Chief Pule Shadrack VII Bareki NO and Another v Gencor Limited and Others (19895/03) [2005] ZAGPHC 109; [2006] 2 All SA 392 (T); 2006 (1) SA 432 (T) (19 October 2005)

Chief Pule Shadrack VII Bareki NO and Another v Gencor Limited and Others (19895/03) [2005] ZAGPHC 109; [2006] 2 All SA 392 (T); 2006 (1) SA 432 (T) (19 October 2005)

The court held that section 28(1) and (2) of NEMA is not retrospective and does not impose obligations for pollution or degradation caused before its commencement in 1999. The presumption against retrospectivity is not rebutted by the wording or context of NEMA, and retrospective application would be unfair and contrary to the rule of law. The plaintiffs' first claim and first alternative claim, premised on retrospective operation of NEMA, lack the necessary averments to sustain a cause of action. The second alternative claim, based on mining regulations and statutory obligations accrued before repeal, survives due to the Interpretation Act, which preserves accrued obligations and allows...

Citation
[2005] ZAGPHC 109
Parties
Plaintiff: Chief Pule Shadrack VII Bareki NO; Plaintiff: Nkuleleko Environmental and Development Group; Defendant: Gencor Limited; Defendant: Griqualand Exploration and Finance Company (Pty) Ltd; Defendant: Hanova Mining Holdings Limited; Defendant: Government of the RSA; Defendant: Minister of Minerals and Energy; Defendant: Minister of Environmental Affairs and Tourism
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 October 2005
Case Number
19895/03
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exceptions to the first claim and the first, third, and fourth alternative claims are upheld with costs; exceptions to the second alternative claim are dismissed with costs.
Judges
I W B de Villiers
Legal Topics
National Environmental Management Act, Retrospective Application of Statutes, Mines and Works Act, Mineral and Petroleum Resources Development Act, Statutory Obligations, Rehabilitation of Mining Land
Environmental Law Civil Procedure National Environmental Management Act Retrospective Application of Statutes Mines and Works Act Mineral and Petroleum Resources Development Act Statutory Obligations Rehabilitation of Mining Land

Case Brief

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Parties

Chief Pule Shadrack VII Bareki NO

Plaintiff

Nkuleleko Environmental and Development Group

Plaintiff

Gencor Limited

Defendant

Griqualand Exploration and Finance Company (Pty) Ltd

Defendant

Hanova Mining Holdings Limited

Defendant

Government of the RSA

Defendant

Minister of Minerals and Energy

Defendant

Minister of Environmental Affairs and Tourism

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether section 28 of NEMA applies retrospectively to pollution caused before its commencement in 1999.
  2. 2 Whether the plaintiffs have pleaded sufficient compliance with section 28(12) of NEMA regarding notice requirements.
  3. 3 Whether obligations under repealed mining regulations remain enforceable after the repeal of the Minerals Act.

Ratio Decidendi

The court held that section 28(1) and (2) of NEMA is not retrospective and does not impose obligations for pollution or degradation caused before its commencement in 1999. The presumption against retrospectivity is not rebutted by the wording or context of NEMA, and retrospective application would be unfair and contrary to the rule of law. The plaintiffs' first claim and first alternative claim, premised on retrospective operation of NEMA, lack the necessary averments to sustain a cause of action. The second alternative claim, based on mining regulations and statutory obligations accrued before repeal, survives due to the Interpretation Act, which preserves accrued obligations and allows...

Court Disposition

Exceptions to the first claim and the first, third, and fourth alternative claims are upheld with costs; exceptions to the second alternative claim are dismissed with costs.

Orders

  • The exceptions to the first claim, and the first, third and fourth alternative claims are upheld with costs, including the costs of two counsel.
  • The plaintiffs are granted leave to amend the claims referred to in paragraph (1) within 21 days from date hereof.