Engelbrecht v MEC for the Department of Agriculture, Conservation, Environment and Tourism (North West Province) and Others (1068/2009) [2010] ZANWHC 15 (20 May 2010)

NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1068/2009

In the matter between:

WILHELM JOHANNES ENGELBRECHT …..........................................APPLICANT

and

THE MEC FOR THE DEPARTMENT OF AGRI-

CULTURE, CONSERVATION, ENVIRONMENT

& TOURISM (NORTH WEST PROVINCE) …...............................1ST RESPONDENT

THE CHIEF DIRECTOR: ENVIRONMENTAL SERVICES:

DEPARTMENT OF AGRICULTURE, CONSERVATION,

ENVIRONMENT & TOURISM (NORTH WEST

PROVINCE) ….........................................................................2ND RESPONDENT

THE MEC FOR THE DEPARTMENT OF TRANSPORT,

ROADS & COMMUNITY SAFETY AND ROYAL

BAFOKENG ADMINISTRATION (NORTH WEST

PROVINCE) ….........................................................................3RD RESPONDENT

DATE OF HEARING : 20 MAY 2010

DATE OF JUDGMENT : 20 May 2010

DATE OF REASONS : 03 June 2010

FOR THE APPLICANT : Adv M M Oosthuizen SC

with him Adv M van der Linden

FOR THE RESPONDENT : Adv Matau

REASONS FOR JUDGMENT

LANDMAN J:

[1] On 20 May 2010 I dismissed an application by the MEC for the Department of Agriculture, Conservation, Environment and Tourism, the Chief Director of Environmental Services: Department of Agriculture, Conservation, Environment and Tourism and the MEC for the Department of Transport, Roads and Community Safety and Royal Bafokeng Administration North West Province.

[2] I entertained the application by Wilhelm Johannes Engelbrecht and made the following order.

“The Court orders:

1. That, in terms of section 8(1)(c) of the Promotion of Administrative Justice Act 3 of 2000, the decision of the first respondent taken on ot about 2 December 2008 in terms of the National Environmental Management Act 107 of 1998, namely to dismiss an administrative appeal by the applicant in terms of section 35(3) of the erstwhile Environment Conservation Act 73 of 1989 and to confirm the decision made in respect of the positive Record of Decision issued on 22 May 2007 by the second respondent in terms whereof he granted authorization to the third respondent in terms of section 22 (3) of the erstwhile Environment Conservation Act 73 of 1989 for the following proposed activity:

“The construction, erection or upgrading of roads, railways, airfields, and associated structure (listed activity 1(d) in Schedule 1 of Government Notice No. R.1182 of September 1997 as amended) refers to the Phase 2 – 7.155 km roads upgrade of the R565 (P115-1) through Boshoek within the Local Municipality of Rustenburg, North West Province.”,

be hereby reviewed and set aside;

2. That, in terms of section 8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 23 of 2000, the Honorable Court substitute and/or vary and/or correct the aforesaid decision of the first respondent by upholding the said administrative appeal by the applicant and by setting aside the decision made in respect of the said positive Record of Decision issued on 22 May 2007 by the second respondent;

3. That in terms of section 8(1)(c) of the Promotion of Administrative justice Act 3 of 2000, the decision of the second respondent taken on or about 22 May 2007 in terms of section 22 (3) of the erstwhile Environment Conservation Act 73 of 1998, namely to grant authorization to the third respondent for the following proposed activity:

That the costs of this application (including the cost of two counsel) be paid by the respondents jointly and severally, the one paying the other to be absolved.”

[3] I indicated that I would supply reasons for refusing the postponement and I do so together with my reasons for reviewing and setting aside the decisions.

Application for postponement

[4] The respondent sought a postponement of this matter on the grounds that there are facts which they intend disclosing which have a bearing on the merits of the decision under review.

[5] Mr Matau, who appeared for the respondents (in the absence of his leader) made the application from the Bar. He did not have notice of motion nor an affidavit. He referred me to a number of letters which he handed up.

[6] Mr Matau says that his attorney, who went to meet with the applicant’s attorney to request a postponement, did not expect to be refused a postponement. The postponement was refused by letter dated 18 May and faxed on 19 May. The application for the review was set down for 20 May and therefore, he submits, there was insufficient time to draft an application.

