Magaliesburg Protection Association v MEC: Department of Agriculture, Conservation, Environment and Rural Development, North West Provincial Government and Others (1776/2010) [2012] ZANWHC 8 (29 March 2012)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 1776/2010

In the matter between:

MAGALIESBURG PROTECTION

ASSOCIATION …................................................................APPLICANT

and

MEC: DEPARTMENT OF AGRICULTURE,

CONSERVATION, ENVIRONMENT AND RURAL DEVELOPMENT NORTH

PROVINCIAL GOVERNMENT …..................FIRST RESPONDENT

CHIEF DIRECTOR:

ENVIRONMENTAL

DEPARTMENT OF AGRICULTURE,

CONSERVATION, ENVIRONMENT AND

RURAL DEVELOPMENT NORTH WEST

RPOVINCIAL GOVERNMENT …..............SECOND RESPONDENT

KGASWANE COUNTRY LODGE

(PTY) LTD ….......................................................THIRT RESPONDENT

J U D G M E N T

LEEUW JP:

Introduction

[1] This is an application for leave to appeal to the Supreme Court of Appeal of the High Court of South Africa (SCA) alternatively to the full bench of this Court, against my whole judgment, including costs, handed down on 15 December 2011.

[2] There is a further application for condonation for the late filing of the application herein, which is not opposed by the respondents and was accordingly granted by this Court.

[3] The application for leave to appeal is opposed by the first and second respondents as well as the third respondent. The first and second respondents did not file any notice to oppose however, at the hearing of this application, Advocate Masilo appeared and argued the matter on their behalf.

Grounds of appeal

[4] The grounds of appeal are restated hereunder as follows:

“1. The learned judge erred by not taking cognisance of the supplementary founding affidavit filed by the applicant on 13 October 2010 on the basis that the affidavit was filed without the applicant having obtained the leave of the court to do so. The affidavit was filed pursuant to Rule 53(4) of the Uniform Rules of the above Honourable Court. Leave of the court was thus not required for the filing of the affidavit and the learned judge should not have disregarded it on this basis;

2. The learned judge erred in finding that the second respondent (“the Chief Director”) was not obliged to take the Environmental Management Framework for the Magaliesberg Protected Environment (“the EMF”) into account in considering the third respondent’s (“Kgaswane”) application for environmental authorisation for the continued construction of the Kgaswane Country Lodge, situated within the boundary of the Magaliesberg Protected Environment. The learned judge based her finding on the fact that at the time the Chief Director made his decision, the EMF had not yet been published in the Provincial Gazette and put into operation. The learned judge should have found that notwithstanding that the EMF had not yet been published it was nevertheless a relevant consideration which the Chief Director should have taken into account in the consideration of Kgaswane’s application. This is manifest from the fact that the EMF was the initiative of the Chief Director and MEC’s department with the specific purpose of guiding decision making in relation to applications for developments within the Magaliesberg Protected Environment such as the Kgaswane Country Lodge;

3. The learned judge erred in finding that the first respondent (the MEC) was not obliged to take the EMF into account in considering the applicant’s appeal against the decision of the Chief Director to grant environmental authorisation to Kgaswane for the continued construction of the Kgaswane Country Lodge. Although the EMF had been published at the time the MEC made his decision, the learned judge ruled that since it was not in operation at the time the Chief Director made his decision and the Kgaswane Country Lodge development had commenced, the MEC was not required to take the EMF into account in making his decision on appeal. The learned judge should have found that since the applicant’s appeal constituted a re-hearing of the matter the MEC was required to consider the appeal on the basis of the law as it was at that date and accordingly the MEC was required to take the EMF into account in making his decision on the applicant’s appeal. Furthermore, the learned judge should have found that the EMF is equally applicable to applications for environmental authorisation made prior to the commencement of developments that require authorisation and applications for ex post facto environmental authorisation;

4. The learned judge erred in finding that the fact that the applicant was given the opportunity to make submissions on appeal to the MEC rendered Kgaswane’s application for environmental authorisation for the continued construction of the Kgaswane Country

Lodge and the subsequent grant of such authorisation procedurally fair. The learned judge should have found that procedural fairness

and the applicable legislation required that the applicant be afforded an opportunity to make submissions in regard to applications

for environmental authorisation at both the application stage and the appeal stage. Accordingly the learned judge should have found that the fact that the applicant was given the opportunity to make submissions on appeal to the MEC did not cure the inadequate

consultation process followed by Kgaswane and its environmental consultants (Lesekha Consulting) in the application for environment

authorisation and accordingly did not render the application for and subsequent grant of environmental authorisation procedurally fair.

