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[2015] ZAWCHC 21
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Lionswatch Action Group v MEC: Local Government, Environmental Affairs And Development Planning and Others (5278/2013) [2015] ZAWCHC 21 (2 March 2015)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 5278/2013
DATE:
02 MARCH 2015
In
the matter between:
LIONSWATCH
ACTION GROUP
[Third
Respondent in the
counter-application]
......................................................................
Applicant
And
MEC:
LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS & DEVELOPMENT
PLANNING
...................................................................................................................
First
Respondent
[First
Respondent in the counter-application]
DIRECTOR:
LAND MANAGEMENT (REGION 2):
DEPARTMENT
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS & DEVELOPMENT PLANNING
....................
Second
Respondent
[Second
Respondent in the counter-application]
LION’S
HILL DEVELOPMENT COMPANY (PTY) LTD
[Applicant
in the
counter-application]
......................................................................
Third
Respondent
JUDGMENT
Delivered
2 March 2015
Before:
The Hon. Mr Justice Binns-Ward
Introduction
[1]
The applicant has applied for the review
and setting aside of a decision by the first respondent to grant
authorisation to the third
respondent, in terms of the National
Environmental Management Act 107 of 1998 (NEMA), to undertake an
activity listed in terms
of s 24(2) of the Act in relation to
the proposed development by the latter of Erf 1526, Tamboerskloof,
Cape Town. The
impugned decision was made on appeal to the
first respondent by the third respondent in terms of the
Environmental Impact Assessment
Regulations, 2010 GN R543 of 2010.
The appeal was from a decision by the second respondent at first
instance, in terms of
which the application for authorisation had
been refused. The third respondent delivered papers opposing
the application.
It limited its grounds of opposition to
raising a challenge to the applicant’s legal standing to have
instituted the review
proceeding and sought an order separating that
issue from the other issues in the case, which it sought leave to
address in further
papers to be delivered, if needs be, after the
determination of the separated issue. The third respondent also
applied, by
way of counter-application, for a declaratory order that
the activity it intended to undertake in point of fact did not
qualify
as one listed in terms of NEMA and that it had thus actually
not required the relevant authorisation in order to undertake the
proposed development.
[2]
The second respondent has not taken an
active role in the proceedings. The first respondent abides the
decision of the court,
but he delivered an affidavit for the
assistance of the court explaining his approach to making the
decision. The first respondent
did, however, oppose the third
respondent’s counter-application for declaratory relief.
[3]
In
December 2014, just more than two months before the date set for the
hearing, the regulations pertaining to the listed activity
in
question were amended. The amended regulation puts it beyond
doubt that the third respondent requires authorisation to
undertake
the clearance of vegetation on the property for the purpose of
proceeding with the intended development. The amendment
is
applicable to the activities involved in the proposed development
because development of the property had not yet commenced
when the
altered regulatory regime came into effect.
[1]
In the result the relief sought in terms of the third respondent’s
counter-application became moot and it consequently
gave notice of
the withdrawal of the counter-application.
[4]
The notice of withdrawal did not
incorporate a tender of the opposing parties’ costs. The
third respondent contends
that it should not be mulcted in costs due
to supervening events, which it could not have anticipated and which
were beyond its
control. The third respondent’s counsel
submitted that it would be just and fair in the circumstances for the
parties
to bear their own costs in the counter-application. The
first respondent does not seek costs in the circumstances. The
applicant, however, pressed for a costs order in its favour against
the third respondent.
[5]
Thus, the only issues for determination are
(i) whether the applicant has standing to prosecute the review
application and
(ii) whether the third respondent should pay the
applicant’s costs in the counter-application.
Notwithstanding
its application for leave to deal separately with the
merits of the review, counsel for the third respondent submitted that
in
the event of this court being against the third respondent on the
issue of the applicant’s standing, the proper order in the
altered circumstances would be to uphold the review and remit the
matter to the first respondent for consideration afresh.
Despite a suggestion in the applicant’s papers that it would
request this court to substitute its own decision for that of
the
first respondent, its counsel agreed that the matter should be
remitted to the first respondent.
[6]
Before turning to address the matters that
require determination, it bears mention that a body known as the
Lion’s Head Community
Safety Association applied for leave to
intervene as a respondent in the application, alternatively for
admission to the proceedings
as
amicus
curiae
. At the hearing, its
counsel advised that the application to intervene as a respondent
would not be pursued. Admission
as
amicus
was still sought. It was apparent from the papers that the
Association represented the owners of various properties in the
close
vicinity of Erf 1526. These owners had concluded agreements
with the third respondent on the nature and scale of the
development
that should occur on the property. They were anxious for a
number of reasons that it is unnecessary to recite
that the
development of Erf 1526 should proceed consistently with those
agreements and that it should not be delayed by any decision
on
judicial review setting aside the environmental authorisation granted
by the first respondent. Counsel were unable to
persuade me
that the Association could make a meaningful or helpful contribution
on the limited issues that fall to be determined
in these
proceedings. It seems likely in any event that the issue of
authorisation to undertake the listed activity in question
for the
purpose of the proposed development is going to have to be revisited
in the light of the aforementioned amendment to the
regulations.
