Long Beach Homeowners Association v MEC: Economic Development, Environmental Affairs and Tourism (Eastern Cape) and Others (CA316/2017) [2018] ZAECGHC 26; 2020 (2) SA 257 (ECG) (29 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: CA316/2017

Date heard: 26 March 2018

Date delivered: 29 March 2018

In the matter between

LONG BEACH HOMEOWNERS

ASSOCIATION

Appellant

Vs

MEC: ECONOMIC DEVELOPMENT,

ENVIRONMENTAL AFFAIRS & TOURISM

(EASTERN CAPE)

First Respondent

DEPARTMENT OF ECONOMIC DEVELOPMENT,

(EASTERN CAPE)

Second Respondent

DIRECTOR GENERAL OF ENVIRONMENTAL

AFFAIRS (NATIONAL GOVERNMENT)

Third Respondent

JUDGMENT

PICKERING J:

[1] Appellant appeals to the Full Bench of this Division against a decision by Majiki J in the High Court, Grahamstown, in which she refused certain relief sought by it against, inter alia, the MEC: Economic Development, Environmental Affairs & Tourism (Eastern Cape), first respondent; Department Of Economic Development,

Environmental Affairs & Tourism (Eastern Cape), second respondent; and Director General Of Environmental Affairs (National

Government), third respondent.

[2] Appellant is the Long Beach Homeowners Association (“Homeowners”) which was created to serve the owners of houses in a proposed “Long Beach Development” at Chintsa. In its notice of motion appellant sought the following relief:

“1. The first respondent (the “MEC”) is in contempt of the Order handed down by his Lordship Justice Kollapen in the Pretoria High Court under Case no 28064/2014 on 25 April 2016 in that he has failed to take a decision timeously in the internal appeal as he was directed to do.

2. The internal appeal referred to in paragraph 1 is hereby suspended pending the outcome of the conciliation referred to in paragraph 3 in terms of section 17(3) of the National Environmental Management Act of 1998 (“NEMA”).

3. The Homeowners and the MEC are directed to follow the conciliation process as provided for in section 17(3) read with section 18 of NEMA, which process is to be specifically undertaken as follows:

3.1 The third respondent (“the Director General”) shall appoint a conciliator in terms of section 18(1) of NEMA to resolve the dispute over whether the Homeowners should be granted an environmental authorization or, if not, then whether its members are entitled to adequate compensation from the State on the basis that their property at Long Beach has effectively been expropriated;

3.2 The Director General shall appoint the conciliator within 14 days of this Order;

3.3 The conciliator shall thereafter convene a meeting with the Homeowners and the MEC, no longer than 14 days after his or her appointment, to arrange suitable dates upon which documentary and oral evidence will be presented to him of her and as to where and when the mediation will take place;

3.4 The conciliator shall determine the process in accordance with section 18(1)(d) of NEMA;

3.5 The conciliator shall keep a record of the proceedings;

3.6 The conciliator shall submit a report to the Director General within 7 days of the mediation in terms of section 18(6) and (7) of NEMA.

4. Alternatively to paras 3 and 4 above, the MEC is ordered to take a decision in the internal appeal referred to in para 2 within 14 days of this Order.

5. The MEC is directed to pay the costs of this application de bonis propriis on the attorney and client scale.”

[3] The alternative relief referred to in paragraph 4 of the Notice of Motion was abandoned before the court a quo and the appellant

persisted in that court only with the relief sought in paragraphs 1, 2,3 and 5 of the Notice of Motion. Also joined in the

application as fourth, fifth and sixth respondents were the three appellants in the internal appeal referred to in the Notice of

Motion. They, however, have chosen to abide the outcome of this application and have taken no part in any of the proceedings.

[4] In her judgment of 16 May 2017 Majiki J dismissed the entire application with costs. Appellant thereafter sought leave to appeal to the Full Bench of this Division against the order of the court a quo dismissing the relief sought by it in terms of paragraphs 2,3 and 5 of the Notice of Motion. It did not seek leave to appeal against the order dismissing the relief sought by it in paragraph 1 for a finding that first respondent was in contempt of the order of Kollapen J. Leave to appeal as sought was duly granted by Majiki J.

[5] The respondents, who had been represented in the court a quo by two counsel, namely Mr. Albertus S.C. and Mr. Petersen, who also appeared for the respondents at the hearing of the appeal, have in turn cross-appealed with the leave of Majiki J against the costs order insofar as it did not include the costs of two counsel.

