Friends of the Seven Dams Conservancy v HOD: Department of Economic Small Business Development, Tourism and Environment and Economic Affairs and Others (2631/2019) [2020] ZAFSHC 99 (1 June 2020)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No: 2631/2019

In the matter between:-

FRIENDS OF THE SEVEN DAMS APPLICANT

CONSERVANCY

and

THE HOD: FIRST

RESPONDENT

DEPARTMENT OF ECONOMIC SMALL

BUSINESS DEVELOPMENT, TOURISM AND

ENVIRONMENTAND ECONOMIC AFFAIRS

THE MEC:

DEPARTMENT OF ECONOMIC SMALL SECOND

RESPONDENT

LENOVA CONSTRUCTION AND THIRD

RESPONDENT

DEVELOPMENTCC

CORAM: MOLITSOANE, J et RAMLAL, AJ

HEARD: 24 FEBRUARY 2020

JUDGMENT BY: RAMLAL, AJ

DELIVERED: 1 JUNE 2020

[1] These review proceedings emanate from the granting of an environmental authorisation by the First Respondent in favour of the

Third Respondent pursuant to the application of the Third Respondent for such authority to develop a portion of a farm into residential

accommodation. The Applicant, having lodged an appeal against the authorisation that was granted, lodged this application on the basis that the Second Respondent proceeded to revise and replace the original authorisation without having any regard to procedural

fairness.

[2] Two preliminary aspects require consideration before embarking on the actual review proceedings:

2.1 Condonation:

In terms of section 7(1) of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) the Applicant must institute proceedings for judicial review without unreasonable delay and not later than 180 days after the date on which internal remedies were concluded, or the Applicant became aware of the administrative action and the reasons for it or might have reasonably become aware of the action and the reasons.

In the present instance the Applicant has not been furnished with a decision in respect of the appeal lodged on 5 July 2018 and

consequently the period of 180 days cannot be said to have begun to run. The Third Respondent does not oppose the condonation application, even if I were to find that such application was necessary. In my view there is no need for the applicant to

even apply for condonation in terms of section 9 of PAJA as no reasons were given.

2.2 Locus standi

The issue of the alleged lack of locus standi of the Applicant was abandoned and nothing more need be said in this regard.

[3] The Third Respondent (Lenova) submitted an Environmental Impact Assessment Report, during March 2018, and applied, to the Second

Respondent (HOD) for an “Environmental Authorisation”[1] (EA) in terms of the National Environmental Management Act, 107 of 1998 (NEMA) to develop Portion 30 of the farm Lillyvale, Bloemfontein, as residential accommodation.

[4] On 20 June 2018, The First Respondent granted the EA in favour of the Third Respondent, subject to certain conditions[2].

[5] On 5 July 2018 Applicant lodged an appeal with the MEC, against the approval of the EA on the grounds that the conditions that were set provided no mechanism for the report back by Lenova to the Second Respondent or the Department of Economic, Small Business Development, Tourism and Environmental Affairs (DESTEA), specifically on whether or not the conditions had been complied with before Lenova proceeded with the proposed project. The Applicant received no response to this notice of appeal.

[6] In the meantime, the Third Respondent also lodged its own appeal against the EA that was authorised on 20 June 2018. On 23 July 2018, the MEC issued a Revised Authorisation, in consequence of this appeal of the Third Respondent.

[7] When the Applicant discovered that a Revised Authorisation has been issued, the Applicant lodged an appeal against this Revised

Authorisation, specifically citing that it had not been informed of this appeal by the Third Respondent and that it had not been afforded any kind of audience or opportunity to answer to the grounds or the substance of the appeal prior to this decision in respect of this Revised Authorisation being taken.

[8] As a consequence of this second appeal by the Applicant, the MEC convened a meeting on the 26 November 2018. This meeting was attended by the Applicant as well as Lenova. Upon consideration of the representations made, the MEC issued a Replacement Authorisation

[9] The Applicant maintains that the issuing of the Revised Authorisation was called into question and the MEC was not in any position to issue a Replacement Authorisation until the original appeal against the EA that was granted on 20 June 2018, was disposed of and the Applicant was afforded an opportunity to make representations regarding the appeal that was lodged by Lenova. The Applicant further submits that the MEC was acting ultra vires when the Replacement Authorisation was issued.

