Muckleneuk/Lukasrand Property Owners and Residents Association v MEC Department of Agriculture Conservation and Environment Gauteng Provincial Government and Others (Review Application 28192/04), Muckleneuk/Lukasrand Property Owners and Residents Association v HOD Department of Agriculture Conservation and Environment Gauteng Provincial Government and Others (Urgent Application 12137/06) (28192/04 , 12137/06) [2006] ZAGPHC 86; [2007] 4 All SA 1265 (T) (30 August 2006)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE: 30/08/2006REPORTABLEIn the matter between: Case no. 28192/04MUCKLENEUK/ LUKASRAND PROPERTYOWNERS AND RESISENTS ASSOCIATIONApplicantandTHE MEC: DEPARTMENT OF AGRICULTURECONSERVATION AND ENVIRONMENT, GAUTENGPROVINCIAL GOVERNMENT1stRespondentTHE HOD: DEPARTMENT OF AGRICULTURECONSERVATION AND ENVIRONMENT, GAUTENGPROVINCIAL GOVERNMENT2ndRespondentTHE DEPARTMENT OF PUBLIC TRANSPORT, ROADSAND WORKS, GAUTENGPROVINCIAL GOVERNMENT3rdRespondentBOHLWEKI ENVIRONMENTAL (PTY) LTD4thRespondentSOUTH AFRICAN RAIL COMMUTERSCORPORARATION LTD5thRespondentCITY OFTSHWANEMETROPOLITANMUNICIPALITY6thRespondent(The Review Application)AndIn the matter between: Case no: 12137/06THE MUCKLENEUK/ LUKASRAND PROPERTYOWNERS AND RESIDENTS ASSOCIATION ApplicantandTHE HOD: DEPARTMENT OF AGRICULTURE,CONSERVATION AND ENVIRONMENT, GAUTENGPROVINCIAL GOVERNMENT 1stRespondentTHE DEPARTMENT OFPUBLIC TRANSPORT, ROADSAND WORKS, GAUTENG PROVINCIAL GOVERNMENT 2ndRespondentFELEHETSA ENVIRONMENTAL (PTY) LTD 3rdRespondentBOMBELA CONSORTIUM 4thRespondent(The Urgent Application)JUDGMENTHARTZENBERG J:Introduction.[1] The envisaged construction of the Gauteng Rapid Rail Link (“Gautrain” or “GRRL”) is a source of concern for quite a number of people. The issue by the Head of the Department (“the HOD”) of the Gauteng Department of Agriculture, Conservation and Environment (“GDACE”) of a Record of Decision (“the ROD”) led to an appeal, by the applicant, the Muckleneuk/Lukasrand Property Owners and Residents Association (MLPORA), to the MEC for GDACE. The principal reason for the appeal was the acceptance of alignment 6fd through Muckleneuk. The MEC issued a revised ROD. In terms thereof the route was still alignment 6fd. The applicant instituted an application for the review of the MEC’s decision under case number 28192/04 (the “review application”). Before the hearing of that application the Department of Public Transport, Roads and Works, Gauteng Provincial Government (“Gautrans”) applied for variation of, inter alia, alignment 6fd (the “variant alignment”). As a result thereof the applicant brought an urgent application under case number 12137/06 to interdict the HOD from considering or approving the variant alignment (the “urgent application”). By agreement between the parties the two applications were consolidated and were heard together, after the HOD had undertaken not to decide upon the variant alignment, pending the finalization of the review of the MEC’S decision.[2] Apart from the applicant, the MEC, the HOD and Gautrans there are a number of further parties that were cited as respondents in one or the other of the two consolidated applications. Bohlweki Environmental (Pty) Ltd. (“Bohlweki”) is the fourth respondent in the review application. Bohlweki was commissioned by Gautrans to do an environmental impact assessment (an EIA) in respect of the effect of the Gautrain on the environment and to bring out a report (an EIR) of its findings and recommendations. The South African Rail Commuters Corporation Ltd (SARCC) and the City of Tshwane Metropolitan Municipality (the Municipality), as interested parties against whom no relief is claimed, are respectively the fifth and sixth respondents in the review application. Felehetsa Environmental (Pty) Ltd (Felehetsa), appointed by Bombela Consortium (Bombela”) is the third respondent in the urgent application and Bombela is the fourth respondent. Bombela commissioned Felehetsa to conduct a comparative environmental assessment of the variants proposed by Bombela. Bombela is the consortium that was appointed to develop the Gautrain project.[3] The urgent application became academic. The applicant maintains that it was successful. The only arguments about the urgent application related to the conduct of the parties that resulted in the filing of opposing affidavits and a replying affidavit thereto and costs of the application.The issues.[4] The attacks against the MEC’s decision are:4.1 That neither the MEC nor the HOD had authority to grant authorization for the Gautrain. This is a legal argument revolving around the question whether assignments by the President of certain functions and powers, in terms of the Environment Conservation Act, Act No. 73 of 1989 (“the ECA), to the provincial government and a designation by the Minister of his powers in terms of section 22 of the ECA to a competent authority indeed empowered the MEC and the HOD to take the decisions in question.4.2 An alternative argument is that as the revised ROD does not constitute a complete authorization it is invalid. The argument is that it is essential for a valid ROD to contain clear provisions as to how environmental impacts are to be mitigated.4.3 A further alternative argument is that the MEC as decision maker did not apply her mind to the matter. The argument is that she failed to give reasons for her decision and that that gives rise to the inference that no good reason for the decision existed. It is also argued that she failed to take a number of relevant considerations into account.4.4 It is also contended that the decision is vitiated by institutional bias. The argument is that there is a strong political flavour attached to the whole concept of the Gautrain and that the decision maker had no option but to make the decision.4.5 The final issue is the issue of costs.The History of the Development of the Project.[5] During February 2000 the Premier of Gauteng initiated the planning of a proposed rapid rail system between Johannesburg and Pretoria and between Sandton and Johannesburg International Airport. The project was one of ten Spatial Development Initiatives of the Gauteng Provincial Government, known as Blue IQ and aimed at making Gauteng a smarter province. A feasibility study, completed by August 2001, by a consortium of consultants, concluded that there were no fatal flaws associated with the proposed project. It was however indicated that an environmental impact assessment had to be done.[6] The rail system will be approximately 80 kilometers long with three anchor stations, viz. the Pretoria Station, the Johannesburg Park Station and the Johannesburg International Airport Station. The train is to travel at a maximum speed of between 160 and 180 km/h. The planning provides for several smaller stations including a station in Hatfield, Pretoria. During September/October 2001 Gautrans submitted an application for authorization of the project and Bohlweki was appointed to present a plan of study for a full EIAGDACE granted exemption , in terms of section 28A of the ECA, for the need to file a scoping report.. It was to address the route alternatives and the question how interested and affected parties (I and APs) were to be notified of the project and invited to participate in the public participation process. GDACE instructed Gautrans to put a reference route to public scrutiny through the public participation processThis was done during January 2002, when the proposed route was published..[7] On 14 November 2001 Bohlweki submitted a draft plan of study for the EIA to GDACE. It envisaged as a starting point the assessment of the impacts of the alternatives deemed feasible in the feasibility studies undertaken prior to the launch of the EIA. The plan of study for the EIA was approved by GDACE, in that the proposed public participation process was approved on 14 December 2001 and the specialist studies component was approved on 16 January 2002.[8] The EIA process commenced during January 2002. Advertisements were placed in regional and national newspapers. The reference route was published and site advertisements were placed at public places along or near the proposed alignment. A web site was launched. There was a public participation data base on which over 5 500 individuals and organizations, who participated in the process, were registered.[9] Between 29 January and 6 February 2002 five open days were held to enable the public to gain information on the project and to view aerial photographs of the reference route and of the vertical alignments. One was held in Pretoria. During March 2002 Bohlweki advertised that public meetings would be held. Between 10 and 23 April 2002 17 public meetings were held. One was held in Pretoria on 17 April 2002. Moreover Focus Group Meetings were held between February and April 2002. According to Bohlweki nearly 40% of the 107 Focus Group Meetings were held in the Pretoria area and 14 involved the applicant.[10] On 30 April 2002 the applicant lodged its first written submission. It was a 90 page document containing an assessment of the reference alignment and alternative alignments. It proposes the Park Street alignment as preferable to the reference alignment and concentrates on the negative impacts of the reference alignment on Muckleneuk. A draft issues report was published on 15 May 2002. It contains a summary of the issues raised by the I and AP’s. It deals with their concerns in respect of various specialist fields, inter alia, property-, heritage- and traffic impacts and the route alignment. It deals briefly with the issues and promises that specialist studies will be undertaken, that alternatives will be investigated and that feasible alternatives will be further investigated. It was made available for public comment from 16 May until 18 June 2002. An Amended Plan of Study was submitted to GDACE on 29 May 2002. It details route alternatives and identifies five alternatives between Pretoria and Hatfield station and indicates that a heritage impact assessment for Muckleneuk is necessary. The applicant wrote a letter, dated 30 May 2002, objecting to the treatment of their comments in the Draft Issues Report. The Amended Plan of Study was approved by GDACE on 6 June 2002 and during June 2002 details of further alternative route alignments that were to be investigated in the EIA and of public meetings that were to be held were advertised.[11] Between 26 June and 1 July 2002 3 public meetings were held to enable the public to gain information about alternative route alignments, to obtain feedback on the alignments and to identify possible new issues. The meeting of 1 July was held in Pretoria. The Final Issues Report was submitted to GDACE and the public on 31 July 2002. It deals with comments received from I and AP’s on the draft issues report. As far as the applicant is concerned it records their objection to the reference route, their contention that a cut and cover option beneath Park Street is the best alternative and the suggestion of a possible refined alignment through Muckleneuk along the existing SARCC line. It records that there was strong opposition to the Park Street alternative from the residents of Clydesdale. It deals briefly with the issues and promises specialist studies in respect of the issues raised.[12] During July – October 2002 specialist studies were obtained from more than 20 environmental specialists, who were contracted to investigate 9 specialist areas covering the bio-physical environment and 9 specialist areas covering the socio-economic environment. During this period the applicant asked for more information and threatened with an urgent application. Some information was given to the applicant and the comment period was extended in terms of an agreement between the applicant and GDACE. During September and October 2002 7 public meetings were held to provide feedback to the public on the issues that had been raised and also to inform the public of the contents and recommendations of the draft EIA report. The meeting in Pretoria was scheduled for 25 September but eventually only held on 24 October to allow I & AP’s, and in particular the applicant, more time to consult with the environmental team on issues and route alternatives.