[6] For the sake of convenience and in order to avoid confusion between the present appellants and the appellants in the internal appeal referred to in the Notice of Motion I shall refer to the present appellants as the “Homeowners”.

[7] As appears from paragraph 3 of the Notice of Motion no reference is made to the internal appellants being directed to follow the conciliation process together with the Homeowners and first respondent. Mr. Hopkins, who appeared for the Homeowners both in the court a quo and at the hearing of the present appeal, applied for an amendment of paragraph 3 to the effect that “the Homeowners, the appellants in the internal appeal and the MEC” be directed to follow the conciliation process referred to therein. Mr. Albertus did not object to such amendment which was duly granted.

[8] It is not necessary to detail the entire long and troubled history of this matter. What emerges clearly from the papers is that since November 2012 the Homeowners have been attempting to obtain the requisite environmental authorisation in order to develop their property and to build their houses at Long Beach which, it is common cause, is an environmentally sensitive area.

[9] An environmental authority was granted by the Department of Economic Development, Environmental Affairs and Tourism (Eastern Cape) (“DEAT”), the second respondent herein, on 9 May 2013, which authorised the Homeowners to undertake the construction of seven single unit residences and seven garages on certain residential stands at Long Beach, Chintsa. On 28 June 2013 the fourth, fifth and sixth respondents lodged an internal appeal against DEAT’s decision in terms of section 43 of NEMA. The appeal was opposed by the Homeowners. Thereafter, on 27 November 2013, first respondent decided to suspend the previously granted environmental authorisation.

[10] When, by April 2014, no decision by first respondent in respect of the internal appeal was forthcoming, the Homeowners instituted an application in the High Court, Pretoria, for an order compelling first respondent to comply with his statutory obligations and to make a decision thereon and, further, for an order reviewing and setting aside first respondent’s decision to suspend the environmental authorisation. This application galvanised first respondent into action and, on 9 June 2014, he conceded that the aforesaid suspension was irregular in that it did not comply with the provisions of the Environmental Impact Assessment Regulations, GNR 543 of 10 June 2010 (“EIA”). He undertook further to provide his decision on appeal together with his reasons therefor by no later than 27 June 2014.

[11] Thereafter, on 25 June 2014, first respondent upheld the internal appeal, thereby effectively setting aside DEAT’s environmental

authorisation. In doing so, however, first respondent relied on reasons other than those advanced by the objectors without affording the Homeowners an opportunity to deal therewith.

[12] Accordingly, on 3 September 2014, the Homeowners launched further proceedings in the High Court, Pretoria, for an order reviewing and setting aside first respondent’s decision. In May 2015 first respondent sought an order by way of an interlocutory

application in terms of Rule 30(1) striking out a supplementary replying affidavit filed by the Homeowners. This interlocutory

application was given short shrift by Murphy J on 11 September 2015. The learned Judge described first respondent’s application as ill-conceived and financially wasteful.

[13] The review application was eventually decided in the Homeowners’ favour on 25 April 2016 when Kollapen J set aside first respondent’s decision. The learned Judge referred the matter back to first respondent to consider the appeal afresh and ordered first respondent to afford the Homeowners an opportunity to respond to any concerns and uncertainties which he might have regarding the appeal.

[14] According to the Homeowners there followed an inordinate delay from May 2016 until November 2016 during which time they allege they attempted unsuccessfully to obtain a response from first respondent requiring urgent clarification on a number of issues concerning the manner in which first respondent had indicated that he would conduct the internal appeal. The gravamen of the Homeowner’s

complaint in this regard was, firstly, that the first respondent had failed to respond to correspondence addressed to him on behalf of the Homeowners concerning issues relating to the prosecution of the internal appeal and was “tardy, unresponsive and incompetent”, and had deviated so far from his statutory obligations that the entire process was tainted with illegality, and provided the Homeowners with a basis to review whatever final decision might be taken by first respondent. It was on the basis, inter alia, of the delay that the contempt application in paragraph 1 of the Notice of Motion was premised.

[15] One of the issues relating to the contempt application was the question as to whether the Homeowners had received certain relevant

emails dated 9 and 12 December 2016 from the first respondent. The contents of these letters were correctly paraphrased by Majiki J as follows:

“In the said letters the respondents explain and answer many issues relating to the internal appeal, including restating their position

that first respondent would decide on whether there should be an in-person hearing after receipt of all submissions, expert reports

and responses thereto; the timeframes for receipt of the expert reports and final decision on the appeal to be furnished and made,

being in 21 and 90 days respectively; explanation about why the appellants were afforded an opportunity to make submissions; seeking

permission to visit the Longbeach site on proposed dates and etc.”

