Magaliesberg Protection Association v MEC, Department of Agriculture, Conservation, Environment and Rural Development, North- West Provincial Government and Others (1776/2010) [2011] ZANWHC 67 (15 December 2011)

NORTH WEST HIGH COURT, MAFIKENG

Case No: 1776/2010

In the matter between:

MAGALIESBERG PROTECTION ASSOCIATION …..................................APPLICANT

and

MEC: DEPARTMENT OF AGRICULTURE,

CONSERVATION, ENVIRONMENT AND

RURAL DEVELOPMENT

NORTH WEST PROVINCIAL GOVERNMENT ….......................FIRST RESPONDENT

CHIEF DIRECTOR: ENVIRONMENTAL SERVICES

DEPARTMENT OF AGRICULTURE, CONSERVATION,

ENVIRONMENT AND RURAL DEVELOPMENT

NORTH WEST PROVINCIAL GOVERNMENT …..................SECOND RESPONDENT

KGASWANE COUNTRY LODGE (PTY) LTD …..........................THIRD RESPONDENT

JUDGMENT

LEEUW JP:

Introduction:

[1] This is a review application wherein the applicant seeks an order in the following terms:

“1. Reviewing and setting aside the decision of the first respondent to dismiss the appeal brought by the applicant against the decision of the second respondent to grant environmental authorization to the third respondent in terms of section 24G of the National Environmental Management Act 107 of 1998 for the continuation of construction activities illegally commenced in respect of the Kgaswane Country Lodge situated on Portions 21 and 85 of the Farm Boschfontein 330 JQ, Rustenburg Local Municipality, North West Province (“the property”).

Reviewing and setting aside the decision of the second respondent to grant to the third respondent the environmental authorization referred to in paragraph 1 above.

Substituting the first respondent’s decision with a decision upholding the applicant’s appeal and refusing the third respondent authorization to continue construction activities in respect of the Kgaswane country Lodge, alternatively, remitting the matter back to the first respondent for reconstruction for reconsideration, such reconsideration to take into account the recommendations contained in the Environmental Management Framework for the Magaliesberg Protected Environment published in the North West Provincial Gazette on 17 March 2009

Directing the third respondent to demolish the Kgaswane Country Lodge within 60 days of the grant of this Order and to rehabilitate the affected environment within 90 days of such demolition, as far as reasonably practicable, to the state it was in prior to the commencement of the construction activities.

Directing the third respondent to appoint an environmental assessment practitioner, in accordance with the process contemplated in regulations 16, 17 and 18 of the Environmental Impact Assessment regulations promulgated in terms of the National Environmental Management Act 107 of 1998 (GNR 543 of 18 June 2010) and to undertake the demolition and rehabilitation contemplated in prayer 4 above, under the supervision

of and to the satisfaction of such environmental assessment practitioner.

Directing the first and second respondents to do all such things and take all such steps as may be necessary to ensure that the third respondent complies with the Order granted in prayers 4 and 5 above.

Directing the first and second respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved and in the event that the third respondent opposes the application, directing the first, second and third respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved.”

[2] The applicant had initially approached this Court on the 04th August 2010 on an urgent basis, where it, sought amongst others, a restraining order interdicting the third respondent (Kgaswane) from continuing with the construction activities in respect of the Lodge under construction situated on Portions 21 and 85 of the farm Boschfontein 330 JQ, Rustenburg Local Municipality (“the Farm”) pending the finalisation of this review application. The application for the interdict as well as the review application were simultaneously filed with the Registrar on 4 August 2010. The urgent application, which was PART A to the present application, was dismissed by this Court on 30 September 2010 and costs to be determined in the review application. The applicants are now proceeding with PART B of the application, which is the present review application. There is no appearance for the third respondent but heads of argument here filed on his behalf by his counsel, which submissions I will take into consideration in my judgment.

[3] I must from the outset remark that as at 3 May 2011, the development on the Farm, that is the construction of the Lodge as well as the installed infrastructure, were virtually complete, and these include amongst others:

● 47 en-suite units capable of accommodating 94 people in 6 different residential blocks;

● a conference block accommodating 500 people;

● a reception area and an office block ;

● a restaurant catering for approximately 350 people; and

● a massage parlour/spa with 8 treatment rooms.

[4] The following additional infrastructure for the Lodge has been installed; a paved parking lot, an access road from the R24 public road to the parking lot; one main walkway paved around the facilities, water and sewerage pipes and electricity cables installed as well as a three metre high fence bordering the property and a storm-water drainage system to the north-west of the development structure, grass for rehabilitation. When the urgent application was heard on the 30 September 2010, the construction some of the buildings had been completed. At the hearing of this matter on 4 August 2011 advertisements were already published for the occupation of the Lodge.

[5] It is common cause that the Lodge is erected within the boundary of the Magaliesberg Protected Environment (MPE) area, and that Kgaswane had not obtained the environmental authorisation in accordance with section 24 (1) of the National Environmental Management Act No 107 of 1998 (NEMA). Section 24 F of NEMA makes it an offence for one to commence or continue with the listed or specified activities referred to in section 24 (2) of this Act without the authorisation in terms of section 24 (1). However, section 24 G of this Act provides for the rectification of the unlawful commencement of the activity by applying to the Minister or MEC for an ex post facto environmental authorisation. Kgaswane was granted such authorisation ex post facto by the Chief Director in accordance with section 24 G of NEMA which decision was later confirmed by the MEC on appeal. I will deal more with the legal framework later in my judgment.

Factual Background

[6] The applicant professes to have been established in 1975. It is a voluntary association with the “sole objective to foster and encourage the conservation and protection of the Magaliesburg mountain range”. According to Libero Paul Fatti (Fatti) who is the Chairperson of the applicant, the applicant was instrumental in the declaration of the Magaliesberg mountain range as a natural area in terms of the Physical Planning Act 88 of 1967, and further that applicant has been collaborating with the conservation authorities in monitoring and the conservation of the mountain area and also served on its Management Committee, which was constituted in terms of the aforesaid Physical Planning Act and was retained in the successive Acts in terms of the National Environmental Management: Protected Areas Act 57 of 2003 .

[7] He further states that the Lodge development was discovered in July 2008, by two of its members who were checking the conservation status of the Magaliesberg mountain range from a flight. An aerial photograph of the Lodge was taken from the aircraft. The discovery of the development was reported to the North West Department of Agriculture,

Conservation, Environment and Rural Development (the Department), to establish whether the Department was aware of the development and to ascertain whether authorisation, as required by NEMA as well as the Environmental Impact Assessment Regulations promulgated in terms of NEMA, was obtained. The officials of the Department informed him that they were recently, (prior to his enquiry) informed about the development at the MPE area and that they were in the process of investigating the matter.

[8] Subsequently during October 2008, Fatti visited the site of the development, where he ascertained that a number of buildings of the Kgaswane project were nearing completion. He wrote a letter on 22 November 2008 to the Department, alerting it of the development. In this letter he amongst others, requested the then Member of the Executive Council (MEC) Mr Jan Serfontein, to instruct Kgaswane to discontinue the construction and the development since it was in the MPE area.

[9] According to the director of Kgaswane, Jan Kaptein Ntemane (Ntemane), prior to the commencement of the project, he approached the Rustenburg Local Municipality (the Municipality) to enquire about the requirements regarding the approval and authorisation of the project as well as rezoning of the area where the Lodge was to be erected. He was informed by the Municipality that it was not necessary to obtain an environmental authorization because the original project occupied only four (4) hectares of the area. The Farm is 11,8 hectares in size and the area of the development footprint of the Lodge and facilities is 0,7 hectares.

[10] He further states that the Municipality advised him to approach the South African Heritage Resources Association (SAHRA), which he did, but that SAHRA did not inform him about the necessity of obtaining the Heritage Impact Assessment (“HIA”). He nevertheless instructed a certain Mr Van Staaden (Van Staaden), who is a heritage specialist, to conduct the heritage impact assessment. He presently cannot locate a copy of the report, despite having conducted a diligent search for it at the offices of SAHRA in Mafikeng. Van Staaden could also not be reached because he emigrated from the country.

[11] Furthermore, he states that the construction of the Lodge commenced in August 2007 and as at May 2008 the construction of the facility was completed. On 8 July 2008 he was visited by one Mr Marchard Le Roux (Le Roux) of the Department who impressed upon him the necessity of obtaining an environmental authorisation in compliance with NEMA.

