MEC: Department of Agriculture, Conservation and Environment and Another v HTF Developers (Pty) Limited (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December 2007)

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[2007] ZACC 25
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MEC: Department of Agriculture, Conservation and Environment and Another v HTF Developers (Pty) Limited (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 32/07
[2007]
ZACC 25
MEC: DEPARTMENT OF AGRICULTURE,                                                                         Â
CONSERVATION AND ENVIRONMENT                                                   Â
First
Applicant
DR S T CORNELIUS                                                                                  Â
Second
Applicant
                                                                                                                                        Â
versus
HTF DEVELOPERS (PTY) LIMITED                                                                Â
Respondent
Heard on         :           6 September 2007
Decided on     :           6 December 2007
JUDGMENT
SKWEYIYA J:
Introduction
[1]
In this matter the applicants seek leave to
appeal against the judgment of the Supreme Court of Appeal.
[1]
 They also apply for
condonation for the late filing of the application.
[2]
The case concerns the question whether the
exercise of power in terms of section 31A of the Environment Conservation Act
[2]
(the ECA) is subject to the
30-day notice and comment procedure envisaged in section 32 of the same Act.
[3]
Section 31A of the ECA provides:
“
Powers of Minister, competent
authority, local authority or government institution where environment is
damaged, endangered or detrimentally
affected—
(1)        If, in the opinion of the Minister or the competent
authority, local authority or government institution concerned,
any person
performs any activity or fails to perform any activity as a result of which the
environment is or may be seriously damaged,
endangered or detrimentally
affected, the Minister, competent authority, local authority or government
institution, as the case
may be, may in writing direct such person—
            (a)        to cease such
activity; or
(b)        to take such steps as the Minister, competent authority,
local authority or government institution, as the case
may be, may deem fit,
within a period
specified in the direction, with a view to eliminating, reducing or preventing
the damage, danger or detrimental
effect.
(2)        The Minister or the competent authority, local authority
or government institution concerned may direct the person
referred to in
subsection (1) to perform any activity or function at the expense of such
person with a view to rehabilitating any
damage caused to the environment as a
result of the activity or failure referred to in subsection (1), to the
satisfaction of the
Minister, competent authority, local authority or
government institution, as the case may be.
(3)        If the person referred to in subsection (2) fails to
perform the activity or function, the Minister, competent
authority, local
authority or government institution, depending on who or which issued the
direction, may perform such activity
or function as if he or it were that
person and may authorize any person to take all steps required for that
purpose.
(4)        Any expenditure incurred by the Minister, a competent
authority, a local authority or a government institution
in the performance of
any function by virtue of the provisions of subsection (3), may be recovered
from the person concerned.”
[4]
Section 32 of the ECA provides:
“
Publication for comment—
(1)        If the Minister, the Minister of Water Affairs, a
competent authority or any local authority, as the case may be,
intends to—
(a)        issue
a regulation or a direction in terms of the provisions of this Act;
(b)        make a declaration or identification in terms of section
16(1), 18(1), 21(1) or 23(1); or
(c)        determine
a policy in terms of section 2,
a draft notice
shall first be published in the Gazette or the Official Gazette in question, as
the case may be.
(2)        The draft notice referred to in
subsection (1) shall include—
(a)        the text of the proposed regulation, direction,
declaration, identification or determination of policy;
(b)        a request that interested parties shall submit comments
in connection with the proposed regulation, direction,
declaration,
identification or determination of policy within the period stated in the
notice, which period shall not be fewer
than 30 days after the date of
publication of the notice;
(c)        the address to
which such comments shall be submitted.
(3)        If the Minister, competent authority or local authority
concerned thereafter determines on any alteration of the
draft notice published
as aforesaid, it shall not be necessary to publish such alteration before
finally issuing the notice.”
Parties
[5]
The first applicant is the Member of the
Executive Council of the Department of Agriculture, Conservation and
Environment for Gauteng
Province.  The second applicant is Dr S T Cornelius,
the Head of Department of Agriculture, Conservation and Environment, Gauteng
Province (the Head of Department).  The respondent is HTF Developers (Pty) Ltd
(HTF), a limited liability company.
Background to the application
[6]
HTF owns property
[3]
which, with the approval of the relevant housing authority, it planned to
sub-divide into residential stands for sale to individual
buyers.  On 18 July 2005, the Head of Department sent a letter to HTF identifying the property under
development as “virgin ground”.
[4]
 The cultivation or use of virgin ground was considered to have a substantial
detrimental effect on the environment in terms of
section 21(1)
[5]
of the ECA and therefore prohibited
in terms of section 22
[6]
of the ECA unless written authorisation was granted.
[7]
In the letter, the Department of Agriculture,
Conservation and Environment (the Department) deemed the process of
clearing the property for the purposes of construction
prior to receiving its authorisation, an illegal activity.  According to
the Department,
the clearing of the virgin ground would result in serious damage to the
environment.  This conclusion was based
on the findings of a site inspection
which revealed that most of HTF’s property is located on an untransformed ridge,
a sensitive
environment
characterised by
high biodiversity which would be detrimentally affected by
earthworks and infrastructural development.  The development
was thought to further threaten the existence of Red Data species
[7]
as well as the naturally existing
corridors that the ridges form.  Finally, the letter stated that HTF did not
apply a
number of the principles
set out in the National Environmental Management Act
[8]
(NEMA) in the
planning of the development.
[8]
Accordingly,
the Department indicated its intent to issue a directive in terms of
section 31A of the ECA instructing HTF to cease the development
of the property
until the relevant authorisation was obtained.  HTF was afforded 48 hours to
furnish the Department with compelling
reasons stipulating why the Department
should not exercise its powers in terms of section 31A.
[9]
In response, HTF’s attorneys addressed a letter
to the Department dated 20 July 2005 disputing the validity of the section 31A

directive.  They argued that the land in question did not fall within the
definition of “virgin land” and therefore the construction
activities did not
fall within the listed activities in section 21 and were not subject to the
authorisation in terms of section
22.  Accordingly, HTF insisted that the Department
did not have the legal basis for directing that it cease its development.
[10]
The Head of Department was not persuaded by the
reasons provided by HTF and on 12 August 2005 issued the section 31A directive
ordering
HTF to stop clearing the site and other construction activities, and
to submit for approval by the Department an environmental management
plan
within 30 days.  Thereafter on 17 October 2005 HTF initiated legal proceedings.
High Court decision
[11]
In the High Court,
[9]
HTF sought an order declaring that
the land in question was not virgin ground and that the section 31A notice was unlawful
because
it was issued in respect of an activity not falling within the listed
activities in terms of section 31 of the ECA.
[12]
The High Court accepted that the property was virgin
ground.
[10]
 However, in relation to the second ground, it was held that even if the
development did not fall within the listed activities
in section 21, a
directive in terms of section 31A was not precluded.
[11]
  Therefore, HTF’s claim was
dismissed. With leave of the High Court, HTF appealed to the Supreme Court of
Appeal.
The Supreme Court of Appeal
decision
[13]
In the Supreme Court of Appeal, the issue
relating to the determination whether the land in question was virgin ground became
moot.Â
This was so because at that stage, the regulations which contained the
prohibition of harmful activity on virgin ground were repealed.
[12]
[14]
It was only in the Supreme Court of Appeal that HTF
raised the question of whether a competent authority must comply with the
30-day
notice and comment procedure of section 32 before invoking its powers
under section 31A.  It follows that the crisp issue presented
before this Court
is whether a decision issued in terms of section 31A is subject to the
procedural requirements of section 32
to the effect that the decision must be
preceded by a draft notice published for comment in the Government Gazette.
[15]
Combrinck JA, for the majority, held that the
unambiguous wording of section 32 taken together with the fact that it predates
the
insertion of section 31A, suggests that the Head of Department should have
followed the procedure set out in section 32 before exercising
his or her powers
in terms of section 31A.
[13]
Â
In response to the argument that the requirements of section 32 should be
dispensed with in cases of urgency, the majority made
two findings.
[14]
 First, they noted that the Legislature
could have made provision for these instances if it had chosen to do so.  Second,
if
the situation proved urgent, the Head of Department could have applied for
an interim interdict, to afford him or her time to comply
with the formalities
of the ECA.
[16]
The majority held that the procedural prerequisites
of section 32 cannot be ignored in favour of less onerous provisions in general