[16] The Homeowners denied having received the two emails and alleged that they had been fabricated by the respondents. These averments were rejected by the learned judge who accepted “that the letters existed” even if they had not been received by applicant.

[17] For his part first respondent denied that he had wilfully ignored the judgment of Kollapen J and averred that, on the contrary, he was at all times mindful of that judgment and was seeking to give effect to it in a fair, transparent, accountable and lawful manner.

[18] In dismissing the contempt application Majiki J stated:

“In the final analysis I agree that the respondents did not act within the time frames they ought to have followed and therefore the first respondent failed to comply with the time stipulations in the 2010 EIA regulations. The court order was made on 25 April 2016. The applicants wrote to the MEC on 17 May 2016 and the response thereto was only 29 June 2016. Furthermore correspondence of 2nd, 12 August 2016, 12 and 27 September 2016 and 4 November 2016 were responded on 25 November 2016, with explanation though. However, I conclude that the respondents have shown that they did not wilfully and mala fides fail to comply with the court order. I am persuaded that they did not deliberately and intentionally violate the court’s repute.”

As stated above the Homeowners did not seek to appeal this finding.

[19] It is common cause that on 25 November 2016 the State Attorney eventually responded to all outstanding correspondence addressed to her and apologised for not having done so sooner. In this correspondence the State Attorney stated, inter alia, that first respondent was seeking the expert advice of one Dr. Berliner as well as Mr. Steward of SRK Consulting with regard to advice “on the new matter raised in your submissions, dated 13 August 2016.” The State Attorney added that “they will, however, in order to expedite the process, be required to provide their opinion within a much shorter period than that afforded to you. Naturally you will be afforded a further opportunity of responding to the expert reports of Dr. Berliner and Mr. Stewart as they come to hand.” The State Attorney concluded by giving the assurance that first respondent would endeavour within a period of 45 days after receipt of all written submissions to make his decision “including whether or not to afford [the Homeowners] an oral hearing.”

[20] This issue forms the basis of the Homeowners’ second complaint concerning the conduct by first respondent of the internal appeal. They contend that the appointment of Dr. Berliner and Mr. Stewart of SRK was improper and unlawful inasmuch as they were not appointed as members of a duly constituted appeal panel in terms of the relevant regulations but were erroneously appointed as “experts”, notwithstanding the fact that first respondent had no such power to do so under the regulations. Their appointment was therefore ultra vires. Furthermore, so the Homeowners contend, even had they been appointed as members of the internal appeal panel they were manifestly not independent as required by the regulations.

[21] They contend, with reference to Section 34 of the Constitution, that they are entitled to face an internal appeal panel that is both objective and independent. They contend therefore that in conducting the internal appeal in the unlawful and unfair manner which he has, first respondent has assumed for himself powers beyond the four corners of the regulatory provisions and has set the internal appeal on a flawed trajectory that will ultimately produce a flawed decision. They submit therefore that any decision which first respondent might make in respect of the internal appeal would be reviewable on this basis. They point out that this matter has dragged on for a number of years in the course of which they have been obliged to launch no less than 6 applications seeking relief of different kinds against first respondent, all of which applications have been successful. They state that they have accordingly lost confidence in first respondent’s ability properly to adjudicate the internal appeal.

[22] First respondent denies that Dr. Berliner and Mr. Stewart were ever appointed as members of an appeal panel. He states that they were appointed to furnish reports in respect of certain of his concerns and that he was entitled to appoint them as such in terms of the 2010 EIA regulations. Furthermore, he contends that as he has not yet decided the appeal it is premature for the Homeowners to raise any issue before the Court regarding their independence and impartiality.

[23] It is common cause that after the letter written by the State Attorney on 25 November and following upon further epistolary

skirmishes between the parties it was agreed that in terms of the relevant regulations these experts were required to provide their

expert reports by 10 January 2017. No such expert reports were forthcoming by that date, however, and, on 20 January 2017, the Homeowners, having lost patience with and confidence in first respondent as set out above, launched the present application.

Eventually, on 21 February 2017, first respondent sent the two “expert reports” of Dr. Berliner and Mr. Stewart to the Homeowners and required a response thereto within 20 days, namely 13 March 2017. In the meantime, however, it was agreed at the suggestion of the Homeowners that the internal appeal should be suspended pending the outcome of the present application.