[12] Subsequent to Le Roux’s visit, he (the applicant) contacted the Department on 18 July 2008 where he was informed that he should have obtained an environmental authorisation in terms of section 24 (1) of NEMA. He was consequently advised to apply for an ex post facto environmental authorisation in terms of section 24 G of NEMA, which application was submitted and approved by the second respondent (the Chief Director) on the 9th March 2009. On the 1 June 2009, the applicant lodged an appeal against the Chief Director’s decision to grant Kgaswane the ex post facto environmental authorisation.

[13] According to Fatti, on 11 December 2008, the Secretary of the applicant’s sister organisation, the Mountain Club of South Africa, Johannesburg Section, informed him that a notice was received from Ms Lesego Senna (Senna) of Lesekha Consulting firm, an independent Environmental Assessment Practitioner who was appointed by Kgaswane to compile an environmental assessment report on its behalf. Senna had solicited comments from interested and affected parties regarding the application submitted by Kgaswane in terms of section 24 G of NEMA. It was at that stage that the applicant learnt that the application had already been submitted by Kgaswane on 23 July 2008 and that the environmental assessment report compiled by Lesekha Consulting in support of the application was submitted in October 2008.

[14] The applicant wrote a letter to Lesekha Consulting on 30 December 2008 wherein a number of objections to the development were raised. Another letter was written on 5 January 2009, directed to the Director of Planning and Development of the Rustenburg Local Municipality noting the applicant’s objection to the Kgaswane development. He received no response to these letters, but later on 13 March 2009 received a letter from the Department advising him that the section 24 G application for the ex post facto environmental authorisation for the construction of the Lodge had been approved by the Department on 9 March 2009. He was furnished with a copy of the environmental authorisation on 30 March 2009.

[15] On 12 May 2009, after several requests, the applicant obtained a copy of the report prepared by Lesekha Consulting in support of Kgaswane’s ex post facto authorisation in terms of section 24 G of NEMA. They filed an appeal with the MEC on 2 June 2009.

[16] On 11 December 2009 a meeting was held between the MEC and his advisor Ms Carene Wessels, and Ntemane and the applicant regarding the applicant’s objection to the environmental authorisation for the continuation of the construction activities of Kgaswane.

[17] Subsequent to the meeting on 23 January 2010, Fatti wrote a letter to the MEC urging him to order Kgaswane to discontinue with the development. The appeal was heard and dismissed by the MEC on the 19th January 2010. The applicant was informed about the outcome of the appeal on 5 February 2010. The urgent application was heard on 30 September 2010 and review application later on 4 August 2011.

[18] The applicant’s grounds of appeal to the MEC were that:

The applicant was not invited to make representations as an interested and affected party when the Chief Director considered Kgaswane’s section 24 G application, which process rendered the Chief Director’s decision flawed;

the report submitted by Lesekha Consulting, in support of the section 24 G application was inadequate and did not contain sufficient information to enable the Chief Director to arrive at an informed decision regarding the impact the Lodge would have on the MPE area;

the mitigating measures proposed by Lesekha Consulting in their report were inadequate in that they were generic in nature and not specific to the site;

the location where the development of the Lodge has taken place is a protected area by virtue of its status as an MPE area for the purpose of the National Environmental Management Protected Areas Act 57 of 2003 (NEMPAA) — which development is contrary to the environmental integrity and strategic plans for the area;

that the Lesekha report contains a number of inaccurate and contradictory statements which discrepancies have the effect of making the report unreliable and misleading to the extent that the decision to grant the section 24 G authorisation was based on false information.

[19] The MEC’s reasons for dismissing the appeal are restated hereunder as follows in response to the grounds of appeal tabulated in paragraph [18] above:

(a) “After perusal of the contents of the project file I am satisfied that the public participation process followed in this matter was in line with the procedure to be followed and stipulated in GNR28753 of 21 April 2006”

(b) “I am satisfied that the mitigation measures contained in the report and Environmental Management Plan is adequate.”

(c) “It is acknowledged that the MPE is regarded as a protected environment as contemplated in section 28(7) of the NEMPAA. It should also however be noted that the legislation does not prohibit development in the MPE in toto, but that permission must be granted for development to take place. The required permission was obtained through the application for rectification in terms of section 24G of the NEMA. The decision maker in granting the said authorization in terms of section 24 of NEMA, stated that the development is seen and is acknowledged to be line with spirit (sic) of eco tourism within MPE. This would have been different if the development was an industrial or mining development. I therefore agree with Mr Moremi that the development is in line with eco tourism in this area and that the authorization for this development was done in the light thereof.”

(d) “I am of the opinion that there was no bias or irrelevant considerations taken into account when the maker came to the conclusion to allow the development to take place. I am further convinced that, as indicated above, the development can be seen in the light and spirit of eco-tourism in this area and that the impact on the environment can be managed in a suitable way.”

(e) “After assessing all the information placed before me, I am of the opinion that the objectives of integrated environmental management, the principles set out in section 2 of the NEMA as well as the ideal of sustainable development have been adequately addressed by the respondents. I am furthermore convinced that, provided the proposed mitigation and management plan are adhered to, this development will be well managed in the spirit of eco-tourism in the area.”

Grounds for Review

[20] I have already alluded to the fact that the applicant launched the Review application against the MEC’s decision on 4 August 2010. The grounds of review against the MEC’s decision are that:

20.1 the MEC failed to take the relevant considerations into account as contemplated in section 6 (2) (e) (iii) of Promotion of Administrative Justice Act No 3 of 2000 (PAJA) in that no mention is made of the Environmental Management Framework and Plan (EMF) for the MPE, in his reasons for confirming the section 23 G environmental authority granted by the Chief Director, despite the fact that the EMF was adopted by the MEC in terms of Regulation 72 (2) of the Environmental Impact Assessment (EIA) Regulations published in GN R385 on 21 April 2006 in GG 28753 and in the Notice 110 of the North West Provincial Gazette No 6613 of 17 March 2009 as well as the Rustenburg Spatial Development Framework;

20.2 a mandatory and material procedure prescribed by the EMF was not complied with as contemplated in Regulation 69 (1) (b) of the 2006 EIA Regulations, read with section 24 (i) of NEMA, which require the EMF to be taken into account when considering applications for environmental authorisation. This procedure is mandatory as contemplated by section 6 (2) (b) of PAJA;

20.3 the process followed by Khaswane to obtain environmental authorisation, and having failed to consult with applicant as a key interested and affected party during the application process, was procedurally unfair as contemplated in section 6 (2) (c) of PAJA; and

20.4 the decision to grant the environmental authorisation was not rationally connected to the information presented before the MEC or the reasons given for it by the MEC as contemplated in section 6 (2) (f) (iii) (cc) and (dd) of PAJA;

20.5 that the decision by the MEC is so unreasonable that no reasonable person would have taken such decision as required by section 6 (2) (h) of PAJA, especially in view of the incompatibility of the Lodge development with the objectives set out in the EMF and the Rustenburg Spatial Development Framework.

[21] On 30 September 2010, Fatti filed an Amended Notice of Motion as well as a Supplementary Founding Affidavit. Through the affidavit, the applicant sought to introduce an additional ground of review based on the contention that the “MEC’s decision falls to be reviewed and set aside as the MEC was biased or could reasonably be suspected of bias” as contemplated in section 6(2) (a) (iii) of PAJA.

[22] I wish to pose and remark that this further affidavit was simply filed by the applicant without first having obtained the leave of this Court to do so. See Standard Bank of SA Ltd v Sewpersadt 2005 (4) SA 148 (C) at 153H-154J; James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660E; Nampesa (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892J-893A and South Peninsula Municipality v Evans 2001 (1) 271 (C) at 283A-H.

[23] A further affidavit may be allowed by the court if exceptional circumstances exist. The applicant has not filed any explanation for its failure to include this further ground in its founding affidavit, when it was all the time aware of the remarks prior to launching this application on 30 September 2010. See Compare Juntgen t/a Paul Juntgen Real Estate v Nottbusch 1989 (4) SA 490 (WLD). The remarks appear in the minutes of the meeting held on 11 December 2000, referred to in paragraph [16] above. I need not elaborate on this point, save to state that this supplementary affidavit is regarded as pro non scripto.

Points in limine

[24] Ntemane raised three points in limine against this application, namely:

(a) that the applicant relies on inadmissible opinion evidence;

(b) that the review has been instituted unacceptably late; and

(c) that the applicant lacks standing on the pleaded cause of action.

[25] The applicant’s reliance on inadmissible opinion evidence

25.1 It is submitted by Ntemane that Fatti’s evidence in his Founding Affidavit should be regarded as inadmissible because he is not a qualified expert and yet tenders an opinion and criticism on highly specialised and technical areas of environmental protection and conservation.