legislation such as the Promotion of Administrative Justice Act
[15]
(PAJA).  They found that
directions issued in terms of section 31A were invalid for failing to comply
with the provisions of section
32.
[16]
[17]
Jafta JA, in the minority, differed in his
interpretation of sections 31A and 32 of the ECA.  He concluded that section 32
does
not create a prerequisite for the exercise of the power in section 31A.
[17]
 This view was based on the
differing purposes of the two provisions.
[18]
 He described the purpose of section 32 to be the promotion of the right to
administrative justice, in particular the right to
procedural fairness.  This
aim is achieved by the notice and comment procedure contained in the provision.
[19]
 The purpose of section 31A,
on the other hand, is to promote the “right to an environment that is not
harmful to the well-being
and health of the people”.
[20]
 Jafta JA reasoned that
section 32 “must not be given an interpretation which, if applied, would defeat
the objects of s 31A.”
[21]
[18]
He found that the notice and comment procedure,
embodied in section 32, is not suitable for emergency cases.  Further, he found

that the approach suggested by the majority, in relation to temporary
interdicts, would be inappropriate as the granting of such
relief would amount
to the usurping of an administrative power by the court.
[22]
 He concluded that the Head of
Department was not obliged to publish a draft notice before exercising his
power under section
31A, but that the exercise of power had to accord with the procedural
fairness requirements of PAJA.
[23]
 He considered the letter issued by the Head of Department giving HTF notice of
the impending administrative action to be sufficient
in fulfilling that
requirement.
[24]
The issue in this Court
[19]
The narrow issue for determination by this Court
is whether an exercise of power under section 31A of the ECA is subject to the
notice and comment procedure of section 32 of the same Act.  It raises a constitutional
issue as the applicants allege that the
provision was not interpreted in line
with the spirit, purport and objects of the Bill of Rights, as required by
section 39(2)
of the Constitution.
[25]
Â
More fundamentally, however, the section requires an interpretation that gives
effect to the environmental right contained in
the Constitution.
[26]
[20]
Before considering the application for leave to
appeal, it is necessary to consider the application for condonation.  The
application
was lodged on 15 May 2007, 25 days after the expiry of the dies set
out by the Court Rules.
[27]
Â
The applicants explain that they were late in the filing of the application by
claiming that they only became aware of the judgment
of the Supreme Court of
Appeal nine days before the expiry of the
time limit set by this Court,
and that they did not immediately appreciate the significance of the order of
the Supreme Court of
Appeal.  They also say that they understood the
consequences of the decision only after seeking legal opinion, a process which

delayed application to this Court further.
[21]
This explanation is not satisfactory.  Given
that the issue before this Court was argued before the Supreme Court of Appeal,
with
the assistance of counsel, it is surprising that the applicants in this
Court initially did not grasp the import of the order made,
and did not gain
the advice of counsel earlier than they claim.  Although the reasons advanced
by the applicants are not satisfactory,
I do not find it necessary to dismiss
the application for the following reasons.
[22]
This matter concerns the interpretation of an
important tool for environmental protection, which is underscored by section 24
of
the Constitution.  Refusal of the application for condonation could have an
impact on the manner in which the obligation to give
effect to section 24 is
given form.  Such an eventuality is not in the interests of justice.  Nor is the
period of delay (25
days) inordinately long enough to warrant condonation being
refused.  Moreover, it is not without some significance that the applicants

