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[2011] ZAWCHC 301
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Sayers v Minister of Local Government, Environmental Affairs & Development Planning and Others (7860/2010) [2011] ZAWCHC 301 (19 July 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case
number: 7860/2010
In
the matter between:
ANTHONY
TERENCE SAYERS
….......................................................................
Applicant
and
THE
MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS &
DEVELOPMENT
PLANNING
…..............................................................
First
Respondent
THE
CITY MANAGER OF
THE
CITY OF CAPE TOWN
….............................................................
Second
Respondent
THE
DIRECTOR OF SOLID WASTE
MANAGEMENT
OF THE CITY OF CAPE TOWN
….........................
Third
Respondent
JUDGMENT
DELIVERED ON 19 JULY 2011
Le
Grange, J:-
[1]
This is an application for a final interdict that is opposed. The
Applicant is an owner of a residential property situated
at 5
Castleview Road, Meadowridge, Cape Town. He contends that the Second
and Third Respondents ("the City"), operate
a recycling
and drop-off facility ("the facility") on a portion of Erf
4724 Constantia, which is situated on the Western
side of his
property and on the other side of a double carriage Highway ("the
M3"), in contravention of the Environmental
Conservation Act 73
of 1989 (ECA) as amended. The Applicant also contends that the City
has unlawfully constructed a shed directly
in view of his property.
[2]
The City opposes the application on two grounds: firstly, the
Applicant has no
locus
standi to
bring
an application of this nature against the City, and secondly, the
Applicant failed to satisfy the requirements for a final
interdict.
[3]
Mr. j F H Smith, an attorney with rights of appearance in this
court, appeared on behalf of the Applicant. Adv. E A De Villiers
Oansen appeared on behalf of the City.
[4]
As a result of the view I have taken of the matter, I will only deal
with the issue whether the Applicant satisfied the requirements
for
a final interdict and will accept for the present purpose the
Applicant has
locus
standi.
[5]
The requirements for a final interdict are well settled in our law.
An applicant must establish a clear right, an injury actually
committed or reasonably apprehended and the absence of any other
satisfactory remedy available to it.
[6]
The Applicant's clear right is primarily premised on the contention
that the City is operating the facility unlawfully. The
Applicant
relies on certain sections of ECA, and the National Environmental
Management: Waste Act 59 of 2008 ("the Waste
Act") in
support for its belief that the facility is being operated
unlawfully.
[7]
Adv. De Villiers- Jansen's primary contention was the Applicant's
reliance on the provisions of ECA and the Waste Act is flawed.
According to him, ECA, which came into effect in June of 1989, does
not have retrospective effect and as the facility has been
operational since the early 1980's the Act is not applicable.
Moreover, the Waste Act commenced on the 1 June 2009 and the City
had been operating the facility lawfully prior to its commencement.
[8]
In order to establish whether the City is operating the facility
unlawfully, it is important to consider the background to
the
facility, including the applicable laws past and present regulating
waste disposal.
[9]
It is not in dispute that the City has made use of the facility for
a considerable period of time. Mr. Carroll, who deposed
to the
answering affidavit on behalf of the City, stated that it has been
in use since the late 1970's. The City's Manager of
Planning, Mr Van
Vuuren, in a letter dated 4 June 2009 to the Acting Head of
Department: Environmental and Land Planning of the
City CAS 29"),
puts the date as 1984.
[10]
The Applicant states he noticed in the mid 1990's that the facility
was used as a dumping site and upon further enquiry ascertained
that
the area is known to the local authorities as the Ladies Mile Drop
Off site. The Applicant further states that despite his
numerous
complaints about the site to his local councillors he only recently
became aware after his attorney of record investigated
the matter
that the City is operating the facility illegally. Correspondence
since 2001 to date between the Applicant, certain
local councillors
and the City were attached to the founding papers. For the present
purposes I deem it unnecessary to record
all the information
contained therein. The Applicant's view that the City has been
operating the facility illegally appears to
have been fortified by
some of the contents of "AS 29" wherein the City states
that it is in the process of appointing
an Environmental consultant
to assist with the permitting of the site.
