Kruger and Another v Minister of Water And Environmental Affairs and Others (57221/12) [2015] ZAGPPHC 1018; [2016] 1 All SA 565 (GP) (28 November 2015)

Kruger and Another v Minister of Water And Environmental Affairs and Others (57221/12) [2015] ZAGPPHC 1018; [2016] 1 All SA 565 (GP) (28 November 2015)

The court found that the Minister failed to comply with the mandatory consultative and public participation requirements under sections 99 and 100 of NEMBA before imposing the moratorium on domestic rhino horn trade. Specifically, there was no publication of the proposed moratorium in a national newspaper and the Gazette notice lacked sufficient information to enable meaningful public participation. These procedural defects rendered the moratorium invalid, regardless of its rationality or reasonableness. The court held that substantial compliance with statutory consultation and participation provisions is essential for the validity of such administrative action. The moratorium was...

Citation
[2015] ZAGPPHC 1018
Parties
Applicant: Johan Kruger; Applicant: John Hume; Respondent: Minister of Water and Environmental Affairs; Respondent: Wildlife Ranching South Africa (WRSA); Respondent: Private Rhino Owners Association (PROA)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 November 2015
Case Number
57221/12
Procedural Posture
Review Application / Judgment After Hearing on Merits
Outcome
Moratorium on domestic trade in rhino horns reviewed and set aside for substantial non-compliance with statutory consultation and public participation requirements; challenges to TOPS Regulations dismissed.
Judges
M F Legodi, VV Tlhapi, M A Dewrance
Legal Topics
Consultation Requirements, Public Participation, Promotion of Administrative Justice Act, Moratorium on Trade, Threatened or Protected Species, Constitutional Right to Property
Administrative Law Environmental Law Consultation Requirements Public Participation Promotion of Administrative Justice Act Moratorium on Trade Threatened or Protected Species Constitutional Right to Property

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Parties

Johan Kruger

Applicant

John Hume

Applicant

Minister of Water and Environmental Affairs

Respondent

Wildlife Ranching South Africa (WRSA)

Respondent

Private Rhino Owners Association (PROA)

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Was the Minister required to give personal notice to affected rhino breeders before imposing the moratorium on domestic rhino horn trade?
  2. 2 Did the Minister substantially comply with the consultative and public participation requirements under sections 99 and 100 of NEMBA?
  3. 3 Is the moratorium on domestic rhino horn trade reviewable and liable to be set aside for procedural defects?

Ratio Decidendi

The court found that the Minister failed to comply with the mandatory consultative and public participation requirements under sections 99 and 100 of NEMBA before imposing the moratorium on domestic rhino horn trade. Specifically, there was no publication of the proposed moratorium in a national newspaper and the Gazette notice lacked sufficient information to enable meaningful public participation. These procedural defects rendered the moratorium invalid, regardless of its rationality or reasonableness. The court held that substantial compliance with statutory consultation and participation provisions is essential for the validity of such administrative action. The moratorium was...

Court Disposition

Moratorium on domestic trade in rhino horns reviewed and set aside for substantial non-compliance with statutory consultation and public participation requirements; challenges to TOPS Regulations dismissed.

Orders

  • The application by Kruger and Hume for review and setting aside of the moratorium on domestic trade in rhino horns is granted; the moratorium is reviewed and set aside.
  • The first respondent (Minister) is ordered to pay the costs of the applications, including the costs of three counsel for each applicant.