acknowledged their default and have tendered to pay costs.  It is clearly in
the interests of justice to grant condonation and
leave to appeal.  Reluctantly,
I will allow the application for condonation.
The statutory framework
[23]
Underlying the interpretation of the
relationship between the two provisions is section 24 of the Constitution,
which provides:
“Everyone has the right—
(a)
      Â
to
an environment that is not harmful to their health or well-being; and
(b)      Â
to have the environment protected,
for the benefit of present and future generations, through reasonable legislative
and other measures
that—
(i)         prevent
pollution and ecological degradation;
(ii)        promote
conservation; and
(iii)       secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.”
[24]
NEMA is a legislative measure contemplated by
section 24(b) of the Constitution.  Section 2 of NEMA sets out a series of
principles
that give effect to the understanding that “the environment is a
composite right, which includes social, economic and cultural
considerations in
order to ultimately result in a balanced environment.”
[28]
  The composite nature of this
right is captured in the principle that “[d]evelopment must be socially,
environmentally and economically
sustainable.”
[29]
Â
NEMA envisages the concept of sustainable development which requires that a
“risk-averse and cautious approach is applied”,
[30]
whereby “negative impacts on
the environment and on people’s environmental rights be anticipated and
prevented, and where they
cannot be altogether prevented, are minimised and
remedied.”
[31]
Â
To balance this cautious approach, NEMA insists that decision-making in
relation to the environment “must take into account
the interests, needs and
values of all interested and affected parties”.
[32]
[25]
The principles contained in section 2 of NEMA
endorse and promote an approach to the environment that is consistent with
international
norms, including a consideration of all relevant interests to the
process of environmental management.
[33]
Â
Osborn notes that:
“The old environmental world had simple
verities and simple solutions.  There were wicked polluters and brave fighters
for proper
control. . . .  In the new world of sustainable development all is
much fuzzier.  A much wider range of the public as well as
firms and public
bodies of all shapes and sizes are the relevant actors. . . .  Just as there is
a multiplication of types of
actor, there is a multiplication of types of
action and response to consider. . . .  This is not easy territory for
lawyers.Â
Traditional law has always relied on sharp categories and sharp
distinctions.  It has felt at home in the world of black and white,
yes or no
decisions, right and wrong, duties and penalties.”
[34]
[26]
Environmental management, as considered by NEMA,
is a process that induces tension with other rights contained in the Bill of
Rights,
most notably property rights
[35]
and the right to freedom of trade and occupation.
[36]
  While the environmental right
is a collective right, it does not supersede or eclipse other rights.
[37]
[27]
In
Fuel Retailers
,
[38]
this Court proclaimed that—
“[t]he Constitution recognises the
interrelationship between the environment and development; indeed it recognises
the need for
the protection of the environment while at the same time it
recognises the need for social and economic development.  It contemplates
the
integration of environmental protection and socio-economic development.  It
envisages that environmental considerations will
be balanced with
socio-economic considerations through the ideal of sustainable development.Â
This is apparent from section 24(b)(iii)
which provides that the environment
will be protected by securing ‘ecologically sustainable development and use of
natural resources
while promoting justifiable economic and social development’.Â
Sustainable development and sustainable use and exploitation of
natural
resources are at the core of the protection of the environment.”
[39]
[28]
Where more than one right comes into play, they
must be appropriately balanced by the courts, which have a vital role to play
in
environmental matters in pursuit of sustainable development.  In
Fuel
Retailers
, this Court further noted that—
“[t]he role of the courts is especially
important in the context of the protection of the environment and giving effect
to the
principle of sustainable development.  The importance of the protection
of the environment cannot be gainsaid.  Its protection
is vital to the
enjoyment of the other rights contained in the Bill of Rights; indeed, it is
vital to life itself.  It must therefore
be protected for the benefit of the
present and future generations.  The present generation holds the earth in
trust for the next
generation.  This trusteeship position carries with it the responsibility
to look after the environment.  It is the duty of the
Court to ensure that this
responsibility is carried out.”
[40]
Interpretation of section 31A
[29]
In this case we are required to interpret
section 31A of the ECA in light of the principles articulated in section 2 of
NEMA.Â
Although section 31A was inserted into the ECA in 1992
[41]
before the promulgation of
NEMA in 1998,
section 2(1)(e) of NEMA nevertheless demands that all
environmental legislation is interpreted in light of its principles
.
[42]
[30]
The applicants support the minority judgment of
the Supreme Court of Appeal, in particular the analogy between the implicated
sections
of the ECA and the corresponding provisions of PAJA.  Jafta JA’s view
is that the notice and comment procedure in section 32
of the ECA is most
suitable to decisions affecting the general public.  According to Jafta JA—
“[t]his view is fortified by the provisions
of PAJA.  The notice-and-comment procedure appears in s 4 of PAJA which deals
specifically
with procedural fairness in administrative actions which affect
the general public.  This procedure does not feature at all under
the section
dealing with procedural fairness in actions affecting individuals (s 3).”
[43]
[31]
As I understand the applicants’ argument based
on the above analysis, like section 3 of PAJA, section 31A of the ECA affects
individuals,
and accordingly should not be subjected to a notice and comment
procedure aimed at securing public participation.  They contend
that just as section
3 of PAJA provides for procedural flexibility in cases where administrative
action affects individuals, section
31A should likewise be endowed with the
same flexibility to truncate procedural requirements so that the relevant
functionaries
are able to effectively discharge their obligations to protect
the environment, especially in urgent situations.
[32]
The relationship between sections 31A and 32 is
best understood through an analysis of the nature of the “directions” that the

procedures in section 32 apply to.  On a literal reading of section 32, the
procedures set out therein appear to be applicable
to all “directions” issued
in terms of the ECA.  Section 31A stipulates that the relevant functionary
listed in the provision
“may in writing direct” a person to cease activity or
take steps deemed fit by the functionary “within a period specified
in the
direction
”.Â
HTF argues that the mention of “direction” in section 31A has the same
connotation as in section 32, and therefore the
latter provision’s procedures
apply to the exercise of power contained in the former.
[33]
This argument is based on an interpretative
presumption that where the Legislature uses the same words in a particular
statute,
it intends for them to bear the same meaning throughout.  However,
room exists for deviation from such a presumption when justified.Â
This Court held
in
S v Dlamini
[44]
that:
“It is of course most unusual to find one
and the same expression used in one and the same statute but not bearing a
consistent
meaning.  In our law the Legislature is presumed to use language
consistently and one would deviate from the presumption with great
hesitation
and only if driven to do so, for example, because to do otherwise would lead to
manifest absurdity
or would clearly frustrate the manifest intention of
the lawgiver.”
[45]
Â
(Footnotes omitted.)  (Emphasis added.)
[34]
Bearing this in mind, the analysis of the
provisions of the ECA indicates that the term “direction” appears in two
separate
contexts, namely:
(a)
Directions applicable to members of the public
generally
which must be published in the Government Gazette (see section 16(2)
[46]
and section 20(8)
[47]
); and
(b)
directions applicable to
specific
persons
or entities (see section 31
[48]
and section 31A
[49]
).
[35]
In the first context, it is appropriate that a
draft notice containing the intended direction, which could impact on the
general
public, should first be published in the Government Gazette for
consultative purposes before the direction is officially issued.Â
An argument
to this effect was made before the Supreme Court of Appeal and was accepted in
the minority judgment.  In my view,
Jafta JA correctly interpreted the term “direction”
in sections 16(2) and 20(8) to mean “a set of rules designed for the management

of the subject matter covered in those sections”, which according to him does
not instruct anybody to do or refrain from doing
anything.
[50]
[36]
In the second context, namely directions mandated
by sections 31 and 31A, aimed at the activities of specific people or entities,

a 30-day notice and comment procedure is not appropriate, or required.
[37]
Further, the absurdity spoken of in this Court’s
decision in
Dlamini
[51]
is revealed on a comparison of section 31 with section 31A of the
ECA.  Section 31(1) states:
“If in the opinion of the competent
authority of the province in question, any local authority fails to perform any
function assigned
to it by or under this Act, that competent authority may,
after affording that local authority an opportunity of making representations

to him,
in writing direct such local authority to perform such function within
a period specified in the direction
, and if that local authority fails to
comply with such direction, the competent authority may perform such function
as if he were
that local authority and may authorize any person to take all
steps required for that purpose.”  (Emphasis added.)
[38]
Section 31 contains the term “direction”.Â
However, if the section 32 procedures were to apply to this provision, that may
lead to a provincial authority, in an endeavour to address the shortcomings of
a local authority in fulfilling its functions, being
required to furnish the
local authority with a notice with draft directions in a Government Gazette and
provide it with 30 days
to respond before producing a final notice; all this,
instead of approaching it directly.
[39]
Section 31A contains very similar terms to those
in section 31 but is directed at a person instead of a local authority.Â
Section
31A stipulates that the relevant functionary listed in the provision
“may
in writing direct
such person” to cease activity or take steps
deemed fit by the functionary “
within a period specified in the direction
”.Â
On the other hand section 31 provides that a competent authority may “
in
writing direct
such local authority to perform such function
within a
period specified in the direction
”.  It is true, as the majority in the
Supreme Court of Appeal indicated, that the Legislature inserted section 31A
with full
knowledge of the existence of section 32 and its applicability to
directions issued in terms of the ECA.  The Legislature also
had full knowledge
of the existence of section 31 when it inserted section 31A after that
section.  If it can be concluded that
it would not be appropriate to subject
section 31 to the procedures embodied in section 32, it is difficult to fathom
why the same
reasoning cannot be extended to section 31A.  It appears that both
sections require that the specific person or the specific local
authority is to
be addressed in a written direction in order to deal with its malperformance or
harm-causing activities directly.
Procedural requirements
[40]
A significant difference between sections 31 and
31A appears to be the internal procedural requirement in section 31, which
stipulates
that before a direction is issued, the local authority must be
afforded “an opportunity of making representations”.  No similar
requirement
appears in section 31A.  The simplest explanation for this lies in the purpose
of each provision.  Section 31 contains
the power to address the failure by a
“local authority . . . to perform any function assigned to it by or under [the
ECA]”.Â
Section 31A on the other hand contains the power to address situations
where the “environment is or may be seriously damaged,
endangered or
detrimentally affected”.  It is evident that the former provision relates to
the internal failings of a department,
which often require input from the
functionaries themselves in order to identify the true nature of the failing in
response to
which an effective remedy can be fashioned.
[41]
Section 31A, on the other hand, deals with situations
where actions or inactions of individuals cause or threaten to cause harm to