[11]
It cannot be disputed that the City has operated the facility either
before or at least since 1984. The legislation relied
upon by the
Applicant for its contention that the City is operating the facility
unlawfully came into effect on 9 June 1989.
[12]
The regulatory scheme before the commencement of ECA can briefly be
summarized as follows. In February 1967 the then Minister
of Health
passed general health regulations in terms of his powers granted to
him under the Public Health Act No. 36 of 1919
("the 1919
Health Act"). Regulation 15(4) provided that nothing contained
in the regulations shall be deemed to prohibit
the dumping of any
refuse, night soil, litter, waste, manure, offensive matter or
liquid in any place specially set apart by
the local authority for
that purpose, in such an approved manner as not to be offensive, or
a nuisance or injurious or dangerous
to one's health. On 2 December
1977, the Health Act No. 63 of 1977
("the
Health Act")
came
into operation and repealed the 1919 Health Act. Section 20 of the
1977 Act provided inter alia that every local authority
shall take
all lawful, necessary and reasonably practicable measures to
maintain its district at all times in a hygienic and
clean condition
and to prevent any nuisance, unhygienic condition, offensive
condition, or any other condition which will or
could be harmful or
dangerous to the health of any person within its district.
[13]
Section 38 of the Health Act authorized the Minister of Heatth in
consultation with the Minister of Water Affairs, Forestry
and
Environmental Conservation, to pass regulations concerning
inter
alia
waste
originating from residential premises namely rubbish, solid or
liquid waste. Regulations passed under the repealed 1919
Act were
deemed to have been made, issued, granted or given under the
corresponding section of the Health Act.
[14]
The Act of Parliament dedicated specifically to environment
conservation was the Environment Conservation Act No. 100 of
1982
("the 1982 Act"), which came into operation in 1982. In
terms of section 12, the Minister of Environmental Affairs
may
either in general or in respect of the area of jurisdiction of a
particular local authority, after consultation with the
Council for
the Environment, make regulations relating
inter
alia to
the
control of solid waste, the combating and control of noise pollution
and the conservation and utilization of the environment.
[15]
On 12 December 1986 the then Minister of Environmental Affairs and
Tourism published regulations in terms of the 1982 Act.
On a proper
reading of these regulations it only prohibited the construction of
waste disposal sites or the dumping of refuse
without a permit
within the "
limited
area"
as
defined in these regulations. The regulations define
M
limited
area"
as
"a
strip
of land 1000 metres wide in the Province of the Cape of Good Hope
and Natal, measured landward from the high-watermark of
the sea or
as from the highest water-level, as reached during ordinary storms
occurring during the most stormy period of the
year, excluding
exceptional or abnormal floods, in a tidal river and a tidal
lagoon."
These
regulations essentially prohibited dumping refuse on coastal
property bordered by tidal rivers and lagoons.
[16]
On 9 June 1989, the ECA came into operation. It repealed the whole
of the 1982 Act. The Applicant's reliance on the provisions
of ECA
in support of its contention that the City is operating the facility
unlawfully needs closer scrutiny. Section 20(1) of
ECA, which has
subsequently been repealed by section 80(1) of the Water Act,
prohibited any person from establishing, providing
or operating a
disposal site without a permit, whilst subsection (4) authorised the
Minister of Environmental Affairs and Tourism
to exempt any person
or category of persons from having to obtain a permit. Section 28A
entitles a local authority to apply for
exemption from any provision
of a regulation passed in terms of ECA. The Applicant's main
complaint is, in the absence of either
a permit or an exemption, the
operation of the facility is unlawful.