[10] According to the Applicant, the initial appeal was brought against the terms of the original EA and these were not discussed at the meeting convened on 26 November 2018.The grounds on which the second appeal was instituted are significantly different in that they are premised on different grounds that challenge the procedural fairness.

[11] The Respondent submits that the first appeal that was lodged by the Applicant was abandoned or subsumed by the second appeal and that the second appeal was argued by the Applicant at the meeting convened by the MEC on 26 November 2018.

[12] The Applicant seeks the following relief:

(a) That two administrative acts performed by the MEC in relation to an Environmental Authorisation (EA) issued in favour of the Lenova and on the strength of which Lenova intends developing Portion 30 of the farm Liliyvale, Bloemfontein, be reviewed and set aside, alternatively, be declared unlawful and be set aside;

(b) that the failure of the MEC to take a decision on an appeal that the Applicant filed on 5 July 2018 wherein the Applicant appealed against the HOD’s environmental authorisation for the same property, be reviewed and set aside, alternatively, be declared unlawful and be set aside;

(c) That the MEC be ordered and directed to deal with and finally decide upon the Applicant’s Appeal that was filed on 5 July 2018, in terms of which the Applicant appealed against the HOD decision and Environmental Authorisation taken on 20 June 2018, for the property described as Portion 30 of the farm Lilyvale, Bloemfontein;

(d) That the HOD be ordered and directed to provide the Applicant with an outcome to the appeal within 15 days of the court order being granted; and

(e) That the HOD and MEC be ordered to pay the costs of these proceedings. Alternatively, should Lenova oppose these proceedings, then and in that case costs should be ordered, jointly and severally

[13] The Applicant, upon receiving notification on 26 June 2018, of the EA that was granted on 20 June 2018, submitted a notice of appeal to the MEC, on 5 July 2018, in accordance with the correspondence details contained in the EA, wherein the Applicant challenged the substance of the EA, as follows:

“7. Reference is made under heading “Specific conditions” in the EA. Paragraph 1.38 to the two hilltops that need to be buffered out of the development as per the sensitivity map of the specialist and that the areas be adequately fenced off to the west but remain open to the east in order to ensure continued ecological functionality and connectivity with the Seven Dams Conservancy and municipal green zone. Paragraph 1.39 further specifies that the drainage line must be excluded from the development as per the specialist report. In paragraph 1.40 it is specified that a new redesigned layout map should be compiled that reflects the conditions states in paragraph 1.38 and 1.39 and the new map should be submitted to the Municipality for approval.

8. Our appeal is based on the fact that the DESTEA has no way to confirm if the applicant has complied with the conditions and if the layout map has indeed been amended to the specifications of the DESTEA before the map is submitted to the Municipality for approval.

9. Our appeal therefore requests that the EA be amended in order to instruct the applicant to first comply with the recommendations from DESTEA, submit a new layout map to the satisfaction of the DESTEA and that the proposed layout map be included as part of the EA.”

[14] No response was received from DESTEA to this notice of appeal.

[15] Lenova contends that the above appeal submitted by the Applicant was not submitted ‘as prescribed’ in section 43 of NEMA[3] thus no appeal is pending against the EA and consequently no decision is outstanding.

[16] It is further submitted by Lenova that a Revised Authority was issued pursuant to an appeal being lodged by Lenova against the inclusion of the conditions 1.38 and 1.39 contained in the EA.

[17] It is not in dispute that the Applicant lodged an appeal against the Revised Authorisation wherein the Applicant challenged the procedure that was employed in the issuing of the Revised Authorisation by alleging that such procedure was unfair.

[18] As a consequence of the appeal against the Revised Authority being lodged, the Applicant and other interested and affected parties were invited to attend an appeals’ meeting.

[19] The Applicant participated in this appeals’ meeting where, according to the minutes[4], the Applicant challenged the ‘procedure for the issuance of the second Environmental Authorisation’. The appeal lodged by Lenova was made available to the attendees at the meeting so convened[5]

[20] The Replacement Authorisation was issued after the assessment[6] of the appeal.