I accordingly refused the application for the Association’s
admission as
amicus
,
making it plain, however, when doing so, that the refusal did not
exclude it from applying for admission again should the merits
of the
review application in any form engage the court’s attention in
future, whether pursuant to a separation of issues
application
(which, in the event, was not pursued in the circumstances described
earlier), or any fresh proceedings that might
ensue.
The
applicant’s standing
[7]
Counsel for the third respondent conceded
at the outset of their oral argument that the applicant was duly
constituted in terms
of its constitution as a body corporate and that
it had the capacity to sue and be sued in its own name as provided in
terms of
clause 4.3.7 of that constitution. In other words, it
is not disputed that the applicant has standing to litigate in its
own interest. The third respondent’s contention is that
the applicant does not have sufficient interest in the subject
matter
of the review application to have standing as an own-interest
litigant. As Cameron J observed in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013 (3) BCLR 251
(CC) at para 33, ‘
An
own-interest litigant does not acquire standing from the invalidity
of the challenged decision or law, but from the effect it
will have
on his or her interests or potential interests. He or she has
standing to bring the challenge even if the decision or
law is in
fact valid. But the interests that confer standing to bring the
challenge, and the impact the decision or law has on
them, must be
demonstrated
.’ The
applicant’s standing is alleged to rest in its right to
litigate in the interests of others. It has
not demonstrated
that the decision it seeks to impugn adversely affects its own
interests.
[8]
In the founding papers the applicant
described the basis of its interest in bringing proceedings to impugn
the decision of the first
respondent as follows:
4.
The Applicant is
LIONSWATCH ACTION
GROUP
, an umbrella organisation
representing the interests of Tamboerskloof Neighbourhood Watch
(“
TBKWatch
”),
the City Bowl Ratepayers and Residents’ Association (“
CIBRA
”)
and the Greater Cape Town Civic Alliance (“
GCTCA
”)
with its offices at xxx Kloof Street, Tamboerskloof, Cape Town, and
its e-mail address at xxx.
5. TBKWatch and
CIBRA were registered as Interested and/or Affected Parties (“
I&Aps
”)
in respect of the “Proposed Lion’s Hill Residential
Development in Tamboerskloof, Cape Town”, Erf 1526,
Tamboerskloof (DEA&DP Ref. No. E12/2/4/1-A2/75-3039/10) (“
the
proposed development
”).
5.1 TBKWatch is a
neighbourhood community organisation representing residents
ratepayers and educational institutions. For
the past seven
years, it has been involved in a number of issues which affect the
lives of Tamboerskloof residents and property-owners,
including
safety, municipal service delivery, the ambience of the suburb and
the maintenance of, and decline in, the public and
other green spaces
in the area. TBKWatch has a sizeable membership in
Tamboerskloof, with membership currently at over 600
households,
guest houses and a number of schools. It is accordingly
representative of a good proportion of the residents
and
property-owners in the suburb of Tamboerskloof.
5.2 CIBRA is the
official civic association for the entire City Bowl, stretching from
Bo-Kaap in the north-west to Zonnebloem in
the north-east of the city
bowl. It includes the suburbs of Tamboerskloof, Higgovale,
Gardens, Oranjezicht, Vredehoek and
Devil’s Peak. It
considers all matters that may or do impact on residents of the area,
including the built environment,
urban conservation and the natural
heritage of the area. CIBRA ensures that processes are executed
properly and the local
authorities comply with relevant local and
national regulations. CIBRA acts on behalf of all citizens
living within the City
Bowl, irrespective of whether they are
property owners or tenants, the area in which they live, and whether
they are paid-up members
or not. CIBRA thus represent in excess
of 10 000 City Bowl residents.
It
is common cause that TBKWatch and CIBRA were registered as interested
and affected parties (I&AP’s) in respect of the
application
by the third respondent for environmental approval. It is also
clear that TBKWatch and CIBRA are not members
or constituent bodies
of the applicant
[2]
(despite
having been described in correspondence addressed by it to the
Department of Environmental Affairs as ‘affiliate
members’
or ‘affiliate member institutions’
[3]
),
and they did not mandate it to institute the review application.
TBKWatch, CIBRA and Greater Cape Town Civic Alliance (GCTCA)
have,
however, submitted affidavits supporting the application. These
affidavits were solicited by the applicant in response
to the third
respondent’s challenge to its standing.
[9]
The applicant’s constitution
commences with a so-called ‘mission statement’ that goes
as follows:
MISSION STATEMENT
The
objectives of the LionsWatch Action Group (LWAG) are to support,
facilitate, coordinate and assist Interested and Affected Parties
(I&AP’s) in the proposed development of ERF 1526 (portion
of ERF 1032) in Tamboerskloof Cape Town, commonly known as
‘Lion’s
Hill Residential Estate’. The LWAG will at all times act
in the best interest of the widest and
most inclusive group of I&AP’s
possible rather than focus on any particular individual or vested
interests. The
LWAG encourages and promotes active
participation from individuals, organisations and institutions.
