ENVIRONMENT

Facts and issue: The applicant seeks the review and setting aside of two governmental approvals relating to the Chloorkop Landfill Site (CLS) granted in terms of the National Environmental Management: Waste Act 59 of 2008 (NEMWA). The applicant’s administrative appeals are respectively against the HoD’s expansion and extension decisions. The applicant’s application for a review of the decisions is based on the doctrine of legality.

Discussion: The mainstay of the applicant’s case is that condition 3.2.6 specified a definite end date for the CLS that was reached at the latest on 9 August 2021. It argues, in essence, that operation of the CLS as a landfill site could not lawfully be extended by variation of condition 3.2.6 or expansion of the CLS in terms of the new NEMWA. The applicant argues that condition 3.2.6 stated that the 1997 permit would lapse on the happening of the earlier of two events. The applicant argues further that the decision-maker in 2016, the then MEC, decided that the 1997 permit would terminate at the latest on 9 August 2021. EnviroServ’s first response to the argument is that condition 3.2.6 specified or decided nothing of the sort. On a proper interpretation, condition 3.2.6 specified a period within which one of the waste management activities that the 1997 permit authorised, waste disposal, should be completed. Condition 3.2.6 could be amended to allow deposition to continue for another year.

Findings: In all the circumstances, the impugned decisions are not invalid or unlawful and therefore cannot and should not be reviewed or set aside. In the final analysis, the applicant has not established any grounds of review under section 6 of PAJA or section 24 of the Constitution. Section 24 of the Constitution, NEMA and NEMWA all concern the proper and appropriate balancing of competing interests in the overall interests of the natural environment, conservation and society, in the context of securing ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. The applicant’s assertions that the extension decision and the expansion decision were tainted by unlawfulness are unfounded.

Order: The application is dismissed with costs.

Facts and issue: The applicants seek the review and setting aside of the MEC’s decision to exclude four properties from the Mabola Protected Environment, thus permitting coal-mining activities in the protected wetlands area. The Mabola Protected Environment was declared a protected environment in terms of section 28 of the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA), and it is an important biodiversity and water source area. The MEC’s reason for the exclusion of the properties was to enable mining activity.

Discussion: The grounds of review are effectively that the MEC did not act within the ambit of the enabling legislation, as such, his conduct was unlawful, unreasonable and procedurally unfair in failing to take relevant considerations into account and by taking irrelevant considerations into account. The declaration of Mabola Protected Environment does not constitute a complete ban on mining activities. However, there was a need to obtain written permission of both Ministers. The Ministers act as custodians of such protected environments and with a strict measure of scrutiny, the Ministers would have had to consider the interests of local communities and the environmental principles referred to in section 2 of NEMA. The MEC’s conduct is therefore contrary to the scrutiny required in terms of section 48(1)(b) of NEMPAA. It has been found by the panel that there is uncertainty and inadequate information regarding the impact of the proposed mine on biodiversity and ecological considerations. On the proper application of the precautionary principle, the exclusion decision should not have been made, thus rendering the decision reviewable.

Findings: The MEC ignored the environment minister’s advice and failed to adhere to the principle of co-operative governance. The MEC’ public statements, along with his support for the mine, is to the exclusion of and in disregard of the environment significance of the area and the long-term consequences of allowing mining to commence in the Mabola Protected Area. This indicates clear bias in favour of mining, or at the very least, conduct which gives rise to a reasonable suspicion of bias. The MEC’ failure to consider the impact of mining renders the exclusion decision reviewable. The mining operations will negatively affect the quality and ecological importance of the wetlands. This would have implications for South Africa’ International environmental obligations. The other effect will be on migratory birds or their patterns. This exclusion decision equally falls to be reviewed.

Order: The decision of the first respondent to exclude four properties from the Mabola Protected Environment is reviewed and set aside.