25.2 In his answering affidavit, Ntemane indicated his intention to institute an application striking out the irrelevant portions of the founding affidavit on the basis that the opinion evidence is irrelevant and inadmissible. Such application was not filed. However, for convenience, I will come back to this aspect later in my judgment when I deal with the grounds of review.

[26] Review out of time

26.1 It is submitted that the review application was instituted out of the 180 days period stipulated in section 7 (1) (a) of PAJA.

26.2 This preliminary point was taken by all the respondents. It was argued that the applicant discovered the development at the MPE in July 2008. The Chief Director granted Kgaswane’s application for an environmental authorisation on 9 March 2009 and the MEC confirmed the environmental authorisation on appeal on the 19 January 2010. The applicant instituted the review application on 4 August 2010.

26.3 Mr Fatti contended that the applicant only became aware of the MEC’s decision on 5 February 2010 and that when the application for review was launched on 4 August 2010, it was within the 180 days contemplated in section 7 (1) (a) of PAJA

26.4 I need not elaborate on this issue raised but I agree with the applicant that the review application was not filed out of time.

[27] Lack of locus standi

27.1 It is submitted by Ntemane that the applicant, having approached the Court as a voluntary association in a public interest litigation under section 38 of the Constitution, has failed to indicate that it has a legitimate interest of some other persons under threat, and that in the context of environmental law, would be required to state the nature of the threat and how or why the environment will be adversely impacted upon if the Lodge is not demolished, and that such failure to demonstrate the resultant injury to the environment means that they have not succeeded in proving that they are truly acting in the public interest.

27.2 As with the previous situation referred to in paragraph [25] above, I will revert to this issue later in my judgment because it has a bearing on some of the grounds of review relied upon by the applicant.

[28] I will deal with the grounds of review ad seriatim as they are tabulated in paragraph [20] above. For ease of reference, I will first deal with the Legislative provisions regarding the control and management of environmental issues in the Republic of South Africa.

Legal Framework

[29] Section 24 of the Republic of South Africa Act 108 of 1996 (The Constitution) provides that:

“everyone has the right—

(a) to an environment that is not harmful to their health or wellbeing; 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.”

[30] Prior to the enactment of the Constitution, the control and management of the nature areas was transferred to the Department of Environmental Affairs in terms of the Environmental Conservation Act No 100 of 1982. This Act was repealed by the Environmental Conservation Act No 73 of 1989 (1989 Act), which Act provided for the controlled utilization and the effective protection of the environment and incidental matters thereto.

[31] It is common cause that an area comprising approximately 30,000 hectares within Magaliesberg was declared a natural area in terms of the Physical Planning Act No 88 of 1967. Under section 16 (1) of the 1989 Act, the Administrator, through the Administrator’s Notice 126 of 4 May 1994 declared and named the Magaliesberg area as a Magaliesberg Protected Natural Environment and on the same date per Notice No. 127, issued directions which prescribed that:

Subject to the provisions of any other Act, no person shall, in the area of the Magaliesberg Protected Natural Environment as defined in the schedule to Administrator’s Notice Number 126 of 4 May 1994 –

Erect any structure or building which is higher than 2 meters, or enlarge existing structures or buildings;

install any water/fuel, or mineral pipeline;

construct roads or erect power lines, canals, reservoirs, cableways or structures for radio and telecommunication purposes;

initiate any excavation of any nature;

construct any waste disposal site or dump any litter or waste;

introduce hiking trails for outdoor recreational purposes; or

make any name, message or sign by means of lime or point on the ground,

except by virtue of a written approval acquired on application from the Administrator or Chief Director : Nature and Environment Conservation and subject to the conditions set out in such approval.”

[32] Section 21 (1) of the 1989 Act authorised the Minister to identify certain activities which would have a potential detrimental effect on the environment which amongst others, include land use transformation (section 21 (2) (a). These listed activities were identified by the Minister and only published in Government Notice No 670 of 10 May 2002. Section 21 of the 1989 Act as well as the notices and regulations issued pursuant to this section were repealed by section 50 of the National Environmental Management Act No 107 of 1998 (NEMA). The long title of this Act defines its purpose as follows:

“To provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment,

institutions that will promote cooperative governance and procedures for co-ordinating environmental functions exercised by organs of state; to provide for certain aspects of the administration and enforcement of other environmental management laws; and to provide

for matters connected therewith.

[Long title amended by s. 3 of Act No 56 of 2002 and substituted by s 13 of Act No 46 of 2003.]”

[33] Section 2 of NEMA sets out principles which apply throughout the Republic of South Africa “to the actions of all organs of state that may significantly affect the environment.” I need not restate all the principles at this stage but will refer to some of them later in my judgment. However, section 2 (2) of NEMA provides that:

“Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.”

Furthermore, section 2 (3) of NEMA prescribes that: “Development must be socially, environmentally and economically sustainable.” Section 2 (4) of NEMA provides for the relevant factors which must be taken into consideration in compliance with the sustainable development.

[34] Section 24 (2) of NEMA provides that the Minister or MEC with the concurrence of the Minister may identify:

“(a) activities which may not commence without environmental authorisation from the competent authority;

(b) geographical areas based on environmental attributes, and as specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities may not commence without environmental authorisation from the competent authority;

(c) geographical areas based on environmental attributes, and specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities may be excluded from authorisation by the competent authority;

(d) activities contemplated in paragraphs (a) and (b) that may commence without an environmental authorisation, but that must comply with prescribed norms or standards:”

[35] Section 24 D (a) of NEMA prescribes that these activities or areas must be published in the relevant Gazette for the purpose of notification. Regulations promulgated under section 24 (2) & (5) of NEMA were promulgated in GN No R385 in the GG 28753 of 21 April 2006. These Regulations were repealed by GN No R33306 of 18 June 2010 with effect from 2 August 2010 being the date of the coming into effect of the Environmental Impact Assessment Regulations of 2006 (2006) EIA Regulations) which were published in the GG 33411 of 30 July 2010. Section 24 F (1) and (2) create offences that may be committed by a person who commences with an activity listed in section 24 (2) (a) or (b) without having obtained an environmental authorisation and section 24 F (4) prescribes the sanctions to be imposed for the offences committed.

[36] Regulation 8 of the 2006 EIA Regulations deals with the criteria to be taken into account by competent authorities when considering applications for environmental authorisations. Regulation 8 (b) (vi) requires the competent authority (in this case the Chief Director and the MEC), to take all relevant factors into account amongst others, “any information and maps compiled in terms of section 24 (3) of NEMA, including any environmental management framework compiled in terms of Part 1 of Chapter 8 of these Regulations, to the effect that such information, maps and frameworks are relevant to the application.”

[37] The status of the Magaliesberg Protected Natural Environment was preserved by the enactment of the National Protected Areas Act No 57 of 2003 (NEMPAA) as amended, which Act came into operation on 1 November 2004. The purpose of this Act is:

“for the protection and conservation of ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes and seascapes; for the establishment of a national register of all national, provincial and local protected areas; for the management of those areas in accordance with national norms and standards; for intergovernmental co-operation and public consultation in matters concerning protected areas; for the continued existence, governance and functions of South African National Parks; and for the matters in connection therewith.”

Section 28 (7) of this Act provides that:

“an area which was a protected environment immediately before this section took effect must for the purposes of this section be regarded

as having been declared as such in terms of this section.”

[38] Section 38 (1) of NEMPAA provides that the Minister in writing, may assign the management of any protected area listed in section 9 of this Act to a suitable person, organisation or organ of state while section 38 (2) prescribes what must be contained in the plan. Section 39 prescribes that the management authority must submit a management plan for the protected area to the Minister or MEC for approval. Section 41 (1) provides that the object of the management plan is to “ensure the protection, conservation and management of the protected area concerned in a manner which is consistent with the objectives” of NEMPAA and “for the purpose it was declared.”

[39] The Environmental Management Framework and Plan (EMF) of the MPE (the Draft document) dated October 2007 was drafted in accordance with section 41 of NEMPAA and only put into operation on 17 March 2009 as published in the North West Provincial Gazette dated 17 March 2009 per Notice 110 of 2009.

