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[2010] ZAWCHC 398
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Astral Operations Ltd t/a County Fair Foods and Others v Minister of Local Government, Environmental Affairs & Development Planning and Another (20183/2009) [2010] ZAWCHC 398 (11 May 2010)
31
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
REPORTABLE
CASE
NO. 20183/2009
In the matter
between:
ASTRAL
OPERATIONS LTD
t/a
COUNTY FAIR FOODS
…....................................................................................
1
st
APPLICANT
PIONEER
FOODS (PTY) LTD
t/a
TYDSTROOM POULTRY
…................................................................................
2
ND
APPLICANT
BOTTELFONTEIN
ACTION GROUP
….....................................................................
3
RD
APPLICANT
And
THE
MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS &
DEVELOPMENT
PLANNING
….............................................................................
1
st
RESPONDENT
THE
CITY OF CAPE TOWN
….............................................................................
2
ND
RESPONDENT
AND
INTER-CLAY
CORPORATION (PTY) LTD
…...............................................
1
st
INTERVENING
PARTY
ATLANTIS
RESIDENTS' ASSOCIATION
….................................................
2
nd
INTERVENING
PARTY
MELKBOSSTRAND
RATEPAYERS'S ASSOCIATION
…................................
3
rd
INTERVENING
PARTY
PIERRE
UYS
….......................................................................................
4
th
INTERVENING
PARTY
Coram
: DLODLO, J
Judgment by
: DLODLO, J
For
the Applicants: ADV. W
DUMINY (SC)
ADV. MD EDMUNDS
Instructed
by:
Edward Nathan Sonnenbergs
ENS House, 1 North Wharf Square
Lower Loop Street, Foreshore
CAPE TOWN
REF. SB LEVETAN
TEL. NO. 021- 410 2500
For
1st & 2nd Respondents:
ADV.
A BREITENBACH (SC)
ADV. JJ THAYSEN
Instructed
by:
1st Respondent's Attorneys:
The
State Attorney
22 Long Street,
CAPE TOWN REF. J BENKENSTEIN
2nd Respondent's
Attorneys: DLA Cliffe Dekker Hofmeyr
For
1st Intervening Party:
ADV. D MITCHELL (SC)
ADV. H JANSE
VAN RENSBURG
Instructed
by:
James Kotze Attorneys
8th Floor, Vogue House
Thibault Square
CAPE TOWN
REF. JAME
KOTZE TEL. NO. 021- 419 9776
For
4th Intervening Party:
ADV. E GROBBELAAR
Instructed by
: De
Klerk & Van Gend
Tygervalley
Office Park 1
Cnr
Old Oak Road & Durban Road
Tygervalley
C/o De
Klerk & Van Gend
ABSA Bank
Building
132 Adderley Street
CAPE TOWN REF. GCvN/RV
JUDGMENT
DELIVERED ON TUESDAY, 11 MAY 2010
DLODLO,
J
INTRODUCTION
[1]
On 7 April 2009 the First Respondent took a decision in terms of
sections 22 (3) and 35 (4) of the Environment Conservation
Act, 73 of
1989 (hereinafter "the ECA"):
Upholding
appeals in terms of section 35 (3) of the ECA against the decision
by the Director: Integrated Environmental Management
(Region B) in
the Western Cape Department of Environmental Affairs and Development
Planning (hereinafter "the Director",
"the
Department") on 16 July 2007 to authorize the activities
required for the establishment of a new regional landfill
site and
associated infrastructure to service the City of Cape Town ("the
City") on a site which became known as "the
Atlantis
site"; and
Replacing
the Director's decision with a decision in terms of section 22 (3)
of the ECA in terms whereof he authorized such activities
on another
site which became known as
"the
Kalbaskraal site".
This
was clearly a composite decision comprised of two notionally
distinct parts and shall be referred to for convenience as "the
decision".
It
is common cause that the Applicants were registered "Interested
and Affected Parties" in relation to the environmental
impact
assessment process arising from application for environmental
authorization of such activities in terms of section 22 of
the ECA
made by the City to the Department.
[2]
On 25 September 2009 the Applicants instituted review proceedings
under the above case number, to review and set aside the decision
and
for it to be remitted to the First Respondent for reconsideration. On
5 January 2010 Waglay, J issued a
rule
nisi,
in
terms agreed by the Applicants and Respondents, whereby interested
parties were called upon to show cause on 20 April 2010 why
an order
should not be granted reviewing and setting aside the decision, and
referring it back to the First Respondent for reconsideration
(with
an agreed order as to costs). This order had its
genenis
in
concessions, in separate letters from the Respondents' legal
representatives to the Applicants' legal representatives in October
2009, that the decision had been taken in a manner which was
procedurally unfair and accordingly that it should be reviewed and
set aside. The
rule
nisi
set
out a regime for the filing of notices of opposition, affidavits and
heads of argument in the event that the making final of
the rule was
opposed. On 5 March 2010, prior to the date upon which Answering
Affidavits were required to be delivered in terms
of this regime, the
Applicants launched the present application. Although the application
is styled as an application in terms
of Uniform Rule 33 (4), it is in
substance no more than an application for the determination of a
point
in
limine
in
the main review application. The issue which both the Applicants and
the Respondents seek to have separately determined, is whether
the
decision was made in a manner which was procedurally unfair and
accordingly whether it should be reviewed and set aside in
terms of
section 6 (2) (c) of the Promotion of Administrative Justice Act, 3
of 2000 ("PAJA"). The Applicants referred
to this as the
"procedural fairness issue". Both Respondents have filed
affidavits supporting the application. There
were altogether four (4)
Intervening Parties. The First and the Fourth Intervening Parties are
the only parties opposing the application
for separation. In the
present matter their respective applications for leave to intervene
fall to be determined.
[3]
The First Applicant
(COUNTY
FAIR FOODS)
is
a trading division of
ASTRAL
OPERATIONS LIMITED,
a
company with limited liability and a share capital, registered in
accordance with the company laws of South Africa and listed
on the
JSE Stock Exchange, carrying on the business of broiler chicken
farming
inter
alia
from
the Blomvlei Farm situated at Portion 3 of the Farm Drogevallei No
910, Malmesbury ("the Blomvlei Farm"). The Blomvlei
Farm is
291, 550 ha in extent. The Second Applicant (the
BOTTELFONTEIN
ACTION GROUP)
is
a voluntary association of farmers, with the capacity to sue and be
sued in its own name having its administrative offices c/o
Raymond
McCreath Attorneys, 24 Bright Street, Somerset-West. Its members
carry on various farming activities (diary, sheep, beef,
cereal
crops, grape and wine) from the following farms in and around the
Bottelfontein Farm in the area of Kalbaskraal, Western
Cape:
Wolwedans, Wintervogel, Elandsvlei, Goedewag, Klimheuwel,
BergOen-Dal, Kalbaskraal, Rosenberg, Klein Droevlei, Oortmanspos,
Bonnie Doon and Remhoogte.
The
First Respondent is the
MINISTER
OF LOCAL
GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING
in
the Provincial Government of the Western Cape, having his offices at
Utilitas Building, Dorp Street, Cape Town ("the Minister"),
('the Provincial Government'). The Second
Respondent
(THE
CITY OF CAPE TOWN)
is
a municipality established in terms of
sections 12
and
14
of the
Local Government Municipal Structures Act, No. 117 of 1998
as read
with the City of Cape Town Establishment Notice (Provincial Notice
479 of 22 September 2000, as amended by provincial Notice
665 of 4
December 2000) which became the successor in law, inter alia, to the
old City of Cape Town Municipality and the Cape Town
Metropolitan
Council (the CMC") on 5 December 2000 ("the City").