Facts: The appellants are business entities who manufacture, import, market and sell angling equipment, such as bait-carrying drones and other remote-controlled bait-carrying devices. In 2022, the Deputy Director-General for Fisheries Management (the DDG) published a notice in which members of the public, recreational anglers and suppliers of fishing equipment were advised that the “use of motorised devises, such as, but not limited to, bait-carrying drones, bait-carrying remote-controlled boats and other remotely operated vehicles, as well as motorised electric reels” are prohibited for angling. The appellants alleged that the publication of the notice by the DDG had a devastatingly adverse and negative effect on their businesses. They experienced a rapid decline in the demand for the drones and other bait-carrying devices. In some instances, orders which had previously been placed for drones were cancelled and other clients demanded that they be reimbursed for past purchases.

Appeal: The appellants brought an application in the High Court seeking an order that: (a) a declarator be issued that the use of drones, bait-carrying remote-controlled boats and other remotely-operated devices, are not prohibited in terms of the Marine Living Resources Act 18 of 1988 (the Marine Act) and the regulations published pursuant thereto; (b) the respondent publicly withdraws the notice; and (c) the respondent declares that the aforesaid public notice is of no legal effect or consequences. The High Court dismissed the application. The appeal is with leave of this court.

Discussion: The appellants contended that the notice issued by the DDG is unlawful as neither the Marine Act nor the regulations prohibit the use of motorised devices such as drones in fishing. They contended that the Minister/DDG seeks to amend the Marine Act without following the correct procedure. They submitted that the word “angling” only appears in the regulations and not in the Marine Act. In explaining the use of a drone, the appellants contended that the use of a remote-controlled bait-carrying device such as drones does not derogate from the fact that the anglers who use these devices apply the old, recognised method of fishing by manually operating a rod, reel and a line with hooks, swivels and sinkers attached to the line. The drone enables the angler to fly the bait to the area where he requires his bait to be dropped. The bait is attached to a hook which is attached to the fishing line that forms part of the fishing rod and reel. Once the bait is released, the bait-carrying device (drone) returns to the shore, and it plays no further role in the fishing activity. Therefore, so the contention went, angling does not exclude the use of drones to drop the bait.

Findings: The appellants contend that the word "angling" is foreign as it is not mentioned in the Marine Act. Whilst this is correct, the definition of “this Act” in section 1 of the Marine Act “includes any regulation or notice made or issued under this Act”. This therefore means that, although angling is defined in the regulations and not in the Marine Act, its definition is deemed to be included in the Marine Act. The key word in the definition of angling which differentiates the fishing activity of angling from other fishing activities is “manually”. The Marine Act and its regulations not only specify the type of fishing activity, but also the method to be used in performing such fishing activity. Lawful fishing can only be authorised by means of a section 13 permit. Once the angler has been issued with the permit for angling, the angler is not at liberty to use any method other than the one that is provided for in the regulations, that is, fishing by manually operating a rod, reel and line or one or more separate lines to which no more than ten hooks are attached per line. To use any other method other than the authorised one would be unlawful.

Order: The appeal is dismissed with costs.

MOKGOHLOA JA (HUGHES JA, MEYER JA, WEINER JA and COPPIN AJA concurring)

Facts: The applicant is a swine genetics producer. The applicant contends that it brought the application primarily based on a public right and the primary intention is to claim relief in its own interest, but which will also benefit the rights of others, being all water users downstream from Kusile Power Station which include the farming communities and previously disadvantage communities taking their domestic water required for agricultural purposes directly from these downstream water resources. Eskom has continuously failed to notify local communities around Kusile about water pollution incidents, hence the necessity to bring this application. The applicant contended that it is undisputed that the construction, operation and maintenance of Kusile by Eskom related to the quality of water and its management is regulated by statute through various legislative instruments. There are two environmental authorisations and 11 water use licences imposing conditions and legal obligations upon Eskom. It is further undisputed that Eskom has caused the pollution of the downstream water resources because of its failure to comply with all the conditions of the water use licences. Any exceedances of the impermissible levels for the water or wastewater quality requirements coming from Kusile unlawfully release substances into a water resource and are of unacceptable pollution of the water resource.

Application: There are two issues central to this case. The first being non-compliance by Eskom with the conditions of the environmental authorizations and water use licences issued to it in terms of section 40 of National Water Act 36 of 1998. The second issue is the failure to enforce compliance by Eskom with the conditions of the environmental authorizations and water use licences and all other relevant legal requirements. The applicant seeks a structural interdict against the respondents.

