Escarpment Environment Protection Group and Another v Department of Water Affairs and Others (A666/11, 4333/12, 4334/12) [2013] ZAGPPHC 505 (20 November 2013)

Escarpment Environment Protection Group and Another v Department of Water Affairs and Others (A666/11, 4333/12, 4334/12) [2013] ZAGPPHC 505 (20 November 2013)

The court held that s 148(1)(f) of the National Water Act does not restrict the right of appeal to the Water Tribunal only to those who lodged written objections pursuant to a formal notice under s 41(4)(a)(ii). Any person who timeously lodged a written objection, regardless of the method by which they became aware of the application, has standing to appeal. The restrictive interpretation adopted by the Water Tribunal was arbitrary and inconsistent with constitutional values of openness, participation, and access to justice. The court found that the appellants' prospects of success were strong and that condonation for procedural non-compliance should be granted, given the public interest...

Citation
[2013] ZAGPPHC 505
Parties
Appellant: Escarpment Environment Protection Group; Appellant: Wonderfontein Community Association; Appellant: Langkloof Environmental Committee; Respondent: Department of Water Affairs; Respondent: Xtrata Alloys (Pty) Ltd; Respondent: WER Mining (Pty) Ltd; Respondent: Exxaro Coal (Pty) Ltd; Respondent: The Water Tribunal
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 November 2013
Case Number
A666/11, 4333/12, 4334/12
Procedural Posture
Civil Appeal / Appeal and Review of Water Tribunal Decisions; Interlocutory Applications for Condonation and Consolidation
Outcome
Appeals upheld; Water Tribunal decisions set aside; appellants declared to have standing to appeal; condonation granted for procedural non-compliance; reviews fall away; costs awarded as per settlement and Biowatch principle.
Judges
Tuchten, M Victor
Legal Topics
National Water Act, Standing of Objectors, Procedural Fairness, Condonation, Public Participation, Internal Remedies
Administrative Law Environmental Law National Water Act Standing of Objectors Procedural Fairness Condonation Public Participation Internal Remedies

Case Brief

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Parties

Escarpment Environment Protection Group

Appellant

Wonderfontein Community Association

Appellant

Langkloof Environmental Committee

Appellant

Department of Water Affairs

Respondent

Xtrata Alloys (Pty) Ltd

Respondent

WER Mining (Pty) Ltd

Respondent

Exxaro Coal (Pty) Ltd

Respondent

The Water Tribunal

Respondent

Procedural Posture

Civil Appeal / Appeal and Review of Water Tribunal Decisions; Interlocutory Applications for Condonation and Consolidation

Legal Issues

  1. 1 Does a person who has lodged a written objection to a water use license application, without a formal notice under s 41(4)(a)(ii) of the National Water Act, have standing to appeal to the Water Tribunal under s 148(1)(f)?
  2. 2 Should condonation be granted for procedural non-compliance in prosecuting the appeals?
  3. 3 Is the Water Tribunal's restrictive interpretation of s 148(1)(f) constitutionally valid?

Ratio Decidendi

The court held that s 148(1)(f) of the National Water Act does not restrict the right of appeal to the Water Tribunal only to those who lodged written objections pursuant to a formal notice under s 41(4)(a)(ii). Any person who timeously lodged a written objection, regardless of the method by which they became aware of the application, has standing to appeal. The restrictive interpretation adopted by the Water Tribunal was arbitrary and inconsistent with constitutional values of openness, participation, and access to justice. The court found that the appellants' prospects of success were strong and that condonation for procedural non-compliance should be granted, given the public interest...

Court Disposition

Appeals upheld; Water Tribunal decisions set aside; appellants declared to have standing to appeal; condonation granted for procedural non-compliance; reviews fall away; costs awarded as per settlement and Biowatch principle.

Orders

  • All the appellants’ departures from the provisions of the Rules are condoned and the appeals are reinstated.
  • No order is made on the application for consolidation.