It will ensure that all
relevant statutory requirements pertaining to
the application for development are adhered to and I&AP’s
are at all times
fully apprised of their rights. Where and when
this is not the case, it will seek clarification from competent
authorities
or agents acting for or on behalf of the developer.
Furthermore, it will seek to ensure that any concerns and issues
raised
by I&AP’s are fully and satisfactorily addressed and
will seek expert opinion and engage with specialists where input
of a
technical or legal nature is sought. The LWAG will act as an
umbrella organisation to individuals, organisations and
institutions
that consider themselves I&AP’s and believes that a
collective coordinated approach is more constructive,
more
transparent, better informed and achieves a better outcome for all
I&AP’s.
The
objects of the applicant are expressed in clause 4.2 of its
constitution:
The objects of the
Association are to represent the interests of interested and affected
parties with regards to the objection to
the proposed Lion’s
Hill Residential Estate development on ERF 1526 (portion of ERF
1032), Tamboerskloof, Cape Town and to
undertake any acts and do
anything else which may be conducive to the attainment of the
afore-said objects of the Association.
[10]
TBKWatch,
as it name suggests, is a neighbourhood watch organisation. The
deponent to the applicant’s founding affidavit,
who is also its
chairman, was also chairman of TBKWatch. The third respondent’s
counsel submitted that if regard were
had to TBKWatch’s
constitution it is evident that it is purely a safety and security
directed organisation and that the environmental
or town planning
aspects related to the proposed development of Erf 1526 fall outside
the scope of its interests. The argument
is not persuasive in
the context of the matter. The registration of TBKWatch as an
I&AP in the environmental authorisation
application process is a
fact that cannot just be ignored. Having regard to the very
broad conspectus of considerations that
fall to be taken into account
in environmental applications applying the principles of integrated
environmental management set
out in s 2 of NEMA, and also the
wide definition of the word ‘environment’ in s 1 of
the Act,
[4]
it seems to me that
the proposed development of Erf 1526 is an issue in which the
organisation can have a cognisable interest within
the objectives
ordained in its constitution.
[11]
Counsel for the third respondent rightly
conceded that the development of the property is an issue of relevant
interest to CIBRA
and in respect of which it might be expected to
have obtained registration as an I&AP in respect of the
environmental impact
assessment.
[12]
The GCTCA is not a registered I&AP and
it did not object to the development of Erf 1526.
Moreover, the applicant’s
institution of the review application
did not occur in co-operation with, or at the instigation of the
GCTCA. The direct
involvement of the GCTCA in matters
concerning an environmental authorisation for the development of the
specific property would
in any event appear to fall outside the scope
of the objects of the association as they may be discerned from its
constitution.
I thus fail to see that it would qualify in terms
of the applicant’s aforementioned ‘mission statement’
even as an organisation ‘that consider(s) [itself to be an
I&AP]’.
[13]
Numerous grounds of review were advanced in
the application. They included the following:
1.
That the third respondent’s appeal to
the first respondent had been submitted out of time and was therefore
invalid.
2.
That the first respondent had ‘
seemingly
failed to apply his mind to all relevant considerations, proceeded
from a mistaken understanding of the correct position,
and acted
unreasonably
’. In this
regard it was alleged that the first respondent had failed to have
regard to the comments submitted by TBKWatch,
CIBRA and the Cape Town
German School in response to the draft basic assessment report
prepared by the independent environmental
consultant appointed for
the environmental authorisation in terms of the applicable
regulations. It was also alleged that
the first respondent had
failed ‘
to consider the response
to the appeal that was submitted on behalf of the Applicant
’.
(The response document in question is in fact a letter from
TBKWatch.)
3.
That the first responded had failed to take
into account the letter from the Director: Land Management, dated 19
December 2011,
which had informed the third respondent’s agent
that the entire proposed development, and not just the area affected
by Block
E, was subject to environmental impact assessment for the
purpose of the required environmental authorisation. This
advice
had been furnished because the ‘critically endangered’
flora species Peninsula Shale Renosterveld and Peninsula Granite
Fynbos had been reported by the City of Cape Town: Environmental
Resource Management branch to exist in areas falling under other
parts of the development. The letter also drew attention to the
fact that on 9 December 2011 the Minister for Water
and
Environmental Affairs, acting in terms of
s 52(1)(a)
of the
National Environmental Management Biodiversity Act 10 of 2004
, had
published a list of threatened ecosystems that are in need of
protection. The listed ecosystems were reported to include those
in
which the two aforementioned types of vegetation occurred. It
was contended by the applicant that it was apparent that
in
consequence the first respondent had fundamentally misunderstood ‘
the
nature of the environmental damage at issue
’.
4.
That the first respondent had ‘uncritically
accepted the third respondent’s claim that ‘
offset
opportunities
’ existed in the
face of it having been noted by the second respondent that the
‘
finding of identical land with
the same orientation close to the site in the urban environment was
nearly impossible
’. The
applicant also contended that the first respondent’s decision
was in any event irrational because, in the
context of the apparent
significance of the perceived existence of appropriate ‘
offset
opportunities
’, no condition had
been attached to the environmental authorisation requiring the third
respondent to provide such offset
in consideration for being
permitted to develop Erf 1526.