Discussion: There is nothing in the respondents’ answering affidavits which raises a real, genuine and bona fide dispute of fact. The dispute raised is not material to the determination of the issues in this case, but it is on peripheral matters as to what causes the pollution and degradation of the downstream water resources. The discomfort of the applicant is that the construction, operation and maintenance of Kusile by Eskom causes pollution and degradation of the environment and that the State respondents are doing nothing about it. The dispute of fact that exists in this case is so immaterial that it is no bar for the court in determining the matter on paper. There is no merit in the contention that the applicant brought these proceedings prematurely against the respondents since Eskom has formulated and published an updated action plan to address the concerns and discomfort of the applicant and in particular the pollution and degradation of downstream water resources. It is further not an excuse that, if the design of Kusile were to be changed to enable it to comply, new water use licenses will have to be applied for. It is clear from the monitoring data that the exceedances continue to rise, and the action plan has not been effective. It is only after this application was launched that the State respondents were galvanised into action. However, Eskom invited the applicant to engage with it in regard to the updated action plan, but the applicant did not engage with Eskom, instead chose to only criticise the plan for several inadequacies.

Findings: Undoubtedly, the applicant has met the first two requirements for an interdict in that the applicant has a clear right to an environment that is not polluted and harmful to its wellbeing. Presently, the environment downstream at Kusile has been and continues to be polluted, harmed and degraded by Eskom with the State respondents sitting on their hands and failing to enforce compliance with the conditions of licenses and legislation. However, the applicant falls short on the third requirement where it is required to prove that it does not have an alternative remedy or would not receive sufficient redress in due course. This is because section 28(12) of NEMA (National Environmental Management Act 107 of 1998) provides that any person may, after giving the D-G of the department responsible for mineral resources 30 days’ notice, apply to a competent court for an order directing the D-G to take any steps to direct the person who is causing pollution or degradation of the environment to cease such activity or operation or undertaking or commence specific measures to remedy the situation. The applicant has not availed itself of the remedies provided for in section 28(12) of NEMA. The inescapable conclusion is therefore that the application falls to be dismissed on this basis alone. In any event, the failure of the applicant to invoke the provision of the NEMA and the NWA infringes on the principle of subsidiarity in our law.

Order: The application is dismissed.

TWALA J

Facts: Certain decisions were taken in respect of the building of a road known as Houmoed Avenue Extension 1, which is a 1,2 kilometre section road in Noordhoek. The proposed road is adjacent to a wetland in Noordhoek known as the Pick ‘n Pay reedbed or wetland. The applicant, Noordhoek Environmental Action Group, which is a non-profit organisation with an environmental focus, argues that the proposed road will disturb the wetland as well as three breeding ponds used by the endangered Western Leopard Toads (WLT) and will potentially cause their extinction. Environmental authorisation was required for the proposed road because its construction and the establishment of the road reserve gives rise to listed activities in respect of: (a) the infilling of more than 10 m³ of material into a wetland; (b) the removal of an area of indigenous vegetation exceeding 300 m².

Application: The applicant seeks to review and set aside decisions taken by the Director and the MEC to grant environmental authorisation to the City in terms of the National Environmental Management Act 107 of 1998 (NEMA) and the Environmental Impact Assessment Regulations, 2014 for the construction of the proposed road. Among other relief, an order was sought declaring that the failure to commission specialist anuran or amphibian studies into the impact of the proposed road on the WLT in particular constitutes a fatal flaw in the Basic Assessment Report (BAR) submitted by Chand Environmental Consultants in the City’s application for an environmental authorisation to construct the road.