[24] In the view that I take of the matter it is neither necessary nor desirable that I express any opinion on these issues.

[25] It is clear from what is set out above that there exists a dispute between the Homeowners and first respondent relating to the manner in which first respondent is handling the internal appeal, namely, that, as set out above, he had allegedly been tardy and unresponsive from May 2016 up to 20 January 2017 when this application was launched and that, contrary to the provisions of the relevant regulations governing the appointment of an appeal panel in terms of section 43(5) of NEMA, he had appointed non-independent experts to assist him. It is not necessary to decide whether this dispute has been manufactured by the Homeowners as a stratagem in order to enable the Homeowners to obtain the relief they seek in the present application, as was submitted by Mr. Albertus. The fact is that it exists.

[26] The real issue with which this appeal is concerned is whether the above dispute falls within the ambit of section 17(3) of NEMA which provides as follows:

“A court or tribunal hearing a dispute regarding the protection of the environment may order the parties to submit the dispute to a conciliator appointed by the Director-General in terms of this Act and suspend the proceedings pending the outcome of the conciliation.”

[27] As set out above the Homeowners sought an order before the court a quo directing them, together with the internal appellants and first respondent, to follow the conciliation process as provided for in s 17(3) read with s 18 of NEMA. It is the Homeowners’

contention that the dispute between themselves and first respondent is a dispute regarding the protection of the environment or is sufficiently closely connected thereto so as to fall within the ambit of section 17(3).

[28] In her judgment Majiki J stated in this regard as follows:

“I ask the questions, what dispute is before this court; which parties are parties to that dispute; if I pend the proceedings in that dispute would that have the effect of achieving the results envisaged in the provisions in section 17(3). It is common cause that before this court is the applicant and the first respondent, in the main about the first respondent’s conduct in the prosecution of the appeal. Would there be anything to be suspended in those issues, if I were to order the third respondent to refer the matter for conciliation. Indeed the dispute raised in this court has a link to the main dispute about the granting or refusal of environmental authorisation. However, this court is not adjudicating on that dispute as between the applicant and appellant. It is only concerned about the conduct of the first respondent, his being contemptuous in complying with the court order in the main. In my view, if I would suspend these proceedings, any referral would be on that limited issue of procedure and process. The dispute about the actual protection of environment is not yet before this court, but before the first respondent. As much as it would have been desirable to have it resolved speedily, and less costly, I do not regard section 17(3) as being of assistance to the applicants in the present circumstances.”

[29] Mr. Hopkins submitted that Majiki J erred in holding that section 17(3) of NEMA did not apply in this case whereas Mr. Albertus

submitted that her decision was clearly correct and that where the dispute before a court concerned the process by which an internal

appeal was being conducted and not the merits of the actual appeal the provisions of s 17(3) were not of application. He submitted that to interpret s 17(3) so as to cover the manner in which an internal appeal pending before first respondent was conducted would be to undermine the power granted to first respondent in terms of s 43 of NEMA.

[30] In developing his argument Mr. Albertus submitted that first respondent was not himself a party to the dispute between the

Homeowners and the appellants in the internal appeal. That dispute, so he submitted, went to the heart of the matter, namely,

the granting or refusal of an environmental authorisation to the Homeowners and it is that dispute which directly concerns the

protection of the environment. Mr. Albertus submitted that in the absence of any relief being sought against first respondent, such as a declarator, a mandamus or a review of any decision taken by him, first respondent was not a party thereto. First respondent in essence, so he submitted, occupied the position of an arbiter between the Homeowners and the internal appellants and, that being so, there was no basis on which first respondent could be ordered as a “party” to submit to a conciliation process in terms of s 17(3) and s 18.

[32] Mr. Hopkins, however, submitted that the process to be followed in adjudicating the appeal could not be separated from the end result which the process was designed to serve and that the dispute between the Homeowners and first respondent was in fact a dispute regarding the protection of the environment or was sufficiently closely connected thereto to fall within the ambit of section 17(3). He referred in this regard to s 39(2) of the Constitution which provides:

“When interpreting any legislation … every court … must promote the spirit, purport and objects of the Bill of Rights.”

