
Spartan
Caselaw
ENVIRONMENT – Water resources – Water use license – Granted for coal mine – Objection due to impact on water for farming with crops and livestock – Appeal to Water Tribunal – High Court granting interdict – Mine operated for over six years without any reduction of water or pollution – Respondents failing to prove harm or apprehension of harm – Relying on possibilities that harm may occur in future – Appeal upheld – National Water Act 36 of 1998, s 148(3).
Facts: Kangra operates an underground coal mine at the Kusipongo Colliery, some 50 kms west of Piet Retief, Mpumalanga. It applied to the Department of Water and Sanitation for an integrated water use license (WUL) for associated infrastructure and underground mining at a tunnel which it uses to access the Kusipongo coal seam. The land used by Kangra is situated near the properties owned by the first and second respondents. The respondents objected to the application for the WUL, citing that they depend on the water from 24 natural springs in the area to irrigate and grow commercial crops, to rear their livestock (cattle and sheep) for commercial and domestic purposes. They contended that the water use by Kangra will reduce the water flow in the area, pollute the water resources and result in acid mine drainage which will impact the quality of the water resources.
Appeal: Despite the objections by the respondents, the Chief Director granted the WUL to Kangra. Dissatisfied with this decision, the respondents appealed to the Water Tribunal in terms of section 148(3) of the National Water Act 36 of 1998 (the NWA). According to the respondents, once they appealed, the effect of their appeal was to suspend the decision to grant the WUL. Despite this position, Kangra continued to exercise its rights under the WUL, with its water uses and mining activities. Before the Tribunal could decide the appeal, the respondents approached the High Court which granted a final interdict and Kangra was interdicted from conducting any mining operations at the tunnel, pending the determination of the appeal before the Minister. It then granted leave to appeal directly to this court on what it perceived to be a novel issue of law: the interpretation regarding section 148(3) of the NWA as “there might be uncertainty about the issue of locus standi in terms of the NWA that needs clarification.”
Interdict and harm: The contention on behalf of Kangra is an obvious one that the respondents have not alleged any actual harm or apprehension of harm they have suffered. Instead, they rely on possibilities that may occur in the future. Kangra has operated the mine for over six years without any reduction of water and pollution. Kangra has been operating in terms of the WUL granted and the water use has not prejudiced the water supplies to the respondents. In addition, there is constant monitoring of the water use and remedies are available if this causes actual harm. See para [18] on the gaps in the Environmental Authorisation (EA). To the extent that the respondents could not point to any harm or potential harm to themselves or others in the surrounding area or even the environment, they have failed to prove the second requirement of an interdict, that of harm or apprehension of potential harm.
Environmental Authorisation: The respondents attempted to create the impression that if there are gaps in an EA before it is granted, the Chief Director is barred from granting it. Yet it is common practice and in line with the Environmental Impact Assessment Regulations of 2014 (the regulations), that if there are any problems in the implementation of the plan submitted, and what they call “gaps identified”, those are addressed incrementally in terms of the regulations by inter alia the EA being suspended to address all the queries and or objections or the gaps identified. The process is an ongoing assessment until there is complete compliance, but the work continues as provided for under the regulations. An EA once granted cannot be withdrawn in its entirety, as in this instance work which had already commenced, based on a WUL lawfully granted, should not be halted.
* See from para [20] regarding standing and the condonation application at the Tribunal.
Order: The appeal is upheld and the order of the High Court replaced with an order dismissing the application.
MOCUMIE JA (HUGHES JA, WEINER JA, MOLEFE JA and CHILI AJA concurring)
Kangra Coal v Trustees, Corneels Greyling Trust [2025] ZASCA 9
6 February 2025
MOCUMIE JA
ENVIRONMENT – Mining – Interdict pending internal appeal – Mining operations causing significant environmental damage – Detrimentally affecting national park – Requirements for interdictory relief – Department’s alleged unlawful granting of mining right to respondent – Numerous irregularities arose during public participation process – Applicants’ stronger prospects of success – Respondent is interdicted and restrained – Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), ss 96(2) and (3).
Facts and issue: This is an urgent application for interdictory relief, preventing the respondent from conducting mining operations on a portion of land. The respondent’s mining operations had already commenced when the application was launched. In the absence of any proof to the contrary at the time, the applicants believed that such operations were unlawful. The respondent’s activities entailed, moreover, not only blasting but also rock crushing, which gave rise to the nuisance described in the papers. The court must determine whether the applicants have satisfied the requirements for interdictory relief.