the environment.  These situations require a prompt response, which depending
on the urgency of the situation, may not be able
to accommodate consultation
prior to the issuing of a direction to cease the harmful activity.  The lack of
an internal procedural
requirement in section 31A, however, does not mean that
the power contained therein is completely unconstrained or “unlimited”,
as per HTF’s
version.
[42]
Before any action can be taken in terms of
section 31A, there are a number of threshold requirements that need to be met.
[52]
 These requirements are: (a) performance
or failure to perform an activity; (b) a relevant functionary; (c) formation of
an opinion;
and (d) serious damage to, endangerment of or detrimental effect on
the environment.  Section 36 of the ECA enables a person whose
interests have
been affected by a decision in terms of the Act to request written reasons and
to approach a competent court to
review the decision.
[53]
  The existence of threshold
requirements, together with a statutory right of review, serves to check the
exercise of power under
section 31A.
[43]
In addition, the power exercised in terms of
section 31A is subject to administrative review under PAJA.
[54]
  Section 3 of PAJA deals with
administrative action affecting specific persons and enumerates procedural
fairness requirements.
[55]
Â
Accordingly, a direction can only be issued in terms of section 31A if the
person affected is given adequate notice and a reasonable
opportunity to make
representations.
Urgency
[44]
HTF argued that even if it is accepted that
section 31A should not be encumbered by section 32 because this would hamper an
official’s
ability to act in urgent situations, urgency is not an express
requirement for the exercise of power in section 31A.  It was submitted
that an
official could exercise the wide-reaching powers in situations that do not
require urgent action.
[45]
It appears that section 31A was not intended to
be limited to urgent situations but rather is a tool that can be used to
respond
to situations that have caused damage or pose harm to the environment.Â
In order to do so, the section must be flexible; it cannot
be subject to the rigid
procedural requirements of section 32, as this would hamper the ability of the
designated functionaries
to respond appropriately to harmful situations, in
particular those that require urgent action.  Section 31A, unencumbered by
section 32, allows for procedural flexibility to cater for urgent
circumstances.
[46]
Where there is no urgency in the sense that
serious harm is merely threatened, not caused, the relevant official may be
able to
issue an appropriate direction.  That direction might call on a
particular person to cease his or her harmful activity only after
the
procedural fairness requirements, set out in section 3 of PAJA, are fully met.Â
However, PAJA contemplates that where it is
reasonable and justifiable in the
circumstances, these requirements can be deviated from, whereby notice periods
may be truncated
and the opportunity to make representations may be limited.
[56]
[47]
One of the factors that determines reasonableness
and justifiability in a particular situation is the urgency attached to that situation.
[57]
  Other factors include the
object of section 31A and the purpose of the administrative action taken under
that provision, both
of which involve the protection of the environment in the
face of serious harm.  It is evident that the procedural fairness requirements
dictated
by section 3(2) of PAJA apply to the exercise of power under section 31A; however,
urgency and the purpose that the provision
serves would dictate the extent of the
procedural fairness standard that will be expected of the administrator.
[48]
In conclusion, I am in agreement with Jafta JA
that the 30-day notice and comment procedure, embodied in section 32, would
defeat
the purpose of section 31A to equip officials charged with the task of
protecting the environment with the powers to respond to
emergency situations
that cause serious harm or pose a serious danger to the environment.
[49]
I am also inclined to agree with Jafta JA that
in light of the serious harm already caused and the threat of continuing harm,
the
48-hour notice period, which HTF did not struggle to meet in submitting its
representations, was adequate by the procedural fairness
standards required by PAJA.
Section 28(4) of NEMA and section
31A of the ECA
[50]
HTF argues that for urgent response to potential
harm to the environment, the applicants could have relied on section 28(4) of
NEMA,
[58]
which specifically enables the relevant functionaries to issue directives in
urgent situations in order to protect the environment.Â
However, this argument
did not challenge the choice of the invoked provision but rather argued that the
choice of a particular
mechanism required compliance with the applicable
procedure.  As I have found that the exercise of power in terms of section 31A
applies
to urgent situations without being subject to the section 32 procedure, there
is no need to consider this argument further.Â
Suffice it to state that there should
be no objection to the existence of an arsenal of legal provisions that can be invoked
to
obviate environmental harm.
Conclusion
[51]
In conclusion, the above analysis reveals the
following.  Firstly, that section 31A must be interpreted in a manner that is
consistent
within the overall framework of the ECA.  An interpretation of the
exercise of power in terms of section 31A as constrained by
the procedural
requirements of section 32 would suggest absurdity, and should be resisted.
[52]
Secondly, it is clear that any exercise of power
in terms of section 31A, although not bound by internal procedural constraints,

is subject to procedural fairness requirements in the form of section 36 of the
ECA and in terms of administrative review under
PAJA.
[53]
Thirdly, the flexibility afforded by section 31A
enables organs of state to react to situations of potential or actual
environmental
damage under a range of differing time frames, including those
classified as urgent, while constrained by the corresponding procedural