5.
That the first respondent had failed to
take into account the inadequacy of the specialist botanical study
undertaken as part of
the environmental impact assessment. The
relevant study had been undertaken only during the summer period when
many species
of fynbos are alleged to lie dormant, and thus
unidentifiable.
6.
That the first respondent had failed to
take into account that the most of the property is categorised in
terms of the City of Cape
Town’s biodiversity network as CBA1b,
viz. ‘
Critically endangered
vegetation of high and medium quality; needed for national
conservation targets; any loss is a permanent and
irrevocable loss
’.
In this respect it was alleged that the first respondent had
misdirected himself in assuming that the property was isolated
or
engulfed by urban development, whereas the area to the north of the
property consisted of a steep gulley categorised as CBA1c,
which is
defined in the City’s biodiversity network as ‘
Critically
endangered vegetation of restorable condition. Essential for
management consolidation, connectivity and viability
of adjacent
CBA’s
’. The applicant
alleged that bordering the site ‘
is
an extensive strip of CBA1b land behind the German School (DSK),
which is contiguous to the Table Mountain National Park
’.
7.
That, in a purported ‘clarification’
of his decision, the first respondent had irregularly given an
indication that
the environmental authorisation pertained to the
entire Erf, whereas the application and attendant environmental
impact assessment
had related to only a portion of the property.
[14]
The
applicant relies on s 38 of the Constitution
[5]
and s 32(1) of NEMA
[6]
as
giving it standing in the matter.
[15]
It
is well established that s 38 of the Constitution, which
essentially replicated s 7(4) of the Interim Constitution,
has
broadened standing in respect of the assertion or protection of the
rights enshrined in the Bill of Rights beyond that afforded
in terms
of the common law. The Constitutional Court has, moreover,
repeatedly observed that the provisions of s 38
should be
applied generously. This is, as Chaskalson P commented in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(CC),
1996 (1) BCLR 1
, at para 165, because it ‘
would
serve to ensure that constitutional rights enjoy the full measure of
the protection to which they are entitled
’.
An applicant in any application for judicial review competently
brought in terms of the
Promotion of Administrative Justice Act 3 of
2000
must necessarily qualify under one or more of the bases for
standing comprehended by
s 38
; see
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013
(3) BCLR 251
(CC) at para 29. Standing, however, remains a
concept that does not lend itself to finite definition. As
Cameron J
observed in
Giant
Concerts
,
‘…
there
is no magical formula for conferring it. It is a tool a court
employs to determine whether a litigant is entitled to
claim its time
and to put the opposing litigant to trouble
’.
[7]
This much is confirmed, for example, by the observations made by
Yacoob J and Madlanga AJ in
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC),
2001 (9) BCLR 883
, at para 15, where,
dealing with the ambit of
s 38
, the learned judges noted that
‘
there
is no clarity at present as to what the outer reaches of
[its]
subsections
are. For example, and with specific reference to
s 38(c)
,
the following are by no means easy questions to answer:
(a)
Whether a person bringing a constitutional challenge as a member of,
or in the interests of, a group or class of persons requires
a
mandate from members of the group or class.
(b)
What it is that constitutes a class or group - what should the nature
of the common thread or factor be.
(c)
What entitles someone who is not a member of the group or class to
act on behalf of those who are:
-
must such person demonstrate some connection with a member or some
interest in the outcome of the litigation;
- what should the
nature of such 'connection' or 'interest' be;
- in what way, if
at all, must the 'interest' differ from that envisaged in
s 38(a).
(d)
Whether a local government, even if it has the capacity to act on its
own behalf in regard to a particular Bill of Rights issue,
has the
power (in the sense of
vires
)
to do so in the interest of others
’
.
[16]
In
the current matter, having regard to its objects, the applicant could
be said to be an own-interest litigant. The ambit
of its
interests is defined by its object, which is to advance the interests
of the interested and affected parties objecting to
the development
of Erf 1526. It is manifestly litigating to advance its own
interest as identified in its constitution.
It is difficult to
conceive, however, how an administrative decision granting
environmental authorisation for the development of
the property could
impinge upon any of the applicant’s rights, rather than the
rights of the parties whose interests it seeks
to foster. The
impugned decision also does not affect the applicant’s interest
in supporting, facilitating, coordinating
and assisting or
representing
[8]
the I&AP’s.
In
Giant
Concerts
the
Constitutional Court held that an own-interest litigant intending to
litigate on the basis of standing conferred in terms of
s 38(a) of
the Constitution has to demonstrate that the conduct or law being
challenged has, or is liable to have, a cognisable
effect on its
rights or interests or potential interests. I would thus hold,
in accordance with the reasoning articulated
in
Giant
Concerts
,
that the applicant does not enjoy standing in terms of s 38(a).
Section 32(1)(a) of NEMA is indistinguishable in effect,
certainly
for present purposes, from s 38(a) of the Constitution.