The experts: It was contended that the failure to commission and complete an expert study on the WLT means that irrelevant considerations were taken into account and relevant considerations were not taken into account. It was argued that the failure to have appointed an amphibian or anuran specialist to specifically assess the impact that the proposed road would have on the WLT falls foul of NEMA Regulation 12(2), particularly that the WLT is an endangered species. The appellant called into question the expertise of the Freshwater Consultant (Mr Ollis) and the Faunal Consultant (Mr Todd) and submitted a review by Dr Harding. Dr Harding’s review raised concerns with the literature resources that were utilised or underutilised in preparing the specialist reports. It was clear from the documents referred to that the impact of the proposed road on the WLT was carefully considered and a range of mitigation measures were proposed. The Faunal Impact Study was prepared by Mr Todd (a faunal specialist) and the Wetlands Report was prepared by Dr Ollis (a wetland ecologist). Both authors are qualified as “specialists” as the term is defined in Regulation 1. The failure to commission and complete an expert study on the WLT by an anuran specialist does not found a reviewable irregularity.

Further grounds of review: There is a rational connection between the mitigation measures and the purpose for which they were imposed, namely the preservation of the WLT’s natural habitat, and the protection of that species against the threat of road mortality. The evidence shows that the cumulative impact in relation to the WLT was considered both in the assessment process and by the decision-makers. It is clear that there was extensive public participation in the first process with comments having been received from some 284 interested and affected parties. The applicant and all other interested and affected parties, many of whom were members of the applicant, spent a lot of time and invested a significant amount of money in contributing to the public participation process. The applicant does not make out a case for a Traffic Impact Study to have been provided. The purpose of having an independent Environmental Assessment Practitioner (EAP) appointed is to ensure that the BAR process is performed in an impartial and reliable manner by a registered EAP who is a trained professional to conduct these processes independently. The manner in which the two EAPs were appointed through Chand Consultancy does not undermine this purpose.

Order: The application is dismissed. Each party shall pay its own costs.

PILLAY AJ

Facts and issue: The respondent erected residential buildings and other structures on a piece of land. The applicant contended that the respondent is carrying out a development within a protected coastal conservation area in contravention of section 39 of the Environmental Conservation Decree 9 of 1992. The applicant seeks an order restraining and interdicting the respondent from carrying out any further construction on the land and directing him to demolish the building and structures he erected and rehabilitate the land.

Discussion: The clear right to the relief it seeks, so the applicant says, emanates from the authority vested in it to manage and protect the coastal conservation area. The applicant further asserts that the prohibition contained in the Decree, of the erection of structures in the protected coastal conservation area coupled with the fact that the respondent has defied the applicant’s authority by continuing with the construction of the structures on the land, forms the basis of the relief it seeks. It goes on to state that since the respondent obtained no permit or authorization from a magistrate for the development of the site as required by the Decree, he has acted unlawfully in carrying out the construction. The applicant further alleges that it has reasonable apprehension of harm that if the respondent’s conduct is not interdicted it will encourage neighbouring communities to unlawfully erect structures on the coastal conservation area with impunity. It is the applicant’s contention further, that it has no alternative remedy to protect the interest it has in conserving the land, and that even though applicant received a compliance notice, the construction continued.

Findings: From the evidence of the applicant which the respondent has failed to seriously challenge, it appears that it was through its investigative processes that the applicant challenged the respondent’s development on the land, which further culminated in the now provisionally withdrawn criminal proceedings. On the respondent’s own showing, none of these processes would have yielded any resolution to the matter since he persists with his claim of title to occupy the land. The respondent’s failure to produce the permission to occupy the land and to file the confirmatory affidavits ineluctably leads to a conclusion that it is implausible that Mayongwana or his father was allotted the land on which he has erected the impugned structures. What is plausible is that the land on which the respondent erected the impugned building and other structure is a protected coastal conservation area. The respondent’s defence is untenable and implausible.

Order: The respondent is interdicted and restrained from continuing to erect and occupying structures on the land falling within the coastal conservation (the site). The respondent is directed to cease and desist from occupying and erecting structures on the site. The respondent is directed to vacate the site forthwith.

Facts and issue: The applicants are close corporations which conduct business in the tuna pole fishing industry. The applicants each applied for commercial tuna pole fishing rights. The delegated authority (DA) notified the first applicant  that its application was unsuccessful since it scored below the available effort allocated to Category A applicants. The Minister agreed with the first applicant that it was erroneously scored, but determined that the appeal should nonetheless fail on the basis that a brother-sister relationship exists between the first applicant and Hotline.