[21] Despite the challenge by Lenova of the Applicant’s appeal lodged on 5 July 2018, on the ground that it is not in the prescribed format, Lenova submits that the original appeal was abandoned, subsumed and taken over by the appeal lodged against the Revised Authorisation and that the grounds of the first appeal were considered and heard at the appeals’ meeting.

[22] The Applicant maintains that the appeals’ meeting addressed the grounds as stated in the second appeal. This was based on the procedural aspects rather than substantive issues and the grounds as cited in the first appeal were never addressed and remain unanswered.

[23] The first and second respondents did not file any answering or explanatory affidavits in the matter and abide the decision of the court.

[24] There is no gainsaying that no response was received from the HOD and/or MEC signifying that the notice of appeal filed by the Applicant on 5 July 2018 had been received, rejected, considered or decided upon or that the form or substance did not comply with any prescribed procedure. In my view it is clear that this appeal has not been dealt with at all.

[25] The Revised Authorisation was issued pursuant to a representation made by Lenova, without any input from the Applicant. No reasons were given by the MEC for the deletion of the conditions that were contained in the original EA.

[26] In respect of the appeal filed by Lenova, the failure to afford the Applicant, as an affected and interested party, with the opportunity to participate in the process under consideration by stating its case or voicing its objections thereto rendered the administrative function carried out by the HOD to have been procedurally unfair.

[27] The fact that the Applicant was invited to participate in the meeting held on 26 November 2018, after the Revised Authorisation was issued was an attempt to address an irregularity that was committed by the HOD and MEC in having issued the Revised Authorisation but this procedure cannot be said to have addressed the disregard of the appeal lodged by the Applicant in respect of the original EA.

[28] The appeal lodged by the Applicant on 5 July 2018 cannot be said to have been subsumed by the representations made at the meeting held on 26 November 2018 as the grounds on which the second appeal were premised, were different from those in the first appeal.

[29] The minutes of the meeting held on the 26th November 2018 also do not reflect that due consideration was given to the appeal lodged by the Applicant on 5 July 2018.

[30] The remaining issue for determination is whether Lenova should be liable for the costs of this application together with the HOD and MEC or whether a different costs order should be granted.

[31] The Respondent simply submits that the entire application by the Applicant be dismissed, with costs.

[32] The papers filed in this application for review proceedings clearly indicate that Lenova is not to blame for the shortcomings of the HOD and MEC. Lenova had no control over the wrong decisions reached by the HOD and MEC.

[33] Lenova however, is the benefactor of the wrong decision. It chose to oppose the application for the review by the Applicant, whilst the HOD and MEC chose to abide by the decision of the court, without filing any opposing papers. It would not be in the interests of justice that Lenova be absolved from liability in respect of the costs of this application.

[34] I accordingly make the following orders:

34.1 The decision of the First Respondent in terms of which the Revised Environmental Authority dated 23 July 2018 (Reference Number

EMS/15/17/08) to the Third Respondent for the latter’s proposed township development of Portion 30 of the farm Lilyvale,

Bloemfontein, was issued is hereby reviewed and set aside;

34.2 The decision of the Second Respondent in terms of which the Replacement Environmental Authority dated 31 December 2018 (Reference

Number EMS/15/17/08) to the Third Respondent for the latter’s proposed township development of Portion 30 of the farm Lilyvale,

Bloemfontein, was issued is hereby reviewed and set aside;

34.3 The First and Second Respondents are hereby ordered to consider and decide upon the appeal of the Applicant dated 5 July 2018;

34.4 It is ordered that the First and Second Respondents furnish the Applicant with the outcome of the above consideration within thirty days from the date of this order;

34.5 The First, Second and Third Respondents are liable to pay the costs of this application, jointly and severally, the one paying, the others to be absolved.

________________

A.K. RAMLAL, AJ

I agree and it is so ordered

_________________

P.E. MOLITSOANE,J

On behalf of the Applicant: Adv S Grobler SC

Instructed by: Roussouws Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Adv N Snellenberg SC

Instructed by: Symington & De Kok

[1] Environmental Authorizations (1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential consequences for or impacts on the environment of listed activities or specified activities must be considered, investigated, assessed and reported on to the competent authority or the Minister responsible for mineral resources, as the case may be, except in respect of those activities that may commence without having to obtain an environmental authorisation in terms of this Act.