Submissions

Grounds of review: 20.1, 20.2 and 20.5 above

[40] Applicant contends that the MEC and the Chief Director failed to take the EMF for the MPE as well as the Rustenburg Spatial Development Framework (the Rustenburg SDF) into account when they took the decision to grant Kgaswane the section 24 G environmental authorisation and did therefore fail to take relevant considerations into account and also failed to comply with the mandatory and material procedures prescribed in Regulations 72 (1) and 8 (b) (vi) of the 2006 EIA Regulations. (See Grounds of review in 20.1 and 20.2 above) and further that the decision to grant the environmental authority is so unreasonable that no reasonable person would have so decided as contemplated in section 6 (2) (h) of PAJA. (See Ground of review in 20.5 above). These grounds of review are based on the premise that the EMF for the MPE ought to have been considered in granting the section 24 G authorisation application.

[41] The respondents contend that they did not take the provisions of the EMF of the MPA into account when they granted the section 24 G application because the EMF of the MPA was not yet applicable. When the Chief Director granted the environmental authorisation on the 9 March 2009, the EMF for the MPE was not in operation, however, when the decision of the Chief Director was confirmed by the MEC on 19 January 2010, the EMF was operational.

Analysis of Issues

[42] Regulation 72 (2) of the 2006 EIA Regulations provides that:

“(2) When an environmental management framework has been adopted, notice must be given in the Government Gazette or the official Gazette of the relevant province of —

(a) the adoption of the environmental management framework; and

(b) the place where the environmental management framework is available for public scrutiny.

Part 2: National and provincial guidelines (regs 73 – 76)”

[43] Regulation 72 (2) must be read with the following sections of the Interpretation Act No 33 of 1977:

Section 1 provides that:

“The provisions of this Act shall apply to the interpretation of every law as in this Act defined) in force, at or after the commencement of this Act in the Republic or in any portion thereof, and to the interpretation of all by-laws, rules, regulations or orders made

under the authority of any such law, unless there is something in the language or context of the law, by-law, rule, regulation or order repugnant to such provisions or unless the contrary intention appears therein.

[S.1 amended by s. 1 of Act 45 of 1961.]

Section 2 (c) .......... which provides that:

“in the case of laws, proclamations, regulations, notices or other documents published after the date of commencement of the Constitution and required under any law to be published in the Gazette or the Provincial Gazette or any other official Gazette, means the Government Gazette of the Republic or the relevant Provincial Gazette, according to whether the administration of the law concerned or, as the case may be, the law conferring the power to make or issue such a proclamation, regulation, notice or other document, vests in, or in a functionary of, the national government or a provincial government;

[Para. (c) added by s. 4 (b) of Act 201 of 1993.]

Section 13 (1) which prescribes that:

“The expression ‘commencement’ when used in any law and with reference thereto, means the day on which that law comes or came into operation, and that day shall, subject to the provisions of subsection (2) and unless some other day is fixed by or under the law for the coming into operation thereof, be the day, when the law was first published in the Gazette as a law.”

Section 14 (c) which provides that:

“to give notices; or

Section 16:

“When any by-law, regulation, rule or order is authorized by any law to be made by the President or a Minister or by the Premier of a province or a member of the Executive Council of a province or by any local authority, public body or person, with the approval of the President or a Minister, or of the Premier of a province or a member of the Executive Council of a province, such by-law, regulation, rule or order shall, subject to the provisions relative to the force and effect thereof in any law, be published in the Gazette”

[S. 16 amended by s. 5 of Act 45 of 1961 and substituted by s. 8 of Act 201 of 1993.]

Section 16 A (2):

“Any law or notice published in accordance with any rules so made, shall be deemed to have been published in the Gazette, and any law so published shall be deemed to have come into operation on the day on which it was first so published as a law, unless some other day is fixed by or under that law for the commencement thereof.”

[44] Fatti as well as applicant’s counsel dealt at length with the process contemplated in the EMF for the consideration of applications for environmental authorisation for activities conducted or taking place in the MPE. They referred to the three steps required in the application and interpretation of the activity framework of the EMF which are as follows:

“● Step 1: Locate activity on activity list:

The first step would be to locate the proposed on the activity list and determine if it is classified as “compatible”, “potentially compatible” or “incompatible”. All activities considered compatible could commence without an environmental authorization. Activities listed as “potentially compatible” and “non compatible” requires full EIA’s to be conducted. However, it is obvious that activities listed as “incompatible” will have a very limited chance of success and will most probably not be supported by the decision making authorities. Any activity not described in the attached table will also require a full EIA.

● Step 2 the location of the activity in relation to the sensitivity zones:

As already highlighted as a point of departure in Section 2, all areas within the MPE are considered sensitive. However, the different activities have also been evaluated in relation to the spatial location to provide a strategic level spatial perspective. The activities thus also need to be considered in relation to spatial distribution at various levels of environmental sensitivity.

● Step 3: Consider activity against strategic objectives:

The different activities have also been analyzed in terms of their alignment with the identified objectives for the MPE. Applications need to be considered against their contribution towards achieving certain objectives and/or their potential to negativity influence achieving the MPE objectives.”

[45] Counsel for the applicant laid emphasis on the fact that the EMF for the MPE ought to have been taken into account, based on the following:

that the decision by the Chief Director to approve Kgaswane’s section 24 G application on 9 March 2009 was made eight (8) days before the publication of the adoption of the EMF in the Goverment Gazettte on the 17 March 2009;

that the Chief Director and the MEC were all along aware of the content of the EMF long before it was adopted as aforesaid and even at the time when Kgaswane submitted its application for environmental authorization in terms of Section 24 G of NEMA, this document was already finalised in October 2007;

that the EMF was specifically designed to guide the Chief Director and the MEC in their consideration of applications such as the present section 24 G application;

that the EMF indicates, amongst others, that the area where the Lodge is located, is a zone marked “highly sensitive” on the Environmental Sensitivity Map, and further that the EMF for the MPE indicates the types of activities that would be undesirable in that particular area, which listed activities are identified and include hotels, public and private resorts and conference facilities; and

(e) further that in terms of Regulation 69 (1) (b) of the 2006 EIA Regulations the MEC was obliged to take the EMF into account in considering the section 24 G environmental authorisation application, and that failure to do so rendered the decision of the MEC reviewable in accordance with section 6 (2) (b) of PAJA.

[46] In considering the appeal, the MEC endorsed the view held by the Chief Director in granting the section 24 G authorization, by stating, amongst others, the following:

“It is acknowledged that the MPE is regarded as a protected environment as contemplated in section 28(7) of the NEMPAA. It should also however be noted that the legislation does not prohibit development in the MPE in toto, but that permission must be granted for development to take place. The required permission was obtained through the application for rectification in terms of section 24G of the NEMA. The decision maker in granting the said authorization in terms of section 24G of the NEMA, stated that the development is seen and is acknowledged to be in line with spirit of eco-tourism within the MPE. This would have been different if the development was an industrial or mining development. I therefore agree with Mr Moremi that the development is in eco-tourism in this area and that the authorization for this development was done in the light thereof.”

[47] Applicant’s counsel further accepted that the EMF for the MPE is not necessarily conclusive or decisive but rather “a tool to support the process of decision making,” but contends that it must at least have been given a proper and careful consideration before any deviation therefrom could be justified. He further submitted that the decision by the MEC that the development is in line with the “spirit of eco-tourism within the MPE” is inconsistent with the “development objectives, targets, indicators and management guidelines” set out in the EMF in that the development such as Kgaswane Lodge is regarded as having a negative impact or potentially negative impact on achieving the environmental objectives regarding resources, biodiversity, heritage resources, visual and aesthetic aspects, built and socio economic environment.

[48] It is correct in my view, that these steps must be fully considered in an application for an environmental authorisation in accordance with section 24 (1) where the activities listed in section 24 (2) of NEMA have not yet commenced. It is also reasonable to assume that had the applicant applied for the environmental authority prior to the commencement of the development, it would have behoved the Chief Director and the MEC on appeal, to take the factors referred to in the Act as well as the Regulations into account.

[49] In view of the provisions of Regulation 72 (2) referred to above, it can therefore not be expected of the Chief Director and the MEC to have taken the EMF of the MPE area into account when considering the ex post facto application, because the EMF was not yet applicable. I reiterate the fact that a Notice of the EMF document was published on the 17 March 2009 in the Provincial Gazette No 6613 Notice of 110 of 2009. This policy could not be applied prior to this date because it was not yet put into operation.

[50] Having decided that the EMF of the MPE area was not applicable when the Chief Director issued the section 24 G environmental authorisation, failure to consider the provisions thereof does not make the decision of the Chief Director reviewable as contemplated in section 6 (2) (e) (iii) of PAJA. As to whether or not the EMF of the MPE area should have been considered by the MEC on appeal because of the fact that it had become operational when he was seized with the appeal, is an issue that has to be considered by establishing whether or not the EMF for the MPE area could be applied retrospectively, in that regard.