[17]
It
remains to consider whether the applicant’s standing can be
founded on the other provisions of s 38 of the Constitution
or
s 32(1) of NEMA, all of which pertain to standing in litigation
instituted by an applicant or plaintiff acting in a representative
capacity of sorts. This is necessary because the applicant’s
founding affidavit asserts that it acts as ‘an umbrella
organisation representing the interests of’ the three other
bodies named in paragraph 4’ (quoted above
[9]
).
Fostering or supporting the role of
other
persons (i.e. I&AP’s) is in any event, as described, the
applicant’s stated
raison
d’être
.
However, as the jurisprudence to which reference has been made
illustrates, as does the express qualification in paragraph
(b)
thereof, s 38, generously applied as it should be, nonetheless
does not afford an unlimited warrant to persons to litigate
as their
brothers’ keepers.
[18]
The applicant has not brought itself within
the ambit of s 38(b), nor did it expressly purport to do so.
There is no
evidence that TBKWatch and CIBRA cannot act in their own
name. The notion that those two organisations could not act in
their
own name in any event is inherently improbable. In my
judgment a litigant that founds its standing on s 38(b) must
allege
that the other person contemplated by the provision would have
litigated the issue itself had that person been in a position to
do
so; cf. Woolman et al (ed)
Constitutional
Law of South Africa
at 7-6 [2
nd
Edition, Original Service 02-05], citing
Wood
and Others v Ondangwa Tribal Authority and Another
1975 (2) SA 294
(A) at 311G.
[19]
The
position is different in respect of standing under s 38(c).
The latter provision does not contain the qualification
implicit in
s 38(b). The first question in considering the application
of s 38(c) in the context of the current
case is whether the
CBKWatch and CIBRA, as but two I&AP’s, constitute ‘
a
group or class of persons
’
within the meaning of the provision. I do not believe that they
do. The provision pertains to the so-called
‘class
action’ type of case. The reported instances of such
litigation in this country to which I have been able
to have
reference all involved large numbers of persons in the affected group
or class. Indeed, where the rights or interests
of only a small
number of identifiable claimants are involved joinder in terms of
rule 10 might suggest itself as a more appropriate
procedure.
[10]
In any event, although the question of the necessity therefor in
matters of constitutional litigation was left open by the
majority in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
2013 (5) SA 89
(CC), it appears to be generally accepted in practice
that some form of certification by the court is obtained before class
action
litigation is launched. The sound reasons for the
practice have been discussed in a number of reported judgments and it
is
not necessary for the purpose of this judgment to revisit them.
An indication of the nature of the considerations to be taken
into
account by a court in deciding whether to grant certification was
given in the Supreme Court of Appeal’s judgment in
Children's
Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013 (2) SA 213
(SCA). The paramount consideration is whether
it would be in the interests of justice for the proposed action to be
entertained.
Among the matters to be considered in making that
determination are whether the representative litigant is suitable to
represent
the members of the class and whether a class action is the
most appropriate procedure to adopt for the adjudication of the
claims
in issue.
[11]
The
applicant did not seek certification and its founding papers did not
suggest that it was bringing a class action. On
the contrary,
to the extent that the papers expressly predicated a basis for
standing at all, they did so on the basis of the applicant’s
own objects, which, as noted, would suggest that the application
falls for standing purposes in the s 38(a) category.
[20]
Turning next to consider whether the
applicant has standing in terms of s 38(d), namely whether the
application is brought by the
applicant ‘
acting
in the public interest
’.
Justice O’Regan considered the ambit of the equivalent
provision in the Interim Constitution in her minority
judgment in
Ferreira v Levin
,
holding:
This
Court will be circumspect in affording applicants standing by way of
s 7(4)(b)(v) and will require an applicant to show that
he or she is
genuinely acting in the public interest. Factors relevant to
determining whether a person is genuinely acting in the
public
interest will include considerations such as: whether there is
another reasonable and effective manner in which the challenge
can be
brought; the nature of the relief sought, and the extent to which it
is of general and prospective application; and the
range of persons
or groups who may be directly or indirectly affected by any order
made by the Court and the opportunity that those
persons or groups
have had to present evidence and argument to the Court. These factors
will need to be considered in the light
of the facts and
circumstances of each case.
[12]
That approach was
subsequently endorsed by the Court in the judgment of Yacoob J
in
Lawyers for
Human Rights and Another v Minister of Home
Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC),
2004 (7) BCLR 775
, at
para 16 – 17. At para 18 of the judgment Yacoob
J proceeded:
The
issue is always whether a person or organisation acts genuinely in
the public interest. A distinction must however be made between
the
subjective position of the person or organisation claiming to act in
the public interest on the one hand, and whether it is,
objectively
speaking, in the public interest for the particular proceedings to be
brought. It is ordinarily not in the public interest
for proceedings
to be brought in the abstract. But this is not an invariable
principle. There may be circumstances in which it
will be in the
public interest to bring proceedings even if there is no live case.
The factors set out by O'Regan J help to determine
this question. The
list of relevant factors is not closed. I would add that the degree
of vulnerability of the people affected,
the nature of the right said
to be infringed, as well as the consequences of the infringement of
the right are also important considerations
in the analysis’.