Messrs
Duminy (SC) and Edmunds appeared for the Applicants. Mr. Breitenbach
(SC) and Ms Thaysen appeared for the Respondents. Messrs
Mitchell
(SC) and Janse van Rensburg appeared for the First Intervening Party
and Mr. Grobelaar appeared for the Fourth Intervening
Party.
BACKGROUND
[4]
The main application in this matter is in terms of
section 6
of the
PAJA for judicial review of two (2) decisions taken simultaneously on
7 April 2009 by the decision-maker being the competent
authority in
the Provincial Government to whom the administration of the Act had
been assigned in terms of section 235 (8) of the
Constitution of the
Republic of South Africa as designated by the National Minister
(Government Notice R1184 in Government Gazette
18261 of 5 September
1997 (read with the definition of 'competent authority' in section 1
of the ECA): (a) Overturning a decision
which had been taken on 16
July 2007 by the First Respondent's delegate, the Director in the
Provincial Government, granting for
the reasons set out in his Record
of Decision ('ROD', 'the Director's ROD'), environmental
authorization in terms of section 22
of the ECA for the activities
described in Part A of his ROD, at the location described in Part B
of the Director's ROD, being
the Atlantis site; and (b) Granting
authorization for the same activities at a location described in Part
A of the Minister's ROD
dated 7 April 2009, being the Kalbaskraal
site ("the second decision').
[5]
The City is the Applicant for the environmental approval of a new
regional landfill site and associated infrastructure. The
landfill
site will receive general and household waste having a hazard rating
of H:h which means that it will also receive some
waste with a low to
moderate hazardous rating. The First Respondent is the decision-maker
in respect of the decision on 7 April
2009. At the time when the
Director's decision was made in 2007 the incumbent was Ms Tashneem
Essop and her designation was 'Minister
for Environmental Planning
and Economic Development'. In July 2008 Ms Essop resigned and was
replaced by Mr. Pierre Uys, whose
designation was 'MEC for Local
Government, Environmental Affairs and Development Planning'. After
the general election held on
22 April 2009 Mr. Anton Bredell was
appointed as 'Minister of Local Government, Environmental Affairs and
Development Planning'.
[6]
The relevant provisions of the ECA are set out briefly hereunder.
Section 21 (1) of the ECA states the following:
"The
[national] 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."
Section
22 of the ECA creates a prohibition on the undertaking of identified
activities ('listed activities') without a 'written
authorization'.
Sub-sections 22 (1), (2) and (3) read as follows:
"(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, 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".
[7]
On 25 September 2009 the Founding papers in this matter were issued
and served. On 16 October 2009 the City's attorneys sent
a letter to
the Applicants' Attorneys as well as to the Minister's Attorneys
stating, in effect, that the City accepted that the
application for
judicial review should succeed on the ground that Mr. Uys's decision
was procedurally unfair because before reaching
it he should have
informed all the registered interested and affected parties that he
was contemplating authorizing the establishment
of the regional
landfill on the Kalbaskraal site instead of the Atlantis site and
outlined the reasons why he was doing so, so
that those interested
and affected parties who would be adversely affected by that decision
could make representations to him regarding
his intended decision and
the reasons for it. The letter concluded with a proposed order. A
copy of the City's attorneys' letter
is attached to the Founding
papers and is marked
"A".
[8]
On 19 October 2009 the Minister's Attorneys sent to the Applicants'
Attorney and the City's Attorneys a letter stating that
they agreed
with the contents of the letter from the City's attorneys. A copy of
that letter is attached marked
"B".
The
delivery to the review applicants' attorneys of those letters led to
discussion between the Applicants and Respondents about
the terms of
a draft order, and eventually to agreement on a draft order. One of
the issues which arose in those discussions was
whether interested
and affected parties who registered as such during the environmental
impact assessment process which preceded
the decision of the
Minister's delegate Mr. Barnes, and all of the persons who lodged the
appeals which culminated in his decision,
should be given the
opportunity of intervening in the proceedings if they were opposed to
the proposed consent order. It was decided
to include in the draft
order a rule nisi and notification procedure in order to give
interested and affected persons an opportunity
to participate if they
wished to oppose the granting of the substantive relief set out in
the draft order. The draft order was
made an Order of Court by
Waglay, J in chambers on Tuesday 5 January 2010.
[9]
In terms of the Order any such interested and affected parties and
persons who intend opposing the granting of the relief sought
had
until Monday 22 February 2010 to deliver their notices to that effect
and until Tuesday 23 March 2010 to deliver their Opposing
Affidavits.
This matter was to be heard in this Court on Tuesday 20 April 2010.
In response to publication of the draft order in
the press and its
sending to all interested and affected parties and persons, four
parties delivered notices of intention to oppose
the confirmation of
the rule nisi on the return day (20 April 2010) and the Third
Intervening Party delivered a notice in terms
of Uniform Rule 30A
complaining that the record has not been delivered. The reason why
the Applicants have not insisted on the
record being delivered is
that the matter has been settled between the Applicants and the
Respondents on the procedural ground
adverted to above and, as
appears from what follows, the salient facts regarding the procedural
fairness of Mr. Uys' decision are
a matter of public record and
appear from the Applicants' Founding papers and certain of the
annexures thereto:
(a)
The appeals Mr. Uys had to consider were from people who believed
that Mr. Barnes had been wrong to authorize the establishment
of the
new regional landfill on the Atlantis site. Most, (if not all),
people who may or would be adversely affected if the new
regional
landfill was established on the Kalbaskraal site would not have
appealed because they would have been happy with Mr. Barnes'
decision
or at least have preferred it to the alternative of an authorization
for the Kalbaskraal site.
(b)
On 22 January 2009 Mr. Uys wrote to all nine hundred and fifty (950)
interested and affected parties informing them that, (with
a view to
taking a decision on the appeals against Mr. Barnes' decision), he
was busy familiarizing himself with the information
relating to both
the Kalbaskraal and the Atlantis sites, including the information
submitted in the appeal process. He added that
he was considering
holding an appeal hearing to afford them, the City and the Appellants
an opportunity to make representations
to him. See
annexure
"GV19"
to
the founding affidavit of Gerrit Pieter Bleeker Visser, in the main
application. On 27 February 2009 Mr. Uys wrote a further
letter to
all interested and affected parties informing them that he had
decided not to hold an appeal hearing after all.
(Annexures
"GV21" and "GV22(1)"
respectively
to the founding affidavit of Visser). It was clear from a number of
documents that in reaching his decision Mr. Uys
took into account new
information which had been placed before him during the appeal
process. The interested and affected parties
who would be adversely
affected by a decision authorizing the establishment of the regional
landfill on the Kalbaskraal site were
never apprised of such
information.
[10]
The Applicants and the Respondents have agreed to settle the matter
on the terms set out in
the
rule nisi
because
they agree that following Mr. Barnes' decision the interested and
affected parties who would be adversely affected by a
decision
authorizing the establishment of the regional landfill on the
Kalbaskraal site had a legitimate expectation that it would
not be
established there pursuant to the City's current application for an
environmental authorization, or perhaps even a contingent
right that
it not be established there, the contingency being the dismissal by
Mr. Uys of the appeals against Mr. Barnes' decision.