5. The learned judge erred in finding that the Chief Director and the MEC considered all relevant factors necessary for the purpose of granting environmental authorisation. In particular:

5.1 the learned judge erred in finding that the environmental assessment report compiled on behalf of Kgaswane by Lesekha Consulting contained sufficient detail and information to enable the Chief Director and MEC to determine whether the development of the Kgaswane Country Lodge will have an acceptable or unacceptable impact on the environment within the Magaliesberg Protected Environment. In reaching this conclusion the learned judge erred in dismissing the views expressed by the applicant’s Chairman Prof Fatti on the basis that Prof Fatti is not an environmental expert. The learned judge further erred in dismissing the evidence of the applicant’s expert Mr Caruthers on the basis that Mr Caruthers did not conduct an independent study of the environmental impact of the Lodge and that Mr Caruthers’s evidence attempted to introduce a new cause of action in reply. The learned judge should have found that the criticisms levelled at the report compiled by Lesekha Consulting by Prof Fatti were not of an expert nature but were legitimately based on Prof Fatti’s knowledge (as a layman) of the area in which the Kgaswane Country Lodge is situated and significantly undermine the credibility of the report. The leaned judge ought further to have found that Mr Carruther’s evaluation of the report compiled by Lesekha Consulting did not require any independent study of the environmental impact of the Lodge but was justified on the basis of Mr Carruthers’ expertise as an environmental assessment practitioner. Furthermore

the learned judge ought to have found that Mr Carruthers’ evidence was introduced to respond to the criticisms levelled at the views expressed by Prof. Fatti and accordingly did not seek to introduce a new cause of action in reply. In short, the learned judge erred in taking the Chief Director and MEC’s assessment of the adequacy of the Lesekha Consulting report(together with the conditions attached to the authorisation granted to Kgaswane, which were based on the mitigation measures proposed in the report) as sufficient evidence of compliance with the relevant legislative requirements without considering the substance of the applicant’s

criticisms of the report itself (including the mitigation measures proposed in the report).

5.2 The learned judge erred in finding that the construction of the Kgaswane Country Lodge is compatible with the Rustenburg Spatial Development Framework (“Rustenburg SDF”). The basis for the learned judge’s finding in this regard was that the Rustenburg SDF identifies the Kgaswane Mountain Reserve (which falls within the Magaliesberg Protected Environment) as an area which plays an important role in tourism within the Rustenburg Municipal area. Whilst the Rustenburg SDF certainly considers the

Magaliesberg a potential tourism and recreational zone, the learned judge erred in concluding that developments such as the Kgaswane

Country Lodge are compatible within areas recognised in the Rustenburg SDF (and in the relevant Local Spatial Development Frameworks – in particular the Olifantsnek Local Spatial Development Framework) as having specific ecological importance.

6. The learned judge erred in dismissing the application for review with costs and for ordering such costs to include the costs reserved in respect of the interdict application heard on 30 September 2010. This costs order is premised on the learned judge’s

view that the applicant acted unreasonably in persisting with the review application notwithstanding having been unsuccessful in

interdicting the further construction of the Kgaswane Country Lodge at the hearing on 30 September 2010. The learned judge further found that the applicant acted unreasonably by seeking, in the review application, the demolition of the Lodge without seeking other avenues or suggesting other effective mitigation measures or seriously considering the mitigation measures proposed by Lesekha

Consulting or included in the conditions determined by the Chief Director. The demolition of the Lodge was one of eight prayers for relief sought by the applicant on review. The primary for relief sought by the applicant was the review and setting aside of the decisions of the Chief Director and the MEC in regard to the granting of environmental authorisation for the Kgaswane Country Lodge.