fairness requirements.  All of these factors lead to the conclusion that the
exercise of power in terms of section 31A of the
ECA should not be constrained
by the procedural requirements of section 32 of the same Act.
[54]
Accordingly, the appeal must be upheld.
Costs
[55]
This matter has raised an important
interpretative issue that required resolution.  The first applicant has
rightfully tendered
the costs of this appeal irrespective of the outcome of
this application.  I make an order accordingly.
Order
[56]
The order of the Supreme Court of Appeal is set
aside and is replaced by the following:
(a)
The application for condonation is granted.
(b)
The application for leave to appeal is granted.
(c)
The appeal is upheld.
(d)
The first applicant is ordered to pay the costs of this appeal.
Langa CJ, Moseneke DCJ, Madala J,
Mpati AJ, Ngcobo J, Nkabinde J, Sachs J, Van der Westhuizen J and Yacoob J
concur in the judgment
of Skweyiya J.
NGCOBO J:
Introduction
[57]
I have read the judgment of Skweyiya J.  I
concur with it.  However, my approach to the task of interpreting the
provisions in
issue here differs somewhat from that he adopts.  I write
separately to emphasise the importance of the National Environmental
Management
Act, 1998 (NEMA)
[1]
principles in the interpretation of environmental legislation.
[58]
In my view this case turns on the proper
interpretation of sections 31A and 32 of the Environmental Conservation Act,
1989 (ECA).
[2]
Â
The central issue to be decided is whether the powers in section 31A are
governed by the procedure prescribed in section 32.Â
These provisions must be
construed and understood in the light of section 24 of the Constitution and the
national environmental
management principles contained in NEMA.
[3]
Section 24 of the Constitution
[59]
Section 24 of the Constitution proclaims the
right of everyone—
“(a)      to an environment that is not harmful to their health or
well-being; and
(b)
to have the environment protected, for the
benefit of present and future generations, through reasonable legislative and
other measures
that—
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)       secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.”
[60]
It is apparent from section 24 that the
Constitution explicitly recognises the interrelation between environmental
protection and
socio-economic development.  In this regard we said in
Fuel
Retailers Association of Southern Africa v Director-General: Environmental Management,
Department of Agriculture, Conservation
and Environment, Mpumalanga Province, and Others
:
[4]
“What is immediately apparent from s 24 is
the explicit recognition of the obligation to promote justifiable ‘economic and
social
development’.  Economic and social development is essential to the
well-being of human beings.  This Court has recognised that
socio-economic
rights that are set out in the Constitution are indeed vital to the enjoyment
of other human rights guaranteed in
the Constitution.  But development cannot
subsist upon a deteriorating environmental base.  Unlimited development is
detrimental
to the environment and the destruction of the environment is
detrimental to development.  Promotion of development requires the
protection
of the environment.  Yet the environment cannot be protected if development
does not pay attention to the costs of
environmental destruction.  The environment
and development are thus inexorably linked.”
[5]
Â
(Footnotes omitted.)
And we continued:
“The Constitution recognises the
interrelationship between the environment and development; indeed it recognises
the need for
the protection of the environment while at the same time it
recognises the need for social and economic development.  It contemplates
the
integration of environmental protection and socio-economic development.  It
envisages that environmental considerations will
be balanced with
socio-economic considerations through the ideal of sustainable development.Â
This is apparent from section 24(b)(iii)
which provides that the environment
will be protected by securing ‘ecologically sustainable development and use of
natural resources
while promoting justifiable economic and social
development’.  Sustainable development and sustainable use and exploitation of

natural resources are at the core of the protection of the environment.”
[6]
[61]
Under our Constitution, therefore, environmental
protection must be balanced with socio-economic development through the ideal
of
sustainable development.  The concept of sustainable development provides a
framework for reconciling socio-economic development
and environmental
protection.
National environmental management
principles
[62]
NEMA was enacted to give effect to section 24 of
the Constitution.  One of the declared purposes of NEMA is to establish
principles
that will guide organs of state in making decisions that may affect
the environment.  These principles are set out in section 2
of NEMA.  In
Fuel
Retailers
we noted the role of the principles of NEMA in the protection of
environment and said:
“NEMA principles ‘apply . . . to the
actions of all organs of State that may significantly affect the environment’.Â
They
provide not only the general framework within which environmental
management and implementation decisions must be formulated, but
they also
provide guidelines that should guide State organs in the exercise of their
functions that may affect the environment.Â
Perhaps more importantly, these
principles provide guidance for the interpretation and implementation not only of
NEMA but any
other legislation that is concerned with the protection and
management of the environment.  It is therefore plain that these principles

must be observed as they are of considerable importance to the protection and
management of the environment.”
[7]
Â
(Footnotes omitted.)
[63]
At the heart of the NEMA principles, is the
concept of sustainable development which requires organs of state to evaluate
the “social,
economic and environmental impacts of their activities.”  This
requires authorities who are charged with the protection of the
environment to
consider a diverse range of factors including taking action to avoid, remedy
and minimise the disturbance of the
eco-system and loss of biological
diversity;
[8]
the pollution and degradation of the environment;
[9]
and disturbance of landscapes
and sites that constitute the nation’s cultural heritage.
[10]
  In addition, they must ensure
that “negative impact on the environment and on people’s environmental rights
are anticipated
and prevented, and where they cannot be altogether prevented,
are minimised and remedied.”
[11]
[64]
Just as section 24 of the Constitution requires,
NEMA too—
“requires the integration of environmental
protection and economic and social development.  It requires that the interests
of
the environment be balanced with socio-economic interests.  Thus, whenever a
development which may have a significant impact on
the environment is planned,
it envisages that there will always be a need to weigh considerations of
development, as underpinned
by the right to socio-economic development, against
environmental considerations, as underpinned by the right to environmental
protection.  In this sense, it contemplates that environmental decisions will
achieve a balance between environmental and socio-economic
developmental
considerations through the concept of sustainable development.”
[12]
[65]
To sum up, therefore, the Constitution and the
environmental legislation require authorities to adopt an integrated approach
to
the environment; an approach that protects the environment while promoting
socio-economic growth.  To this end, the authorities
are enjoined to adopt a
risk averse and cautious approach and to prevent and remedy negative impacts on
the environment.  Sections
31A and 32 of ECA must therefore be interpreted in a
manner that enables the authorities to deal promptly and effectively with
threats to the environment.  It is in this context that the provisions of
sections 31A and 32 must be interpreted.
The proper interpretation of
sections 31A and 32 of ECA
[66]
Section 31A provides:
“
Powers of Minister, competent authority, local authority or government
institution where environment is damaged, endan
gered or
detrimentally affected—
(1)        If, in the opinion of the
Minister or the competent authority, local authority or government institution
concerned,
any person performs any activity or fails to perform any activity as
a result of which the environment is or may be seriously damaged,
endangered or
detrimentally affected, the Minister, competent authority, local authority or
government institution, as the case
may be, may in writing direct such person
—
(a)        to cease such activity; or
(b)        to take such steps as the
Minister, competent authority, local authority or government institution, as
the case
may be, may deem fit,
within a period specified in the direction, with a
view to eliminating, reducing or preventing the damage, danger or detrimental

effect.
(2)        The Minister or the competent
authority, local authority or government institution concerned may direct the
person
referred to in subsection (1) to perform any activity or function at the
expense of such person with a view to rehabilitating any
damage caused to the
environment as a result of the activity or failure referred to in subsection
(1), to the satisfaction of the
Minister, competent authority, local authority
or government institution, as the case may be.
(3)        If the person referred to in
subsection (2) fails to perform the activity or function, the Minister,
competent
authority, local authority or government institution, depending on
who or which issued the direction, may perform such activity
or function as if
he or it were that person and may authorize any person to take all steps
required for that purpose.
(4)        Any expenditure incurred by the
Minister, a competent authority, a local authority or a government institution