Consequently,
the Applicants and the Respondents agree Mr. Uys should have informed
all the interested and affected parties that
he was contemplating
authorizing the establishment of the regional landfill on the
Kalbaskraal site instead of the Atlantis site
and outlined the
reasons why he was doing so; and Mr. Uys should also have afforded
those interested and affected parties who would
be adversely affected
by that decision an opportunity to consider the new and relevant
information that had been placed before
him and to make
representations regarding his intended decision and the reasons for
it.
[11]
If the Applicants and the Respondents are right in their assessment
of the procedural unfairness of Mr. Uys' decision, the
appropriate
order seemingly is the confirmation of the rule nisi and there is no
need for the parties or this Court to engage with
the Applicants'
other, wide-ranging grounds of review. These include allegations
concerning the adverse impacts of establishing
the regional landfill
on the Kalbaskraal site, the adequacy of the information for
decision-making purposes, the relative costs
of establishing and
operating the regional landfill on the two (2) alternative sites and
the information to support Mr. Uys' main
reasons for deciding that
the Atlantis site was not suitable. If Mr. Uys' decision is set
aside, those issues I am told will be
canvassed, to the extent that
it is necessary to do so, in the process aimed at a fresh decision
from the current Minister on the
appeals against Mr. Barnes'
decision.
THE
COURT'S POWERS TO ORDER A SEPERATION
[12]
Although Uniform Rule 33 (4) appears to relate only to pending action
proceedings, both the Supreme Court of Appeal and the
Constitutional
Court have acknowledged the Courts' power to allow the separate
determination of issues in appeals and in motion
proceedings. In the
New
Clicks South Africa (Pty) Ltd v Minister of Health and Another
2005
(3) SA 238
(SCA)
(2005 (6) BCLR 576)
at para [15]
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others
2006
(2) SA 311
(CC) at paras [53]-[55] the Constitutional Court:
"[53]
... [the appellants] contended that they had a right to a ruling on
the preliminary issue and a right to appeal against
an unfavourable
ruling. The SCA declined to order that the issue of jurisdiction be
separated from the other issues and required
the parties to address
it on all the issues including the merits of the appeal...
[54]
In its judgment the SCA explained its ruling. It referred to its
decision in
S
v Malinde and Others
where
a separation of issues had been granted at the request of an
appellant. Quoting from the judgment in that case it reaffirmed
its
approach to the separation of issues, holding that it applied both to
appeals and applications:
'This
Court is in principle strongly opposed to the hearing of appeals in
piecemeal fashion...An exception may be made, however,
where unusual
circumstances call for such procedure... Substantial grounds should
exist for the exercise of the power. The basis
of the jurisdiction is
convenience - the convenience not only of the parties but also of the
Court. The advantages and disadvantages
likely to follow upon the
granting of an order must be weighed. If overall, and with due regard
to the divergent interests and
consideration of convenience affecting
the parties, it appears that the advantages would outweigh the
disadvantages, the Court
would normally grant the application."
[13]
An additional consideration referred to in
S
v Malinde and Others
1990
(1) SA 57
(A) at 67 F-G; 68 D-E is the cogency of the point that is
sought to be separated because, the Court said
"...unless
it has substance a separate hearing would be a waste of time and
costs"
.
This is not an appeal and the objections to appeals being heard on a
piecemeal basis play no part. The test is convenience, for
the Court
and for the parties. It is plainly convenient to dispose of the
matter on the limited issue rather than to allow the
case to develop
through various sets of papers only to be inevitably confronted with
the same insurmountable procedural fairness
issue thereafter.
Unusually for an application such as this the Applicants, (the
applicant for the environmental approval), the
City and the
administrator, the Minister, all agree that procedural unfairness
issue is decisive, and should be determined separately.
Moreover,
they all agree that the decision was taken in a manner which was
procedurally unfair and that for this reason it should
be reviewed
and set aside. The convenience that a separation of this issue would
occasion is seemingly manifest. The other challenges
to decision are
wide ranging. Some of those challenges are technical in nature and
relate to the merits of the decision. These
are complex and will
involve costly and time consuming expert input.
[14]
The procedural unfairness issue has been conceded by the City and the
Minister. It is accordingly decisive of the matter and
in a manner
which is expeditious and cost effective to all the parties concerned.
The procedural unfairness of the Minister's decision
agreed to by not
only the Applicants but also the Respondents is set out in the
Founding Affidavit as follows:
"227.
Given that the extant rights of the Interested and Affected Parties,
including the Applicants, opposed to the location
of the landfill at
Kalbaskraal stood to be detrimentally affected, it was only fair that
they should have been advised timeously
by the Minister that he was
contemplating the approval of the landfill site at Kalbaskraal. They
should in these circumstances
at least have been granted the
opportunity to make representations (as if on appeal) in relation to
such anticipated approval.
As stated in the Minister's press release,
it is "normal practice" to make provision for appeals.
…
..................................................................................................
229.
Under the heading
"In
Summary"
in
paragraph H of the Minister's ROD entitled
"KEY
FACTORS AFFECTING THIS DECISION",
the
Minister stated as follows:
"The
information presented during
the
EIA process and
subsequent
appeal process
indicates
that both sites are suitable for the establishment of a landfill
site" (emphasis added)".
The
City in its Answering Affidavit describes the reasons for the need
for a speedy decision in the review application as follows:
"The
City submits that a final decision in the application for judicial
review must be taken on 20 April 2010 or as soon as
practically
possible thereafter. The City's available airspace in existing
landfill sites is very limited, so much so that if a
final and
durable decision is not taken before this year there is a strong
possibility that the construction of the new regional
landfill site
will not be completed before the City's available airspace in
existing landfill sites is filled. The lead time required
to purchase
and rezone the land, licence the operation, design and construct
necessary infrastructure prior to disposal would pose
a serious
threat to the welfare of the City of Cape Town and the environment,
due to the lack of waste disposal airspace."
[15]
The submission made by Mr. Duminy (SC) on behalf of the Applicants is
that this is a powerful argument for the need to follow
the most
expeditious course possible for the disposal of the review
application. I agree. These considerations directly impact
on
considerations of convenience (not only of the Court and parties) but
also the citizens of Cape Town. The convenience of separating
this
issue for consideration is also dealt with by Mr. Levetan in his
Founding Affidavit:
"the
time and expense that would otherwise have to be spent in the First
Respondent preparing the record, the Applicants studying
the record,
supplementing the founding affidavit (which I submit, considering the
size of the record in question, will inevitably
occur), and preparing
papers covering the Applicants' other challenges to Mr. Uys'
decision, will be avoided."
In
regard to the increased costs that will be occasioned if an
adjudication of the review application on all the grounds of review
is required, it is important to bear in mind that both the City and
the Minister are organs of state funded by monies from the
public
purse. This means that the public will in effect have to bear the
increased costs of a consideration of all the grounds
of review.
These aspects of the convenience to the parties are not addressed in
the Answering Affidavit of the First Intervening
Party. Its only
point appears to be that it would not be convenient to separate this
issue because one cannot be certain whether
the decision was taken in
a manner which was procedurally unfair until the record is delivered.
I do agree with the submission
made on behalf of the Applicants that
this tentative and somewhat speculative answer does not demonstrate a
countervailing lack
of convenience of sufficient weight to warrant
not separating this issue. In any event, it is no answer to the
request for the
issue to be determined separately. At best it amounts
to an argument for the separated issue not to be determined before a
record
is delivered. The Intervening Parties' entitlement to the
record as a respondent is dealt with separately below. It is
convenient
at this stage to first deal with the question whether the
intervening party has
locus
standi
to
oppose the present application and to raise the kind of defences it
has raised.