[2] 1.38 The two hilltops need to be buffered out of the development and conserved as per the sensitivity map(heading 8.3 of the specialist

report), they must be adequately fenced off to the west but remain open to the east in orderto ensure continued ecological

functionality and connectivity with the Seven Dams Conservancy and municipal green zone. 1.39 The drainage line must be excluded from the development as per the Ecological specialist

[2] 1.38 The two hilltops need to be buffered out of the development and conserved as per the sensitivity map(heading 8.3 of the specialist

report), they must be adequately fenced off to the west but remain open to the east in orderto ensure continued ecological

functionality and connectivity with the Seven Dams Conservancy and municipal green zone.

1.39 The drainage line must be excluded from the development as per the Ecological specialist

[3] 43. Appeals.—(1) Any person may appeal to the Minister against a decision taken by any person acting under a power delegated by the Minister under this Act or a specific environmental management Act. (1A) Any person may appeal to the Minister against a decision made in terms of this Act or any specific environmental management Act by the Minister responsible for mineral resources or any person acting under his orher delegated authority. [Subs. (1A) substituted by s. 14 (a) of Act No. 25 of 2014.] (1B) . . . . . . [Subs. (1B) deleted by s. 14 (b) of Act No. 25 of 2014.] (2) Any person may appeal to an MEC against a decision taken by any person acting under a power delegated by that MEC under this Act or a specific environmental management Act. (3) . . . . . . (4) An appeal under subsection (1), (1A) or (2) must be noted and must be dealt with in the manner prescribed and upon payment of a prescribed fee. [Subs. (4) substituted by s. 14 (a) of Act No. 25 of 2014.] (5) The Minister or an MEC, as the case may be, may consider and decide an appeal or appoint an appeal panel to consider and advise the Minister or MEC on the appeal. (6) The Minister or an MEC may, after considering such an appeal, confirm, set aside or vary the decision, provision, condition or directive or make any other appropriate decision, including a decision that the prescribed fee paid by the appellant, or any part thereof, be refunded. (7) An appeal under this section suspends an environmental authorisation, exemption, directive, or any other decision made in terms of this Act or any other specific environmental management Act, or any provision or conditionattached thereto. [Subs. (7) substituted by s. 14 (a) of Act No. 25 of 2014.]

[3] 43. Appeals.—(1) Any person may appeal to the Minister against a decision taken by any person acting under

a power delegated by the Minister under this Act or a specific environmental management Act.

(1A) Any person may appeal to the Minister against a decision made in terms of this Act or any specific environmental management Act by the Minister responsible for mineral resources or any person acting under his orher delegated authority.

[Subs.

(1A) substituted by s. 14 (a) of Act No. 25 of 2014.]

(1B) . . . . . .

(1B) deleted by s. 14 (b) of Act No. 25 of 2014.]

(2) Any person may appeal to an MEC against a decision taken by any person acting under a power delegated by that MEC under this Act or a specific environmental management Act.

(3) . . . . . .

(4) An appeal under subsection (1), (1A) or (2) must be noted and must be dealt with in the manner prescribed and upon payment of a prescribed fee.

(4) substituted by s. 14 (a) of Act No. 25 of 2014.]

(5) The Minister or an MEC, as the case may be, may consider and decide an appeal or appoint an appeal panel to consider and advise the Minister or MEC on the appeal.

(6) The Minister or an MEC may, after considering such an appeal, confirm, set aside or vary the decision, provision, condition or directive or make any other appropriate decision, including a decision that the prescribed fee paid by the appellant, or any part thereof, be refunded.

(7) An appeal under this section suspends an environmental authorisation, exemption, directive, or any other decision made in terms of this Act or any other specific environmental management Act, or any provision or conditionattached thereto.

(7) substituted by s. 14 (a) of Act No. 25 of 2014.]

[4] Indexed papers p168-169

[5] Indexed papers p169 para ii

[6] Indexed papers p169 para iii The developer lodged a genuine appeal