in the performance of any function by virtue of the provisions of subsection
(3), may be recovered from the person concerned.”
[67]
Section 32 provides:
“Publication for comment—
(1)        If the Minister, the Minister of Water Affairs, a
competent authority or any local authority, as the case may be,
intends to—
(a)        issue
a regulation or a direction in terms of the provisions of this Act;
(b)        make a declaration or identification in terms of section
16(1), 18(1), 21(1) or 23(1); or
(c)        determine
a policy in terms of section 2,
a draft notice shall first be published in
the Gazette or the Official Gazette in question, as the case may be.
(2)        The draft notice referred to in
subsection (1) shall include—
(a)        the text of the proposed regulation, direction,
declaration, identification or determination of policy;
(b)        a request that interested parties shall submit comments
in connection with the proposed regulation, direction,
declaration,
identification or determination of policy within the period stated in the
notice, which period shall not be fewer
than 30 days after the date of
publication of the notice;
(c)        the
address to which such comments shall be submitted.
(3)        If the Minister, competent authority or local authority
concerned thereafter determines on any alteration of the
draft notice published
as aforesaid, it shall not be necessary to publish such alteration before
finally issuing the notice.”
[68]
When regard is had to the purposes of sections
31A and 32, it becomes apparent that these two provisions were intended to
address
different situations.  The purpose of section 31A is evident from its
title: “Powers of Minister, competent authority . . . where
the environment is
damaged, endangered or detrimentally affected.”  This provision deals with
immediate or imminent threats
to the environment caused by a particular
identifiable person’s conduct.  It empowers the relevant authority to “direct
such
person” to desist from such activity or take remedial or preventative
measures.  By their very nature, the powers conferred on
the relevant authority
under this provision are powers to be exercised when there is an immediate or
imminent threat to the environment.Â
The purpose of section 31A – to prevent or
avoid harm to the environment – would be defeated by the notice and comment
procedure
prescribed by section 32.
[69]
Section 32 does not import an element of
immediate or imminent threat to the environment.  It contemplates that the
relevant authority
will first issue “a draft notice” which shall include “the
text of the proposed regulation, direction, declaration, identification
or
determination of policy”.
[13]
Â
The purpose of the draft notice is to call upon “interested parties” to submit
comments on the draft text contained in the
notice.
[14]
  The invitation to interested
persons is done through publication of the draft notice in the Government
Gazette or Official Gazette.Â
And, what is more, interested parties have 30
days after such publication to submit comments on the draft text.
[15]
  Once comments are received,
the text of the regulation or direction is then finalised and a direction or
regulation, as the case
may be, is issued.
[70]
The manifest purpose of section 32 therefore is
to facilitate public involvement in the making of regulations, directions,
identifications,
declarations or determination of policies.  Interested parties
are given the opportunity to comment on the draft regulations or
directions
before such regulations or directions are finally issued.  Section 32, therefore,
is concerned with directions or regulations
that affect the public in general
and prescribe how the public is to be afforded the opportunity to comment on
the proposed regulation
or direction.  The relevant authority is required to
call for comments and consider comments received before making a decision
to
issue any direction or regulation.  The notice and comment procedure prescribed
by section 32 is foreshadowed in section 4(3)
of the Promotion of
Administrative Justice Act, 2000 (PAJA).
[16]
[71]
There is a further consideration which militates
against the application of the notice and comment procedure prescribed by
section
32 in the exercise of the powers conferred by section 31A.  What is
said to trigger the provisions of section 32 is the use of
the word “direct”
and “direction” in section 31A.  These words are said to bear the same meaning
that they contain in
section 32.  And this, it is contended, triggers the
provisions of section 32.  In my view the meaning of the term “direct”
or
“direction” in sections 31A and 32 is coloured by the context in which these
terms occur.  The terms “direct” and “direction”
in section 31A bear a meaning
different to that which “direction” bears in section 32.
[72]
The term “direct” in section 31A is used to mean
“order” or “require” a person to do something.  In the context of section
31A
it means to order a person to desist from engaging in an activity that causes
harm to the environment or to take remedial action
to prevent harm to the
environment.  The term “direction” has a corresponding meaning.  In my view, it
could not have been
the intention of the Legislature that in the face of an
imminent or immediate threat to the environment, the person whose conduct
is
responsible for causing damage or endangering the environment should first be
issued with a draft order on which to comment.Â
This would, in my view, defeat
the very purpose of section 31A.
[73]
The term “direction” in section 32 bears a
meaning different to that it bears in section 31A.  Section 32 gives guidance
on
how particular matters which are the subject of the “direction” are to be
regulated.  It also gives guidance to those who may
be affected by the subject
matter of the “direction”.  Indeed, if one has regard to the other items dealt
with in section
32, they all belong to the same class or category.  The common
denominator in all of them is that they are regulatory in nature.Â
They
regulate the conduct of the members of the general public who are affected by
matters dealt with in the direction or regulation
or declaration or a policy,
as the case may be.  It is for this reason that they are addressed to the
members of the public in
general.  They are a form of legislation
–
they are legislative in character.  The “direction” contemplated in
section 31A does not fit into this category.  The “direction”
referred to in
section 31A is preventative and is directed at an individual.  It requires the
person responsible for causing harm
or endangering the environment to desist
from such conduct or to take remedial or preventative action.
[74]
The fact that the provisions of section 32 do
not apply to exercise of the powers in section 31A does not mean that the
person affected
by the order or direction issued under section 31A does not
have the opportunity to make representations consistent with procedural

fairness.  The provisions of section 31A must be construed in a manner that
promotes the rights enshrined in the Bill of Rights,
which includes the right
to just administrative action guaranteed by section 33 of the Constitution and
as given effect to by the
provisions of PAJA.  This is the command of section
39(2) of the Constitution.
[17]
[75]
Indeed in
Zondi v MEC for Traditional and Local Government
Affairs and Others
,
[18]
we considered the interaction between section 33 of the Constitution and PAJA
and held that decision-makers who are entrusted with
the authority to make
administrative decisions by a statute are required to do so in a manner that is
consistent with PAJA.  In
addition we held that the provisions of PAJA will be
read into the enabling legislation where this is feasible unless the
legislation
is inconsistent with the provisions of PAJA.
[19]
Â
This is consistent with the principle of constitutional construction which
recognises that a statutory provision may be capable
of more than one
reasonable construction and—
“[i]f the one construction leads to constitutional
invalidity but the other not, the latter construction, being in conformity with