Discussion: According to the DA and Minister, the first applicant and Hotline are owned and controlled by the same members. The Minister relied squarely on this reason in dismissing the first applicant's appeal. However in the answering affidavit deposed to by the second respondent she maintained that ‘the significant overlap’ between the applicant and Hotline is also supported by the fact that they share the same physical and postal addresses. This could not have been a reason for the Minister’s dismissal of the appeal since it does not feature in her decision. It is thus fair to infer that it is an attempt to construct an ex post facto rationalisation for a decision, which is not permissible. The applicants have only been partially successful.

Findings and order: The decision to refuse the first applicant a commercial tuna pole fishing right on the basis that it is related by application of the “brother-sister” relationship criterion to Hotline is reviewed and set aside. The first applicant is granted a commercial tuna pole fishing right for the period 1 March 2022 until 28 February 2037 on such terms as the first respondent may determine. 

Facts and issue: The applicants (Puffin and River Queen) are close corporations which conduct business in the tuna pole fishing industry. In their revised Part B they seek the review and setting aside of certain decisions taken by the delegated authority (DA) and subsequently by the first respondent (Minister) pursuant to their internal appeals, together with substitution relief. The application is opposed by the Minister, second respondent and DA.

Discussion: Puffin and River Queen each applied for commercial tuna pole fishing rights. Puffin was notified by the DA that its application was unsuccessful since it scored below the available effort allocated to Category A applicants. Puffin lodged an internal appeal with the Minister in terms of section 80 of the MLRA. The Minister agreed with Puffin that it was erroneously scored but determined that the appeal should nonetheless fail on the basis that a brother-sister relationship exists between Puffin and Hotline. She incorrectly found that the DA made ‘a decision’ on such a relationship. According to the DA and Minister, Puffin and Hotline are owned and controlled by the same members, namely Heyn, Braun and Dawson. The Minister relied squarely on this reason in dismissing Puffin’s appeal. However, in the answering affidavit deposed to by the second respondent she maintained that ‘the significant overlap’ between Puffin and Hotline is also supported by the fact that they share the same physical and postal addresses. This could not have been a reason for the Minister’s dismissal of the appeal since it does not feature in her decision. It is thus fair to infer that it is an attempt to construct an ex post facto rationalisation for a decision, which is not permissible.

Findings and order: The decision to refuse the first applicant a commercial tuna pole fishing right is reviewed and set aside. The first applicant is granted a commercial tuna pole fishing right in terms of section 18 of the Marine Living Resources Act 18 of 1998 for the period 1 March 2022 until 28 February 2037 on such terms as the first respondent may determine in terms of section 13 of the MLRA.

Facts and issue: This is an urgent application in which the applicants seek an order authorising the second applicant to refuse to issue fishing permits to current Category B right holders in the horse mackerel fishing sector for the 2024 fishing season pending the handing down of judgments in the review applications instituted in this court. In addition, the Minister also seeks an interdictory order restraining any Category B right holder issued with a fishing permit from fishing in terms of that permit.

Discussion: The respondent submitted, if the interim relief is granted, the vessel operators will also suffer prejudice in that their vessels will be laid up, and they will have to incur significant costs to keep the vessels along the quayside without earning any income. Concerning the alternative remedy, the Minister had other alternative remedies available to her. For instance, the Minister could have applied to set aside the fishing rights allocated to the second respondent or to the holders of rights in Category B of the horse mackerel fishing sector. The Minister has not satisfied all the requirements for the grant of an interim interdict. 

Findings: The balance of convenience favours the second respondent and militates against the grant of the interdictory relief. If the interim interdict is granted the second respondent will have suffered a complete loss of revenue for the period in which the order is in place. This will affect its business, employees, and trade customers. This hiatus is likely to endure for a substantial period as the court process with respect to the review applications drags out. The grant of the interdictory relief in these circumstances, will cause untold hardship to the respondent.

Order: The application is dismissed.

Facts and issue: The respondent in the first application seeks an urgent review of the Ministers’ alleged unreasonable delay or failure in taking a final decision regarding its fishing right. The Minister opposed the application and also launched a counterapplication and sought an order directing the DDG to refuse to issue fishing permits to the current category B right holders pending the finalisation of a self-review application to be brought by the applicants.