[51] I have already made a finding that the EMF of the MPE area is not applicable to Kgaswane’s section 24 G application. For the same reasons stated above, (namely that failure to consider EMF of the MPE area by the Chief Director was not irregular), I find that it was not necessary for the MEC, in considering the section 24 G application, to apply the EMF of the MPE area. Circumstances would have been different had the development not yet commenced at the MPE area, because then it would have been expected of the MEC to consider the three steps required in the application of the activity framework of the EMF referred to in paragraph 40 above. The applicant can therefore not succeed on these grounds of review.

[52] Ground of review: Failure to consult with applicant (20.3 above)

Counsel for the applicant contended with regard to this ground of review that Kgaswane did not consult with it as a key interested and affected party during the application process for the environmental authorisation.

52.1 Ntemane states in his answering affidavit that the applicant was notified by Senna per letter which was dispatched per courier service and has attached proof thereof dated 10 August 2008, which fact is disputed by Fatti. However, the respondents argue that the applicant did have an opportunity to make further submissions on appeal because the appeal contemplated in section 43 of NEMA constitutes a so-called “wide appeal”. Fatti referred to section 43 (6) of NEMA which provides that:

“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 prescribe fee paid by the appellant, or any part thereof, be refunded.”.

52.2 He further submitted that this section must be read with Regulation 63 (2) (b) of the 2006 EIA Regulations, which prescribes that:

“the appeal lodged with the MEC must amongst others, be accompanied by

(i) a statement setting out the grounds of appeal;

(ii) supporting documentation which is referred to in the appeal and which is not in the possession of the Minister, MEC or delegated organ of the state.”

52.3 He further referred to the cases of Tickly v Johannes N O 1963 (2) SA 588 (T) at 590 F – 591 A, Nichol v Registrar of Pension Funds [2006] 1 All SA 589 (SCA) and Baxter, Administrative Law at p 261 and Hoexter, Administrative Law, p 66 – 67, in support of his submission that the kind of appeal to the MEC in this matter is a complete re-hearing or determination

on the merits with additional evidence being allowed.

[53] I agree with the submission that with regard to the appeal to the MEC, he was permitted by section 43 of NEMA to consider any other evidence or information not presented or even considered by the Chief Director when the section 24 G environmental authorisation was granted. However, this does not necessarily imply that in the circumstances, the MEC was obliged to consider and apply the EMF of the MPE area which was not in force and effect at the time the application was considered by the Chief Director. I am of the view that the applicant cannot succeed on this ground of review as he did have the opportunity to make submissions on appeal to the MEC.

[54] The fourth ground of review (20.4 above) is that the decision to grant the section 24 G authorisation was not rationally connected to the information presented before the MEC as contemplated in section 6 (2) (f) (ii) (cc) of PAJA.

54.1 It is contended by the applicant that the decision by both the Chief Director and the MEC is not rationally connected to the information presented to the Chief Director because of the following:

The report compiled by Lesekha Consulting in support of the section 24 G application contains inadequate and insufficient information which would have enabled the Chief Director and the MEC to make an informed decision;

the mitigating factors provided in the report are not site specific but are too generic to determine whether the implementation thereof will reduce the impact the Lodge will have on the environment;

the Rustenburg Spatial Development Framework was not adequately considered;

54.2 “The inadequate and insufficient information in the Lesekha Consulting Report”

54.2.1 In elaborating on the submission under (a) above, which I do not wish to restate in full, the applicant states that reference is made in the report to eight (8) features that do not exist on the site, namely reference to “quarry” and “wetland”, storm water channel, that the Lodge or the place where the Lodge is erected is next or close to residential areas, the presence of surrounding streets, undifferentiated surface deposits occurring in isolated localities, the presence of boreholes on the site, and municipal drainage, which all of those features are not present within the location of where the development is taking place.

54.2.2 Furthermore, reference is made to “storage of fuel on site” when they are not applicable to this site. This, according to the applicant is an indication that the Chief Director and the MEC have not applied their minds to the Lesekha Report when they granted Kgaswane the section 24 G environmental authority.

54.3 With regard to the contention under (b) above, (the rehabilitation and mitigation measures proposed) the applicant states that:

No reference is made as to when and how the rehabilitation of the disturbed area as well as the plantation of the indigenous vegetation were to take place;

(b) The specialist studies are inadequate in that the Heritage Impact Assessment conducted as well as the South African Heritage Resources Agency (SAHRA) report are not attached to the application and there is nothing to indicate that the authorization took into account the area of the development which has numerous historical places and events in its proximity;

(c) The Ecological Fauna and Flora Habitat Survey report dated September 2008 and compiled by R F Terblanche who is an ecologist, is allegedly flawed in that it did not include an assessment of the Lodge development on other species not necessarily having a “high conservation value”;

(d) No reference is made to the applicability of the National Environmental Management Biodiversity Act 10 of 2004 and the National Forests Act 84 of 1998 relating to the listed threatened and protected free species and other species;

(e) The Department ought to have commissioned a study regarding the unsubstantiated statements regarding soil, water, air and notice issues relating to the Kgaswane Lodge development;

(f) The mitigating measures stated in the Lesekha Consulting report relate to the preconstruction phase;

(g) Unsubstantiated or meaningless statements and recommendations regarding the impact of the Lodge and the rehabilitation measures have been proposed; and

(h) There are inconsistencies in the assessment of the impact of the Lodge on the environment.

54.4 The Rustenburg SDF not adequately considered

54.4.1 Applicant avers that the Lodge is not compatible with the Rustenburg SDF.

54.4.2 The Rustenburg SDF was prepared by the Urban Dynamics North West Inc which was appointed by the Rustenburg Local Municipality during June 2004 to prepare the SDF for the Rustenburg Municipal area, which areas included, the towns of Rustenburg, Boitekong, Phatsima, Hartebeesfontein, Monnakato, Marikana, Olifantsnek, Kroondal and Boschhoek. The Municipal and Local SDF were prepared in terms of the Municipal Systems Act No 32 of 2000.

54.4.3 In the Rustenburg SDF:

under 6.2.4: Tourism identifies the Kgaswane Mountain Reserve as an area which plays “an increasingly important role” in tourism within the Rustenburg Municipal Area, and which “offers many activities, including hiking trails, game viewing and sightseeing; and is stocked with several species of antelopes and has, due to a wide range of habitat types, a varied birdlife;”

In 8.3 under environment, it provides amongst others, that the objective is to “enforce the conservation guidelines for the Magaliesberg Natural Protected Area (MNPA), Kgaswane and Vaalkop Dam Nature Reserve;”

In 13.4.1 (a): (Protection of Mountaineous Areas). The Magalies Mountain Range is a Protected Natural Area and that the “Municipality must apply the legislation governing land use within such a legally protected area.” (p 133 of SDF);

In 13.5.7 : Tourism (p 149 of SDF)) : that the Kgaswane region which has a number of protected natural environments forms the basis of eco-tourism and (that) it is thus imperative that the natural environment is protected to ensure the long-term sustainability of the tourism industry in the Municipal Area.”

Applicant concludes by asserting that the Lesekha Consulting report provides insufficient information for the Chief Director to consider the impact of the Kgaswane Lodge development on the MPE and that it also demonstrates that the Chief Director did not properly apply his mind to the information provided to him in the report.

54.5 Ntemane avers that the Tourism Spatial Plan (TSP) for the Rustenburg Area states amongst others, that there is a demand for tourism and accommodation and that “Rustenburg should capitalise on existing tourist attractions within close proximity to the area, these attractions include the MPE”. (See paragraph 158 of his Answering Affidavit).

[55] The Chief Director deposed to the answering affidavit, which was also on behalf of the MEC, who has deposed to the confirmatory affidavit. The Chief Director avers that when he granted the section 24 G environmental authorisation, he was guided by the following:

(a) Principles laid down in the 2006 EIA Regulations, which behoved him to consider the detrimental effect that the Lodge may have had on the environment, and if any, whether or not there were mitigating factors that could be put in place to minimize or lessen the impact;

(b) The principles laid down in section 2 of NEMA, including the socio-economic effect brought about by the development as against the environmental protection and conservation of the area;

(c) He further contends that it is not sufficient for applicant to simply allege that the Lodge development is on “the MPE as a no go area” and therefore no development is permissible thereon, without further stating as to how that development would affect the environment to an extent that it cannot be mitigated. He further contends that if there was a total prohibition of any development on the MPE area there would have been no need for a section 24 G application to rectify the failure to obtain the environmental authorisation prior to the commencement of the development.