the Constitution must be preferred to the former, provided always that such
construction is reasonable and not strained.”
[20]
Â
(Footnote omitted.)
In
National Director of Public Prosecutions and
Another v Mohamed NO and Others
, in the context of the requirement of the
audi principle, this Court held that—
“as a matter of statutory construction, the
audi
rule
should be enforced unless it is clear that the legislature has expressly or by
necessary implication enacted that it should
not apply or that there are
exceptional circumstances which would justify a court not giving affect to it.”
[21]
Â
(Footnote omitted.)
[76]
Of course procedural fairness as envisaged in
section 33 or PAJA is flexible.  In the case of section 33, the right to just
administrative
action may be limited under section 36(1).
[22]
  In the case of PAJA, the
requirements of fair administrative procedure contemplated in section 3(2) may
be departed from where
it is reasonable and justifiable to do so.  Factors that
are relevant to the question whether there should be a departure include
the
objects of the empowering provision; the nature and the purpose of the
decision; and the urgency of taking the decision or
the urgency of the matter.
[23]
[77]
In my view the judgment of the majority of the
members of the Supreme Court of Appeal pays insufficient attention to the
purpose
of section 31A, which is to prevent imminent and immediate threats to
the environment.  The view expressed in the minority judgment,
in my view,
ought to be preferred.  While it responds to the primary purpose of section
31A, it also recognises that procedural
fairness, which is a flexible concept,
is applicable.
[78]
For all these reasons I concur in the judgment
of Skweyiya J.
Moseneke DCJ, Sachs J and Van der Westhuizen
J concur in the judgment of Ngcobo J.
For the applicant:                  Advocate G Marcus SC and
Advocate C Steinberg instructed by the State Attorney,
Johannesburg.
For the respondents:             Advocate
RJ Raath SC and Advocate MD Du Preez instructed by
Roestoff
Venter & Kruse.
[1]
HTF Developers (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
2007 (5) SA 438 (SCA).
[2]
Act 73 of 1989.
[3]
Known as the Remainder of Erf 232, Riviera Township, Pretoria.
[4]
The “cultivation or any other use of virgin ground” is an activity
identified in item 10 of Schedule 1 of Regulation 1882 (as
amended) of 5
September 1997 in terms of section 21(1) of the ECA.
[5]
Section 21(1) of the ECA provides:
“The
Minister may by notice in the Gazette identify those activities which in his
opinion may have a substantial detrimental effect
on the environment, whether
in general or in respect of certain areas.”
[6]
Section 22 of the ECA provides:
“(1)         No person shall undertake an activity identified in
terms of section 21 (1) or cause such an activity to be
undertaken except by
virtue of a written authorization issued by the Minister or by a competent authority
or a local authority
or an officer, which competent authority, local authority
or officer shall be designated by the Minister by notice in the Gazette.
(2)           The authorization referred to in subsection (1) shall
only be issued after consideration of reports concerning
the impact of the
proposed activity and of alternative proposed activities on the environment,
which shall be compiled and submitted
by such persons and in such manner as may
be prescribed.
(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.”
[7]
The World Conservation Union publishes the “Red List of Threatened
Species”, which provides an assessment of the conservation
status of species
internationally, to highlight the plight of threatened or endangered species.Â
“Red Data” species are those
that are found on the Red List.  The Red List can
be accessed at
http://www.iucnredlist.org
.Â
Recently, the Minister of Environmental Affairs and Tourism published the “Critically
Endangered, Endangered, Vulnerable and
Protected Species Lists”, to give effect
to section 56(1) of the National Environmental Management: Biodiversity Act 10
of 2004
(GN R151, GG 29657 of 23 February 2007).  The classification scheme
adopted by the Minister mirrors that which is utilised by the
Red List.
[8]
Act 107 of 1998.
[9]
HTF Developers v Minister of Environmental Affairs and
Tourism and Others
2006 (5) SA 512 (T).
[10]
Id at para 31.
[11]
Id at para 32.
[12]
Regulation 1182/97 was repealed by GN R615, GG 28938 of 23 June 2006 with effect from 3 July 2006.  GN R615 was published in terms
of section 50
of NEMA.
[13]
Above n 1 at paras 12-13.
[14]
Id at para 12.
[15]
Act 3 of 2000.
[16]
A
bove
n
1 at para 13.
[17]
Id at paras 20 and 27.
[18]
Id at paras 19 and 21.
[19]
This procedure is also provided for in section 4 of PAJA, which
deals with procedural fairness in relation to administrative action
affecting the
general public.  Jafta JA however noted that this procedure is absent in
section 3 of PAJA which deals with procedural
fairness in actions affecting
individuals.  Above n 1 at para 19.
[20]
A
bove
n
1 at para 21.
[21]
Id.
[22]
Id at para 20.
[23]
Id at paras 27-28.
[24]
Id at para 29.
[25]
Section 39(2) of the Constitution states:
“When
interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
[26]
See below para 23.
[27]
Rule 19(2) of the Constitutional Court Rules states that:
“A litigant who is aggrieved by the
decision of a court and who wishes to appeal against it directly to the Court
on a constitutional
matter shall, within 15 days of the order against which the
appeal is sought to be brought and after giving notice to the other
party or
parties concerned, lodge with the Registrar an application for leave to appeal:
Provided that where the President has
refused leave to appeal the period
prescribed in this rule shall run from the date of the order refusing leave
.
”
[28]
BP
Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs
2004 (5) SA 124
(W)
at
144H-145A;
[2004] 3 All SA 201
(W) at 219e-f (Footnotes omitted from the quote.).
[29]
Section 2(3) of NEMA.
[30]
Section 2(4)(a)(vii) of NEMA.
[31]
Section 2(4)(a)(viii) of NEMA.
[32]
Section 2(4)(g) of NEMA.
[33]
Fuel Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province, and Others
2007 (6) SA 4
(CC);
2007 (10)
BCLR 1059
(CC) (
Fuel Retailers
) at paras 59-60.
[34]
D Osborn “From pollution control to sustainable development.  Lucid
law for fuzzy objectives”
Environmental Law Review
1 (1999) 79 at 80-81.
[35]
Section 25 of the Constitution.
[36]
Section 22 of the Constitution.
[37]
Above note 33 at paras 93 and 102.
[38]
Above n 33.
[39]
Id
at para 45.
[40]
Id at para 102.
[41]
It was inserted by
section 19 of the
Environment Conservation Amendment Act 79 of 1992.
[42]
Section 2(1)(e) of NEMA provides:
“The
principles set out in this section . . . guide the interpretation, administration
and implementation of this Act, and any
other law concerned with the protection
or management of the environment.”
[43]
A
bove
n 1 at para 19.
[44]
S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat
1999 (4) SA 623 (CC); 1999 (7) BCLR
771 (CC).
[45]
Id at para 47.
[46]
Section 16(2) of the ECA provided:
“The competent authority may by
notice in the Official Gazette concerned issue
directions
in respect of
any
land or water
in a protected natural environment in order to achieve the
general policy and objects of this Act: Provided that—
(a)           a copy of the directions applicable to the area shall
be handed or forwarded by post to the last-known address
of every owner of, and
every holder of a real right in, the land in question; and
(b)           the
directions shall only be issued with the concurrence of each Minister charged
with the administration
of any law which in the opinion of the competent
authority relates to a matter affecting the environment in that area.”  (Emphasis

added.)
This section
was repealed by section 90(1) of NEMA.
[47]
Section 20(8) of the ECA provides:
“The Minister may, by notice in the
Gazette, issue
directions
with regard to—
(a)           the control and
management of disposal sites in general;
(b)           the control and management of certain disposal sites
or disposal sites handling particular types of waste;
and
(c)           the
procedure to be followed before any disposal site may be withdrawn from use or
utilized for another
purpose.”  (Emphasis added.)
[48]
The full text of section 31(1) of the ECA is contained below in
para 37.
[49]
The full text of section 31A of the ECA is contained above in para
3.
[50]
Above n
1 at para 24.
[51]
Above n 43.
[52]
See for example
MEC for Economic Affairs Environment and Tourism
v Mackay Bridge Farm CC
[1996] 3 All SA 340
(SE) at 346e-g where the Court
found that an opinion as required by section 31A of the ECA was not formed by
the applicant.  It
was further held that the “opinion required is in my
judgment more than a belief or even a firm belief, but rather a conclusion