Discussion: A blanket prohibition of fishing on all the respondents without any differentiation will indisputably increase the unemployment level, which is already high. The top-scoring respondents have legitimately arranged their affairs according to the rights allocated to them. The effect of the order that the Minister seeks non-selectively against all the respondents is far-reaching and likely to negatively impact the livelihood of the top-scoring respondents who satisfy all the requirements of the Minister, and the public they supply. The respondents who do not meet the threshold set by the Minister, particularly the third, fourth, and the fifth respondents, should not cry foul as they don't satisfy the requirements for a fishing right in this sector. An interdictory relief will cause hardship to the top-scoring respondents who lawfully acquired their fishing rights. The low-scoring respondents must be interdicted to afford the Minister an opportunity to correct the injustice. The top-scoring respondents will suffer irreparable harm if the interdict against them is granted. The balance of convenience favours the granting of an interdict against the affected respondents to correct the irregular fishing rights issued to them.

Findings and order: The second applicant is authorised and directed to refuse to issue fishing permits to the third, fourth, and the fifth respondents pending the rescoring sought in the application for review by the applicants. The third, fourth, and the fifth are interdicted and restrained from fishing in terms of any permits already issued to them for the 2024 fishing season. 

Facts and issue: The applicant is a property developer. It wishes to build a residential property development on a golf course. To do so, it is required to obtain environmental authorisation. The HOD is the competent authority from whom the applicant sought the required authorisation. The HOD granted the authorisation, but imposed conditions. The effect of this authorisation was to exclude the wetland from the proposed residential development. The applicant appealed the HOD’s decision to  the MEC. The MEC dismissed the appeal. The applicant brought proceedings to review and set aside these decisions, and seeks an order of substitution.

Discussion: Both the HOD decision and the dismissal decision reason that because the sites qualify as a wetland they are deserving of protection, however degraded this wetland may be. These reasons simply fail to make findings based on any evidence that there is a wetland of any environmental value to protect. The sites have no environmental value as a wetland, and there is nothing to protect on this score. The factual premise of the reasoning advanced in the HOD decision and the dismissal decision is lacking. If there is no wetland of any environmental value to protect, there is no protectable interest that engages the principles in section 2 of NEMA. The HOD decision is thus unlawful. For like reasons, the HOD decision is also unreasonable in that that the HOD could not have reasonably exercised her power of authorisation in the manner that she did. 

Findings and order: The second respondent’s decision is reviewed and set aside. The first respondent’s decision is reviewed and set aside.  

Facts and issue: The applicant (SAMF) seeks certain declaratory relief against the respondent (SAMSA). SAMF is a provider of offshore bunker delivery services. SAMSA is a statutory body esponsible for the administration of the Marine Pollution (Control and Civil Liability) Act 6 of 1981. SAMSA granted SAMF permission in principle in terms of section 21(b) of the Act to perform offshore bunkering operations. The permission was subject to conditions. SAMF argued that SAMSA is only entitled to impose conditions in terms of section 21 of the Act as envisaged at achieving the purpose of the Act.

Discussion: SAMF is of the view that SAMSA is not entitled to impose the recordal of BBBEE related conditions in exercising its power under section 21(1) (b) of the Act. SAMF argued that the recordal does not constitute a stand-alone condition in terms of section 21(1) (b) of the Act, and if it does, SAMSA was not entitled to impose it. The purpose of the Act as set out in the long title is to provide protection of the marine environment from pollution and other harmful substances. The permission required in section 21 is to provide for transfer of harmful substances. SAMSA is in terms of section 21 of the Act limited to impose conditions which are necessary to protect the marine environment. Section 10 of the BBBEE Act has no application in the context of SAMSA granting approval in terms of section 21 of the Act, as the approval is only an environmental permission, as was correctly argued on behalf of SAMF.

Findings and order: The only conditions which the respondent is empowered to impose in terms of sub-section 21(2) of the Marine Pollution Act are those which are necessary to protect the marine environment from pollution by oil and other harmful substances, and for that purpose, to prevent and combat pollution of the sea by such substances.