(d) The Chief Director further avers that he considered the application which was later confirmed by the MEC who not only took account of his (the Chief Director’s) recommendation, but in addition, visited the site with the applicant and other interested parties, and considered oral and written submissions from the applicant and other interested parties and gave his reasons for arriving at a decision.

[56] In his replying affidavit in response to the above issues raised in the answering affidavit, especially with regard to the applicant’s failure to identify factors which may have an impact on the environment, Fatti states the following:

56.1 (a) The MPE area is considered in national and provincial legislation to be a sensitive area and that “any development which involves the destruction of indigenous founa and flora cannot be equated with similar development which also involves the destruction of indigenous founa and flora but are situated in areas that are not considered as highly sensitive”; (See paragraph 32 of the replying affidavit)

56.2 that if the Lodge is not demolished, “it will set a precedent and encourage other development to follow Kgaswane’s example and commence construction activities without any authorisation in the belief now confirmed in precedent, that they will obtain ex post facto authorisation for any operations commenced unlawfully”; I must here pause and remark that this is mere conjecture and speculation which cannot be relied upon as fact.

56.3 That there is “tremendous pressure for development in the Rustenburg area as well as in many other places along the Magaliesberg range. This is the harm, which may well result if construction of the Lodge is allowed to continue and is ultimately allowed to remain, which the MPA wishes to avert through the launch of this application. (See paragraph 36 of the Replying Affidavit);

56.4 He further states that there are two categories of harm to the MPE area which necessitated this application; namely the potential physical harm to the MPE area (which is what is stated in 56.1 to 56.3 above and more legal in nature (par. 38 replying affidavit);

56.5 Fatti also contends that the landscaping which Kgaswane plans for the site, which involves the planting of trees that are not indigenous to the area, may have an adverse impact on the environment;

56.6 That as far as the rehabilitation of the area is concerned, earthworks were conducted for the construction of water reservoir which construction Kgaswane has abandoned but has nevertheless resulted in the “destruction of indigenous vegetation” that was necessitated through the unnecessary planned construction.

[57] In order to determine whether or not the decision arrived at by the Chief Director and the MEC was rationally connected to the information presented before the MEC by Kgaswane, it is necessary to restate the provisions of NEMA regarding the “Intergrated Environmental Management”.

[58] Section 23 of NEMA provides that:

“(2) The general objectives of the environmental management is to –

(a) promote the integration of the principles of environmental management set out in section 2 into the making of all decisions which may have a significant effect on the environment;

(b) identify, predict and evaluate the actual and potential impact on the environment, socio-economic conditions and cultural heritage, the risks and consequences and alternatives and options for mitigation of activities, with a view to minimising negative impacts, maximising benefits, and promoting compliance with the principles of environmental management set out in section 2;

(c) ensure that the effects of activities on the environment receive adequate consideration before actions are taken in connection with them;

(d) ensure adequate and appropriate opportunity for public participation in decisions that may affect the environment;

(e) ensure the consideration of environmental attributes in management and decision-making which may have a significant effect on the environment; and

(f) identify and employ the modes of environmental management best suited to ensuring that a particular activity is pursued in accordance with the principles of environmental management set out in section 2.”

[59] Section 24O of NEMA which prescribes the criteria and factors to be taken into account when considering environmental authorisation, namely:

“(1) if the Minister, the Minister of Minerals and Energy, an MEC or identified competent authority considers an application for an environmental authorisation, the Minister, Minister of Minerals and Energy, MEC or competent authority must –

(a) comply with this Act;

take into account all relevant factors, which may include –

any pollution, environmental impacts or environmental degradation likely to be caused if the application is approved or refused;

(ii) measures that may be taken –

(aa) to protect the environment from harm as a result of the activity which is the subject of the application; and

(bb) to prevent, control, abate or mitigate any pollution, substantially detrimental environmental al impacts or environmental degradation;

(iii) the ability of the applicant to implement mitigation measures and to comply with any conditions subject to which the application may be granted;

(iv) where appropriate, any feasible and reasonable alternatives to the activity which is the subject of the application and any feasible and reasonable modifications or changes to the activity that may minimise harm to the environment;

(v) any information and maps compiled in terms of section 24 (3), including any prescribed environmental management frame-works, to the extent that such information, maps and frame-works are relevant to the application;

(vi) information contained in the application form, reports, comments, representations and other documents submitted in terms of this Act to the Minister, Minister of Minerals and Energy, MEC or competent authority in connection with the application;

(vii) any comments received from organs of state that have jurisdiction over any aspect of the activity which is the subject of the application; and

(viii) any guidelines, departmental policies and decision making instrument that have been developed or any other information in the possession of the competent authority that are relevant to the application; and

take into account the comments of any organs of state charged with the administration of any law which relates to the activity in question.”

[60] Section 24 G of NEMA provides that:

“Rectification of unlawful commencement of activity —

On application by a person who has committed an offence in terms of section 24F (2) (a) the Minister, Minister of Minerals and Energy or MEC concerned, as the case may be, may direct the applicant to—

Compile a report containing—

an assessment of the nature, extent, duration and significance of the consequences for or impacts on the environment of the activity, including the cumulative effects;

a description of mitigation measures undertaken or to be undertaken in respect of the consequences for or impacts on the environment of the activity;

a description of the public participation process followed during the course of compiling the report, including all comments received from interested and affected parties and an indication of how issues raised have been addressed;

an environmental management programme; and

provide such other information or undertake such further studies as the Minister or MEC, as the case may be, may deem necessary.

The Minister or MEC concerned must consider any reports or information submitted in terms of subsection (1) and thereafter may—

direct the person to cease the activity, either wholly or in part, and to rehabilitate the environment within such time and subject to such conditions as the Minister or MEC may deem necessary; or

issue an environmental authorisation to such person subject to such conditions as the Minister or MEC may deem necessary.

(2A) A person contemplated in subsection (1) must pay an administrative fine, which may not exceed R1 million and which must be determined by the competent authority, before the Minister or MEC concerned may act in terms of subsection (2) (a) or (b).

A person who fails to comply with a directive contemplated in subsection (2) (a) or who contravenes or fails to comply with a condition contemplated in subsection (2) (b) is guilty of an offence and liable on conviction to a penalty contemplated in section 24F (4).

[S. 24G inserted by s. 3 of Act No 8 of 2004 and substituted by s 6 of Act No 62 of 2008.]”

[61] The Chief Director and the MEC state that although they did not take the EMF of the MPE area into account when they considered the section 24 G application, they did however consider submissions by the applicant’s attorneys Ms T Charters, the contents of the project file, the facts established and oral submissions made during the site visit on 14 September 2009, a meeting held with Prof Fatti of the applicant together with Mr Ntemane on 11 December 2009, the Constitution, NEMA, NEMPAA, the Administrator’s Notice No 126 of May 1994 and PAJA.

[62] In response to the criticism about the Lesekha Consulting report, in his reasons for rectifying the Chief Director’s decision to grant the section 24 G authorisation directed to the applicant, the MEC states that he found the information submitted as well as the mitigating factors and the Environmental Management Plan proposed, to be sufficient and adequate. The Chief Director in his report for granting the section 24 G authorisation states that he considered the following key factors:

“(a) Environmental issues identified and mitigation measures of environmental impacts.

(b) the information contained in the Section 24G Report dated October 2008 (including the Ecological Report, Visual impact study and other related documents),

The requirements of relevant government legislation, policies and guidelines, including section 2 of the National Environment Management Act (“NEMA”) have been considered.

The legal and procedural requirements have been complied with and the information contained in the documents is to the satisfaction of this Department.”

[63] With regard to his findings, the Chief Director states the following:

“After consideration of the information and factors listed above, the Department made the following findings:

The Public participation Process was conducted adequately.

The legal and procedural requirements have been complied with and the information contained in the documents is to the satisfaction of the Department.

The mitigation measures proposed in the Environmental Management Plan dated October 2077708 are acceptable and practical for implementation.

It is envisaged that, should the conditions stipulated in this authorisation be complied with, the negative, environmental impacts of this activity will be minimised.”