LEAVE
TO INTERVENE (FIRST AND FOURTH INTERVENING PARTIES)
[16]
Mr. Roy Thomas Isted, a director and shareholder of the First
Intervening Party deposed to an Affidavit on behalf of this party.
Principally Mr. Roy Thomas Isted dealt with what he himself entitled
"The First Intervening Party's Business and Property."
According to Mr. Isted the First Intervening Party is busy with
mining operations in the boundaries of the proposed Kalbaskraal
landfill and it is envisaged that the property it owns would be
expropriated to make provision for the establishment of a landfill
site. The property of the First Intervening Party and its entire
running operation are located within the boundaries of the proposed
Kalbaskraal landfill and therefore its expectation was that the
establishment of the site at Kalbaskraal would necessitate the
expropriation of the property from the First Intervening Party.
Therefore the expectation was that the First Intervening Party
would
be entitled to receive financial compensation in the event of the
property being expropriated. Mr. Isted further averred
as follows:
"25.
The First Intervening Party would, in the case of expropriation,
probably have to retrench its full workforce due to its
operational
requirements. This might be prevented if the first Intervening Party
could acquire other viable mining operations prior
to expropriation
taking place. This is an aspect which the First Intervening Party can
only investigate once it has certainty regarding
whether the property
will be expropriated or not. 26. The substantial impact which
expropriation will have on the First Intervening
Party's business and
its employees necessitates that the First Intervening Party performs
detailed and specific
financial
and operational planning, relating to all aspects associated with
expropriation.
29.
Given the fact that Kalbaskraal was considered as the preferred site
for a long period of time the First Intervening Party,
being mindful
of the fact that it might be expropriated, took certain business
decisions having regard to the risk of expropriation.
The First
Intervening Party for instance limited its capital expenditure and
decided not to exploit the development of the kaolin
reserves on the
property, as the exploitation of koalin is a very long term process."
[17]
On the effect of the setting aside of the Minister's decision Mr.
Isted averred that the effect will be delays which would
cause the
First Intervening Party not to be in a position to adequately plan
and manage its business as it would have no way of
knowing when its
business activities would come to an end, whether it be due to the
exhaustion of the property's resources or expropriation.
In
conclusion, according to Mr. Isted, the First Intervening Party seeks
to join the proceedings as a Respondent not only to secure
the
possible financial advantage which it may acquire through
expropriation, but, more importantly, to prevent delaying the
authorization
process, as such a delay would, in his view, inevitably
prevent it from properly conducting and planning its mining
operations.
According to Mr. Isted, this, in turn, will impact on the
First Intervening Party's workforce, all of whom reside in the
vicinity
of the property. Another point made by Mr. Isted in the
First Intervening Party's Supporting Affidavit is that the latter was
registered
as an interested and affected party during the
environmental assessment process relating to the Kalbaskraal site.
[18]
The Fourth Intervening Party did not depose to an Affidavit in
support of his application to intervene. When Mr. Grobbelaar
was
asked about this, he told the Court that his client was waiting to be
supplied with the record and would not make any such
Affidavit until
he shall have had sight of the record in terms of Rule 53 of the
Uniform Rules of Court. When Mr. Grobbelaar was
asked why then was
the Fourth Intervening Party before Court, he replied and said that
it is because the rule nisi issued by Waglay
J invited him as well to
be in Court as an interested party. The Fourth Intervening Party's
interests in these proceedings remain
unknown to this Court. I am
told from the bar by Mr. Grobbelaar that his interest arose from the
fact that allegations are made
in the Founding papers that when the
Fourth Intervening Party took a decision relevant to these
proceedings in his then capacity
as the Minister he acted in bad
faith
(mala
fide).
There
are requirements in law with which a party must comply before it is
granted leave to intervene. I deal with all these
infra.
Leave
to intervene as well as legal requirements relating thereto are
discussed fully under the heading
locus
standi infra.
LOCUS
STANDI
OF
THE FIRST AND FOURT INTERVENING
PARTIES
TO OPPOSE THIS APPLICATION
[19]
Mr. Mitchell (SC) submitted that the First Intervening Party has a
commercial interest in the proceedings which (for purposes
of this
matter) is sufficient interest upon which to intervene. In Mr.
Mitchell's submissions it is not correct to state (as Applicants
have
done) that it is a trite proposition that an applicant for leave to
intervene must show that it has a direct and substantial
interest in
the subject matter of the action. Relying on
Herbstein
and Van Winsen (Civil Practice of the High Courts of South Africa -
5
th
ed.)
Juta, Volume 1
page
226, Mr. Mitchell (SC) argued that a party is entitled to intervene
in three (3) sets of circumstances, namely:
(a)
Where
the requirements of Uniform Rules 10 (1) and 10 (3) are
satisfied,
that is where the Intervening Party's matter or dispute
depends
upon substantially the same question of law or fact as
arises in
the proceedings in which leave is sought to intervene. See
Ex
Parte Sudurhavid (Pty) Ltd: In re Namibia Marine Resources
(Pty)
Ltd v Ferina (Pty) Ltd
1993
(2) SA 737
(NM) at 741 A-F.
(b)
When
the considerations of convenience favour intervention (See
Rabinowitz
and Another NNO v Ned-Equity Insurance Co Ltd
1980
(3) SA 415
(W) at 419); and
(c)
Where
the intervening party has a direct and substantial interest in
the
proceedings. See
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953
(2) SA 151
(O) at 169 H.
[20]
I do agree with Mr. Duminy (SC) that an Applicant for leave to
intervene must show that it has a "direct and substantial
interest in the subject matter of the action." See
Erasmus
Superior Court Practice
B1-102
footnote 1 where the following collection of authorities is made:
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O) at 167;
Brauer
v Cape Liquor Licensing Board
1953
(3) SA 752
(C) at 760;
Ex
parte Pearson and Hutton NNO
1967
(1) SA 103
(E) at 107 A;
United
Watch and Diamond Co (Pty) Ltd & Others v Disa Hotels Ltd
&
Another
1972
(4) SA 409
(C) at 416 B;
Wynne
v Divisional
Commissioner
of Police
1973
(2) SA 770
(E) at 775 D;
Middelburg
Rugbyklub
v Suid-Oos Transvaalse Rugby-Unie
1978
(1) SA 484
(T) at 489 D;
Suid-Afrikaanse
Vereniging van Munisipale Werknemers v Stadsraad van Pietersburg
(Minister van Staatkundige Ontwikkeling
en
Beplanning Toetredend)
1986
(4) SA 776
(T) at 780;
Minister
of
Local
Government and Land Tenure v Sizwe Development & Others: In Re
Sizwe Development V Falgstaff Municipality
1991
(1) SA 677
(Tk) at 678 I;
Ex
parte Sudurhavid (Pty) Ltd: In re Namibia Marine Resources (Pty) Ltd
v Ferina (Pty) Ltd
1993
(2) SA 737
(Nm) at 741 I - 742 B;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 308 G. This approach finds support in
Harms
First Binder
para
B12.3 at B-111. In this regard Mr. Stephen Barry Levetan in the
Replying Affidavit stated the following observation of importance:
"9.2
I have been advised, verily believe and aver, that the First
Intervening Party is a landowner in the area where the Kalbaskraal
site is situated. It is not clear why such a landowner would want to
intervene, unless it has hopes of heaving its property expropriated
to accommodate the landfill site. A landowner in that position may
have a commercial interest in the matter, but that would fall
short
of the requisite legal interest. In the circumstances the Applicants
deny that the First Intervening Party has locus standi
to intervene
in the present application."