Discussion: The applicants referred to interaction with the Manager: Land Administration for South African National Parks (‘SANParks’), Mr Marthán Theart. The latter confirmed that the respondent’s mining operations were causing significant environmental damage and detrimentally affecting the Camdeboo National Park. The applicants asserted, furthermore, that after having become aware that the department had granted a mining right to the respondent, they intended to follow the internal appeal process contemplated under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). What is evident from the applicants’ papers is that there were numerous irregularities that arose during the public participation process. Other than what amounted, effectively, to a bare denial, the respondent chose not to deal with the applicants’ various allegations. There is, accordingly, scant evidence available to prevent the court from being persuaded that the applicants have, at the least, a prima facie right to require the department to have followed an administrative procedure within a reasonable time and in accordance with the principles of lawfulness, reasonableness, and procedural fairness. It is not apparent that this was achieved.
Findings: Whereas the prejudice that would be caused to the respondent has to be acknowledged, it cannot be said, conversely, that there would be no prejudice to the applicants. They would be required to endure the ongoing blasting and rock crushing activities. Furthermore, the respondent has chosen not to deal with the applicants’ allegations regarding irregularities in the public participation process; the court rejected the respondent’s assertions in relation to the zoning of the land. Consequently, the applicants’ case is far from weak. To the extent that the balance of convenience might be tilted somewhat in favour of the third respondent, the impact thereof is neutralised if not negated by the applicants’ stronger prospects of success. The court is satisfied that the applicants have demonstrated that they are entitled to interlocutory relief.
Order: The third respondent is interdicted and restrained from conducting any mining operations on the property, pending the finalisation of the applicants’ internal appeal to the first respondent against the decision to grant a mining right to the third respondent, which such appeal must be brought within 30 calendar days of the date of the order.
L'Ormarins (Pty) Ltd v Minister of Mineral and Petroleum Resources [2025] ZAECMKHC 1
14 January 2025
LAING J
ENVIRONMENT – Petrol stations – Storage capacity – Exceeding capacity without requisite environmental authorisation – Compliance notice issued – Applicant seeking interim interdict – Risk of financial and job losses if filling station and convenience store not operating – Doctrine of unclean hands – Applicants repeatedly told to cease unlawful construction but persisted with illegality – Investment was at their own peril – Not first exhausting internal remedies – Application dismissed – National Environmental Management Act 107 of 1998.
Facts: Topup purchased a property in Mossel Bay which had rundown buildings and other filling station infrastructure, however, there were no underground or above ground storage tanks. Topup has been aware that the storage tanks installed on the property would not trigger a listed activity under the National Environmental Management Act 107 of 1998 (NEMA) (a Listed Activity) and would accordingly not require an Environmental Authorisation if the capacity of the tanks did not exceed 30m cubed. Tanks were later installed that together exceeded this limit. The Department issued Topup with a Compliance Notice which described the alleged unlawful development of a fuelling station that exceeded the combined storage capacity of its tanks without the requisite environmental authorisation. In flagrant breach of the instructions from the Department and the Compliance Notice, the applicants continued with the construction of the filling station, forecourt and convenience store.
Application: The applicants seek an urgent interim order permitting the operation of the filling station, pending an application for the review and setting aside of the Compliance Notice issued by the Department of Environmental, Affairs and Development Planning and the decision of the Minister of Local Government, Environmental Affairs and Development Planning upholding the Compliance Notice.
Discussion: Topup described the considerable investment in the infrastructure and the risk of liquidation and loss of jobs if interim relief is not granted and if the filling station and convenience store are not permitted to re-open and operate. Central to the issues is NEMA and the Environment Impact Assessment Regulations made under it. Read together, they prohibit the undertaking of activities listed under NEMA which are likely to have a material impact on the environment (the listed activities) without prior written environmental authorisation. An environmental impact assessment first has to being undertaken.
Findings: The applicants have deliberately resorted to self-help and are the architects of their own misfortune. In an orderly society citizens cannot be permitted to act first and comply later. They were repeatedly told to cease with the unlawful construction but persisted with their illegality. No cause of action can arise from an illegal cause. The doctrine of unclean hands applies and the applicants are not entitled to the relief they seek. The applicants knowingly and deliberately ignored lawful orders issued by the Department. The investment made by the applicants in such circumstances was at their own peril. Even if the order by the Department to cease operations is flawed, this can be dealt with in review proceedings, which may be expedited, if necessary, and on proper grounds. The applicants have failed to show that any exceptional circumstances exist, which were not clearly foreseeable and of their own making, nor that it is in the interests of justice that they should be granted interdictory relief without first exhausting all available internal remedies.
Order: The application for an interim interdict in terms of Part A is dismissed. The applicants are ordered to pay the costs of this application on Scale C.