7. The learned judge erred in postulating that the applicant acted unreasonably merely because it was aware that the prospect of success in obtaining relief in relation to one prayer sought in the review application was limited. The learned judge further erred in failing to take into account the fact that the applicant, before launching these proceedings endeavoured to enlist the assistance of the Chief Director and MEC’s department in taking action against the illegal construction of the Lodge. As regards the costs order in respect of the interdict application, the learned judge erred in failing to take into account that the application was prompted by the advice received by the applicant from an official from the Chief Director and MEC’s department in July 2010 that only 30% of the construction of the Kgaswane Country Lodge had been completed. In granting the Order of costs the learned

judge failed to take into account the fact that the applicant is a voluntary association, established in 1975 with the sole objective to foster and encourage the conservation and protection of the Magaliesberg mountain range and which has been collaborating with the conservation authorities in the monitoring and conservation of the mountain from the beginning through to its present status as a protected environment. Against this background the learned judge should have found that the applicant acted reasonably in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought and decided not to award costs against the applicant notwithstanding the dismissal of the applicant’s applications.

8. Consequently, the learned judge erred in dismissing the applicant’s application with costs and ought to have granted the application in terms of the prayers in the notice of motion.”

[5] The aforementioned grounds were summarised by counsel for the applicant Adv Lazarus in his heads of argument as follows:

The court disregarded the applicant’s supplementary founding affidavit deposed to by Libero Paul Fatti;

The Court erred in finding that the Chief Director was not required to take the Environmental Management Framework for the Magaliesberg Protected Environment (the EMF) into account in considering Kgaswane’s application for environmental authorisation;

The Court erred in finding that the MEC was not required to take the EMF into account in considering the MPA’s (applicant’s) appeal against the Chief Director’s decision;

The Court erred in finding that the Chief Director and the MEC considered all relevant factors necessary for the purpose of granting environmental authorisation;

The Court erred in finding that the fact that the applicant was given the opportunity to make submissions on appeal to the MEC rendered Kgaswane’s application for environmental authorisation lawful;

The Court erred in ordering the MPA to pay the costs of the application.

[6] Adv. Hopkins for the third respondent, argued that the appeal against the judgment is academic and of no practical effect in that the building at issue, is presently completed and in actual fact the Lodge is operational and further that even at the time when this application was launched, the construction of Kgaswane Lodge was almost 98% completed. He further submitted that the provisions of section 21A of the Supreme Court Act 59 of 1959 should be invoked.

[7] To the contrary, counsel for the applicant argued that (i) it is important for another court to determine whether or not there was an irregularity committed by the Chief Director and the MEC in granting the section 24G environmental authority, for the purpose of preventing other developers from applying for permission to erect structures at the Magaliesberg Protected Environment (MPE)

area, citing this case as precedence;

(ii) that if the decisions of the Chief Director and the MEC are not set aside, the erection of the Kgaswane Lodge will jeopardise the applicant’s initiative for the Greater Magaliesberg Region to be declared a biosphere under the UNESCO charter;

(iii) that an important legal principle to be decided relates to the validity of an action which was taken by an official prior to it being prohibited but is later prohibited whilst the action taken by an officer is challenged through an internal appeal process.

[8] The provisions of section 21A of the Supreme Court Act No.59 of 1959, were brought to my attention by Adv. Hopkins. This section provides that:

“21A. Powers of court of appeal in certain civil proceedings. – (1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(2) (a) If at any time prior to the hearing of an appeal the Chief Justice or the Judge President, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the grounds set out in subsection (1), he or she call for

written representations from the respective parties as to why the appeal should not be so dismissed.

(b) Upon receipt of the written representations or, failing which, at the expiry of the time determined for their lodging, the matter shall be referred by the Chief Justice or by the Judge President, as the case may be, to three judges of the Division concerned for their consideration.

(c) The judges considering the matter may order that the question whether the appeal should be dismissed on the grounds set out in subsection (1) be argued before them at a place and time appointed, and may, whether or not they have so ordered –

(i) order that the appeal be dismissed, with or without an order as to the costs incurred in any of the courts below or in respect of the costs of appeal, including the costs in respect of the preparation and lodging of the written representations; or

(ii) order that the appeal proceed in the ordinary course.”