[7] There may well have been little opportunity to draft a formal application for a postponement but this is simply because the respondents did not seek the consent of the applicant at an earlier stage.

[8] The following sets out the progress of this matter to date.

22-05-2007 : The Chief Director makes a decision.

22-12-2008 : An appeal against the decision dismissed by the MEC.

06-05-2009 : The review application was launched.

14-09-2009 : The respondents filed the record (late).

13-11-2009 : Applicant files a supplementary affidavit.

4-01-2010: State Attorney withdrew as attorney of record

11-03-2010: Respondents’ Attorney request applicant not to enroll the matter for hearing on 18 March.

26-04-2010 : Notice that the matter may be enrolled for 20-05-2010.

05-05-2010 : Applicant’s heads are delivered.

17-05-2010: Respondent request postponement

20-05-2010: Date of hearing

[9] The applicant was requested on 11 March 2010 not to enroll the application as the respondents’ would not be ready and “we are still to consult with clients are well as our counsel…….” and “we are currently gathering more information.”

[10] The letter of 17 May 2010 requesting a postponement states that “we have recently consulted with out witnesses and our advocates are currently finalizing the papers. A lot of information transpired and a thorough investigation and further consultation was necessary. A two week postponement is requested”.

[11] I was not told what material would be disclosed save that the record would be supplemented. I was requested to take judicial notice of the suspension of the Head of Department and Chief Director. It was submitted that the matter is of substantial importance and many persons have in interest in the road scheme.

[12] It was submitted that the applicant would not be prejudiced as the road was not proceeding at this stage. The applicant had sought an undertaking that the project would be suspended pending the outcome of litigation. None was given. Mr Matau expressly declined to give one but suggested that an interdict could be sought. Ordinary costs were tendered. These costs were not tendered when the request for a postponement was made on 17 May.

[13] The respondents knew that a formal application was necessary. I do not accept that they could have reasonably expected that their request on 17 May 2010 would have been accepted in the light of the long delay in finalizing this matter. This being so I have not been placed in a position in which I can evaluate, even on a prima facie basis the failure of the respondents to attend to this matter timeously. Nor can I evaluate the significance of the new material and why it was not previously disclosed.

[14] I accept that a tight time frame for the further conduct of this matter could be agreed upon. But it does not cure the fact that I have insufficient information on which to base a decision. Even taking account of a change in MECS and the suspension of officials the delay in pursuing this matter to finality is prejudicial to the applicant and the community which may be affected by the first respondent’s dismissal of the appeal.

[15] Taking all the circumstances into account this is a case where a postponement should be refused. I therefore made the order which I did.

The review

[16] I turn to provide reasons for reviewing and setting aside the decisions of the first and second respondents in terms of Promotion of Administration Justice Act 3 of 2000.

The facts

[17] The applicant is the registered owner of Portion 125 of the Farm Boshoek situated in the town of Boshoek along an existing public road known as the Rustenburg/Sun City Road, designated as the R565 (P115-1) road. A Total Fuel Filling Station, trading as Pilanesberg Motors serves the motoring public on that road as well as the local community.

[18] The Provincial Department of Transport decided to upgrade the provincial road between Rustenburg and Sun City. This project was undertaken in four (4) phases. The first phase has been completed. The preparation of the second phase involved the “construction, erection or upgrading of roads, railways, airfields and associated structure”. This activity is regarded as a listed activity for the purposes of section 22 of Environment Conservation Act 73 of 1989 (the ECA). Section 22 enjoins the Provincial Department of Transport to obtain prior written authorization for this activity from the environmental authority as contemplated in section 22 (3) of ECA. The second respondent is the designated officer. An application was lodged under ECA before the current dispensation under National Environmental Management Act 107 of 1998 (the “NEMA”) became fully operational on 3 July 2006.

[19] Early in 2005 an environmental consultant, Nemai Consulting, was appointed by the MEC for the Department of Transport, Roads & Community Safety and Royal Bafokeng Administration (North West Province), the third respondent, to obtain the necessary environmental authorization for the purposes of proceeding with phase 2. The normal process in this regard commenced during the first half of 2005 in terms of the ECA.