Mr.
Mitchell (SC) referred to the factual difference in cases and
submitted regard must be had to such facts underlying each case
in
the consideration of its applicability. Whilst I agree with Mr.
Mitchell (SC) that sometimes cases do become distinguishable
because
of their own peculiar facts, I am of the view that what stands out
prominently
in
casu
is
a principle that governs the intervention. The peculiar factual
matrix of a matter may very well lead the Court to the conclusion
that intervention is deserved.
[21]
I am aware that in
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
supra
the
Court held that the question of joinder should not depend on the
nature of the subject matter of the dispute but on the manner
in
which, and the extent to which, the Court Order may affect the
interests of third parties. At page 168 of the
Henri
Viljoen
case
supra
the
Court stated that
"the
English Courts have defined 'interest' as a legal interest, and do
not accept a financial or commercial interest merely
as sufficient
and that "this points to 'interest' being an interest in the
right to be adjudicated upon, a legal interest."
In
Mr. Mitchell (SC's) submission the First Intervening Party seeks to
defend the Minister's decision which remains valid and biding
until
it has been set aside on review. Mr. Mitchell (SC) reiterated that
the Intervening Party seeks an opportunity to ensure that
a decision
(which it may well be proved to be valid and correct) is not
overturned without it having been given the opportunity
to fully
investigate and defend the decision. He further submitted that the
First Intervening Party is therefore not merely seeking
to prevent an
unwelcome result but to make sure that such an unwelcome result does
not follow from a valid decision being set aside
without having been
properly considered. Mr. Mitchell (SC) heavily relied on
Henri
Viljoen (Pty) Ltd
case
supra
contending
that it clearly shows that in certain cases a party should be allowed
to be heard in a matter despite the fact that its
interests may be
described as mere financial interests or indirect interests. He also
placed heavy reliance on
Ex
parte Sudurhavid (Pty) Ltd
case
supra
which
states that Rule 12 should not be applied in a formal and rigid
manner and contended that this points to a development of
the law in
this regard to allow parties to intervene on grounds which do not
fall strictly within the "direct and substantial
interest"
criterion. I do understand the stance adopted by Mr. Mitchell (SC).
It suffices to mention that I am not prepared
to indulge in any
development of the law on this aspect. In my view, the law is very
clear on this aspect and hardly needs any
adaptation and development.
The Intervening Party must demonstrate a legal interest.
[22]
The First Intervening Party's Affidavit in opposition to Rule 33 (4)
application was deposed to by its attorney, Mr. James
Hendrik Kotze
and not by a direct representative of the Intervening Party. Mr.
Kotze does not state what the First Intervening
Party's interest is
in the decision. Accordingly, the First Intervening Party has not
alleged or demonstrated that it has a direct
or substantial interest
in the application - or even that it is an "interested party"
as envisaged in paragraph 2 of
the
rule
nisi.
The
Intervening Applicant must demonstrate a legal interest in the
subject matter of the litigation that may be prejudicially affected
by the judgment of this Court. Such an interest must be more than
merely a financial interest which is only an indirect interest
in the
litigation. (See Erasmus op cit;
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O) at 168-170;
Hartland
Implemente (Edms) Bpk v Enal Eiendomme BK en Andere
2002
(3) SA 653
(NC) at 663 E-
H;
United
Watch and Diamond Co (Pty) Ltd v Disa Hotels Ltd
1972
(4) SA 409
(C) at 415 A-H. In the latter case Corbett J (as he then
was) outlined the legal position in this regard as follows:
"In
my opinion, an applicant for an order setting aside or varying a
judgment or order of Court must show, in order to establish
locus
standi, that he has an interest in the subject-matter of the judgment
or order sufficiently direct and substantial to have
entitled him to
intervene in the original application upon which the judgment was
given or order granted. Before this approach
can be usefully applied,
however, it is necessary to examine more closely the right of a party
to intervene in legal proceedings.
Intervention is closely linked
with the matter of joinder; in fact it is often treated as a
particular facet ofjoinder. As was
pointed out by WESSELS, J (as he
then was), in
Marais
and Others v Pongola Sugar Milling Co. and Others,
1961
(2) SA 698
(N) at p. 702
".certain
principles seem to have become established which govern the matter of
joinder, and different principles would seem
to apply to different
circumstances, depending on whether the Court is concerned with a
plaintiff's right to join parties as defendants,
a defendant's right
to demand that parties be joined as co-defendants, the rights of
third parties to join either as plaintiffs
or defendants, or the
Court's duty to order the joinder of some other party (as was done in
the case of
Home
Sites (Pty) Ltd. v Senekal,
1948
(3) SA 514
(A.D.)), or to stay the action until proof is forthcoming
that such party has waived his right to be joined as a party e.g. by
filing a consent to be bound by the judgment of the Court (as was
done in the case of
Amalgamated
Engineering Union v Minister of Labour,
1949
(3) SA 637
(A.D.))".
It
is settled law that the right of a defendant to demand the joinder of
another party and the duty of the Court to order such joinder
or to
ensure that there is waiver of the right to be joined (and this right
and this duty appear to be co-extensive) are limited
to cases of
joint owners, joint contractors and partners and where the other
party has a direct and substantial interest in the
issues involved
and the order which the Court might make (see
Amalgamated
Engineering Union v Minister of Labour,
1949
(3) SA 637
(A.D.);
Koch
and Schmidt v Alma Modehuis (Edms) Bpk.,
1959
(3) SA 308
(A.D.). In
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953
(2) SA 151
(O), HORWITZ, AJP (with whom VAN BLERK, J concurred)
analysed the concept of such a "direct and substantial interest"
and after an exhaustive review of the authorities came to the
conclusion that it connoted (see p. 169) -"...an interest in
the
right which is the subject-matter of the litigation and ...not merely
a financial interest which is only an indirect interest
in such
litigation".
This
view of what constitutes a direct and substantial interest has been
referred to and adopted in a number of subsequent decisions,
including two in this Division (see
Brauer
v Cape Liquor Licensing Board
1953
(3) SA 752
(C) - a Full Bench decision which is binding upon me - and
Abrahamse
and Others v Cape Town City Council,
1953
(3) SA 855
(C)), and it is generally accepted that what is required
is a legal interest in the subject-matter of the action which could
be
prejudicially affected by the judgment of the Court (see
Henri
Viljoen's
case
supra at p. 167)."
[23]
Even if the Fourth Intervening Party had explained its interest in an
Affidavit, it appears to me he would have found it insurmountable
to
be allowed to intervene in these proceedings. He appeared to have
been angered by some averments made about him in the Founding
Papers.
He seemingly forgets that when he took the decision under attack, he
did so in his official capacity as Minister and not
in his private
capacity in which he now appears before me. The following extract
from the
National
Director of Public Prosecution v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 308 F- 309 A should serve to rest assure both
Intervening Parties and particularly the Fourth Intervening Party
that their
applications lack cogency:
"[84]
It ought to be apparent by now that Mr. Mbeki and other members of
Government had ample reason to be upset by the reasons
in the
judgment which cast aspersions on them without regard to their basic
rights to be treated fairly. It is not necessary to
revisit those
issues since they have been dealt with in sufficient detail. However,
they make the applicants' desire to intervene
at the appeal stage
understandable. See
Standard
Bank Ltd v Harris and Another NNO
(JA
Du Toit Inc Intervening)
2003 (2) SA 23
(SCA) ([2002]
4 ALL SA 164).
[85]
Nevertheless, to be able to intervene in proceedings a party must
have a direct and substantial interest in the outcome of
the
litigation, whether in the court of first instance or on appeal. See
United
Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
1972
(4) SA 409
(C) 415-417. The basic problem with the application is
that the applicants have no interest in the order but only in the
reasoning.