HOLDERNESS J
Topup Property Investments v Minister of Local Government [2025] 149740 (WCC)
6 January 2025
HOLDERNESS J
ENVIRONMENT – Coal-fired power stations – Additional procurement – Integrated Resources Plan 2019 and addition of 1,500 megawatts of new power – Impact on health rights of children – Minister and Nersa not showing consideration of effect – On environment and health of nation, in particular of children – Public consultations were inadequate – Constitutional challenge upheld – Decisions of Minister and Nersa reviewed and set aside to extent of provision for 1,500 megawatts of new coal-fired power – Constitution, ss 24 and 28.
Facts: The applicants are institutions or rights group that advance the best interests of children, and who take up the cudgels for the youth on various issues that impact, or may impact negatively, on the constitutional rights of children. The contentious issue relates to harm to the environment and the resulting health issues. At heart was the South African government’s plan to procure an additional 1,500 megawatts of new coal-fired power stations, thus impacting upon the rights of current and future generations. Although the application was pointedly in respect of the health rights of children, the general effect of the intended procurement equally impacted on the health rights of the nation as a whole. The alleged main perpetrators of transgressing those rights are the respondents, in particular the first and second respondents: The Minister of Mineral Resources and the National Energy Regulator of South Africa (Nersa).
Application: A constitutional challenge to and a review of three decisions: The Integrated Resources Plan 2019 (IRP 2019) published by the Minister and relating to the addition of 1,500 megawatts of new coal-fired power to be added to the grid between 2023 and 2027; the determination published by the Minister, exercising his powers under section 34 of the Electricity Regulation Act 4 of 2006 (ERA) which sought to give effect to the IRP decision; and the decision by Nersa to concur in the Minister’s determination.
Discussion: The respondents were at a loss and hard pressed to show that adequate and appropriate consideration was given to the provisions of sections 24 and 28 of the Constitution in respect of the impugned decisions. A bald allegation was made to that effect by the first and second respondents. The Rule 53 record submitted by the respondents do not show adequate evidence, if at all, of their deliberations on any participation by representatives on behalf of the applicants, or at all, in respect of the effect on the constitutional rights of children. The Rule 53 record, as well as the first and second respondents’ evidence, is ominously silent on any considerations given to the effect that the additional 1,500 megawatt new coal-fired power will have on the environment and the health of the nation, in particular that of children, a clear indication that the first and second respondents did not comply with their constitutional obligations in that regard.
Findings: In the absence of proof of the consideration of the effect of the decision to permit an additional 1,500 megawatts of new coal-fired power to the grid on children, it stands to be reviewed on the principle of legality. There has been no compliance with the first respondent’s obligations under the Constitution. It is clear that the impugned decisions would impact negatively on the rights of children under section 24 (environment) and 28 (children) of the Constitution. The respondents, who bore the onus, did not discharge the obligation to show that, in the event that there would be limitations of these rights, that such limitations were reasonable and justifiable. The decision to concur by Nersa did not comply with its obligations under the Constitution in respect of the rights of children to the extent that the pled compliance with public consultations were inadequate under the particular circumstances. A mere lip service was paid thereto. Again, the lack of particularity of facts and supportive evidence points to a disregard of the second respondent’s obligations under the Constitution.
Order: The constitutional challenge to the decisions of the Minister and Nersa to include in the 2019 IRP an additional 1,500 megawatts new coal-fired power is upheld. The following decisions are declared to be inconsistent with the Constitution and unlawful and invalid: the determination published by the Minister of Mineral Resources to the extent that this includes provision for 1,500 megawatts of new coal-fired power; the concurrence published by Nersa; and the Integrated Resource Plan 2019. The decisions are reviewed and set aside to the extent that they make provision for 1,500 megawatts of new coal-fired power.
VAN DER WESTHUIZEN J
African Climate Alliance v Minister of Mineral Resources [2024] ZAGPPHC 1271
4 December 2024
VAN DER WESTHUIZEN J
ENVIRONMENT – Genetically modified organisms – Permit approval – Precautionary principle and possible environmental harm – Genetically Modified Organisms Act 15 of 1997 – Application for permit to conduct activities in respect of genetically modified organisms – Section 5(1)(a) – Failure by decision-makers to determine whether applicant must submit an assessment in accordance with the relevant provisions of the National Environmental Management Act 107 of 1998 – Approval of application set aside.