reached after due deliberation and due application of the mind.”
[53]
Section 36 of the ECA provides:
“(1)         Notwithstanding the provisions of section 35, any
person whose interests are affected by a decision of an
administrative body
under this Act, may within 30 days after having become aware of such decision,
request such body in writing
to furnish reasons for the decision within 30 days
after receiving the request.
(2)           Within
30 days after having been furnished with reasons in terms of subsection (1), or
after the expiration
of the period within which reasons had to be so furnished
by the administrative body, the person in question may apply to a division
of
the Supreme Court having jurisdiction, to review the decision.”
[54]
All administrative decisions made in terms of any
statute must be consistent with the provisions of PAJA.  See
Zondi v MEC for
Traditional and Local Government Affairs
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4)
BCLR 347
(CC)
at para 101.
[55]
The relevant part of section 3 of PAJA provides:
“(1)         Administrative action which materially and adversely
affects the rights or legitimate expectations of any
person must be
procedurally fair.
(2)           (a)           A fair
administrative procedure depends on the circumstances of each case.
(b)           In order to give effect to the right to procedurally
fair administrative action, an administrator, subject
to subsection (4), must
give a person referred to in subsection (1)—
(i)            adequate notice of the nature and purpose of the
proposed administrative action;
                                (ii)           a
reasonable opportunity to make representations;
                                (iii)          a
clear statement of the administrative action;
(iv)          adequate notice of any right of review or internal
appeal, where applicable; and
                                (v)           adequate
notice of the right to request reasons
in terms of section 5.
(3)           In order to give effect to the right to procedurally
fair administrative action, an administrator may, in
his or her or its
discretion, also give a person referred to in subsection (1) an opportunity to—
                (a)           obtain
assistance and, in serious or complex cases, legal representation;
                (b)           present
and dispute information and arguments; and
                (c)           appear
in person.”
[56]
Section 3(4) of PAJA provides:
“(a)         If
it is reasonable and justifiable in the circumstances, an administrator may
depart from any of the requirements
referred to in subsection (2).
(b)           In
determining whether a departure as contemplated in paragraph (a) is reasonable
and justifiable, an administrator
must take into account all relevant factors,
including—
                (i)            the objects of the
empowering provision;
                (ii)           the nature and purpose
of, and the need to take, the administrative action;
                (iii)          the likely effect of
the administrative action;
(iv)          the
urgency of taking the administrative action or the urgency of the matter; and
                (v)           the
need to promote an efficient administration and good governance.”
[57]
Section 3(4)(b)(iv) of PAJA.
[58]
Section 28 of NEMA states in relevant part:
“
Duty of care and remediation of
environmental damage—
(1)           Every person who causes, has caused or may cause
significant pollution or degradation of the environment
must take reasonable
measures to prevent such pollution or degradation from occurring, continuing or
recurring, or, in so far as
such harm to the environment is authorised by law
or cannot reasonably be avoided or stopped, to minimise and rectify such pollution

or degradation of the environment.
. . .
(4)           The Director-General or a provincial head of
department may, after consultation with any other organ of state
concerned and
after having given adequate opportunity to affected persons to inform him or
her of their relevant interests, direct
any person who fails to take the
measures required under subsection (1) to—
(a)           investigate, evaluate and assess the impact of
specific activities and report thereon;
(b)           commence
taking specific reasonable measures before a given date;
(c)           diligently
continue with those measures; and
(d)           complete them before a
specified reasonable date:
Provided
that the Director-General or a provincial head of department may, if
urgent
action
is necessary for the protection of the environment, issue such directive, and
consult and give such opportunity to inform
as soon thereafter as is
reasonable.”  (Emphasis added.)
[1]
Act 107 of 1998.
[2]
Act 73 of 1989.
[3]
Section 2 of NEMA.
[4]
2007 (6) SA 4 (CC); 2007 (10) BCLR 1059 (CC).
[5]
Id at para 44.
[6]
Id at para 45.
[7]
Id at para 67.
[8]
Section 2(4)(a)(i) of NEMA.
[9]
Section 2(4)(a)(ii) of NEMA.
[10]
Section 2(4)(a)(iii) of NEMA.
[11]
Section 2(4)(a)(viii) of NEMA.
[12]
Above n 4 at para 61.
[13]
Section 32(2)(a) of ECA.
[14]
Section 32(2)(b) of ECA.
[15]
Id.
[16]
Act 3 of 2000.  Section 4 of PAJA, which in pertinent part,
provides—
“(1)         In cases where an administrative action materially and
adversely affects the rights of the public, an administrator,
in order to give
effect to the right to procedurally fair administrative action, must decide
whether—
                (a)           to hold
a public inquiry in terms of subsection (2);
                (b)           to
follow a notice and comment procedure in terms of subsection (3);
                (c)           to
follow the procedures in both subsections (2) and (3);
(d)           where the administrator is empowered by any empowering
provision to follow a procedure which is fair but
different, to follow that
procedure; or
(e)           to
follow another appropriate procedure which gives effect to section 3.
. . . .
(3)           If an administrator decides to follow a notice and
comment procedure, the administrator must—
(a)           take appropriate steps to communicate the
administrative action to those likely to be materially and adversely
affected
by it and call for comments from them;
(b)           consider
any comments received;
(c)           decide whether or not to take the administrative
action, with or without changes; and
(d)           comply with the procedures to be followed in
connection with notice and comment procedures, as prescribed.”
[17]
Section 39(2) of the Constitution provides—
“When interpreting any
legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote
the spirit, purport and objects of the Bill of
Rights.”
[18]
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC)
at para 101.
[19]
Id.
[20]
National Director of Public Prosecutions and Another v
Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR
476
(CC)
at para 35.
[21]
Id at para 37.
[22]
Section 36(1) of the Constitution provides—
“The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant factors,
including—
(a)           the nature of the right;
(b)           the importance of the purpose of the
limitation;
(c)           the nature and extent of the limitation;
(d)           the relation between the limitation and
its purpose; and
(e)           less
restrictive means to achieve the purpose.”
[23]
Section 3(4) of PAJA provides—
“(a)         If
it is reasonable and justifiable in the circumstances, an administrator may
depart from any of the requirements
referred to in subsection (2).
(b)           In
determining whether a departure as contemplated in paragraph (a) is reasonable
and justifiable, an administrator
must take into account all relevant factors,
including—
                (i)            the objects of the
empowering provision;
                (ii)           the nature and purpose
of, and the need to take, the administrative action;
                (iii)          the likely effect of
the administrative action;
(iv)          the
urgency of taking the administrative action or the urgency of the matter; and
                (v)           the need to promote an
efficient administration and good governance.”