[13] The applicant handed in its second written submission on 14 October 2002. It is a 65 page document, contains a comparison between the Arcadia route alignment and the Muckleneuk alignment and shows a clear predilection for the Arcadia alignment. It relies on an economic study which indicates that economically the Arcadia route is to be preferred. There is also a review of the noise impact report contained in the EIA. The draft EIA report was submitted to GDACE on 21 October 2002. It was made available at various public venues. It consists of 36 chapters contained in 6 volumes. There are 18 specialist studies. There was a comment period on the draft EIA from 21 October until 21 December 2002. There were extensive comments. The applicant’s third written submission was handed in on 20 December 2002. It criticizes the weighting/ranking system, contends that costs should not be a consideration for Bohlweki and questions Bohlweki’s independence. It also comments on some of the chapters in the Draft EIA.[14] During January – March 2003 further studies were compiled, i.e. an environmental resource economics (ERE) study and a Heritage Impact Assessment (HIA) study. At public meetings in Pretoria on 3 December 2002 and 15 January 2003 the methodology and scope of respectively the compilation of the ERE and the HIA were discussed. A fourth written submission by the applicant was lodged on 10 February 2003. It commented on the draft ERE study and criticized the methodology and conclusions. The Draft HIA was released on 11 March 2003. There was a further meeting in Pretoria on 17 March 2003 to discuss the findings in the draft HIA. The public was allowed to comment until 24 March 2003.[15] The applicant’s fifth written submission was handed in on 19 March 2003. it criticized the methodology and conclusion reached in the HIA. The view is expressed that the report is inadequate for informed decision making or even for informed comment by the public. It demands a revision of the report and advocates that the Muckleneuk alignment be discarded from a heritage perspective.[16] An addendum to the draft EIA was compiled between January and April 2003. It contained comments received on the draft EIA report and the final ERE and HIA reports. On 17 April 2003 Bohlweki answered the applicant’s third submission. It is a 72 page document. It deals with the peer heritage report submitted by the applicant and it dealt with every submission of the applicant on the draft EIA report.. On the same date Bohlweki answered the applicant’s fourth and fifth submissions. It dealt with all the submissions and assured the applicant that its comments would be included in the addendum to the draft EIA. The addendum to the draft EIA report was submitted to GDACE also on 17 April 2003 and made available to the public on the same day. It contained, amongst others, a main summary report, the final ERE and HIA reports, a traffic impact assessment for the proposed stations and additions to the specialist studies, technical information, an architectural assessment, additional information on noise and vibration impacts, a summary of all the comments received on the draft EIA and Bohlweki’s response thereto and a final recommendation on the route alignment.[17] During May 2003 there were site visits where GDACE officials were taken along the recommended route alignment by Bohlweki. There was also a presentation to the South African Heritage Resources Agency and a field visit. On 26 June 2003 GDACE addressed a letter to Bohlweki in which Bohlweki was asked to supply further information. Information was required on air quality, wetlands and surface water, groundwater, geological and geo-hydrological issues, vegetation, noise and vibration, land use and waste issues and various other matters. In a letter dated 20 July 2003 Bohlweki answered the queries.The First RODand the Appeal thereto.[18] The HOD-GDACE issued a ROD authorizing Gautrans to undertake the development of the Gautrain, on 29 September 2002. It followed the recommendations in the EIA report and the addendum thereto. Paragraph 3.3.1. deals with the route alignment. In respect of Muckleneuk it specifically indicates that in the area outside of the SARCC alignment, at least two out of the three houses identified as of provincial heritage importance, are to be conserved and that a portion of the track, where it deviates from the SARCC alignment, is to be covered. It requires that a plan indicating the covered portions is to be submitted with the second EMP (Environmental Management Plan). It requires that the EMP must set out in a logical framework how key project activities and anticipated impacts are to be dealt with and that standards are to be set against which the effectiveness of the management thereof can be measuredIn paragraph 3.3.5.1 nine different impacts are identified such as vibration, noise, visual, traffic etc.. The revised EMP is to be made available to I and AP’s at least 30 days prior to submission thereof. The ROD specifically distinguishes between three phases of the EMP, i.e. the design phase, the construction phase and the management phase. It also requires that I and AP’s are to receive feedback by way of quarterly newsletters and meetings. Paragraph 4, of the 18 page document, indicates that failure to comply with any of the conditions may lead to a withdrawal of the authorization.[20] The applicant appealed to the MEC against the authorization. The appeal consists of a 53 page document in which all the arguments addressed to this court are articulated. Attached to the document was a further heritage report, which the applicant wanted to submit to the HOD out of time. Apart from attacks against the competence of the HOD to deal with the matter and criticisms against the procedures, the general theme of the document is that of all possible routes for the Gautrain, one through Muckleneuk is the least appropriate, and that the impact on Muckleneuk will be devastating for that area. It is indicated that the tunneled alignment is by far superior to any other alignment.TherevisedROD.[21] The MEC, in answer to the applicants’ appeal, indicated that she requested the HOD to withdraw the ROD and to issue a revised ROD. It was done by letter dated 25 April 2004. She motivated her decision as follows: She considered the EIA application and the ROD, the general and specific contents of all appeals, GDACE’s response thereto and an independent expert opinion. She supported GDACE’s overall approach but supplemented it with additional measures. She stated that certain grounds of appeal she did not regard as warranting revision of the ROD:21.1 She referred to the attack against the competence of GDACE to deal with the ROD but stated that she was satisfied that GDACE was the competent authority and that that was confirmed by the Department of Environmental Affairs and Tourism21.2. She considered the question whether GDACE, as part of the Gauteng Provincial Administration, was biased. She indicated that it was required by law to apply its mind independently, consistently and fairly and refused to find that it was biased. She argued that it had evaluated numerous proposals of Gautrans and had dealt with each application on its merits and had sometimes denied authorization.21.3. As to the claim of a depreciation of property prices she referred to a Social Impact Assessment and also took cognizance of international experience.21.4 She stated that she was satisfied that the expropriation process would be done in terms of the provisions of the Gauteng Transport Infrastructure Act (GTIA) and that the interests of affected parties would be protected by the legislation.21.5. She stated that some of the appellants contended that the horizontal- and vertical alignments were not optimal but that she was satisfied “that GDACE evaluated the vertical and horizontal alignment of the route and that the ROD authorizes the best choice route taking all economic, social and environmental factors into account.[22] She referred to the National Environmental Management Act, 1998 (NEMA) and concluded that her mandate was to secure the optimal environmental benefit for the province of Gauteng as a whole. She stated that sustainable development required of her to assess all relevant factors and to come to an appropriate decision. She said that the positive impacts that the Gautrain will have on the province were understated in the ROD. She agreed that it was practically sensible to defer the setting of precise environmental standards until the EMP stage. She felt that steps were to be built into the EMP process to render it transparent and to afford I and AP’s an opportunity to participate in the process. She stated that whereas some environmental standards were already prescribed in the ROD, a process of determining additional standards in the EMP was needed. She insisted that those standards were to comply with South African Law and/or international best practice. She instructed GDACE to be vigilant that in EMP’s noise, vibration and visual impacts are minimized. She insisted that the GDACE was to reach a decision on an EMP submitted to it within 30 days of receipt of the last piece of required information from the concessionaire. She stipulated that the concessionaire was to distribute EMP approvals to all parties who lodged appeals. She stipulated for a right of appeal against an EMP approval for original appellants against the ROD. She emphasized that no construction may commence until an EMP has been completed, and where there is a right of appeal, where the appeal has been decided by the MEC. A revised ROD, containing the aspects introduced by the MEC was issued on 25 April 2004.The need for a Gautrain and the most environmentally friendly alignment.[23] It has not been argued on behalf of the applicants that there is no need for a Gautrain. On the contrary the applicants have specifically indicated that they are in favour of the Gautrain rail link being constructed. The main complaint is that the alignment is through Muckleneuk and not depressed. There is no dispute that from an environmental view a complete tunneled alignment between Pretoria station and Hatfield station would have the least impact.The competence of the HOD and the MEC to authorize the ROD.[24] In the founding affidavit the applicants state that they have repeatedly questioned the HOD’s authority to authorize the RODParagraph 9.2, and that they challenge the decisions of the HOD and the MEC on the basis of lack of authority to deal with itParagraph 9.3. Under the heading “Wrong Decision-Maker” they refer to section 4(3)(b) of Regulation 1183, which was published under section 21(1) of the ECA on 5 September1997 in Government Gazette 18261Paragraph 156. The section reads: “……..the provincial authority must refer the application to the Minister for consideration –………(b) where the activity concerned will take place within an area which is demarcated as an area of national or international importance, but does not include the sea-shore, conservancies, protected natural environments, proclaimed private nature reserves, natural heritage sites, and the buffer zones and transitional areas of biosphere reserves and world heritage sites.”. The respondents denied that the development of the Gautrain fell under the regulation. The applicants’ argument in court was different and will be dealt with anon. It caused GDACE and Gautrans to argue that the applicants were not entitled to raise the alternative argument as it had failed to put that aspect in issue and that they were denied the opportunity to deal with the issue. The applicants argued that it is purely a matter of law, that it was properly identified as an issue and that the court must decide the point. From what follows it is clear that it is unnecessary to decide the issue.[25] In terms of section 21(1) of the ECA the Minister of Environmental Affairs and Tourism may identify activities which in his opinion may have a detrimental effect on the environmentThe section reads:“The Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.”