[33] One such right to which Mr. Hopkins referred was that contained in s 24 of the Constitution, namely:

“Environment

Everyone has the right –

(a) To an environment that is not harmful to their health or well-being; and

(b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

(i) Prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

[34] In Makate v Vodacom Ltd 2016 (4) SA 121 (CC) the following was stated at paragraph 88:

“It is apparent from Fraser that section 39(2) introduced to our law a new rule in terms of which statutes must be construed. It also appears from the same statement that this new aid of interpretation is mandatory. This means that courts must at all times bear in mind the provisions of section 39(2) when interpreting legislation. If the provision under construction implicates or affects rights in the Bill of Rights, then the obligation in section 39(2) is activated. The court is duty-bound to promote the purport, spirit and objects of the Bill of Rights in the process of interpreting the provision in question.”

See too Bato Star Fishing (Pty) Ltd v Minister of Environmental Affiars [2004] ZACC 15; 2004 (4) SA 490 (CC) where at paragraph 73 Ngcobo J, as he then was, stated with reference to s 39(2) as follows:

“[T]he interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and, second, the statute must be reasonably capable of such interpretation.”

[35] Having regard to the above Mr. Hopkins submitted that s 17(3) of NEMA was legislated in order to advance the broader constitutional rights contained in s 24 of the Constitution and had to be purposefully interpreted as contemplated by s 39(2) thereof. He submitted that Majiki J, by interpreting s 17(3) of NEMA narrowly, failed to promote the constitutional values set out in s 24. On a wide and purposeful interpretation, so he submitted, the present dispute was a dispute such as was contemplated by s 17(3).

[36] Accepting that s 17(3) should be given a wide and purposeful interpretation in the light of the above authorities I am unable to agree that the dispute between the Homeowners and first respondent is a dispute such as is contemplated by the subsection.

[37] As a starting point it must be borne in mind that first respondent is not a party to the dispute between the Homeowners and the internal appellants. Despite the submission of Mr. Hopkins to the contrary I am satisfied that first respondent occupies the position of an arbiter between the Homeowners and the internal appellants, he being the duly authorised functionary in terms of s 43 of NEMA tasked with adjudicating that dispute. It is that dispute which directly concerns the protection of the environment as opposed to the dispute between the Homeowners and first respondent which is only tangentially connected thereto by virtue of the internal appeal over which first respondent presides being the process by means of which the end result, namely the grant or refusal of environmental authorisation, is to be achieved.

[38] Should first respondent in due course make a decision in the appeal which gives rise to a review application by the Homeowners he will only at that stage become a party to the main dispute concerning the grant or refusal of an environmental authorisation. It is that dispute which the Homeowners in paragraph 3.1 of the Notice of Motion seek to have submitted to conciliation. In my view, there is no basis upon which the court a quo could have ordered first respondent as a “party” to the main dispute to submit to a conciliation process.

[39] Furthermore, Majiki J was not asked to pronounce upon any aspect of that dispute nor could she have done so in the absence of any form of relief being sought by the Homeowners against first respondent such as a review of first respondent’s conduct of the appeal. In the circumstances there was no justiciable dispute regarding the protection of the environment before her and therefore no basis upon which she could submit any dispute to a conciliator in terms of s 17(3).

[40] I am also satisfied that the power afforded a court in terms of s 17(3) to “suspend the proceedings pending the outcome of the conciliation” can only be interpreted as referring to a suspension of the actual dispute regarding the protection of the environment which the court is hearing. In my view such reference is not reasonably capable of being interpreted as affording a court the power to suspend the as yet unterminated appeal proceedings before first respondent in circumstances where no relief of any nature has been sought against him. I know of no authority, nor was counsel able to refer us to any such authority, to the effect that a court would have the power to in effect interdict an appeal process before a final decision had been given therein and in respect of which no relief is sought against the presiding officer. As was submitted by Mr. Albertus such an order would undermine the power granted to first respondent in terms of s 43 to consider and decide the appeal.

[41] As was stated by Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at paragraph 18, it is necessary, when interpreting the words used in a statutory instrument, to give consideration to the context in which the provision appears. In this regard s 17(1) of NEMA vests first respondent with the power to refer a matter to conciliation when there is “a difference or disagreement concerning the exercise of his functions” (s 17(1)(a)) or a “difference or disagreement regarding the protection of the environment.” (s 17(1)(b)). In affording an MEC the power to refer a dispute conciliation s 17(1) clearly draws a distinction between disputes regarding the exercise by an MEC of his functions and disputes regarding the protection of the environment. In my view, properly construed, the power afforded a court under section 17(3) to order that a dispute regarding the protection of the environment be referred to conciliation is clearly narrower than that afforded to an MEC under s 17(1). No reference is made in s 17(3) to the court having the power to order that a dispute regarding the exercise by an MEC of his functions be referred to conciliation. In my view therefore, section 17(3) only empowers a court to refer a dispute regarding the protection of the environment to conciliation. It does not empower the court to do so when the dispute is one concerning the exercise by an MEC of his functions.