Facts: In 2014, Monsanto applied for a permit for the general release of a genetically modified variety of maize, described as MON87460, which according to Monsanto has been genetically modified to reduce yield loss in water-limited conditions. The use of genetically modified organisms (GMOs) in South Africa is regulated by the Genetically Modified Organisms Act 15 of 1997 (the Act) and the Regulations. The appellant, the African Centre for Biodiversity NPC (ACB), a non-governmental advocacy organisation, with a focus on biosafety and agricultural biodiversity, appealed in terms of section 19 of the Act against the approval granted by the Executive Council to Monsanto for the general release of MON87460. The Appeal Board dismissed the appeal and the Minister of Agriculture confirmed the Appeal Board’s decision.
Appeal: ACB applied to the High Court to review and set aside the Executive Council’s approval and the other related decisions. The High Court dismissed the application. The thrust of the appellant’s case is that the State respondents accepted, at face value, the claims made by Monsanto and failed to independently and critically evaluate Monsanto’s application to satisfy themselves that the health and safety risks associated with the general release of MON87460 had been properly addressed. The appellant contends that the expert evidence that served before the State respondents ought to have triggered the application of the precautionary principle enshrined in section 2 of the National Environmental Management Act 107 of 1998 (NEMA).
Discussion: The precautionary principle, in essence, requires that where there exists evidence of possible environmental harm, decision-makers ought to adopt a cautious approach and are compelled to take protective and preventive measures before the anticipated harm materialises. The experts, who provided opinions in support of the appellant, highlighted several fundamental concerns, all of which were articulated in the appeal document that served before the Appeal Board – see para [20]. The High Court’s rejection of the appellant’s reliance on the precautionary principle was based on its finding that the precautionary principle does not find direct application in review proceedings. However, such an approach disregards the fundamental role that the precautionary principle plays in directing decision-makers in the exercise of their discretion. The current state of knowledge and uncertainty, the potential for serious or irreversible harm and the adoption of a cautious approach is clearly consistent with the subject-matter, scope and purpose of the Act.
Findings: Section 5(1)(a) of the Act deals with the application for a permit and an assessment in accordance with the relevant provisions of NEMA. The High Court conflated the obligation arising from section 5(1)(a) of the Act with the applicability of the precautionary principle, finding that an environmental impact study would only be required in the event of the precautionary principle being triggered. But the precautionary principle was triggered and ought to have been applied. Whether the Executive Council, as a matter of fact, complied with section 5(1)(a) by considering the necessity of an environmental impact study to ascertain the impact on the environment of the proposed general release of MON87460, was a separate and distinct inquiry from whether the precautionary principle was triggered and should have been applied. It ought to have been a relatively simple and straightforward matter for the State respondents to have adduced evidence that a determination, one way or the other, had been made. They did not. The ineluctable conclusion is that the Executive Council failed to comply with a mandatory statutory prescript contained in section 5(1)(a).
Order: The appeal is upheld and the order of the court a quo replaced with an order reviewing and setting aside the approval of the application for the general release of MON87460, the dismissal of the appeal, and the Minister’s confirmation of the dismissal of the appeal. The application for the approval of the general release of MON87460 is referred back for re-consideration.
PONNAN JA (MOLEMELA P, NICHOLLS JA, KOEN AJA and COPPIN AJA concurring)
African Centre for Biodiversity NPC v Minister of Agriculture [2024] ZASCA 143
22 October 2024
PONNAN JA
ENVIRONMENT – Authorisation – Composting facility – Appeal against dismissal of review and declaratory relief – Review of authorisation granted for composting facility – Disputes resolved in terms of settlement made an order of court – Appellants did not seek to challenge or set aside said order – Issues res judicata – Appellants bound by order and cannot revisit same issues – Appeal dismissed with costs – National Environmental Management Act 107 of 1998, s 24.
Facts and issue: The appeal concerns the effect of a court order on review proceedings. It pertains to an environmental authorisation granted in favour of the fourth respondent, the South African Farm Assured Meat Group CC (SAFAM), in terms of s 24 of the National Environmental Management Act 107 of 1998 (NEMA), authorising Listed Activities 4 and 28 of Listing Notice 1 of 2014. The High Court dismissed the review application as well as the ancillary relief sought, holding that the appellants made out no case for relief. The appellants seek the setting aside of the environmental authorisation granted to SAFAM under NEMA by the Director, NEMA.
Discussion: A settlement was reached between SAFAM and the Department, which culminated in an order being granted by consent in the Western Cape Division of the High Court, reflecting the terms of their settlement. The settlement order set aside the decisions made by the Department to dismiss SAFAM’s NEMA appeal and its application for a waste management licence. The waste management licence application was remitted to the Department for consideration by a certain date, and SAFAM was directed to provide certain additional information specified in the order. The appellants were furnished with a copy of the settlement order. SAFAM complied with the settlement order, culminating in the granting to SAFAM of an environmental authorisation, authorising Listed Activities 4 and 28. A waste management licence was also granted. This triggered the launching of a combined internal appeal under s 43(2) of NEMA by the appellants against the granting of the authorisation and licence. The appeal was dismissed by the MEC, who confirmed the environmental authorisation and waste management licence.