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

DATE: 30/08/2006

REPORTABLE

MUCKLENEUK/ LUKASRAND PROPERTY

OWNERS AND RESISENTS ASSOCIATION

Applicant

a

nd

THE MEC: DEPARTMENT OF AGRICULTURECONSERVATION AND ENVIRONMENT, GAUTENG

PROVINCIAL GOVERNMENT

1

st

Respondent

THE HOD: DEPARTMENT OF AGRICULTURECONSERVATION AND ENVIRONMENT, GAUTENG

2

THE DEPARTMENT OF PUBLIC TRANSPORT, ROADS

AND WORKS

, GAUTENG

3

rd

BOHLWEKI ENVIRONMENTAL (PTY) LTD

4

th

SOUTH AFRICAN RAIL COMMUTERS

CORPORARATION LTD

5

CITY OF

TSHWANE

METROPOLITAN

MUNICIPALITY

6

And

THE MUCKLENEUK/ LUKASRAND PROPERTY

OWNERS AND RESIDENTS ASSOCIATION Applicantand

THE HOD: DEPARTMENT OF AGRICULTURE,CONSERVATION AND ENVIRONMENT, GAUTENG

PROVINCIAL GOVERNMENT 1

THE DEPARTMENT OF

PUBLIC TRANSPORT, ROADS

AND WORKS, GAUTENG PROVINCIAL GOVERNMENT 2

FELEHETSA ENVIRONMENTAL (PTY) LTD 3

BOMBELA CONSORTIUM 4thRespondent

BOMBELA CONSORTIUM 4

JUDGMENT

HARTZENBERG J:

Introduction.

Introduction

.

[1] The envisaged construction of the Gauteng Rapid Rail Link (“Gautrain” or “GRRL”) is a source of concern for quite a number of people. The issue by the Head of the Department (“the HOD”) of the Gauteng Department of Agriculture, Conservation and Environment (“GDACE”) of a Record of Decision (“the ROD”) led to an appeal, by the applicant, the Muckleneuk/Lukasrand Property Owners and Residents Association (MLPORA), to the MEC for GDACE. The principal reason for the appeal was the acceptance of alignment 6fd through Muckleneuk. The MEC issued a revised ROD. In terms thereof the route was still alignment 6fd. The applicant instituted an application for the review of the MEC’s decision under case number 28192/04 (the “review application”). Before the hearing of that application the Department of Public Transport, Roads and Works, Gauteng Provincial Government (“Gautrans”) applied for variation of, inter alia, alignment 6fd (the “variant alignment”). As a result thereof the applicant brought an urgent application under case number 12137/06 to interdict the HOD from considering or approving the variant alignment (the “urgent application”). By agreement between the parties the two applications were consolidated and were heard together, after the HOD had undertaken not to decide upon the variant alignment, pending the finalization of the review of the MEC’S decision.[2] Apart from the applicant, the MEC, the HOD and Gautrans there are a number of further parties that were cited as respondents in one or the other of the two consolidated applications. Bohlweki Environmental (Pty) Ltd. (“Bohlweki”) is the fourth respondent in the review application. Bohlweki was commissioned by Gautrans to do an environmental impact assessment (an EIA) in respect of the effect of the Gautrain on the environment and to bring out a report (an EIR) of its findings and recommendations. The South African Rail Commuters Corporation Ltd (SARCC) and the City of Tshwane Metropolitan Municipality (the Municipality), as interested parties against whom no relief is claimed, are respectively the fifth and sixth respondents in the review application. Felehetsa Environmental (Pty) Ltd (Felehetsa), appointed by Bombela Consortium (Bombela”) is the third respondent in the urgent application and Bombela is the fourth respondent. Bombela commissioned Felehetsa to conduct a comparative environmental assessment of the variants proposed by Bombela. Bombela is the consortium that was appointed to develop the Gautrain project.[3] The urgent application became academic. The applicant maintains that it was successful. The only arguments about the urgent application related to the conduct of the parties that resulted in the filing of opposing affidavits and a replying affidavit thereto and costs of the application.

The issues.

The issues

[4] The attacks against the MEC’s decision are:

4.1 That neither the MEC nor the HOD had authority to grant authorization for the Gautrain. This is a legal argument revolving around the question whether assignments by the President of certain functions and powers, in terms of the Environment Conservation Act, Act No. 73 of 1989 (“the ECA), to the provincial government and a designation by the Minister of his powers in terms of section 22 of the ECA to a competent authority indeed empowered the MEC and the HOD to take the decisions in question.4.2 An alternative argument is that as the revised ROD does not constitute a complete authorization it is invalid. The argument is that it is essential for a valid ROD to contain clear provisions as to how environmental impacts are to be mitigated.

4.3 A further alternative argument is that the MEC as decision maker did not apply her mind to the matter. The argument is that she failed to give reasons for her decision and that that gives rise to the inference that no good reason for the decision existed. It is also argued that she failed to take a number of relevant considerations into account.4.4 It is also contended that the decision is vitiated by institutional bias. The argument is that there is a strong political flavour attached to the whole concept of the Gautrain and that the decision maker had no option but to make the decision.4.5 The final issue is the issue of costs.

The History of the Development of the Project.