[21]
The applicant has not purported to be
litigating in the public interest. Its declared basis for the
review is to advance the
interests of the associations named in
paragraph 4 of its founding affidavit.
[22]
The remaining possibility to be considered
is that the applicant may have standing in terms of s 32(1)(e)
of NEMA; viz. whether
it can be said to be seeking appropriate relief
in respect of any breach or threatened breach of any provision of
this Act, including
a principle contained in Chapter 1 of NEMA, or of
any provision of a specific environmental management Act, or of any
other statutory
provision concerned with the protection of the
environment or the use of natural resources - in the interest of
protecting the
environment. In my judgment it is evident from
the applicant’s grounds of review summarised above that the
relief sought
is indeed in respect of the matters comprehended by
s 32(1) of NEMA. And although the deponent to the founding
papers
did not say so in express terms, it is nonetheless
sufficiently evident from the content of the founding papers
considered as a
whole that among the applicant’s objects in the
litigation is the protection of the environment.
Section 32(1)(e)
affords a basis for legal standing in respect
of matters to which the sub-section applies beyond that provided in
terms of s 38(a)-(d)
of the Constitution. In the case of
an applicant which is a juristic person, it does not it does not
matter for the purposes
of standing in terms of s 32(1)(e)
whether the litigation does not serve the interests of the person.
Such a litigant
is also not deprived of standing in terms of the
provision by virtue of the fact that acting in protection of the
environment falls
outside its objects; cf.
Eagles
Landing Body Corporate v Molewa NO and Others
2003 (1) SA 412
(T), especially at para 53. Furthermore,
it would not matter that the effect of the breach of the provision of
the environmental
legislation in question would not have a directly
adverse affect on the applicant’s interests.
[23]
Section 32(1)(e) of NEMA thus provides a
very broad basis for standing in what might aptly be described as
environmentally concerned
watchdog litigation. It is desirable
that litigants who base their standing on the provision should make
an express averment
to that effect in their founding papers, but it
would be to inappropriately elevate form above substance to non-suit
a party for
a failure to do so when it is sufficiently evident from
the import of its papers that the application is indeed concerned
with
seeking appropriate relief for a breach or threatened breach of
the relevant environmental management or protection legislation.
[24]
By reason of the wide reach of the grounds
for review relied upon by the applicant it might be that it does not
have standing in
terms of s 32(1)(e) in respect of all of them,
but in the context of what needs to be decided in this matter it is
unnecessary
to embark on any process of paring.
[25]
In the circumstances the challenge by the
third respondent to the applicant’s standing must fail.
As mentioned, it was
agreed that in that eventuality, an order should
follow upholding the review with costs.
[26]
On the question of costs in the
counter-application, both sides agreed that it would be inappropriate
in the circumstances for the
court to be required to determine the
merits of the now moot counter-application for the purpose of
deciding what order to make
as to costs. Certainly, in the
absence of any oral argument on the merits of the counter-application
by either side, I have
no intention of doing so.
[27]
The
applicant’s counsel relied on the judgments in
Germishuys
v Douglas Besproeiingsraad
1973 (3) SA 299
(NC) and
Wildlife
and Environmental Society of South Africa v MEC for Economic Affairs,
Environment and Tourism, Eastern Cape, and Others
2005 (6) SA 123
(E) to contend that the supervening effect of the
regulatory amendment did not afford a good reason to deny it a costs
award against
the third respondent. In the former case,
Van Rhyn J expressed the opinion that ‘where a litigant
withdraws
an action or in effect withdraws it, very sound reasons
must exist why a defendant or respondent should not be entitled to
his
costs. The plaintiff or applicant who withdraws his action
or application is in the same position as an unsuccessful litigant
because, after all, his claim or application is futile and the
defendant, or respondent, is entitled to all costs associated with
the withdrawing plaintiff's or applicant's institution of
proceedings.’
[13]
In the second mentioned case, the applicant in an environmental
matter was ordered to pay the respondents’ costs after
it had
withdrawn the application before the hearing. The adverse costs
order was made notwithstanding the judge’s acceptance
that the
institution of the proceedings had been
bona
fide
and notwithstanding the provisions of s 32(2) of NEMA, which
provides ‘[a]
court
may decide not to award costs against a person who, or group of
persons which, fails to secure the relief sought in respect
of any
breach or threatened breach of any provision of this Act, including a
principle contained in Chapter 1, or of any provision
of a specific
environmental management Act, or of any other statutory provision
concerned with the protection of the environment
or the use of
natural resources, if the court is of the opinion that the person or
group of persons acted reasonably out of a concern
for the public
interest or in the interest of protecting the environment and had
made due efforts to use other means reasonably
available for
obtaining the relief sought.