[17]
Insofar as the legal position prior to the introduction of ECA is
concerned, I was not referred to any express provision
nor could I
find any compelling indications in any legislation that the City was
obliged or legally required to obtain any permit
to operate the
facility at Ladies Mile. However, Mr. Smith argued that the City
cannot rely on the promulgations under Act no.
36 of 1919 and saved
under the Health Act, 36 of 1997 to legitimize the operations of the
facility at the Ladies Mile site. He
also made reference to the
matter of
Verstappen
v Port Edward Town Board and Others
1994
(3) SA 569
(D), and argued that in terms of section 20(1) and (2) of
ECA, a permit was required by the City to conduct an operation such
as the facility at the Ladies Mile site.
[18]
The Ladies Mile facility has been in operation at least since 1984
and the provisions of ECA only commenced on 9 June 1989.
The City
can only be in breach of operating the facility unlawfully if the
relevant provisions of such Act operate retrospectively.
[19]
It is well accepted in our law that there is a
prima
facie
rule
of construction that a statute, or any amendment or legislative
alteration thereto, should not be interpreted as having
retrospective effect. The underlying reason for such a presumption
is primarily based upon the consideration of basic fairness,
which
dictates that individuals should at least have an opportunity to
know what the law is and to conform their conduct accordingly.
In
this regard see
Workmen's
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997
(4) SA 418
SCA at 424 F -425 A;
National
Director of Public Prosectuions v Carolus and Others
2000
(1) SA 1127
SCA at paragraphs [31] - [36]. The presumption against
retrospectivity may however be rebutted either expressly or by
necessary
implication, by provision or indication to the contrary in
the enactment under consideration. On the other hand the language in
an enactment may also fortify the presumption against
retrospectivity.
[20]
The Minister of Environmental Affairs and Tourism published certain
regulations concerning section 20 of ECA. Regulation
GN R 1196 in GG
15832 dated 8 July 1994 provides the following:
"Any
person who intends to establish, provide or operate a disposal site
shall apply for a permit by submitting a completed
form in
accordance with Schedule A of these Regulations, to the Regional
Director of the Department of Water Affairs and Forestry
in whose
area the disposal site is situated."
Inasmuch
as these regulations was to set out the necessary form and
information required for the application for a permit in terms
of
Section 20 of ECA, on a proper construction there can be no doubt
that it was directed at future conduct. This clearly fortifies
the
presumption that the provisions of ECA do not operate
retrospectively. There are also, on a proper reading of section 20,
in my view, no other compelling indications from which
retrospectivity can be implied.
[21]
Mr. Smith also seeks to rely on the
dictum
in
the
Verstappen
case
in support of Applicant's contention that the City is operating the
facility unlawfully. In the
Verstappen
case
the following issues, amongst others, were considered by the Court:
firstly, whether the Applicant had
locus
standi in judicio
to
complain to the Court of the First Respondent's failure to obtain a
permit as required by ECA, to the Court. Secondly, in view
of the
fact that no regulations dealing with waste management had been
promulgated under ECA was the Town Board obliged to obtain
a permit
to operate a disposal site and finally, whether the Town Board's
conduct was unlawful in that it was operating a disposal
site
without a permit. Madjiet, 3 answered the latter two questions in
the affirmative but ruled that the Applicant lacked
locus
standi to
bring
such an application.
[22]
In
casu,
the
issue is whether the provisions of ECA operate retrospectively even
if the requirement for a permit to establish, provide
or operate a
waste disposal site was couched in the most peremptory of language
as held in Verstappen. In my view, as stated
above, the provisions
of ECA do not operate retrospectively. Moreover, the Town Board in
the Verstappen matter relied upon the
failure on the part of the
Minister to promulgate certain regulations before it could apply for
a permit and not on the basis
of retrospectivity. In the present
matter, the City did apply for a permit, albeit 9 years after the
commencement date of ECA.