[5] During February 2000 the Premier of Gauteng initiated the planning of a proposed rapid rail system between Johannesburg and Pretoria and between Sandton and Johannesburg International Airport. The project was one of ten Spatial Development Initiatives of the Gauteng Provincial Government, known as Blue IQ and aimed at making Gauteng a smarter province. A feasibility study, completed by August 2001, by a consortium of consultants, concluded that there were no fatal flaws associated with the proposed project. It was however indicated that an environmental impact assessment had to be done.[6] The rail system will be approximately 80 kilometers long with three anchor stations, viz. the Pretoria Station, the Johannesburg Park Station and the Johannesburg International Airport Station. The train is to travel at a maximum speed of between 160 and 180 km/h. The planning provides for several smaller stations including a station in Hatfield, Pretoria. During September/October 2001 Gautrans submitted an application for authorization of the project and Bohlweki was appointed to present a plan of study for a full EIAGDACE granted exemption , in terms of section 28A of the ECA, for the need to file a scoping report.. It was to address the route alternatives and the question how interested and affected parties (I and APs) were to be notified of the project and invited to participate in the public participation process. GDACE instructed Gautrans to put a reference route to public scrutiny through the public participation processThis was done during January 2002, when the proposed route was published..

GDACE granted exemption , in terms of section 28A of the ECA, for the need to file a scoping report.

This was done during January 2002, when the proposed route was published.

[7] On 14 November 2001 Bohlweki submitted a draft plan of study for the EIA to GDACE. It envisaged as a starting point the assessment of the impacts of the alternatives deemed feasible in the feasibility studies undertaken prior to the launch of the EIA. The plan of study for the EIA was approved by GDACE, in that the proposed public participation process was approved on 14 December 2001 and the specialist studies component was approved on 16 January 2002.[8] The EIA process commenced during January 2002. Advertisements were placed in regional and national newspapers. The reference route was published and site advertisements were placed at public places along or near the proposed alignment. A web site was launched. There was a public participation data base on which over 5 500 individuals and organizations, who participated in the process, were registered.

[9] Between 29 January and 6 February 2002 five open days were held to enable the public to gain information on the project and to view aerial photographs of the reference route and of the vertical alignments. One was held in Pretoria. During March 2002 Bohlweki advertised that public meetings would be held. Between 10 and 23 April 2002 17 public meetings were held. One was held in Pretoria on 17 April 2002. Moreover Focus Group Meetings were held between February and April 2002. According to Bohlweki nearly 40% of the 107 Focus Group Meetings were held in the Pretoria area and 14 involved the applicant.[10] On 30 April 2002 the applicant lodged its first written submission. It was a 90 page document containing an assessment of the reference alignment and alternative alignments. It proposes the Park Street alignment as preferable to the reference alignment and concentrates on the negative impacts of the reference alignment on Muckleneuk. A draft issues report was published on 15 May 2002. It contains a summary of the issues raised by the I and AP’s. It deals with their concerns in respect of various specialist fields, inter alia, property-, heritage- and traffic impacts and the route alignment. It deals briefly with the issues and promises that specialist studies will be undertaken, that alternatives will be investigated and that feasible alternatives will be further investigated. It was made available for public comment from 16 May until 18 June 2002. An Amended Plan of Study was submitted to GDACE on 29 May 2002. It details route alternatives and identifies five alternatives between Pretoria and Hatfield station and indicates that a heritage impact assessment for Muckleneuk is necessary. The applicant wrote a letter, dated 30 May 2002, objecting to the treatment of their comments in the Draft Issues Report. The Amended Plan of Study was approved by GDACE on 6 June 2002 and during June 2002 details of further alternative route alignments that were to be investigated in the EIA and of public meetings that were to be held were advertised.[11] Between 26 June and 1 July 2002 3 public meetings were held to enable the public to gain information about alternative route alignments, to obtain feedback on the alignments and to identify possible new issues. The meeting of 1 July was held in Pretoria. The Final Issues Report was submitted to GDACE and the public on 31 July 2002. It deals with comments received from I and AP’s on the draft issues report. As far as the applicant is concerned it records their objection to the reference route, their contention that a cut and cover option beneath Park Street is the best alternative and the suggestion of a possible refined alignment through Muckleneuk along the existing SARCC line. It records that there was strong opposition to the Park Street alternative from the residents of Clydesdale. It deals briefly with the issues and promises specialist studies in respect of the issues raised.[12] During July – October 2002 specialist studies were obtained from more than 20 environmental specialists, who were contracted to investigate 9 specialist areas covering the bio-physical environment and 9 specialist areas covering the socio-economic environment. During this period the applicant asked for more information and threatened with an urgent application. Some information was given to the applicant and the comment period was extended in terms of an agreement between the applicant and GDACE. During September and October 2002 7 public meetings were held to provide feedback to the public on the issues that had been raised and also to inform the public of the contents and recommendations of the draft EIA report. The meeting in Pretoria was scheduled for 25 September but eventually only held on 24 October to allow I & AP’s, and in particular the applicant, more time to consult with the environmental team on issues and route alternatives.[13] The applicant handed in its second written submission on 14 October 2002. It is a 65 page document, contains a comparison between the Arcadia route alignment and the Muckleneuk alignment and shows a clear predilection for the Arcadia alignment. It relies on an economic study which indicates that economically the Arcadia route is to be preferred. There is also a review of the noise impact report contained in the EIA. The draft EIA report was submitted to GDACE on 21 October 2002. It was made available at various public venues. It consists of 36 chapters contained in 6 volumes. There are 18 specialist studies. There was a comment period on the draft EIA from 21 October until 21 December 2002. There were extensive comments. The applicant’s third written submission was handed in on 20 December 2002. It criticizes the weighting/ranking system, contends that costs should not be a consideration for Bohlweki and questions Bohlweki’s independence. It also comments on some of the chapters in the Draft EIA.[14] During January – March 2003 further studies were compiled, i.e. an environmental resource economics (ERE) study and a Heritage Impact Assessment (HIA) study. At public meetings in Pretoria on 3 December 2002 and 15 January 2003 the methodology and scope of respectively the compilation of the ERE and the HIA were discussed. A fourth written submission by the applicant was lodged on 10 February 2003. It commented on the draft ERE study and criticized the methodology and conclusions. The Draft HIA was released on 11 March 2003. There was a further meeting in Pretoria on 17 March 2003 to discuss the findings in the draft HIA. The public was allowed to comment until 24 March 2003.[15] The applicant’s fifth written submission was handed in on 19 March 2003. it criticized the methodology and conclusion reached in the HIA. The view is expressed that the report is inadequate for informed decision making or even for informed comment by the public. It demands a revision of the report and advocates that the Muckleneuk alignment be discarded from a heritage perspective.[16] An addendum to the draft EIA was compiled between January and April 2003. It contained comments received on the draft EIA report and the final ERE and HIA reports. On 17 April 2003 Bohlweki answered the applicant’s third submission. It is a 72 page document. It deals with the peer heritage report submitted by the applicant and it dealt with every submission of the applicant on the draft EIA report.. On the same date Bohlweki answered the applicant’s fourth and fifth submissions. It dealt with all the submissions and assured the applicant that its comments would be included in the addendum to the draft EIA. The addendum to the draft EIA report was submitted to GDACE also on 17 April 2003 and made available to the public on the same day. It contained, amongst others, a main summary report, the final ERE and HIA reports, a traffic impact assessment for the proposed stations and additions to the specialist studies, technical information, an architectural assessment, additional information on noise and vibration impacts, a summary of all the comments received on the draft EIA and Bohlweki’s response thereto and a final recommendation on the route alignment.

[17] During May 2003 there were site visits where GDACE officials were taken along the recommended route alignment by Bohlweki. There was also a presentation to the South African Heritage Resources Agency and a field visit. On 26 June 2003 GDACE addressed a letter to Bohlweki in which Bohlweki was asked to supply further information. Information was required on air quality, wetlands and surface water, groundwater, geological and geo-hydrological issues, vegetation, noise and vibration, land use and waste issues and various other matters. In a letter dated 20 July 2003 Bohlweki answered the queries.

The First RODand the Appeal thereto.