[20] The usual process under the ECA for a project such as the one in question is:

(a) the appointment of an independent environmental consultant, followed by;

(b) the submission and acceptance of a proposed Plan of Study for Scoping, followed by;

(c) a scoping exercise in accordance with such an approved Plan of Study (which is in essence a survey of what a proper environmental impact assessment requires);

(d) a Scoping Report to be submitted to the environmental authorities; and

(e) a decision by the environmental authorities whether it is in a position to take a decision on the available information or whether a proper Environmental Impact Assessment should be conducted.

For a fuller exposition of the process see Joubert LAWSA Vol 9 2nd ed para 327.

[21] Nemai Consulting was mandated to prepare and submit a Scoping Report, together with a few specialist studies.

[22] The applicant registered as an interested and affected party. He recorded in writing that he supported a new road in principle and that in previous years the local authority and the Provincial Department of Transport had already approved and planned a new alignment (the Western bypass) and had approved an access for the Total Garage from the Western bypass.

[23] At a meeting held on 28 March 2006 it became clear to the applicant that the Western Bypass was no longer being considered. Two other route proposals were being investigated i.e the Eastern bypass and Boshoek road. No explanation was given as to why years of previous planning was simply abandoned save to falsely allege that the “local community” rejected the Western Bypass in 2003. The Consulting Engineers were only prepared to consider the Western Bypass if the applicant (also an engineer by profession) would develop, at his own cost and expense, the preparatory work for the Western Bypass.

[24] The applicant missed a deadline of 12 April 2006 by a few days. It did not, it is alleged, prejudice anyone nor did it cause any delay or inconvenience.

[25] The applicant prepared and submitted the technical information. He also obtained in writing the support of nearly all the landowners that would be affected by the Western Bypass.

[26] A final Scoping Report was submitted to the second respondent, as designated officer on 15 December 2006. The applicant did not have an opportunity to comment on the draft. None of the specialist studies dealt with the Western Bypass.

[27] On 22 May 2007 on the strength of the final Scoping Report the second respondent granted authorization to the Provincial Department of Transport for the following proposed activity:

“The construction, erection or upgrading of roads, railways, airfields, and associated structure (listed activity 1(d) in Schedule 1 of Government Notice No. R1182 of September 1997 as amended) refers to the Phase 2 – 7.155 km road upgrade of the R565 (P115-1) through Boshoek within the Local Municipality of Rustenburg, North West.” (“The eastern bypass.”)

[28] The Record of Decision states that after a consideration of the “holistic information” provided to the Department (the Provincial Department of Agriculture, Conservation, Environment & Tourism) on the three alternative routes, the feasible route was found to be the Eastern Bypass.

[29] Two person lodged appeal against the second respondent’s decision. One was the owner of the Total Garage the other was the applicant, the owner of the Engen Garage. The applicant alleges that the owner of the Engen Garage, the Provincial Department of Transport and the Provincial Environmental Authorities entered into discussions concerning the administrative appeal lodged by the owner of the Engen Garage. Ultimately an agreement was reached that the owner of the Engen Garage would withdrew his administrative appeal in return for a dedicated and tarred access road from the Eastern Bypass to his land and on condition that no direct access will be allowed along the authorized phase 2 road upgrade to new filling stations.

[30] On 19 June 2008 the first respondent, while considering the appeal, deemed it necessary for the Provincial Department of Transport to evaluate the Western Bypass in the same manner as the Eastern Bypass and the route through Boshoek were done. He stated that the evaluation of the Western Bypass was necessary to enable him to arrive at an informed decision.

[31] The Provincial Department of Transport commissioned the firm Urban-Econ Development Economist to do a socio-economic impact analysis of the potential re-alignment of the P115-1 road through the town of Boshoek. The applicant alleges that there was no public participation during the course of this study. The study was completed in July 2008. A copy was provided to the first respondent during November 2008.

[32] The study concluded that the Western Bypass should be considered for implementation and showed that the Eastern Bypass was untenable and unsustainable.

[33] The first respondent on 21 December 2008 dismissed the applicant’s administrative appeal and confirmed the decision of the second respondent.

The grounds of review

[34] The grounds upon which the applicant initially relied are summarized in a letter, dated 4 February 2009, which was sent to the first respondent. They are that the first respondent:

1. acted unlawfully and without a clear understanding as to the extent of his powers.

