] 2 All SA 519 (SCA) (17 February 2010).

by the City of Cape Town, and approximately 3 years later so ught to add a new
ground of review in the replying affidavit. The SCA held that the challenge was
raised out of time, because the alleged infringement was clear from the outset and
the reviewing party only sought to raise the issue more than three years later, after
substantial litigation had already occurred. The SCA also held that this was not the
applicant's primary concern, that the owner of the property had already incurred
substantial costs due to their innocent reliance on the approval, and that in any
event the infraction was minor and would not have a significant impact. The same
considerations apply here.

[252] For all these reasons I am of the view that the application for leave to amend
is wholly defective and should be dismissed. And given the egregious conduct of
serial non-compliance without regard to uniform rules outlined in this section, I am
in agreement with the respondents’ view that the applicant’s decision to pursue the
amendment under these circumstances justifies a costs order on a punitive scale.
Similarly, to the extent that there is any condonation request, there are no grounds
on which to grant condonation.

[253] There are other reasons why the intended review has poor prospects of
success, but I consider it unnecessary to discuss them in light of the fact that, as
already discussed, the applicant is time -barred and the amendment application is
defective. Considerations of scarce judicial resources and the administration of
justice also mitigate against delving into those aspects, given the wide -ranging
basis for the relief sought which truly constitutes a new cause of action. I have

considered all the intended grounds of review and concluded that there are no
prospects of success on the papers.

I. COSTS

[254] There remains the issue of costs. The applicant has been unsuccessful. The
parties agree that the principles of Biowatch50 are applicable as against the State
respondents. However, the Biowatch principle only shields an applicant from a
costs order against the State,51 not against private litigants.

[255] I have already found, in relation to the amendment application that costs
should be ordered on a punitive scale. The opposition of that application by the
parties, including Botmaskop, Reset and the Purchasers was reasonable, and there
is no reason why these private litigants should be p laced out of pocket for
proceedings which were arrant and stillborn.

[256] The amendment application is the only application opposed by Reset and the
Purchasers, since they did not oppose the main relief sought in Part B, and they are
accordingly not entitled to costs in that regard. Unlike Botmaskop, which opposed
the main application in Part B, and is accordingly entitled to its costs.

[257] Botmaskop is also entitled to costs relating to Part A. It cannot be faulted for
having opposed the interim proceedings, especially when considering the

50 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232
(CC); 2009 (10) BCLR 1014 (CC) (3 June 2009)
51 Turnbull-Jackson v Hibiscus Coast Municipality and Others 20146) SA 592 (CC) at para 98; Madikizela-
Mandela v Executors, Estate Late Mandela and Others 2018 (4) SA 86 (SCA) at para 35.

extraordinary and still unexplained delay on the part of the applicant in
commencing proceedings and bringing the application on an urgent basis. Not to
mention that fact that, on the application of Oudekraal it was entitled to assume
and act on the basis that the 2021 EA was lawful until set aside. And, as it now
turns out, it has been successful in its opposition.

[258] To the extent that there are any costs in relation to the joinder application of
the Purchasers, the applicant should also bear those costs.

[259] The complexity and volume of papers involved in the matter justifies its use
of two counsel, on scale C and B respectively.

[260] I have considered s 32(2) of NEMA, which allows a Court a discretion not to
award costs against a party who fails to secure relief regarding a breach or
threatened breach of NEMA, any provision of a specific environmental
management Act, or any other statutory provision concerned with the protection of
the environment or the use of natural resources, if the court is of the opinion that
the person acted reasonably out of a concern for the public interest or in the interest
of protecting the environment and h ad made due efforts to use other means
reasonably available for obtaining the relief sought. Given the circumstance of this
case, which are discussed at length in this judgment, I have not found any basis to
exercise the discretion referred to in this provision.

J. THE ORDER

[261] In the circumstances, the following order is made:

e. The relief sought at paragraphs 5 to 13 in Part B of the notice of motion
is dismissed.

f. The applicant is ordered to pay the costs of the fourth respondent in
Parts A and B of these proceedings, including costs of two counsel, on
scale C and B respectively.

g. The application to amend the notice of motion to include the review of
the rezoning approval dated 28 November 2022 and related relief (the
amendment application) is dismissed.

h. The applicant is ordered to pay the costs of fourth respondent
(Botmaskop), sixth respondent (Reset) and seventh to thirty -second
respondents (the Purchasers) in the amendment application on an
attorney-client scale.

_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court

Appearances:

For applicant : P. Farlam SC
M. Schoeman
Instructed by: J. van der Merwe, JD van der Merwe Attorneys

For first and second respondents: S. Magardie
Instructed by: A. Hoosain, State Attorney

For third respondent: A. Nacerodien
Instructed by: P. van Vuuren, CK Attorneys

For fourth respondent: S.C. Rosenberg SC
J. Engelbrecht
Instructed by: G. Cloete, Werksmans Attorneys

For sixth respondent: A Breitenbach SC
R Patrick SC
Instructed by: P. Hill, Cluver Markotter
For eighth to sixteenth;
eighteenth to twentieth;
twenty-third, twenty-fifth: and
thirtieth to thirty-first respondents: M. O’ Sullivan SC
A. Gloor
Instructed by: C. Albertyn, De Klerk Van Gend