[9] In Premier, Provinsie Mpumalanga, en ʼn Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (HHA), the Court, in applying the provisions of section 21A, held that the test is will the judgment or order have a practical effect or result and not whether it might be of importance in a hypothetical future case. See also Simon NO v Air Operations of Europe AB and Others [1998] ZASCA 79; 1999 (1) SA 217 (SCA); Western Cape Education Department and Another 1998 (3) SA 77 (SCA); Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA); Radio Pretoria v Chairman, ICASA 2005 (1) SA 47 (SCA). Compare Land en Landbouontwikkelingsbank van Suid Afrika v Conradie 2005 (4) SA 506 (SCA) where the Court held that “where , for example, questions of law, which are likely to arise frequently, are at issue

a court of appeal may hear the merits of the appeal and pronounce upon it.” See par. [7] at p.511.

[10] The application for leave to appeal should fail based on the above. However, in the event that there may be a different view with regard to my finding based on section 21A of the Supreme Court Act, I will deal with the grounds of appeal ad seriatim.

[11] Grounds of appeal stated in paragraph [4].1 above:

The supplementary affidavit of Libero Patti Fatti was filed with the Registrar on 13 October 2010. The issues raised therein are similar to those raised in his founding affidavit save for adding bias as one of the grounds for Review.

[12] In the supplementary founding affidavit Mr Fatti in paragraph 10 refers to the “minutes of the meeting that was held on 11 December 2009 between the MEC, his advisor (Ms Carene Wessels), Mr Jan Ntemane and himself concerning the MPA’s appeal.” In paragraph 3 of this supplementary founding affidavit, Mr Fatti simply states that the “purpose of this affidavit is to deal with certain documents contained in the record of proceedings that was made available to the MPA in terms of the provisions of Rule 53(3) of the Uniform Rules of Court.”

[13] There is nothing in the affidavit to suggest that the documents were made available to the applicant after the review application was launched. When this issue was argued in court, the applicant did not place anything on record in that regard.

[14] I have alluded to this fact in paragraph [23] of my judgment, I inadvertedly referred to the date of the meeting as 11 December 2000; the correct date of the meeting is 11 December 2009.

[15] Furthermore, the applicants, in their notice of appeal to the MEC appearing on p.504 par.6.1.2 of the record, did state bias as one of their grounds, but omitted to include the ground in Fatti’s Founding Affidavit.

[16] Mr Fatti’s Founding Affidavit was filed on 4 August 2010 and the 1st and 2nd respondents’ answering affidavits filed on 15 September 2010 and that of the 3rd respondent on 16 September 2010. The applicant’s Replying Affidavit was filed on 20 September 2010. The Supplementary Founding

Affidavit was filed on 13 October 2010. The additional ground based on bias, is with reference to a meeting that was held on the 11 December 2009, prior to the applicant’s launch of the review application. I find no merit in this ground of appeal.

[17] The grounds of appeal stated paragraph [4]2, 3, 4, 5, 6, 7 and 8 above have been fully dealt with in my judgment and I do not wish to add anything further thereto.

[18] With regard to the issues raised by Mr Lazarus referred to in paragraph [7] above, I am of the view that these are not exceptional circumstances as envisaged in the case of Land en Landbouontwikkelingsbank van Suid Afrika v Conradie case supra. I am of the view that there are no reasonable prospects of success on appeal.

The application for leave to appeal is dismissed with costs.

_____________

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 01 MARCH 2012

DATE OF JUDGMENT: 29 MARCH 2012

COUNSEL FOR APPLICANT: ADV. LAZARUS

COUNSEL FOR 1ST & 2ND RESPONDENTS: ADV. MASILO

COUNSEL FOR 3RD RESPONDENT: ADV. HOPKINS

ATTORNEYS FOR APPLICANT: MINCHIN & KELLY

ATTORNEYS FOR 1ST & 2ND RESPONDENTS: STATE ATTORNEY

ATTORNEYS FOR 3RD RESPONDENT: NIENABER & WISSING INC.