The First ROD

and the Appeal thereto

[18] The HOD-GDACE issued a ROD authorizing Gautrans to undertake the development of the Gautrain, on 29 September 2002. It followed the recommendations in the EIA report and the addendum thereto. Paragraph 3.3.1. deals with the route alignment. In respect of Muckleneuk it specifically indicates that in the area outside of the SARCC alignment, at least two out of the three houses identified as of provincial heritage importance, are to be conserved and that a portion of the track, where it deviates from the SARCC alignment, is to be covered. It requires that a plan indicating the covered portions is to be submitted with the second EMP (Environmental Management Plan). It requires that the EMP must set out in a logical framework how key project activities and anticipated impacts are to be dealt with and that standards are to be set against which the effectiveness of the management thereof can be measuredIn paragraph 3.3.5.1 nine different impacts are identified such as vibration, noise, visual, traffic etc.. The revised EMP is to be made available to I and AP’s at least 30 days prior to submission thereof. The ROD specifically distinguishes between three phases of the EMP, i.e. the design phase, the construction phase and the management phase. It also requires that I and AP’s are to receive feedback by way of quarterly newsletters and meetings. Paragraph 4, of the 18 page document, indicates that failure to comply with any of the conditions may lead to a withdrawal of the authorization.[20] The applicant appealed to the MEC against the authorization. The appeal consists of a 53 page document in which all the arguments addressed to this court are articulated. Attached to the document was a further heritage report, which the applicant wanted to submit to the HOD out of time. Apart from attacks against the competence of the HOD to deal with the matter and criticisms against the procedures, the general theme of the document is that of all possible routes for the Gautrain, one through Muckleneuk is the least appropriate, and that the impact on Muckleneuk will be devastating for that area. It is indicated that the tunneled alignment is by far superior to any other alignment.

In paragraph 3.3.5.1 nine different impacts are identified such as vibration, noise, visual, traffic etc.

TherevisedROD.

The

revised

ROD.

[21] The MEC, in answer to the applicants’ appeal, indicated that she requested the HOD to withdraw the ROD and to issue a revised ROD. It was done by letter dated 25 April 2004. She motivated her decision as follows: She considered the EIA application and the ROD, the general and specific contents of all appeals, GDACE’s response thereto and an independent expert opinion. She supported GDACE’s overall approach but supplemented it with additional measures. She stated that certain grounds of appeal she did not regard as warranting revision of the ROD:

21.1 She referred to the attack against the competence of GDACE to deal with the ROD but stated that she was satisfied that GDACE was the competent authority and that that was confirmed by the Department of Environmental Affairs and Tourism21.2. She considered the question whether GDACE, as part of the Gauteng Provincial Administration, was biased. She indicated that it was required by law to apply its mind independently, consistently and fairly and refused to find that it was biased. She argued that it had evaluated numerous proposals of Gautrans and had dealt with each application on its merits and had sometimes denied authorization.21.3. As to the claim of a depreciation of property prices she referred to a Social Impact Assessment and also took cognizance of international experience.21.4 She stated that she was satisfied that the expropriation process would be done in terms of the provisions of the Gauteng Transport Infrastructure Act (GTIA) and that the interests of affected parties would be protected by the legislation.21.5. She stated that some of the appellants contended that the horizontal- and vertical alignments were not optimal but that she was satisfied “that GDACE evaluated the vertical and horizontal alignment of the route and that the ROD authorizes the best choice route taking all economic, social and environmental factors into account.

[22] She referred to the National Environmental Management Act, 1998 (NEMA) and concluded that her mandate was to secure the optimal environmental benefit for the province of Gauteng as a whole. She stated that sustainable development required of her to assess all relevant factors and to come to an appropriate decision. She said that the positive impacts that the Gautrain will have on the province were understated in the ROD. She agreed that it was practically sensible to defer the setting of precise environmental standards until the EMP stage. She felt that steps were to be built into the EMP process to render it transparent and to afford I and AP’s an opportunity to participate in the process. She stated that whereas some environmental standards were already prescribed in the ROD, a process of determining additional standards in the EMP was needed. She insisted that those standards were to comply with South African Law and/or international best practice. She instructed GDACE to be vigilant that in EMP’s noise, vibration and visual impacts are minimized. She insisted that the GDACE was to reach a decision on an EMP submitted to it within 30 days of receipt of the last piece of required information from the concessionaire. She stipulated that the concessionaire was to distribute EMP approvals to all parties who lodged appeals. She stipulated for a right of appeal against an EMP approval for original appellants against the ROD. She emphasized that no construction may commence until an EMP has been completed, and where there is a right of appeal, where the appeal has been decided by the MEC. A revised ROD, containing the aspects introduced by the MEC was issued on 25 April 2004.

The need for a Gautrain and the most environmentally friendly alignment.

The need for a Gautrain and the most envi

ron

mentally friendly alignment.

[23] It has not been argued on behalf of the applicants that there is no need for a Gautrain. On the contrary the applicants have specifically indicated that they are in favour of the Gautrain rail link being constructed. The main complaint is that the alignment is through Muckleneuk and not depressed. There is no dispute that from an environmental view a complete tunneled alignment between Pretoria station and Hatfield station would have the least impact.

The competence of the HOD and the MEC to authorize the ROD.

[24] In the founding affidavit the applicants state that they have repeatedly questioned the HOD’s authority to authorize the RODParagraph 9.2, and that they challenge the decisions of the HOD and the MEC on the basis of lack of authority to deal with itParagraph 9.3. Under the heading “Wrong Decision-Maker” they refer to section 4(3)(b) of Regulation 1183, which was published under section 21(1) of the ECA on 5 September1997 in Government Gazette 18261Paragraph 156. The section reads: “……..the provincial authority must refer the application to the Minister for consideration –………

Paragraph 9.2

Paragraph 9.3

Paragraph 156. The section reads: “

……..the provincial authority must refer the application to the Minister for consideration –………

(b) where the activity concerned will take place within an area which is demarcated as an area of national or international importance, but does not include the sea-shore, conservancies, protected natural environments, proclaimed private nature reserves, natural heritage sites, and the buffer zones and transitional areas of biosphere reserves and world heritage sites.”

The section reads:

“The Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.”

See, amongst others, Regulation 1(d)

“No person shall undertake an activity identified in terms of section 21(1) or cause such an activity to be undertaken except by virtue of a written authorization issued by the Minister or by a competent authority or a local authority or an officer, which competent authority, local authority or officer shall be designated by the Minister by notice in the Gazette.”

The Minister designated the competent authority in each province as an authority which may issue an authorization in terms of section 22(1).

They are for declaratory orders that neither the MEC nor the HOD were empowered to authorize a ROD and for an order interdicting Gautrans from undertaking any activity in respect of the development of the Gautrain without proper authorization in terms of section 22 of the ECA

Invalidity of theRevised ROD due to Conditional Authorization.

Invalidity of the

Revise

d ROD due to Conditional Authorization.

[30] The following process contained in the regulations published in the aforesaid Government Notice 1183 had to be followed: Gautrans had to appoint an independent consultant who, on behalf of Gautrans, had to comply with the regulationsRegulation 3(1)(a).. It had to satisfy itself that the consultant had the necessary expertise and ability to comply with the requirements, one of which was to manage the public participation processRegulation 3(1)(d). The consultant had to provide access to inputs of interested parties to the authorities and was responsible for the public participation process to ensure that interested parties and government departments could participateRegulations 3(1)(e) and (f). Gautrans received exemption from preparing a scoping report as its application was preceded by a feasibility study in which certain issues were identified. The consultant, however, had to prepare an EIA, identifying environmental issues, feasible alternatives thereto, further information required to determine the impacts of the activity on the environment, the method to identify the impacts and a method of assessing the significance of the impactsRegulation 7(1). After acceptance of the study for the EIA an EIR was to be submitted which had to contain a description of each alternative showing the extent and significance of each environmental impact and the possibility for mitigation as well as a comparative assessment of all the alternatives. Thereafter the application was to be considered and either an authorization was to be issued or the application was to be refusedRegulation 9(1). The relevant authority was then to issue a ROD which was to contain indications as to how it was to be made available to interested parties, a description of the activities, other detail and importantly the following:

Regulation 3(1)(a).

Regulation 3(1)(d)

Regulations 3(1)(e) and (f)

Regulation 7(1)

Regulation 9(1)

“the conditions of the authorization (if any), including measures to mitigate, control or manage environmental impacts or to rehabilitate the environment.”Regulation 10 in general and 10(2)(g) in particular.

“the conditions of the authorization (if any), including measures to mitigate, control or manage environmental impacts or to rehabilitate the environment.”

Regulation 10 in general and 10(2)(g) in particular.