’
[28]
In my assessment, both judgments relied on
by the applicants are distinguishable on their facts from the current
case. It
is evident on a closer consideration of the judgment
in
Germishuys
that the judge was of the view that the institution of the
application that had been withdrawn had been ill-advised because of
the existence of foreseeable disputes of fact. He was also of
the view that the impending transfer of the functions of the
respondent irrigation board to the Department of Water Affairs –
something the applicant had reasoned would have made nugatory
any
relief that it might have obtained pursuant to its application –
was a foreseeable event that the applicant should have
taken into
account before commencing proceedings. In my view, it is
apparent that these features that were peculiar to that
case weighed
materially in the exercise of the judge’s discretion against
the applicant on the issue of costs. So too,
in the
Wildlife
and Environmental Society
case, the
judge was of the view that the institution of the application had
been ill-advised. The applicant in seeking to
impugn an
environmental authorisation had based its case on an expert analysis
of a version of the scoping report that had subsequently
been revised
and which had not been relied upon by the MEC in making the decision
which the applicant had sought to review.
The effect of this on
the manner in which the court exercised its discretion is apparent
from the following remarks of the judge
(Pickering J) at
141J-142D, 142H and 143H-144C of the judgment:
It
is, in my view, a matter of some surprise that applicant could have
proceeded to launch what it knew would be a hotly contested
application without first having ascertained the true facts and
having established which of the three reports was in fact the final
scoping report. It appears from applicant's affidavits that there was
a considerable degree of confusion prior to the launching
of the
application as to which of the three reports was indeed the final
scoping report. Applicant and its attorneys must therefore
have been
alive to the very real possibility of error. In such circumstances
one would have expected that every care would have
been taken to
ensure that no such error occurred. Reeves states in this regard that
applicant's attorney contacted Albertyn in
order to obtain electronic
versions of all three scoping reports in an attempt to ascertain
which one was the final one but was,
in impolite terms, refused
assistance. Whether or not Albertyn refused to assist (which is
denied by him) the fact remains that
the
onus
obviously lay on applicant to place itself in possession of all
relevant information prior to the institution of proceedings. The
blame for the failure to furnish Dr Cairncross with the final report
cannot be laid at the door of respondents.
It
is clear in the light of the above, in my view, that the long road
leading to litigation was lined with alarm bells, to which,
unfortunately, no proper heed was paid by applicant.
In
all the circumstances I am of the view that, objectively viewed,
applicant's conduct in launching the application was, regrettably,
not reasonable. I use the word regrettably advisedly, because it is
quite clear that in bringing the application applicant acted
out of
the best of motives arising out of its very real concern for the
environment. It wished, in the public interest, to prevent
the
installation of a waste disposal system which it considered would be
gravely harmful to the environment and to human life.
However, in the
light of all the circumstances pertaining the time the proceedings
were instituted and of which circumstances applicant,
had it
exercised due care, should have been aware, its concerns had already
been met and the application was therefore unnecessary.
… In
my view, … it would neither be fair nor in the interests of
justice for first and second respondents to be deprived
of the costs
incurred by them in opposing an application which was doomed to
failure from its inception.
[29]
The applicable principles in respect of the
costs question were, with respect, accurately summarised by
Pickering J in the
Wildlife and
Environmental Society
judgment at
130C-131C, with reference to the authorities cited there, including
Republikeinse Publikasies (Edms) Bpk v
Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773
(A) at 786C (approving the observation in
Kruger
Bros. & Wasserman v Ruskin
1918 AD
63
at 69 that - ‘…
the rule
of our law is that all costs - unless expressly otherwise enacted -
are in the discretion of the Judge. His discretion
must be judicially
exercised…
’) and
Ward
v Sulzer
1973 (3) SA 701
(A) at 706G,
where Holmes JA said ‘
In awarding
costs the Court has a discretion, to be exercised judicially upon a
consideration of all the facts; and, as between
the parties, in
essence it is a matter of fairness to both sides
’.
Thus, the predominant consideration in the determination is the
achievement of fairness to both sides. That
cannot be attained
on a dogmatic approach; it can be achieved only if the required
exercise of judicial discretion occurs with
appropriate regard to the
peculiar features of the given case.
[30]
As noted earlier, I have not heard argument
on the merits of the counter-application. It is evident on the
papers that I have
read, however, that the fate of the
counter-application, had it proceeded, would have turned on the
proper meaning of the wording
of listed activity 12 in the applicable
regulations. Suffice it to say that prior to its amendment the
wording was by no
means a model of clarity. It was the
amendment of the provision that made it plain that the relief sought
by the third respondent
had been rendered moot. The amendment
was not an eventuality that the respondent could reasonably have
foreseen. It
was also a supervening event in which neither
party had an instigating or blameworthy role. Those features of
the matter
have persuaded me to the view that fairness would be
served if no order is made in respect of the costs of the
counter-application.
[31]
The following orders are made:
1.
The decisions of the first respondent
upholding the third respondent’s appeal against the refusal of
its application for an
environmental authorisation in terms of
Chapter 5 of the National Environmental Management Act 107 of 1998
and granting the third
respondent authorisation to undertake a listed
activity for the purpose of developing Erf 1526, Tamboerskloof, Cape
Town are reviewed
and set aside, and the matter is remitted to the
first respondent for reconsideration.
2.