[42] In the circumstances of this case, however, the Homeowners are not remediless. Section 17(2) provides as follows:

“Anyone may request … a MEC … to appoint a facilitator to call and conduct meetings of interested and affected parties with the purpose of reaching agreement to refer a difference or disagreement to conciliation in terms of this Act …”

It is open to the Homeowners to approach first respondent in terms of section 17(2).

[43] I turn to consider the first respondent’s cross-appeal.

[44] We were informed that during the course of argument before Majiki J respondents sought an order that, in the event of the application

being dismissed with costs, such costs should include the costs of two counsel. In her judgment Majiki J dealt in extenso with submissions made on behalf of first respondent that an award of costs de bonis propriis against the Homeowners was appropriate. She found that there was no basis for any such punitive award of costs.

[45] The learned Judge did not deal, however, in her judgment with any of the submissions made for or against an award of the costs of two counsel, merely ordering that the application be dismissed with costs. We were informed that she gave no reasons for granting applicant leave to appeal her judgment nor did she do so in granting first respondent leave to appeal the costs order. Her failure to have given any such reasons and to elucidate the basis upon which she made her costs order is, with respect, most regrettable as this Court is now in the dark as to whether in granting the costs of only one counsel she had overlooked the first respondent’s submissions that the costs of two counsel were justified or whether she had been of the view that in fact they were not.

[46] Mr. Hopkins submitted that Majiki J had exercised a judicial discretion in awarding the costs of only one counsel. In my view, however, where the learned Judge gave no reasons for her order either in her main judgment or in the application granting leave to appeal it cannot be assumed that she exercised a judicial discretion in this regard. In my view, in the absence of such reasons this court is at large to consider the issue of costs afresh.

[47] During the course of argument the leading case of Biowatch Trust v Registrar, Generic Resources, and Others 2009 (6) SA 232 (CC) was alluded to wherein it was stressed that the primary consideration in litigation between the government and a private party seeking to assert a constitutional right was the way in which a costs order would hinder or promote the advancement of constitutional justice. Mr. Hopkins conceded, however, that no submission had been made before the court a quo to the effect that this matter involved the assertion of a constitutional right by the Homeowners nor had the Homeowners appealed against the costs order on such a basis. In my view, in the circumstances of this case, the Biowatch principle is not of application.

[48] It is trite that the court has a discretion, to be judicially exercised, as to whether to allow the fees of two counsel. In this regard the Court will decide whether, having regard, inter alia, to the nature of the issues in dispute between the parties, it was a wise and reasonable precaution to employ the services of two counsel.

[49] In the application for leave to appeal the following is stated:

“This matter raises arguable points of law of general importance because it implicates the proper interpretation of hithero unused and judicially unconsidered provisions of potentially great importance” in s 17(3) of NEMA

[50] In the application for leave to cross-appeal it is stated that the matter “was fairly involved and of great significance to both parties.”

[51] Both parties therefore considered the issues raised in the application to be of importance.

[52] It was of particular importance to first respondent, not only because his authority to consider and to decide the internal appeal was being challenged but also because he was faced with an application seeking to hold him in contempt of the order of Kollapen J and which, had it succeeded, would have had extremely serious consequences for him.

[53] In these circumstances the employment of two counsel by first respondent was, in my view, a wise and reasonable precaution.

In the circumstances Majiki J should, in my view, have awarded the costs of two counsel. In my view the costs of two counsel on appeal is also justified.

[54] The following order will issue:

1. The appeal is dismissed with costs.

2. The cross-appeal succeeds with costs and the order of the court a quo is set aside and substituted by the following order;

“The application is dismissed with costs, such costs to include the costs of two counsel.”

3. The costs of the appeal and of the cross-appeal shall include the costs of two counsel.

_________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,

________________

J.M. ROBERSON

___________________

B.R. TOKOTA

Appearing on behalf of Appellant: Adv. K. Hopkins

Instructed by: Wheeldon Rushmere & Cole, Ms. Amm

Appearing on behalf of Respondent: Adv. M.A. Albertus S.C with Adv. F. Petersen.

Instructed by: Enzo Meyer Attorneys, Mr. Basson