[31] The applicants rely on section 6(2)(b) of PAJAAct 3 of 2000. The subsection reads:A court or tribunal has the power to judicially review an administrative action if a mandatory and material procedure or condition prescribed by an empowering condition is not complied with.”

Act 3 of 2000. The subsection reads:

A court or tribunal has the power to judicially review an administrative action if a mandatory and material procedure or condition prescribed by an empowering condition is not complied with.”

Section 2, 2 (c), 2(e) 24(3) and 24(7).

Section 2(3)

Section 2(4)(b)

Section 2(4)(i).

Government Notice 1183 of 5 September 1997.

Regulation 3(a)(i)

Regulation 3(a)(iv)

[35] He says that the practical way to handle a project of this nature is to obtain a conditional authorization, which will not entitle the applicant to start with construction but will enable it to first do the preliminary design and thereafter the detailed design to fulfil the conditions laid down in the conditional authorization. He maintains that the result is truly integrated planning done in sympathy with environmental requirements. The ROD is such a conditional design. He states that in this case the extent and significance of the identified environmental impacts were described in the EIR and the measures for mitigation thereof were contained in the draft EMP accompanying the EIR. The HOD found that although there were social and environmental impacts associated with the revised route alignment 6fd they could be contained within acceptable limits subject to appropriate environmental management of the project during the design, construction and implementation stages. It was not possible to give specifications of the mitigation measures until the detailed planning of the project was completed. No one of the impacts was regarded as fatal. The authorization provided for an extra phase of public participation namely before approval of the EMP which would entitle the concessionaire to start with construction. In other words construction cannot commence before mitigation measures are properly defined, after I and AP’s had a further opportunity to give their inputs. On appeal the MEC endorsed that approach in view of the environmental impact of the Gautrain project on especially the Johannesburg- Ehkurhuleni-Pretoria triangle, but built further steps into the ROD to ensure that all interested parties would definitely be assured that the process is open and transparent.[36] The applicants’ reply thereto is that the procedure explained by van der Merwe is broadly in line with the provisions contained in the Gauteng Transport Infrastructure Act, No 8 of 2001 (the GTIA), but that the preferred alignment was so ill conceived that it could never have been anything than a starting point for planning. They say that if Bohlweki had done its work properly by considering all the submissions made by I and AP’s it would have recommended a route that is technically and environmentally feasible and Gautrans would have been assured that it was not wasting money with its planning. It is said that the answering affidavit is the first intimation that the authorization is conditional and that a second phase of authorization is proceeding. It is stated that it does not appear expressly from the ROD. They say that when they requested an extended time within which to file its review application it was not explained to them that the review application was premature. They say that neither GDACE nor Bohlweki gave the same explanation in their answering affidavits and finally that the legislation in terms of which the HOD and the MEC acted does not provide for such a course.[37] The applicants’ surprise to learn that both the ROD and the revised ROD were conditional is difficult to understand. Condition 3.3.3 of the revised ROD deals with the revised structure of the EMP. It provides for an EMP standard “against which the effectiveness of management of each impact will be measured” and for “Methods Statements” which are to describe the specific and detail methods that will be used to comply with the EMP standard. It provides that a draft EMP must be available to other registered stakeholdersThe applicants are registered stakeholders.for comment at least 30 days prior to submission of the EMP to GDACE. Conditions 3.3.3.10 and 3.3.8.1 are unambiguous. In condition 3.3.3.10 it is stated clearly that “No construction may commence” before approval of the EMP. The heading of condition 3.3.8 is “Environmental Management Plan – Operational & Maintenance Phases”. In 3.3.8.1 it is stated that the draft final EMP must be approved before construction may commence. Condition 4 – “Consequences of non-compliance” reads as follows”

The applicants are registered stakeholders.

“The applicant must comply with the conditions set out in this letter. Failure to comply with any of the above conditions may result in,inter alia, the Department withdrawing the authorization, issuing directives to address the non-compliance – including an order to cease activity – as well as instituting criminal and/or civil proceedings to enforce compliance.”

“The applicant must comply with the conditions set out in this letter. Failure to comply with any of the above conditions may result in,

inter alia

, the Department withdrawing the authorization, issuing directives to address the non-compliance – including an order to cease activity – as well as instituting criminal and/or civil proceedings to enforce compliance.”

[38] It is abundantly clear that the authorization was conditional and was intended to be conditional. If the applicants had read the ROD properly they would have realized it and they would have realized that they could still participate in the process. As to their contention that the ECA and the EIA regulations do not make provision for such a procedure, it is based on their interpretation of regulation 10(2)(g). It was quoted in paragraph 30 above. The regulation was laid down because of the provisions of section 22(3) of the ECA. It provides that the competent authority may at his or its discretion refuse or grant authorization “on such conditions, if any, as he or it may deem necessary”. Neither section 22(3) nor regulation 10(2)(g) provide that GDACE is not entitled to give authorization unless the conditions in respects of mitigation of impacts have been defined. They give a discretion to GDACE to impose such conditions, if GDACE regards it as advisable.[39] It is plain from all the papers in this matter that the management of the environmental requirements of the Gautrain project is an extremely complex one. There are many I and AP’s. Although in general everybody is in favour of the project it is clear that most people would be pleased if the railway line does not go past their property too closely. That was anticipated by Gautrans. The ECA and the EIA regulations do not prohibit the procedure adopted. It makes sense and allows for full public participation to the end. In the result the answer to the applicants’ contention that the authorization was not lawful because of the failure to define the mitigation measures, is twofold. In the first place the construction of the project has not yet been authorized and secondly it is clear that it will not be authorized until mitigation measures have been properly determined, after a further process of public participation, and have been stipulated in the EMP.

Decision-maker did not apply her mind.

[40] The applicants’ attack is two-pronged. The first leg of the argument is based upon section 5 and more in particular section 5(3) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA)Subsections 1, 2 and 3 o9f section 5 of PAJA read as follows:“(1) Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action, or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish reasons for the action.(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.(3) If an administrator fails to furnish adequate reasons for the administrative action it must, subject to sub-section (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.”. Secondly the applicants wish to have the revised ROD reviewed and set aside in terms of the principles of administrative law. Those principles were set out as follows inJohannesburgStock Exchange and Another v Witwatersrand Nigel Ltd and Another1988 (3) S A 132at 152 A-C.by Corbett JA:

Subsections 1, 2 and 3 o9f section 5 of PAJA read as follows:

“(1) Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action, or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish reasons for the action.(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.(3) If an administrator fails to furnish adequate reasons for the administrative action it must, subject to sub-section (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.”

Johannesburg

Stock Exchange and Another v Witwatersrand Nigel Ltd and Another

1988 (3) S A 132at 152 A-C.

1988 (3) S A 132

by Corbett JA:

“Broadly, in order to establish review groundsit must be shown that the president failed to apply his mind to the relevant issues in accordance with the’behests of the statute and the tenets of natural justice’ (seeNational Transport Commission and Another v Chetty Motor Transport Pty. Ltd.1972(3) SA 726(A) at 735F-G;Johannesburg Local Road Transportation Board and Others v David Morton Transport (Pty) Ltd1976 (1) SA 887at 895B-C;Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere1976 (2) SA 1(A) at 14F-G). such failure may be shown by proof,inter alia,that the decision was arrived at arbitrarily or capriciously ormala fideor as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated”See alsoMetcash Trading Ltd. v Commissione, South African Revenue Service, and Another,2001 (1) SA 1109(CC) at 1133 {40}.[41] Section 5(1) of PAJA deals with the situation where the decision-maker failed to give reasons at all. The affected person is then entitled to request reasons in terms of sub-section (2). In the case of a failure to supply reasons or where the reasons supplied are inadequate, the presumption in sub-section (3) is triggered. It is significant that in sub-section (1) the right to request reasons comes into existence only if reasons have not been given. In sub-sections (2) and (3) it is provided that the decision-maker is to giveadequatereasons and that in the case of a failure to giveadequatereasons the presumption operates.[42] In this case the MEC gave reasons for ordering the revised ROD to be issuedSee paragraphs 19, 21 and 22 above.. The applicants were unhappy with the reasons supplied. As a result a questionnaire was addressed to the MEC requesting reasons for the issue of the revised RODAnnexure FF45 to the founding affidavit.. The document consists of a 24 page letter covering broadly four topics, ie: 1. Reasons in respect of matters contained in the MEC’s letter of 25 April 2004Annexure FF13 to the founding affidavit., 2. Reasons in respect of matters previously raised by the applicant, 3. Matters arising from the revised ROD and 4. A request for documents in terms of the Promotion of Access to Information Act. Contained in the document is a myriad of argumentative questions, mainly enquiring why the proposals submitted by the applicants have not been accepted. The document is not a request for reasons. It is clearly intended, if answered, to form the basis for the review of the MEC’s decision.[43] The situation is simply that the MEC has given reasons for her decision. She said that although many alignments were suggested and examined and that some of the appellants contended that some of the alignments were not optimal she was satisfied that the evaluation done by GDACE caused the best choice route to be authorized, taking all economic, social and environmental factors into account. She regarded it as sensible to defer defining mitigation measures until detail planning had been done and after a further draft EMP had been made available to I and AP’s and open and transparent public participation had taken place. The revised ROD itself was clear that it did not authorize construction until the mitigation measures were finalized and that failure to comply with the conditions imposed may lead to withdrawal of the authorization. The reasons supplied by the MEC made it clear that there was an evaluation process where economic, social and environmental factors were considered in selecting the best alignment. As was stated in theAnsett Transportmatter, quoted with approval by Schutz JA inMinister of Environmental Affairs and Tourism v Phambili Fisheriesand againstBato Star Fishing2003 (6) SA 407(SCA) at 428 [40]the reasons supplied by her were sufficient for someone who looked objectively at them to understand why she decided upon the alignment. There was scope for the remark: “Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.” The contention that no reasons, or inadequate reasons, were given is clearly wrong.[44] As to the review in terms of the principles of administrative law it has already been stated in paragraph 32 above that the legislation provides that before development can take place there must be a careful assessment of all environmental impacts that may result from the development. The assessment must be done by officers who are fully informed on the relevant environmental aspects and who must endeavour to give effect to the aims contained in the legislation. They are not to make the assessment before there has been a transparent public participation process which allows all I and AP’s to give their inputs. They have to inform and advise the decision-maker, who then has to consider the application and make a decision.[45] Adv. Southwood argues that the public participation process should be followed throughout, both during the investigative and the adjudicative process. She relies on the judgment inEarthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism and Another,[2005] ZAWCHC 7;2005 (3) SA 156at 172[60]. In that matter the court upheld the applicant’s contention that the “hearing” which was afforded to it was fundamentally flawed in that it was only afforded an opportunity of making written submissions on the draft EIR and not on the final EIR also. It seems to have been common cause in that matter that the “hearing” was confined to written submissions and did not entitle I and AP’s to oral argument. Dealing with the respondent’s contention that the applicant was only entitled to full participation until submission of the final EIR Griesel J said the following:

“Broadly, in order to establish review grounds

it must be shown that the president failed to apply his mind to the relevant issues in accordance with the

’behests of the statute and the tenets of natural justice’ (see

National Transport Commission and Another v Chetty Motor Transport Pty. Ltd.

1972

(3) SA 726(A) at 735F-G;

Johannesburg Local Road Transportation Board and Others v David Morton Transport (Pty) Ltd

1976 (1) SA 887at 895B-C;

1976 (1) SA 887

Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere

1976 (2) SA 1(A) at 14F-G). such failure may be shown by proof,

1976 (2) SA 1

inter alia,

that the decision was arrived at arbitrarily or capriciously or

mala fide

or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones

; or that the decision of the president was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated”

See also

Metcash Trading Ltd. v Commissione, South African Revenue Service, and Another,

2001 (1) SA 1109(CC) at 1133 {40}.

2001 (1) SA 1109

adequate

See paragraphs 19, 21 and 22 above.

Annexure FF45 to the founding affidavit.

Annexure FF13 to the founding affidavit.

Ansett Transport

Minister of Environmental Affairs and Tourism v Phambili Fisheries

Bato Star Fishing

2003 (6) SA 407(SCA) at 428 [40]

2003 (6) SA 407

Earthlife Africa (

Cape Town

) v Director-General: Department of Environmental Affairs and Tourism and Another,

[2005] ZAWCHC 7

2005 (3) SA 156

“I find this approach to be fundamentally unsound. The regulations provide for full public participation in ’all relevant procedures contemplated in these regulations’ (Regulation 3(1)(f)). The respondents seek to limit such participation to the’ investigation phase’ of the process (as contemplated by regs 5,6 and 7). After submission of the EIR, however, the ‘adjudicative phase’of the process commences, involving the DG’s consideration and evaluation, not only of the EIR, but also – more broadly – of all other facts and circumstances that may be relevant to his decision. There is nothing in the Act (ECA) or the regulations that expressly excludes public participation or applicationof theaudirule during this ‘second stage’ of the process. In line with settled authority (See e.g.Attorney-General, Eastern Cape v Blom and Others1988 (4) SA 645(A) at 662G-I.), therefore, it follows that procedural fairness demands application of theaudirule also at this stage.”

“I find this approach to be fundamentally unsound. The regulations provide for full public participation in ’all relevant procedures contemplated in these regulations’ (Regulation 3(1)(f)). The respondents seek to limit such participation to the’ investigation phase’ of the process (as contemplated by regs 5,6 and 7). After submission of the EIR, however, the ‘adjudicative phase’

of the process commences, involving the DG’s consideration and evaluation, not only of the EIR, but also – more broadly – of all other facts and circumstances that may be relevant to his decision. There is nothing in the Act (ECA) or the regulations that expressly excludes publ

ic participation or application

of the

audi

rule during this ‘second stage’ of the process. In line with settled authority (See e.g.

Attorney-General, Eastern Cape v Blom and Others

1988 (4) SA 645(A) at 662G-I.), therefore, it follows that procedural fairness demands application of the

1988 (4) SA 645

rule also at this stage

.”

[46] There is a fundamental difference between the principle enunciated in theBlommatter on which the learned judge relied and the matter heard in that court. The principle enunciated by Corbett JA in that matter was that where a statute empowering a public official to give a decision which may prejudicially affect the property or liberty of an individual, there is a right to be heard, unless the statute shows, either expressly or by implication a clear intention to exclude such a right. The question was whether the Attorney-General could issue an order in terms of the Internal Security Act prohibiting bail, without hearing the individual concerned. If it was not for the principle ofaudi alteram partemthe respondents would not have had a right to be heard. In theEarthlifematter, as in this matter, the statute specifically provides for public participation and hence for a right to be heard.[47] The scheme of the regulations read in conjunction with the relevant legislation is that the applicant for development must appoint an environmental expert, as a consultant, who is to investigate the environmental impacts and must prepare a report to be submitted to the Department. In the process there must be full public participation. The consultant is obliged to see to it that I and AP’s get proper notice of the application and of public meetings and workshops. From the outset I and AP’s are entitled to provide inputs and proffer alternatives. The relevant Government Departments must also participate. When the consultant has given I and AP’s sufficient opportunity to deliver inputs it has to prepare a draft EIR. That draft EIR must deal with the inputs received during the public participation process and must again be made available to interested parties for scrutiny. They have a further opportunity to criticize and discuss the recommendations contained in the draft EIR. The consultant must deal with these further submissions in the final EIR which is to be submitted to the Department. Knowledgeable officials in the Department will submit the final EIR together with their advice to the decision-maker.[48] The participation process does not make provision for a formal oral hearing like a court case. Regulation 3(5) provides that interested parties who want to participate in the public process, contemplated in 3(1)(f), must do so within the time “agreed to between the relevant authority and the applicant”The developer.. It is clear therefore that the regulations do not provide for unlimited time to make submissions. The consultant is not a party. The applicant is to appoint the consultant to assist the Department. After all the consultant has to conduct the public participation process and gather information and the views of interested parties. The consultant must then collate the information and various views and present it to the Department. Before doing so, however, the consultant must make his draft report available for comment and interested parties may make further submissions. Only thereafter the final report is submitted.[49] This case illustrates graphically why there must be a cut-off period. The applicants have already presented six submissionsThe five that were presented before the first ROD and the environmental report that was annexed to the appeal..It is difficult to see how anything of great importance, hitherto unmentioned, will make its appearance in a seventh submission. To have allowed further time to the applicants, would just have delayed matters. It was submitted from the bar that each day’s delay is costing Gautrans R2,88 million. It stands to reason that an application is to be finalized within reasonable time limits.[50] One of the purposes of the environmental legislation is clearly to see to it that there is proper planning. Proper planning can only take place if the people doing the planning are properly informed. The public participation process serves to have the planners informed and to have the competent authority informed when the proposed planning is submitted for approval.[51] When one compares the public participation process to a court application all the paperwork and arguments by the parties are supposed to be finalized when the final submissions on the draft EIR had been made. Thereafter the adjudicative stage begins. The consultant submits the final EIR for the benefit of the Department and the fate of the application is then in the hands of the Department. That is the stage when the court reserves judgment and the members of court deliberate. At that stage no one of the parties, in law or in logic, has any further right to influence the outcome of the decision. With great deference to the court in theEarthlifecase the opposite approach propounded by it cannot be endorsed.[52] Many of the arguments on behalf of the applicants are reiterations of the submissions made during the participation process. It is then argued that the MEC was wrong not to have upheld those contentions and should have explained in her reasons why they have not been followed, Those arguments are arguments that one would have expected on appeal. In theBato Starmattersuprain the Supreme court of appeal Schutz JA said the following at p.432 [52]:

Blom

audi alteram partem

Earthlife

The developer.