[64] The Chief Director granted the authorisation subject to certain conditions which were stipulated under standard and specific conditions which prescribe about twenty four (24) directions which Kgaswane had to comply with, including the directive that an environmental manager/control officer be appointed within 3 months of the section 24 G authorisation to ensure that the mitigation measures are complied with as well as directing that the Environmental Management Plan (EMP) for the development be updated to include the conditions of the section 24 G authorisation. The Department has also reserved its right to monitor and audit the activity to ensure compliance with legislation and conditions stipulated in the authorisation.

[65] The applicant seems to ignore the conditions imposed by the Department as well as the monitoring process proposed, and prefers to lay emphasis on the fact that the MPE area is an environmentally sensitive area and that severe restrictions have been imposed on any development within the area, without taking note of the principles of environmental management which require that the impact be assessed and (as Ntemane in his answering affidavit contends) that mitigation measures be implemented to reduce adverse impacts.

[66] Fatti further states in his replying affidavit that “once again I stand by what I said in the founding affidavit and maintain that many of the mitigating measures proposed in the Lesekha Consulting report required remedial action prior to construction commencing. It is clearly late to implement these measures”. (emphasis added).

[67] The respondents state that the Lesekha Report and other factors mentioned above, have been fully considered and contend that they have satisfied themselves that the provisions of sections 23 and 24O of NEMA have been observed and complied with. The MEC further stated amongst others, in his reasons for dismissing the appeal as stated in paragraph [19] above, that the “development is seen and acknowledged to be in line with the spirit of eco-tourism within the MPE.

[68] The aspect of eco-tourism is one factor that must be considered in terms of section 24 (b) (iii) of the Constitution which enjoins the Legislature to put legislative and other measures in place that will “secure ecologically sustainable development and use of natural resource while promoting justifiable economic and social development”. (emphasis added)

[69] The legislative measure put in place in that regard is section 2 (2) of NEMA which provides that environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and their social interest equitably”. These factors must not be considered not in isolation but rather a balance maintained in granting the environmental authority. Section 2 (3) of NEMA prescribes that the development “must be socially environmentally and economically sustainable”.

[70] The respondents raised the issue that Mr Fatti is not a qualified expert on environmental issues, and that the reports filed by Kgaswane’s specialist on environmental protection and conservation are of a highly specialised and technical nature.

[71] In his response, Mr Fatti states that the Lesekha Consulting report is not of an expert nature, and avers that if the reports are regarded as of an expert nature he has cured the defect by filing an additional confirmatory affidavit to his replying affidavit, that of Vincent Gracy Carruthers (Carruthers), who is an environmental consultant.

[72] I agree with the submissions raised on behalf of Ntemane that Mr Fatti cannot express an opinion on the technical issues referred to in the Lesekha Consulting Report since he is not an expert himself. Caruthers’ affidavit does not advance Mr Fattis’ case any further because it is trite that the introduction of a new cause of action or to supplement the affidavit by adducing supporting facts in a replying affidavit is irregular and cannot be allowed. See Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA); National Council of Societies for the Prevention of Cruelty to Animals v Openshow [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at 349A-B; and Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA). Furthermore, as an expert, he has not conducted any independent study or assessment of the environmental impact of the Lodge on the MPE area.

[73] It is common cause that Kgaswane filed a report envisaged in section 24 G (1) compiled by Lesekha Consulting on its behalf. Another report compiled by R F Terblanche, who is an ecologist was filed with the section 24 G application. Their research and findings regarding the effect or impact of the development on the environment are of a technical nature.

[74] The applicant, in its criticism of the Lesekha Consulting Report as well as the decision taken by the Chief Director and the MEC, does not refer to any specific defects in the development which may negatively impact on the environment in the MPE area. Furthermore, the applicant does not indicate the environmental effects that the development has on the MPE area and the kind of rehabilitation

measures that should be undertaken by Kgaswane or the Chief Director and the MEC in the circumstances.

[75] In his answering affidavit, Ntemane states in paragraph 18 of his answering affidavit, that “. . . the provincial government’s challenge . . . is to strike a balance between environmental protection and conservation on the one hand and growing the economy, by providing industry and employment opportunities, on the others. Eco-tourism strikes a perfect balance. The Lodge, as an eco-tourism resort, represents a meaningful attempt to stimulate economic growth in the Magaliesberg area whilst, at the same time, being sensitive to environmental concerns”.

[76] These sentiments were also expressed by the Chief Director and the MEC when they granted the ex post facto environmental authorisation to Kgaswane, as stated in paragraph [19] above. Furthermore, in the Rustenburg SDF, Kgaswane Mountain Reserve has been identified as an area which plays an important role in tourism within the Rustenburg Municipal area.

[77] Fatti contends that the applicant has a right to protect the environment as provided for in section 24 of the Constitution and further that the applicant is entitled to a just administrative action as contemplated in section 33 of the Constitution, and seems to suggest that the Chief Director and the MEC have either not taken heed of the applicant’s objections and further that they failed to apply their minds to the Lesekha Consulting report when they granted Kgaswane the section 24G environmental authorisation.

[78] In deciding whether or not the Chief Director and the MEC’s decisions were lawful in granting the section 24G environmental authorisation to Kgaswane, it is necessary to refer to the following cases of the Supreme Court of Appeal and the Constitutional Court regarding the process to be applied by a decision-maker in exercising its power to grant the authorisation.

[79] In Walele v City of Cape Town and Others [2008] ZACC 11; 2008 (6) SA 129 (CC), the applicant sought an order reviewing and setting aside the respondent’s approval of building plans submitted for

approval by the second respondent on behalf of the fifth respondent. The allegations were that the municipality had not complied with the provisions of section 7 of the Building Standards Act 103 of 1977 when it approved the building plans.

[80] The Court in paragraph [55] of the Walele case stated that the appropriate test in determining the process to be applied by the decision-maker (in this case the municipality) in exercising its power to approve building plans, was that:

“............. the decision-maker must be satisfied of two things before granting approval. The first is that he or she must be satisfied that there is compliance with the necessary legal requirements. Secondly, he or she must also be satisfied that none of the disqualifying factors in s 7 (1) (b) (ii) will be triggered by the erection of the building concerned. This is so because any approval of plans facilitating the erection of a building which devalues neighbouring properties, for example, is liable to be set aside on review. An approval can be set aside on this ground irrespective of whether or not the decision-maker was satisfied that none of the disqualifying factors would be triggered. All that is needed for an applicant to succeed is to prove to the satisfaction of the reviewing court that the erection of the building

will reduce the value of his or her property. The legislature could not have intended to authorise an invalid exercise of power. In order to avoid this consequence, the decision-maker must at least be satisfied that none of the invalidating factors exist before he or she grants approval. This interpretation is consistent with the obligation to promote the spirit, purport and objects of the Bill of Rights. It demonstrates

that it is not only the landowner’s right of ownership which must be taken into account, but also the rights of owners of

neighbouring properties which may be adversely affected by the erection of a building authorised by the approval of the plans in

circumstances where they were not afforded a hearing. The section, if construed in this way, strikes the right balance between the landowner’s entitlement to exercise his or her right of ownership over property and the right of owners of neighbouring

properties. The interpretation promotes the property rights of the landowner and those of its neighbours.” (emphasis added)

[81] Furthermore, Camps Bay Ratepayers’ and Residents’ Association v Harrison 2011 (4) SA 42 (CC) was an appeal from the Supreme Court of Appeal (SCA). The ground of review in the High Court was that the decision taken by the decision-maker was procedurally unfair in that the decision-maker did not have a proper appreciation of their objections. The applicants’ procedural objection, which was stated in their affidavits before the High Court was that the decision-maker

“. . . did not have their letters before him, but merely relied on a list of the principal grounds of objection in the memorandum of Mr Moir, which, according to the applicants, proved to be both inaccurate and wholly inadequate. The affidavits then proceeded to develop this theme by analysing the contents of the letters in great detail, and then comparing them with the contents of Mr Moir’s memorandum. What also appears clearly from applicants’ affidavits was that, even with regard to their procedural grounds, their focus was on the recurring theme, that the proposed building would contravene the height restriction imposed by the Zoning Scheme Regulations, and the setback requirements in clause D (d) of the title deed conditions.” (See par.16 on p.50 of this judgment)

[82] In this case, the Supreme Court of Appeal (SCA) had adopted the same test it had applied in True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the Court in the latter case, deviated from the test applied by the Constitutional Court in the Walele case supra. The difference in the approach adopted by these two Courts is clearly adumbrated by Brand AJ in paragraph [33] of Camps Bay Ratepayers’ and Residents’ Association v Harrison supra as follows:

“Crucial for the evaluation of the applicants’ contentions rooted in s 7 (1) is the appreciation that the difference between the judgment of this court in Walele and the Supreme Court of Appeal in True Motives is strictly confined to to the interpretation of s 7 (1) (b) (ii). What difference comes down to is this: according to Walele the local authority cannot approve plans unless it positively satisfies itself that the proposed building will not trigger any of the disqualifying factors referred to in s 7 (1) (b) (ii). If in doubt, the local authority must consequently refuse to approve the plans. According to True Motives, on the other hand, a local authority is bound to approve plans, unless it is satisfied that the proposed building will probably, or in fact, trigger one of the disqualifying factors referred to in s 7 (1) (b) (ii). If in doubt, the building authority must consequently approve the plans. The practical implication of the difference appears to be this: under Walele it is the applicant for approval of the plans who must satisfy the local authority that the disqualifying factors do not exist. Under True Motives it is the objector to the plans who must satisfy the local authority about the positive existence of the disqualifying factors. Moreover, while Walele imposes an obligation on the local authority to ensure the absence of the disqualifying factors, no such duty arises from the True Motives.” (emphasis added)

[83] The grounds of review in the Camps Bay case referred to above, are almost similar to the grounds of review relied upon by the applicant in the present matter. In the present case, the allegation is that the respondents did not apply the provisions of the EMF of the MPE area and other legal instruments as well as that the decision made was not rationally connected to the information presented to them. I will therefore apply the test applied in the Walele case in determining whether or not the decision by the Chief Director and the MEC to grant the environmental authorisation was rationally connected to the information presented before them or the reasons given for the decision by the MEC as contemplated in section 6 (2) (f) (iii) and (dd) of PAJA.

[84] In summarising the provisions of NEMA referred to in paragraphs [58] to [60] above, there was an obligation on the Chief Director and the MEC to establish and satisfy themselves that:

(i) Kgaswane has compiled a report containing the issues referred to in section 24 G 1(a) to (b);

if such report was compiled (in this case the report compiled by Lesekha Consulting on behalf of Kgaswane), whether or not there are factors that would have an impact on the environment occasioned by the development of the Lodge in the MPE areas;

such impact on the environment can be mitigated as suggested in the report by Lesekha Consulting;

whether any public participation process was followed by Lesekha Consulting soliciting comments on the impact of the development;

where necessary, call for more information or further study from Lesekha Consulting regarding the environmental impact occasioned by the development.

[85] I am satisfied that the Chief Director and the MEC have considered all the relevant factors necessary for the purpose of granting the environmental authorisation. The applicant has not succeeded in persuading the Court that there are valid grounds to demolish the Lodge erected in the MPE area.

Costs

[86] I have already alluded to Fatti’s assertion that the applicant was entitled to bring this application on the basis of section 38 of the Constitution which confers it the right to enforce its right in the Bill of Rights. Fatti further contends that it is entitled to a right to a77 just administrative action contemplated in section 33 of the Constitution and the right to have the environment protected as contemplated in section 24 of the Constitution read with section 32 of NEMA. Fatti contends that as a result, no order of costs should be made against the applicant.

[87] Section 32 (2) of NEMA provides that:

“A court may decide not to award costs against a person who, or group of persons which, fails to secure the relief sought in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, or of any provision of a specific environmental management Act, or of any other statutory provision concerned with the protection of the environment or the use of natural resources, if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought”.

[88] In the notice of motion, the applicant seeks an order, amongst others, setting aside the section 24G environmental authorisation as well as directing Ntemane to demolish the Kgaswane Lodge.

[89] Furthermore, in his founding affidavit on urgency, Fatti states the following: “As mentioned above, when I first visited the site during October 2008, construction of the Kgaswane Country Lodge was well under way, with several buildings nearing completion”.

[90] Fatti later states in his replying affidavit that: “It is also clear that even at the time this application was launched (on 4 August 2010) construction of the Lodge was not complete and further work was to be undertaken”. He further states in paragraph 25 that “It is not the MPA’s case that no “buildings are completed but rather further construction is still to take place. It is this further construction that the MPA seeks to interdict pending the finalisation of the review application”.

[91] The applicant did not succeed in its application for an interdict restraining Kgaswane from continuing with the construction activities at the MPE area, which construction was almost 98% complete. In order to persuade the court to grant applicant the interdict, Fatti stated the following in his founding affidavit in paragraph 17 thereof: “. . . the applicant contends that it is entitled to interdictory relief on the basis that the relief the applicant seeks in the review (namely the demolition of the Lodge) will become difficult if not impossible to attain if construction activities are permitted to continue to completion”. Furthermore, he states in paragraph 126 that “… I am advised that the general reluctance of Courts to order the demolition of completed buildings (which is likely to occur in this matter if the third respondent is not prevented from continuing construction of the lodge pending the outcome of the review application, satisfies the requirement of apprehension of irreparable harm”. Fatti even adds in his replying affidavit (par.42 thereof) that “This is even more so if the Lodge commences trading before the review application is finalised”.

[92] I have already alluded to the fact that the environment at the development site was already affected and Fatti is alive to the fact that the mitigating measures suggested in the Lesekha Consulting report, relate to the preconstruction phase. It would have been expected of the applicant, having not succeeded in stopping the further construction and other development at Kgaswane as at 30 September 2010, not to proceed with the review application. But despite being alive to the imminent probability that it may not succeed in having the Lodge demolished, the applicant nevertheless proceeded with the review application.

[93] The Chief Director, in the section 24G environmental authorisation, stipulated certain conditions and directives which are aimed at ensuring that the mitigating measures suggested are complied with. He even directed that the EMP for the development be updated to include the conditions of the section 24G authorisation.

[94] The suggested processes referred to above, should be ongoing and there is nothing to suggest on the part of the applicant, that any of the proposed remedial or mitigating factors have either been breached by Kgaswane or that the Department is not monitoring the activity to ensure compliance with legislation and conditions stipulated in the environmental authorisation.

[95] The review application was, in the circumstances, unnecessary and could have been avoided had the applicant considered the fact that prospects of succeeding in having the Lodge demolished were very limited in the circumstances. Fatti was correct by stating in paragraph 127 of his founding affidavit that “. . . the review application may be refused as the issues with which it is concerned may have been rendered academic”.

[96] The fact that at the time when the applicant proceeded with the review application on the 4 August 2011, the construction of the Lodge was almost complete, should have prompted the applicant to consider the probabilities expressed by Fatti on its behalf, that considering the disproportionate nature of the relief sought and the balance of convenience, it was highly improbable that the order to demolish the Lodge would succeed.

[97] In Oudekraal Estate (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at par. [27] at 242 A, the court held that “until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked”. In the present case, I have found that the decision by the Chief Director and the MEC was lawful.

[98] I have already alluded to the fact that the applicant was aware of the remote possibility of being granted an order for the demolition of the Lodge. Applicant was aware, or ought to have been aware that when it was unsuccessful in the urgent application to have the development of the Lodge suspended, the consequences thereof were that Kgaswane would continue with the construction and finalisation of its building project. When the application for review was eventually enrolled for hearing on the 4 August 2011, the Lodge was ready for occupation.

[99] Section 32 (2) of NEMA gives the court a discretion to decide not to award costs against an applicant if the court is of the opinion that he or she “acted reasonably out of concern for the public interest or the interest of protecting the environment and had made due effort to use other means reasonably available for obtaining the relief sought”. In this case I am of the view that the applicants acted unreasonably by approaching the MEC and the Court with a demand for the destruction or demolition of the Lodge without seeking other avenues or suggesting other effective mitigating measures or seriously considering those mitigating measures suggested by both Lesekha Consulting and the Chief Director. The applicant turned a blind eye to the directives and conditions determined by the Chief Director and issued in accordance with section 24G (2) of NEMA. I am of the view that the costs must in this instance follow the result.

[100] When the application in PART A of the Notice of Motion was dismissed by Gura J, costs were reserved to be determined in the application for review.

Order

I accordingly make the following order:

The application for review is dismissed with costs, such costs to include costs of two counsel as well as costs reserved on the 30 September 2010 in respect of the order sought in PART A of the Notice of Motion.

__________________

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 4th August 2011

DATE OF JUDGMENT: 15th December 2011

COUNSEL FOR APPLICANT: Adv. P. Kennedy SC & Adv. P. Lazarus

COUNSEL FOR THE 1ST & 2ND RESPONDENTS: Adv. W. Mokhari SC & Adv. H. Masilo

ATTORNEYS FOR THE APPLICANT: Minchin & Kelly

ATTORNEYS FOR THE RESPONDENTS: State Attorney

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