2. erred in the interpretation and requirements of the relevant legislation.

3. created unlawful expectations and acted with an ulterior purpose/motive.

4. failed to take relevant considerations into account during the decision making process.

[35] I need not traverse all the grounds of appeal nor need I traverse all the grounds of review. The thrust of the appeal was that the second respondent did not consider the so called Western Bypass as a possible route and could not have done so as required by section 22 of the ECA.

[36] Section 22 of the ECA reads:

“Prohibition of undertaking of identified activities. –

(1) No person shall undertake an activity identified in terms of section 21(1) or cause such an activity to be undertaken except by virtue of a written authorization issued by the Minister or by a competent authority or local authority or an officer, which competent authority, authority or officer shall be designated by the Minister by notice in the Gazette.

(2) The authorization referred to in subsection (1) shall only be issued after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment, which shall be compiled and submitted by such persons and in such manner as may be prescribed.

(3) The Minister or the competent authority, or a local authority or officer referred to in subsection (1), may at his or its discretion refuse or grant the authorization for the proposed activity or an alternative proposed activity on such conditions, if any, as he or it may deem necessary.

(4) If a condition imposed in terms of subsection (3) is not being complied with, the Minister, any competent authority or any local authority or officer may withdraw the authorization in respect of which such condition was imposed, after at least 30 days’ written notice was given to the person concerned.”

The appeal grounds 1 and 2

[37] The second respondent did not have before him an environmental impact study or assessment (an EIA) relating to the western bypass. It is, without a doubt, mandatory for the second respondent to have considered this aspect. It was supposed to be his chief concern. The second respondent, according to the Record of Decision, examined three alternative routes. In reality, the absence of an EIA regarding the third alternative i.e. the Western Bypass, meant that he only paid attention to the Eastern Bypass and the Boshoek routes.

[38] The first respondent, correctly, appreciated that the second respondent’s decision was flawed because he had reached his decision without the benefit of an environmental assessment as regards the Western Bypass. The first respondent set about remedying the defect, as he was entitled to do by virtue of the appeal being in the nature of a rehearing. He did this by calling on the applicant for the authorization, ie the third respondent, to have the Western Bypass be examined in the same manner as the other two routes i.e. by means, inter alia of an EIA.

[39] The first respondent says:

“After the appeal meeting held on the 17th June 2008, I issued an interim decision dated 19 June 2008 that the Respondent must evaluate the Western Bypass in the same manner as the Eastern Bypass and the existing road were done before, for me to be able to arrive at an informed decision.”

[40] The first respondent goes on to say that he experienced an unnecessary delay in the submission of the report and sought the intervention of his colleague, MEC FP Vilakazi. On 14 November 2008 he received a response and a document namely the Western Bypass Socio-Economic Impact Analysis Report on the potential re-alignment of the P115-5 Road through Boshoek, dated July 2008.

[41] The first respondent says:

“Same was reviewed and considered versus the two Reports pertaining to the Eastern Bypass and the existing Boshoek road.

The Western Bypass Report dated July 2008, wherein in page 44 thereof point 4.7 it is recommended that “by taking the various indicators and criteria into consideration, it is proposed that scenario 3 (i.e. Western Bypass) be considered for implementation…” as it is the most economically viable option of the three options considered due to it having less impacts and further that it will provide direct access to the filling stations, Engen and Total.’”

“Although the report recommends the Western By-pass as the most economically viable road as compared to the other two, the shortfall of the same report is that:

No Environmental Impact Assessment was done;

No public participation was done;

No mention is made regarding the consent of land owners/farmers for the Western Bypass to traverse over their land. This is due to what was captured during Open Day on the 28 March 2006 that not all farmers consented to the proposed option for the road to traverse through their land;

No cost implication were done regarding the expropriation of that land;

No time implications were considered

Be that is it may, the Report does not satisfy the NEMA Principles and that an administrative decision based on that Report will unprocedurally fair (sic), and not reasonable.

Nevertheless, this ground of appeal is upheld.”

[42] The first respondent also addressed the issue of public participation regarding the Western Bypass. He says:

“AD GROUND OF APPEAL 2:

With regard to all issues raised in the above ground, in the Scoping Report there is no proof evincing that indeed members of the public rejected the proposed Western Bypass.