The third respondent shall pay the
applicant’s costs of suit in the review application, including
the costs of two counsel.
3.
No order shall be made as to costs in the
third respondent’s counter-application, which has been
withdrawn.
A.G.
BINNS-WARD
Judge
of the High Court
Before:
Binns-Ward J
Date
of hearing: 18 February 2015
Date
of judgment: 2 March 2015
Applicant’s
counsel: S.F. Burger SC
P.B.
Farlam
Applicant’s
attorneys: Bowman Gilfillan Inc.
Cape
Town
Third
respondent’s counsel: W.H. Trengove SC
André
Coetzee
Third
respondent’s attorneys: Appollos & Associates
Bellville
Smith
Ndlovu & Summers Attorneys
Cape
Town
Counsel
for applicant seeking
admission
as
amicus curiae
: M.F. Osborne
S.
e Câmara
Attorneys
for applicant seeking
admission
as
amicus curiae
: Erleigh and Associates
Cape
Town
[1]
See
s 24F of NEMA read with the definition (in s 1 of the Act)
of “
commence
”.
[2]
In
this respect the character of the applicant differs materially from
that of the applicant in
Hout
Bay & Llandudno Environment Conservation Group v Minister of
Local Government, Environmental Affairs & Development
Planning,
Western Cape and Others
[2012]
ZAWCHC 22
(22 March 2012) cited in the applicant’s counsel’s
heads of argument. In the
Hout
Bay
matter,
the applicant was an ‘
umbrella
body
’
of which ‘
a
range of civic, ratepayers, heritage and environmental organisations
in Imizamo Yethu and the greater Hout Bay community
’
were ‘
constituent
organisations
’.
(My underlining.) See para 1 of the judgment. So
too in
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC),
2000 (10) BCLR 1051
, also cited by the
applicant, the independent schools which the ‘
umbrella
body
’
applicant in that case represented were members of the organisation;
see para 2 of the judgment.
[3]
The
applicant’s founding affidavit made passing reference (in para
32) to ‘
the
organisations making up the Applicant’
,
but such organisations were not identified in the body of the
affidavit As noted, they did not include the two I&AP’s
whose interests the applicant seeks to advance. In
correspondence addressed by the applicant to the first respondent
requesting the reasons for his determination of the appeal, the
applicant described itself as ‘
a
collective initiative of the
Tamboerskloof
Community
[TBKWatch],
the
City
Bowl Ratepayers and Residents Association
[CIBRA], the Greater Cape Town Civic Alliance [GCTCA], the
German
International School Cape Town
[DSK]
and
Friends
of Lion’s Head
[FoLH]
’.
[4]
'environment'
means the surroundings within which humans exist and that are made
up of-
(i)
the land, water and atmosphere of the earth;
(ii)
micro-organisms, plant and animal life;
(iii)
any part or combination of (i) and (ii) and the interrelationships
among and between them; and
(iv)
the physical, chemical, aesthetic and cultural properties and
conditions of the foregoing that influence human health and
well-being.
[5]
Section
38 of the Constitution provides:
Enforcement
of rights
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their
own name;
(c)
anyone acting as a member of, or in the interest of, a group or
class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.
.
[6]
Section
32(1) of NEMA provides:
Legal
standing to enforce environmental laws
(1)
Any person or group of persons may seek appropriate relief in
respect of any breach or threatened breach of any provision
of this
Act, including a principle contained in Chapter 1, or of any
provision of a specific environmental management Act, or
of any
other statutory provision concerned with the protection of the
environment or the use of natural resources-
(a)
in that person's or group of person's own interest;
(b)
in the interest of, or on behalf of, a person who is, for practical
reasons, unable to institute such proceedings;
(c)
in the interest of or on behalf of a group or class of persons whose
interests are affected;
(d)
in the public interest; and
(e)
in the interest of protecting the environment..
[7]
At
para 41(e). Although the observation was made in the judgment in the
context of a consideration of own-interest constitutional
litigation, it is nonetheless of application in respect of the legal
concept of standing considered generally. See also
Jacobs
en ’n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 534A, where Botha JA remarked that standing
‘
is
nie ’n tegniese begrip met vas omlynde grense nie
’.
[8]
All
of these expressions of the nature of the applicant’s
interests are taken from the provisions of its constitution quoted
above (in para [9]).
[9]
At
para [8].
[10]
Cf.
Children's
Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013
(2) SA 213
(SCA) at para 29.
[11]
Children's
Resource Centre
at
para 23.
[12]
At
para 234.
[13]
I
quote from the headnote, which reflects accurately what the learned
judge said at 300D-E of the judgment. Similar views
were
expressed in
Reuben
Rosenblum Family Investments (Pty) Ltd and Another v Marsubar (Pty)
Ltd (Forward Enterprises (Pty) Ltd and Others Intervening)
2003 (3) SA 547
(C), at 550C – D,
Waste
Products Utilisation (Pty) Ltd v Wilkes and Another (Biccari
Interested Party)
2003 (2) SA 590
(W), at 597A and
Absa
Bank and Others v Robb
2013 (3) SA 619
(GSJ) at para 8.