They are in the position of a witness whose evidence has
been rejected or on whose demeanour an unfavourable finding has been
expressed.
Such a person has no ready remedy, especially not by means
of intervention. To be able intervene in an appeal, which is by its
nature directed at a wrong order and not at incorrect reasoning, an
applicant must have an interest in the order under appeal. The
applicants do not have such an interest."
[24]
It is not sufficient for an applicant merely to state that the
applicant has an interest in the action. Such applicant must
also
make such allegations as would show that:
(a)
he or she has a
prima
facie
case;
(b)
that the application was seriously made; and
(c)
that it was not frivolous. (Erasmus op cit)
None
of the above is contained in the First Intervening Party's Answering
Affidavit. The First Intervening Party's Answering Affidavit
does not
set out
prima
facie
basis
upon which the making final of the
rule
nisi
is
opposed. The only basis upon which the finalization of the rule is
opposed is that upon production of the record, the record
itself may
reveal (contrary to that which is alleged by the applicants and the
respondents) that the procedure by which the decision
was made was
procedurally fair. I agree with Duminy (SC) that this speculation is
not sufficient to make out a
prima
facie
case
to oppose the relief sought.
IS
THE INTERVENING PARTY ENTITLED TO REQUIRE THE PRODUCTION OF THE
RECORD?
[25]
Uniform Court Rule 53 provides as follows in regard to the production
of the record:
"53
(1) Save where any law otherwise provides, all proceedings to bring
under review the decision or proceedings of any inferior
court and of
any tribunal, board or officer performing judicial, quasi judicial or
administrative functions shall be by way of
notice of motion directed
and delivered by the partyseeking to review such decision or
proceedings to the
magistrate, presiding officer or chairman of
the court,
tribunal or board or to the officer, as the case may be
and to
all other parties affected -
(a)
(b)
Calling upon the magistrate, presiding officer, chairman or officer
as the case may be, to dispatch, within 15 days after receipt
of the
notice of motion, to the registrar the record of such proceedings to
be corrected ... and to notify the applicant that he
has done so.
(2)
(3)
The
registrar shall make available to the applicant the record
dispatched
to him as aforesaid upon such terms as the registrar
thinks
appropriate to ensure its safety, and the applicant shall
thereupon
cause copies of such portions of the record as may be
necessary
for the purposes of the review to be made and shall
furnish the
registrar with two copies and each of the other parties
with one
copy thereof, in each case certified by the applicant as true copies.
(4)
The applicant may within 10 days after the registrar has made the
record available to him, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of his notice of motion
and supplement the supporting affidavit."
It
is accordingly clear that a respondent in a review application is not
entitled as of right to the record. At the most, it is
entitled to
such portions of the record as the applicant considers may be
necessary for the purposes of the review. The Applicants
did not
require the filing of the record because the case made out by them in
their Founding Affidavit (together with attached
annexures) was
sufficiently persuasive to precipitate a proposal by the Respondents
that the decision be reviewed and set aside
by agreement between the
parties. Accordingly, it was not necessary for the Minister to file
the record and the Applicants did
not find it necessary to make
available to the registrar and other parties such portions of the
record as might have been necessary
for purposes of the review as
envisaged by rule 53 (3). It is common cause that in any event
portions of the record are available
and formed part of the
documentation in the instant matter. If those portions from which
procedural unfairness appear are to the
Applicants enough to enable
them to move along, I fail to see why should this Court want to
impose on the Applicants and say the
whole record must first be filed
before the matter is entertained. Even the Intervening Parties do
have in their possessions those
portions of the record I have
mentioned. They form part of the record of proceedings as Annexure
"S".
WAS
THE DECISION "ADMINSITRATIVE ACTION" ENVISAGED IN TERMS OF
SECTION 3 OF PAJA?
[26]
The First Intervening Party suggests that unless "all the issues
are decided simultaneously it would not be possible to
establish
whether the administrative action of which the Applicants complained
materially and adversely affected the Applicant's
rights, as required
in terms of section 3 (1) of PAJA". In this regard the First
Intervening Party states further
"Unless
the material and adverse effects which the Minister's decision may
have on the Applicants are proven first it would
not follow that the
Applicants have a right to complain about the process followed."
It
does not follow that material and adverse effects can only be
demonstrated in relation to "all the issues" and not
just
one of them (especially if that single ground - that the decision was
taken in a manner which was procedurally unfair - is
meritorious). It
does also not follow that one can only determine whether a decision
has a material and adverse effect on a right
or legitimate
expectation by reference to the actual consequences of the decision.
Section 3 of PAJA provides as follows:
"3
Procedurally fair administrative action affecting any person
(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, 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;"
[27]
I agree with Mr. Duminy (SC) that it would be wrong to adopt a
parsimonious interpretation of the words "adversely affects"
in the definition of "Administrative action" in section 1
of PAJA. A narrow interpretation of that kind would also be
inconsistent with the injunction that the sections of PAJA must be
construed consistently with the Constitution. See:
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at 512 I-513 A par [44] particularly where O"Regan
J speaking of section 6 (2) (h) of PAJA
inter
alia
says:
"
The subsection must be construed consistently with the Constitution
(Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC)
(2000 (10)
BCLR 1079)
at paras [21]-[26] and in particular s 33 which requires
administrative action to be 'reasonable'. Section 6 (2) (h) should
then
be understood to require a simple test, namely that an
administrative decision will be reviewable if, in Lord Cooke's words,
it
is one that a reasonable decision-maker could not reach."
See
also
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In Re Huyndai
Motor Distributorss
(Pty) Ltd & Other v Smith NO &Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at par
[23]
and Section 39 (1) and (2) of the
Constitution Act 108 of 1996. In the latter case Langa DP (as he then
was) quoted Ackerman J
speaking of the principle of reading in
conformity in
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998
(3) SA 785
(CC)
(1998 (7) BCLR 779)
where he stated that it does
"no
more than give expression to a sound principle of Constitutional
interpretation recognized by other open and democratic
societies
based on human dignity, equality and freedom such as, for example,
the United States of America, Canada and Germany,
whose
Constitutions, like our 1996 Constitution, contain no express
provision to such effect. In my view, the same interpretative
approach should be adopted under the 1996 Constitution."
Langa
DP cautioned that judicial officers must prefer interpretations of
legislation that fall within the constitutional bounds
over those
that do not, provided that such interpretation can be reasonably
ascribed to the section. That takes me to section 39
(1) and (2) of
the Constitution providing as follows:
"39
(1) When interpreting the Bill of Rights, a Court, tribunal or
forum-(a) must promote the values that underlie an open
and
democratic society based on human dignity, equality and freedom
(2)
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."