All averments contained in this ground of appeal do contain elements of veracity in that documentary proof was attached and is contained in the Scoping Report regarding all plans made for the Western Bypass dating back from 1985 to date when the new upgrading was proposed.

It is imperative to highlight that the Competent Authority erred in the positive Record of Decision, dated 22 May 2007 in item 2, page 3 paragraph 1 and elsewhere where it is stated that 3 alternatives were investigated and the “Eastern Bypass” was found to be the feasible route, whereas the truth is that only two proposals were evaluated with the exclusion of the Western Bypass, hence the directive to conduct an impact study of the said road as discussed above in ground of appeal 1. The said study was conducted and a report dated July 2008 was duly submitted for review.

Based on the aforegoing, this ground of appeal is also upheld.”

[43] I pause to emphasize that that both of these grounds relate to the absence of an EIA regarding the Western Bypass and that both are upheld.

[44] The third ground of appeal related to the alleged absence of public participation. The third respondent dismissed this ground. Assuming that the correctness of the finding it does not excuse the failure of the first respondent to consider an EIA regarding the Western Bypass before making a final decision.

[45] The third respondent made no finding as regards the 4th and 5th grounds of appeal.

[46] I turn to the 6th ground. The first respondent says:

“AD GROUND OF APPEAL 6:

The ground of appeal regarding the access road and/or link from the Eastern Bypass to Engen filling station which was as a result of an agreement between the Respondent and the owner of Engen Filling Station, whose interest in this matter has been explained herein.

This matter was never canvassed during the EIA application and it is not proper for me to entertain this ground of appeal and its averments based on the aforegone.

Out of the Appellant’s averments, it very apparent that the said access link/road in terms of its length and breadth, which will be wider that 4 metres and/or will have a reserve wider than 6 metres and/or is longer than 30 metres, that on its own indicates that it is a listed activity in terms of GN.R386 of 21 April 2006 as amended by GN.R613 of 23 June 2006 alternatively listed in terms of GN.R387 of 21 April 2006 as amended by GN.R614 of 23 June 2006. If that is the case, then it requires an Environmental Impact Assessment to be done and an authorization to be applied for to my Department.

This ground of appeal is dismissed.”

[47] Finally the first respondent noted the ground introduced by letter dated 26 February 2008. This relates to the access road granted to the Engen Garage.

[48] The upshot was that the first respondent dismissed the appeal thereby upholding the second respondent’s decision.

[49] The first respondent correctly records that he did not receive an EIA and he therefore considered that the first ground of appeal was a good one. The second ground would also require an EIA and the ground was upheld. The last (6th) ground was dismissed on the basis that an EIA would be needed. That of course is the chief complaint of the applicant. It is illogical to uphold the appeal on grounds 1 and 2 but dismiss it on the basis of ground 6.

[50] The first respondent is correct that the second respondent should have been provided with an EIA which he was obliged to consider in order to decide whether to authorize the activity. The inevitable conclusion, as initially recognized by the first respondent, is that the decision was fatally flawed. However, the first respondent did not appreciate that he was empowered to make the decision which the second respondent should have made (as in a rehearing) he was also bound by the same objects of the ECA and that the exercise of his powers depended upon the existence of a jurisdictional precondition, namely receipt and consideration of an EIA relating to the Western Bypass.

[51] The first respondent, although he was initially aware of the need for an EIA, failed in the final instance to appreciate that he too could not make a decision without considering such an assessment. His decision is fundamentally flawed. The first respondent arrives at the same conclusion as the first respondent by making the same logical error.

[52] The fact that he found there was sufficient public participation as regards the Eastern Bypass is not a rational reason for upholding a flawed decision.

[53] The first respondent could have insisted on an EIA and then made his decision or he could have upheld the appeal and remitted the matter to the second respondent to do which he should have done or to have received an EIA himself so that, as the law requires in this context, he could make a fresh decision as the appeal was a rehearing. Or he could have merely upheld the appeal and left it to the third respondent to apply for authorization in terms of section 22 of the ECA once his Department had obtained an EIA.

[54 In the result I made the order set out above.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : Van Zyl, Le Roux and Hurter Attorneys/Minchin and Kelly Inc

FOR THE RESPONDENTS : Mabalane Molefi inc