This application was still pending when
ECA was repealed by the Waste Act. The argument that the City
operated the facility unlawfully
before the introduction of ECA is
therefore contrived and without merit. Moreover, basic fairness
dictates that the Legislature
must have been aware of earlier
legislation and the rights in respect thereof that may have accrued
to persons. In this regard
see:
Bareki
N.O and Another v Gencor Ltd and Others
2006
(1) SA 432
(T) and at 441 I. It is therefore inconceivable that ECA
could have intended, in the absence of any express or implied
provision,
that operators of all disposal sites lawfully in
operation at the time of its commencement should cease operation
immediately
pending an application for a permit or an exemption as
the case may be. Moreover, in the matter of
Minister
of Safety and Security v Molutsi and Another
1996(4)
SA 72 (A) at 88 it was held that the Constitution appears to:-
enpin
an approach to the interpretation of statutes which would be mindful
of society's distaste for retroactive legislation and
which would be
characterised by a reluctance to accept that accrued and vested
rights are intended to be retroactively set at
nought unless the
legislation in question makes that plain."
[23]
In casu, the legislation in question is silent about
retrospectivity. In fact, the provisions of the Waste Act that
repealed
section 20 of ECA fortify the view against retrospectivity.
Section 81(6) of the Waste Act provides that in the event of an
application
made in terms of section 20 of ECA not having been
decided when section 81 takes effect, the application simply
proceeds as if
that application were an application for a waste
management licence in terms of the Waste Act.
[24]
In terms of the applicable law at present, section 80(4) of Waste
Act, provides as follows :-
"A
person operating a waste disposal facility that was established
before the coming into effect of the Environment Conservation
Act
and that is operational on the date of the coming into effect of
this Act may continue to operate the facility until such
time as the
Minister, by notice in the
Gazette,
calls
upon that person to apply for a waste management licence."
[25]
Moreover, section 82 of the Waste Act provides that a person who
conducted a waste management activity as contemplated by
that Act
lawfully prior to its commencement on 1 July 2009, may continue that
activity
"until
such time as the Minister of Environmental Affairs and Tourism by
notice in the Gazette directs that person to apply”
for
a waste management licence under the Waste Act.
[26]
It is not in dispute that the management activity contemplated by
the Waste Act consists of the temporary storage of general
waste at
a facility, including a waste transfer facility, such as the
facility at Ladies Mile. I am therefore in agreement with
the
argument of Mr De Villiers - Jansen that the provisions of the Waste
Act do not assist the Applicant in this instance as
the City had
been operating the facility lawfully when the Waste Act commenced in
July 2009.
[27]
In considering the second requirement of injury actually committed
or reasonably apprehended, the only harm which the Applicant
contends he will suffer is a negative impact on the market value of
his property. These allegations the City disputes. On the
papers
filed the Applicant did not adduce any evidence, expert or otherwise
to prove that the continued operation of the facility
will affect
the market value of his property. The Applicant also failed to
adduce any evidence to show what impact the operation
of the
facility for the past few years has had on his property. The City
does, however, admit that the noise emanating from the
wood chipping
machine constitutes noise nuisance. The City constructed a berm on
the east side of the facility, in an attempt
to prevent any nuisance
caused to residents living in close proximity to the facility. The
berm did not have the desired effect
and the City instructed the
operator of the facility to construct a shed over the wood chipping
machine. According to the City
the shed, once completed, would
result in the noise of the wood chipping machine not being
discernable and not constituting a
noise nuisance.
[28]
The construction of the shed was, according to the Applicant, the
last straw in this ongoing saga with the City. As such,
the
Applicant's further complaint is that the shed is in direct view of
the outside living area of his garden which faces Table
Mountain and
Newlands Forest.
[29]
During the course of constructing the shed, the Applicant launched
these proceedings. Part of the relief sought by the Applicant
is the
cessation of the construction of the enclosure. The City held the
view that the enclosure would benefit the residents
living nearby
and, in particular, the Applicant. The City agreed to halt the
construction pending the finalization of these proceedings.