[28]
If the First Intervening Party's interpretation that the decision to
grant environmental approval in terms of section 22 of
the ECA were
to be correct, then a whole variety of decisions which have long been
accepted as constituting administrative action
would fall outside the
purview of PAJA. For example, the allocations of commercial fishing
rights, the awards of tenders, the granting
of liquor licences, or
permits, the approval of changes of zoning would be immune from
scrutiny under PAJA. That cannot be right,
and not surprisingly it is
not. In at least two review applications an environmental approval
under section 22 of the ECA has been
considered to be administrative
action. See
Hangklip
Environmental Action Group v MEC for Agriculture, Environmental
Affairs and Development and Another v MEC for environmental
and
Development Planning, Western Cape Government and Others
(an
as yet unreported judgment) of this Court dated 26 March 2010 under
case number 1597/2007. It is accepted that the phrase "which
adversely affects the rights of any person" does not narrow the
scope of administrative action from what it was in pre-constitutional
times. See for example,
Hoexter,
Administrative Law in South Africa
at
pages 199-204, and
Currie,
The
Promotion of Administrative Justice Act: A
Commentary
at
pages 78-84.
According
to the Supreme Court of Appeal in
Grey's
Marine Hout Bay (Pty) Ltd v Minister of Public Works & Others
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) at 323 par 23 D-F, the phrase should not be read
literally, and should instead be regarded as intending to convey that
"administrative
action is action that has the capacity to affect
legal rights."
Nugent
JA stated the following for the Court in paragraph [23]:
"While
PAJA's definition purports to restrict administrative action to
decisions that, as a fact, 'adversely affect the rights
of any
person', I do not think that literal meaning could have been
intended. For administrative action to be characterized by
its effect
in particular cases (either beneficial or adverse) seems to me
paradoxical and also finds no support from the construction
that has
until now been placed on s 33 of the Constitution. Moreover, that
literal construction would be inconsonant with s 3 (1),
which
envisages that administrative action might or might not affect rights
adversely. The qualification, particularly when seen
in conjunction
with the requirement that it must have a 'direct and external legal
effect', was probably intended rather to convey
that administrative
action is action that has the capacity to effect legal rights, the
two qualifications in tandem serving to
emphasise that administrative
action impacts directly and immediately on individuals."
See
also
Wessels
v Minister for Justice and Constitutional Development and Others
2010
(1) SA 128
(GNP) at 135 D - 139 G;
Klaaren
et. Al. Constitutional Law of South Africa
2
ed, Vol
4, Ch 63
, at 63 - 69; 63 - 74;
Minister
of Defence and Others v Dunn
2007
(6) SA 52
(SCA) at 55 C-D, par [4].
[29]
It has also been held that the word "rights" should be
interpreted so as to include an applicant's (and indeed other
parties') right to administrative action. (See, for example, the
decision of the Supreme Court of Appeal in
Transnet
Ltd v Goodman Brothers (Pty)
[2000] ZASCA 151
;
2001
(1) SA 853
(SCA), a decision concerning the right to reasons of a
failed tenderer; as well as
Aquafund
(Pty) Ltd v Premier of the Province of the Western Cape
1997
(7) BCLR 907
(C) at 913 H - 915 I, and
Hoexter
op
cit
at
page 106). The Constitutional Court has also indicated that it may be
justifiable to interpret the word "rights" so
as to include
the prospective rights of persons such as applicants for licences,
pensions, tenders, fishing allocations and so
forth (See
Minister
of Public Works & Others v Kyalami Ridge Environmental
Association & Another (Mukhwevho Intervening)
2001
(3) SA 1151
(CC) at par [100] (per Chaskalson P)).
In
addition, there is a powerful argument that the word "affected"
should be regarded as meaning either "deprive"
or
"determine": or, in other words, should be interpreted as
catering not only for situations where rights are taken
away, but
also for situations in which rights are defined (by virtue of being
granted or refused). (See
Hoexter
op
cit
at
pp 104-105;
Hoexter,
'The Future of Judicial Review in South African Administrative Law'
(2000)
117 SALJ 484
at 514-517;
Association
of Chartered Certified Accountants v Chairman of the Public
Accountants' and Auditors' Board
2001
(2) SA 980
(W)). The Minister's decision not to uphold and to approve
the activities at the Kalbskraal site was unquestionably one which
had
the capacity to affect the Applicants' legal rights (to use the
Supreme Court of Appeal's terminology in
Greys
Marine
case
supra).
Undoubtedly
the Applicants' rights to just and procedurally fair administrative
action in the instant matter were also affected
adversely by the
decision in that they did not have the opportunity to make
representations to the Minister in regard to his anticipated
decision
to uphold the appeals and approve the activities at Kalbaskraal.
WHY
WAS THE DECISION PROCEDURALLY UNFAIR?
[30]
The Applicants had a legitimate expectation, or contingent right, to
be consulted in regard to the decision to locate the activities
at
Kalbaskraal. As stated in paragraph 7 of the Founding Affidavit the
Respondents conceded that the Applicants were adversely
affected by
decision authorizing the establishment of a regional landfill site at
the Kalbaskraal site. They conceded this because
they admitted that
as a result of the Director's decision, the Applicants had a
legitimate expectation or perhaps even a "contingent
right"
that the landfill site would not be established at Kalbaskraal (the
contingency being the dismissal by the First Respondent's
predecessor
of the appeals against the Director's decision). In this context the
Respondents conceded that the Minister should
have informed all
interested and affected parties that he was contemplating authorizing
the establishment of the regional landfill
on the Kalbskraal site
instead of the Atlantis site and outlined the reasons why he was
doing so. In failing to advise the Applicants
and other interested
and affected parties of the fact that he was considering the
establishment of a regional landfill at the Kalbaskraal
site, the
Minister acted in a manner which was procedurally unfair. See
Minister
of Environmental Affairs & Tourism & Others v Atlantic
Fishing Enterprises (Pty) Ltd & Others
2004
(3) SA 176
(SCA) at paras [15] -[17], where a discussion is contained
in an analogous situation of an administrator's failure to give
parties
an opportunity to state their case in circumstances where
their contingent rights were potentially affected. In the latter case
Streicher JA dealing with the connotation of procedural unfairness
stated the following at page 182 paragraphs 1516:
"[15]
As a result of the second appellants' decision that any amount of the
50 972kg reserved for allocation on appeal would
be proportionately
allocated to the applicants who had received allocations, the
successful applicants acquired a contingent right
to a proportionate
share of the amount reserved for allocation on appeal, the
contingency being the dismissal of the appeals. The
word 'contingent'
is used by me in the narrow sense. In this regard Watermeyer JA said
in Durban City Council v Association of
Building Societies
1942 AD 27
at 33:
'In
the large and vague sense any right which anybody may become entitled
to is contingent so far as that person is concerned, because
events
may occur which create the right and which may vest it in that
person; but the word "contingent" is also used
in a narrow
sense, "contingent" as opposed to "vested", and
then it is used to describe the conditional nature
of someone's title
to the right. For example, if the word "contingent" be used
in the narrow sense, it cannot be said
that I have a contingent
interest in my neighour's house merely because my neighbour may give
or bequeath it to me; but my relationship
to my neighbour, or the
terms of a will or contract, may create a title in me, imperfect at
the time, but capable of becoming perfect
on the happening of some
event, whereby the ownership of the house may pass from him to me. In
those circumstances I have a contingent
right in the house.'
[16]
The difference can also be illustrated by reference to the
respondents' position, before they had been granted any commercial
fishing rights in terms of s 18, in respect of the total allowable
catch and their position in respect of the portion of the total
allowable catch reserved for allocation on appeal. In the former case
the respondents had a contingent right to the total allowable
catch
in the wide sense which is in fact not a right. In the latter case
they actually had a right, albeit a contingent right,
to the portion
of the total allowable catch reserved for allocation on appeal."
