Albertse and Others v Members of the Executive Council: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province and Others (2452/2019) [2021] ZAFSHC 2 (21 January 2021)

Albertse and Others v Members of the Executive Council: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province and Others (2452/2019) [2021] ZAFSHC 2 (21 January 2021)

The court found that the applicants failed to comply with the mandatory requirements of section 43 of NEMA and the National Appeal Regulations when lodging their appeal against the environmental authorisation. The appeal was filed outside the prescribed time limits and did not meet the statutory requirements for form and content. The applicants were given adequate notice and opportunity to participate in the environmental authorisation process but failed to make representations or submit comments. Their explanation for noncompliance was found to be untenable. The court held that it does not have the power to condone noncompliance with peremptory statutory provisions by administrative...

Citation
[2021] ZAFSHC 2
Parties
Applicant: Frederik Jacobus Albertse; Applicant: Levina Francina Albertse; Applicant: Frederik Francina Albertse N.O.; Applicant: Levina Francina Albertse N.O.; Applicant: Nelmark Albertse Oosthuizen N.O.; Applicant: Jaco Albertse N.O.; Respondent: Member of the Executive Council: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province; Respondent: Head of the Department: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province; Respondent: Minister of Environmental Affairs of the Government of the Republic of South Africa; Respondent: Jacobus Adriaan Smith; Respondent: Jacobus Adriaan Smith N.O.; Respondent: Cornelia Elizabeth Smith N.O.; Respondent: Nelesco 91 (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 January 2021
Case Number
2452/2019
Procedural Posture
Review Application / Judgment After Hearing of Main and Counter Applications
Outcome
The applicants' application for review is dismissed with costs, including costs occasioned by the counter application. No order is made in respect of the counter application.
Judges
MBHELE, JORDAAN
Legal Topics
Environmental Authorisation Review, National Environmental Management Act, Appeal Regulations Compliance, Promotion of Administrative Justice Act, Acquisitive Prescription, Procedural Irregularity
Administrative Law Environmental Law Civil Procedure Environmental Authorisation Review National Environmental Management Act Appeal Regulations Compliance Promotion of Administrative Justice Act Acquisitive Prescription +1 more

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Parties

Frederik Jacobus Albertse

Applicant

Levina Francina Albertse

Applicant

Frederik Francina Albertse N.O.

Applicant

Levina Francina Albertse N.O.

Applicant

Nelmark Albertse Oosthuizen N.O.

Applicant

Jaco Albertse N.O.

Applicant

Member of the Executive Council: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province

Respondent

Head of the Department: Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province

Respondent

Minister of Environmental Affairs of the Government of the Republic of South Africa

Respondent

Jacobus Adriaan Smith

Respondent

Jacobus Adriaan Smith N.O.

Respondent

Cornelia Elizabeth Smith N.O.

Respondent

Nelesco 91 (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment After Hearing of Main and Counter Applications

Legal Issues

  1. 1 Whether the environmental authorisation granted for Portion 5 of Avenham should be reviewed and set aside.
  2. 2 Whether the applicants' appeal against the environmental authorisation was valid and compliant with statutory requirements.
  3. 3 Whether the counter application to review the acceptance of the appeal was instituted within the prescribed time limits.

Ratio Decidendi

The court found that the applicants failed to comply with the mandatory requirements of section 43 of NEMA and the National Appeal Regulations when lodging their appeal against the environmental authorisation. The appeal was filed outside the prescribed time limits and did not meet the statutory requirements for form and content. The applicants were given adequate notice and opportunity to participate in the environmental authorisation process but failed to make representations or submit comments. Their explanation for noncompliance was found to be untenable. The court held that it does not have the power to condone noncompliance with peremptory statutory provisions by administrative...

Court Disposition

The applicants' application for review is dismissed with costs, including costs occasioned by the counter application. No order is made in respect of the counter application.

Orders

  • The applicants' application for review is dismissed with costs including the costs occasioned by the counter application.
  • No order in respect of the counter application.