Findings: The major obstacle facing the appellants is the settlement order. On a grammatical, contextual and purposive interpretation of the settlement order, its ambit and effect are that it sets aside the State respondents’ previous decisions and resolved the issues between the parties, which informed those decisions. Despite prior knowledge of the pending SAFAM review application that culminated in the settlement order, the appellants did not enter the fray or seek to intervene in those proceedings to raise any issue that may have adversely impacted on the settlement negotiations. After receipt of a copy of the settlement order, they took no steps to have the order rescinded or set aside. It was open to the appellants to challenge the order and seek its rescission, which they elected not to do.
Order: The appeal is dismissed.
Jooste v MEC for Local Government, Western Cape [2024] ZASCA 138
11 October 2024
DIPPENAAR AJ
ENVIRONMENT – Landfill sites – Waste management licences – Renewal and approval for expansion – Granting of approvals – Legality review relating to irrationality – Decisions in compliance with constitutional and statutory prescripts – Lawful and rational – Not materially influenced by errors of law or based on irrelevant considerations – Rationally connected to information before decision makers – Application dismissed – National Environmental Management: Waste Act 59 of 2008.
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.
Lord's View Property Owners v MEC for Economic Development, Gauteng [2024] ZAGPJHC 718
8 August 2024
ADAMS J
ENVIRONMENT – Protected environment – Coal mining – Decision permitting coal-mining activities in protected wetlands area – Review – MEC excluded four properties from Mabola protected environment to enable mining activity – Did not act within ambit of enabling legislation – Failure to consider precautionary principle and vulnerable ecosystem principle – Failure to consider impacts of mining – Decision reviewed and set aside – National Environmental Management: Protected Areas Act 57 of 2003.
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.
Mining and Environmental Justice Community v MEC for Agriculture [2024] ZAMPMBHC 48
18 July 2024
MOLELEKI AJ
ENVIRONMENT – Fishing – Bait-carrying drones for angling – Prohibition adversely affecting appellants who sell drones – Marine Living Resources Act 18 of 1998 and regulations – Angling defined in regulations and definition deemed to be included in Act – Key word differentiating angling from other fishing activities is “manually” – Angler acquiring permit for angling must use method provided for in regulations – Fishing by manually operating a rod, reel and line – To use any method other than authorised one would be unlawful – Appeal dismissed.
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)
Gannet Works (Pty) Ltd v Middleton NO [2024] ZASCA 112
16 July 2024
MOKGOHLOA JA
ENVIRONMENT – Water resources – Structural interdict – Alleged non-compliance by Eskom with conditions of environmental authorizations and water use licences – Failure to enforce compliance by Eskom with conditions and legal requirements – Applicant falls short on requirement – Unable to prove it does not have an alternative remedy or sufficient redress in due course – Failure of applicant to invoke provision of NEMA and NWA infringes on principle of subsidiarity – Application dismissed – National Environmental Management Act 107 of 1998 – National Water Act 36 of 1998.
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
Topigs Norsvin SA v Eskom Holdings [2024] ZAGPPHC 561
19 June 2024
TWALA J
ENVIRONMENT – Wetland – Construction of road – Contended that road would disturb breeding ponds used by endangered Western Leopard Toads – Applicant seeking to review decision to grant environmental authorisation – Impact of road on toads was carefully considered and mitigation measures proposed – Authors of reports qualified as specialists – Rational connection between mitigation measures and purpose for which imposed – Extensive public participation with comments received from interested and affected parties – No merit to any of grounds of challenge – Application dismissed – National Environmental Management Act 107 of 1998.
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
Noordhoek Environment Action Group v City of Cape Town [2024] ZAWCHC 105
23 April 2024
PILLAY AJ
ENVIRONMENT – Protected environment – Construction of buildings – Within protected coastal conservation area – Seeking to restrain and interdict respondent – Authority to manage and protect coastal conservation area – Reasonable apprehension of harm to protected land – No alternative remedy – Failure to produce permission to occupy land – Respondent’s defence is untenable and implausible – Application granted – Environmental Conservation Decree 9 of 1992, s 39.
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.
Department of Economic Development and Environment v Boyana [2024] ZAECMHC 20
23 April 2024
RUSI J