According to the City, had the enclosure been completed, the noise
would have abated, as reported in the affidavit by Terence
Eric
Mackenzie-Hoy, who conducted an independent noise assessment at the
facility. On these facts, since the shed was not completed,
I cannot
find that there is an injury actually committed by the City or
reasonably apprehended by the Applicant. Moreover, according
to the
notice of motion the Applicant does not seek to interdict any noise
which emanates from the facility.
[30]
In respect of the requirement of no alternative remedy, in a case of
nuisance an interdict is the most satisfactory remedy.
The Applicant
does not seek final relief from any noise which emanates from the
facility. In any event, the City undertook to
implement the
recommendation by an independent acoustic engineer. Furthermore, the
City did not contravene any provisions of
ECA or the Waste Act as
alleged by the Applicant.
[31]
It is not in dispute that the portion of land on which the Ladies
Mile drop off facility is operated is subject to a land
claim in
terms of the
Restitution of Lands Right Act 22 of 1994
. The Regional
Land Claims Commission recently approved the claim and, as such, the
beneficiaries who lodged the claim are entitled
to own the portion
of land in question. Pursuant to the launch of these proceedings,
the City's Mayoral Committee on 27 of October
2010 released the
portion of land to the claimants. There is, however, still a process
that needs to be completed before the
subdivided land can be
transferred to its new owners.
[32]
According to Mr Carroll, who deposed to a supplementary affidavit on
behalf of the City, the City is obliged in terms of
section 28 of
the National Environmental Management Act 107 of 1998 ("NEMA")
to rehabilitate the portion of Erf 4742
on which the facility was
operated. The rehabilitation can only take place once a waste
licence has been issued in terms of the
national Environmental
Management Waste Act No. 59 of 2008 (NEMWA"). An environmental
impact assessment will be performed
by an external independent
specialist. According to Carroll, the City may engage an external
specialist only after it has called
for tenders in this regard. It
would therefore have to prepare a tender document setting out the
specifications according to
which tenderers would be required to
tender. The City would then call for tenders, evaluate them and
finally award the tender
to the successful candidate.
[33]
The successful tenderer would have to perform his environmental
impact assessment in accordance with the provisions of NEMWA.
The
successful tenderer would have to lodge the application for a waste
licence with the Department of Environmental Affairs
&
Development Planning ("the Department"). The City will
have to comply with the conditions imposed by the waste
licence. The
subdivided erven may then be transferred to the beneficiaries after
the rehabilitation process has been completed
to the satisfaction of
the Department.
[34]
According to Carroll, it is anticipated that the tender process, the
rehabilitation of portion 6, the subdivision Erf 4742
and the
transfer of the subdivided erven to the individual beneficiaries
could take between eighteen and twenty four months.
[35]
Pursuant to the filing of the supplementary affidavit of Carroll, I
requested the City to provide additional information
as to the time
frame within which the decommissioning process of the facility is
likely to be completed. To this end Carroll
filed a further
supplementary affidavit detailing the process that the City has to
follow and the statutory requirements it has
to meet in this regard.
The Applicant's attorney has filed an affidavit in response to
Carroll's further supplementary affidavit.
Having regard to the
supplementary and further supplementary affidavits of Carroll, and
taking into account the evidence on behalf
of the Applicant in this
regard, the most sensible approach would be to allow the City the
time period of approximately fifteen
months to decommission the
facility.
[36]
It follows that the Application for a final interdict cannot
succeed. In respect of costs, the general rule is costs follow
the
event. In this instance the result favours the City but ultimately
the facility must be closed as a result of the successful
land
restitution claim. Once this process has been completed the
Applicant's complaints will in effect be addressed. In view
of these
circumstances, basic fairness and justice dictates that the
Applicant should not be burdened with a costs order in bringing
this
application. In my view, the most equitable result would be that
each party to pay its own costs.
[37]
In the result the following order is made.
The
application is dismissed. Each party to pay its own costs.
LE
GRANGE, J