[31]
Mr. Duminy (SC) submitted that this failure to observe procedural
fairness is not dependent upon the record and can be adjudicated
upon
without recourse to any further facts. The Intervening Parties have,
furthermore, not stated - or even suggested - why this
issue cannot
be determined as a separate one, based on the information currently
before the Court. I agree with this submission
particularly in that
even the Respondents who obviously have material interests in the
decision taken have conceded that the decision
impugned was unfairly
arrived at.
NEW
INFORMATION TAKEN ACCOUNT OF BY THE MINISTER
[32]
In coming to his decision the Minister clearly took into account
information submitted to him in the context of the appeals
which he
considered to be relevant. The Applicants have never been apprised of
this information. A reasonable opportunity to make
representations
implies that a person is properly advised of the information and
reasons that underlie the impending decision.
See
Lawrence
Baxter Administrative Law
(1984)
546;
Cora
Hoexter Administrative Law in South Africa
334.
If
the administrator is in possession of material that is adverse or
prejudicial to the person concerned, it will generally be unfair
not
to disclose that information and not give the person an opportunity
of dealing with it. See
Hoexter
op
cit
at
335;
Du
Bois v Stompdrift -Kamanassie Besproeingsraad
2002
(5) SA 186
(C) at 198 H - 199 A. In the latter case Griesel J of this
Division reached the following conclusion (at pages 198 H- 199 A):
"Ek
kom derhalwe tot die gevolgtrekking dat die besluit van die raad om
nie die applikant se tender te aanvaar nie prosedureel
onbillik was,
aangesien die applikant (a) nie deur die raad in kennis gestel is van
nadelige inligting wat hulle bekom het en van
voorneme was om teen
hom in aanmerking te neem nie; en (b) nie minstens 'n geleentheid
gebied is om op sodanige inligting kommentaar
te lewer nie."
The
question of whether a party has the right in a particular case to
answer or make further representations in relation to new
information
received by the administrator depends on the materiality and
significance of the new information and the seriousness
of the case.
See
Hoexter
op
cit
at
341;
Du
Preez & Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
(A) at 234 J - 235 A;
Chairman,
Board on Tariffs and Trade & Others v Brenco Inc & Others
2001
(4) SA 511
(SCA) pars [31]-[42]'
Governing
Body, Micro Primary School & Another v Minister of Education,
Western Cape & Others
[2005] ZAWCHC 14
;
2005
(3) SA 504
(C) at 521 F - 522 H;
Huisman
v Minister of Local Government, Housing and Works (House of
Assembly)& Another
[1995] ZASCA 151
;
1996
(1) SA 836
at 854 G and
Earthlife
Africa (Cape Town) v Director-General Department of Environmental
Affairs and Tourism& Another
[2005] ZAWCHC 7
;
2005
(3) SA 156
(C) at paras [62] - [64]. I perhaps must set out paragraph
[62] of the latter case
infra:
"[62]
By analogy with the approach adopted in motion proceedings where new
matter is raised in reply, I am of the view that,
if such new matter
is to be considered by the decision-maker, fairness requires that an
interested party ought to be afforded an
opportunity first to comment
on such new matter before a decision is made (compare Herbstein and
Van Winsen - The Civil Practice
of the Supreme Court of South Africa
4
th
ed
(1997) at 359-61). Support for this attitude is to be found in the
following dictum of Van den Heever JA in Huisman v Minister
of Local
Government, Housing and Works (House of Assembly) and Another
[1995] ZASCA 151
;
1996
(1) SA 836
(A) at 845 F - G:
'Were
new facts to be placed before the "administrator" which
could be prejudicial to the appellant, it would be only
fair that the
latter be given an opportunity to counter them if he were able to do
so, more particularly were the matter one in
which the extant rights
of an appellant could be detrimentally affected.'"
[33]
The seriousness of the present case cannot be gainsaid. The
materiality of this new information is clearly evident from the
Minister's own words in annexures
"GV19"
and
"GV20".
It
is even more apparent from the fact that the Minister actually
recorded that information presented during the appeal process
demonstrated that both sites were suitable for the establishment of a
landfill site. This statement was made by him in the sub-section
of
his ROD entitled
"In
summary"
which
formed part of the section of the ROD entitled
"KEY
FACTORS AFFECTING THIS DECISION"
referred
to
supra.
The
materiality and relevance of this new information, and the fact that
the Applicants were not given an opportunity to respond,
or make
representations in relation to it, are matters which are capable of
being assessed based on the information currently before
Court. The
Minister's failure to provide the Applicants a proper opportunity to
make representations to him in regard to this information
in terms of
section 3 (2) (b) (ii) of PAJA was procedurally unfair. Accordingly
the decision falls to be reviewed and set aside
in terms of section 6
(2) (c) of PAJA. Having regard to considerations of convenience
affecting the parties, it is clear that the
advantages of separately
determining the unfairness issue far outweigh any of its possible
conceivable disadvantages.
[34]
The First Intervening Party persisted on its commercial interest.
This is not interest substantial enough as to qualify it
to intervene
in these proceedings. It is my finding that the Intervening Parties
have no
locus
standi
to
oppose this application. Importantly, even if I am wrong in this
regard, in any event, the Intervening Parties have not demonstrated
a
prima
facie
case
as to why the decision in question should not be reviewed and set
aside in terms of section 6 (2) (c) of PAJA. The fact that
any party
was registered as the interested and affected party also does not
enhance its chances of success in its subsequent application
for
leave to intervene. It is one thing to register a party as the
interested and affected party and quite another to apply for
leave to
intervene in proceedings in progress. In the latter instance
established legal requirements must be met. The First Intervening
Party's Affidavit leaves me with an impression that somebody or some
entity promised it a huge amount of money should its property
be
expropriated for purposes of a regional landfill. If this was indeed
the position (as I suspect it must be) it cannot be allowed
to hold
the Applicants and the Respondents at ransom. Leave to intervene by
these two (2) Intervening Parties cannot be entertained
in the
circumstances of this matter.
[35]
I remain mindful of the submissions made by Mr. Breitenbach (SC) in
support of the proposed directions contained in the draft
order from
his side. I hasten to mention though that I am always reluctant to
prescribe to the Government officials how they should
go about in the
discharge of their duties. There is, in any event, more than
sufficient statutory framework at their disposal that
specify to such
officials what needs to be done and how and what consequences will
follow should the decisions be taken without
adherence to the
provisions of enabling legislation and the prescripts of the
Constitution. Mr. Breitenbach (SC) referred me to
cases where such
directions were given by Courts. I am not going to deal with those
cases for present purposes. It suffices to
mention that each case has
its own unique facts and must be dealt with on its own facts. In
those cases such directions were deserved.
In the instant case it is
unfair and unwarranted to presume that the current Minister may
wrongly handle this matter. I am told
that up to now the Minister is
innocent of wrongdoing. There are indeed many aspects in decisions
taken by Government officials.
Some of such aspects necessitate that
they use their discretion. It is my view that the decision of the
Minister should not be
circumscribed in any way as I will not do so.
[36]
In the circumstances, I make the following order:
(a)
The application for leave to intervene by the First and the Fourth
Intervening Parties is hereby dismissed with costs including
the
costs of two (2) counsel.
(b)
The application in terms of Rule 33 (4) to separate issues in the
instant matter is granted and the
Rule
Nisi
issued
by Waglay J on 5 January 2010 is hereby made final.
(c)
In addition to the costs referred to in paragraph 1.3 of the
Rule
Nisi,
the
First Respondent shall pay the Applicants' attorneys' reasonable fees
and disbursements in complying with the provisions of
paragraph 4.3
and 5 of the
Rule
Nisi.
DLODLO, J