The five that were presented before the first ROD and the environmental report that was annexed to the appeal.

Bato Star

supra

During the course of the argument for Phambili we were frequently told that something that the Chief Director had done was ‘wrong’.This is the language of appeal not review. I do not think that the word was misused because time and again it appears that what is really under attack is thesubstance of the decision,not the procedure by which it was arrived at.That is not our job. I agree with what is said byHoexter(op citat 185:

During the course of the argument for Phambili we were frequently told that something that the Chief Director had done was ‘wrong’.

This is the language of appeal not review. I do not think that the word was misused because time and again it appears that what is really under attack is the

substance of the decision,

not the procedure by which it was arrived at.

That is not our job. I agree with what is said by

Hoexter

op cit

at 185:

‘The important thing is that Judges should not use the opportunity of scrutiny to prefer their own views as to the correctness of the decision, and thus obliterate the distinction between review and appeal’.

[53] That matter was also heard by the Constitutional Court[2004] ZACC 15;2004 (4) SA 490.. Dealing with the distinction between review and appeal O’Regan J, at 513[45], said:

[2004] ZACC 15;2004 (4) SA 490.

[2004] ZACC 15

2004 (4) SA 490.

“Although the review functions of the court now has a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The Court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.”

Strictly speaking a very large portion of the applicants’ attack against the MEC’s decision is not relevant in deciding the application[54] Another aspect of importance in determining whether the decision is reviewable or not is the fact that although the applicants feel very strongly that their views must prevail they are only a small number of all the interested and affected parties. The views of those parties are divergent. There are also competing interests. For example the people living north of Walker Street have serious objection to an alignment north of Walker Street but do not mind so much about an alignment south of Walker Street. Those living south of Walker Street prefer the opposite. Most affected parties would prefer the Park Street tunnel alignment. The only difficulty is that it will cost about R370 million extra. It will impact tremendously on the eventual prices of tickets and the viability of the scheme. The 6fd “depressed” alignment is acceptable for many affected parties. It will be even less costly than the alignment presently authorized. To construct the “depressed” alignment will entail the closing of the of the existing railway service for the duration of the construction. It will affect the lives of thousands of people living east of Muckleneuk. It follows that once the decision-maker is satisfied that the project is desirable an alignment must be chosen. If from a planning point of view a responsible alignment is chosen the decision-maker cannot be faulted. The fact that there will of necessity be parties who are deeply unhappy does not make the decision unlawful.[55] Related to the fact that the decision is complex and will displease many is the principle of deference. It was discussed in theBatho Starmattersupraboth in the Supreme Court of Appeal and in the Constitutional CourtSee2003 (6) SA 407at 430/1 [47]-[50] and 204(4) SA490 at 513-5 [46]-[48]. It has to do with the question which branch of government has in a particular instance the decision-making power and what the limits of the power are. For the purposes of this judgment it is sufficient to quote a portion of what was said by O’Regan J in paragraph 48:

Bat

ho Star

See2003 (6) SA 407at 430/1 [47]-[50] and 204(4) SA490 at 513-5 [46]-[48]

“In treating the decisions of administrative agencies with the appropriate respect, aCourt is recognising the proper role of theExecutive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdomin relation to matters entrusted to other branches of government.A Courtshould thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field.”

“

In treating the decisions of administrative agencies w

ith the appropriate respect, a

Court is recogn

is

ing the proper role of the

Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom

in relation to matters entrusted to other branches of government.

A Court

should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field.”

[56] The applicants failed to identify a procedural irregularity. It follows that this court must find that the applicants’ attack against the decision on the basis that the decision-maker failed to apply her mind for the purposes of the administrative law review, must also fail.

Review on the basis of Bias:

[57] The applicants rely on section 6(2)(a)(iii)It provides:“A court or tribunal has the power to judicially review an administrative action if –(a) the administrator who took it(iii) was biased or reasonably suspected of bias”.of PAJA and maintain that they harbour a reasonable suspicion of bias in relation to the HOD and the MEC. The argument is that both GDACE and Gautrans are provincial departments in the Gauteng Provincial Administration. It is said that the Gauteng Premier’s name is attached to the project in that the Gautrain is widely known as the “Shilowa Express”. The Premier has publicly supported the project. The project is a Blue IQ initiative and has been prioritized by the Gauteng Provincial Government. The MEC is the political head of GDACE. It is stated that a particular obligation rested on the MEC to demonstrate that she was unbiased, and that she failed to do so. It is submitted that the MEC’s conduct strengthened the perception of bias because she curtly dismissed the allegation of bias, that she failed to give reasons for the revised RODIt has already been held that she did give reasons., that she authorized alignment 6fd and in general all the other complaints already dealt with.[59] It is accepted that the test for a reasonable suspicion of institutional bias is whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the decision-maker has not or will not bring an impartial mind to bear on the adjudication of the matterPresident of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999(4) SA 147(CC) at 177 [48]. It is to be noted that the test imports a double requirement of reasonableness. The person apprehending the bias must be a reasonable person but the apprehension of bias must in the circumstances also be reasonableSouth African Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd .(Seafoods Division Fish Processing)2000(3) SA 705 (CC) at 714[14].[60] In the answering affidavit it is stated that the interests of GDACE and Gautrans differ fundamentally. It is stated that GDACE operates independently from Gaurtrans, that GDACE is required by law to apply its mind independently and fairly in evaluating an EIA application and that GDACE has evaluated numerous proposals from Gautrans on their merits and denied authorization in some instances.[61] It is not really necessary to deal with this issue at length because of the way in which the application was dealt with by Gautrans and GDACE. GDACE accommodated the applicants more than once with extensions of time limits or postponement of meetings. GDACE insisted on a myriad of studies. The MEC obtained a further report before dealing with the appeal. All the objective facts, as opposed to a paranoid apprehension of bias based on an unhappiness that its contentions did not prevail, indicate that instead of abdicating its duties GDACE and the decision-makers were doubly careful not to overlook anything of importance in favour of the applicants. This ground for review can accordingly also not succeed.

It provides:

“A court or tribunal has the power to judicially review an administrative action if –(a) the administrator who took it(iii) was biased or reasonably suspected of bias”.

It has already been held that she did give reasons.

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999(4) SA 147(CC) at 177 [48]

South African Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd .(Seafoods Division Fish Processing)

2000(3) SA 705 (CC) at 714[14].

Costs.

[62] As far as the review application is concerned and in view of section 32(2) of NEMA which provides that if a court is of the opinion that persons who unsuccessfully brought an application for the protection of the public interest or the environment but acted reasonably it may decide not to mulct it in costs the respondents did not really press for an order of costs against the applicants. Although it can possibly be said that the applicants overreacted it must be accepted that they brought the application not only for the public interest but also to conserve the environment. It is accordingly fair to make no order as to costs in the review matter.

[63] In the case of the urgent application the situation is different. It can be accepted that the applicants’ conduct and motive to bring the application was just an extension of their perceived rights in respect of the review matter. In the process they accused Bohlweki that the process which they followed was flawed and claimed orders of costs against both Bohlweki and Felehetsa. When the parties agreed to a consolidation of the applications it became unnecessary to exchange papers. Instead of informing the respondents that they were no longer obliged to file opposing affidavits they led the respondents to believe that they had to deal with the urgent application. As a matter of fact they filed a replying affidavit in which there was no intimation that they did not plan to proceed with the urgent application. That conduct of the applicants was unreasonable. By no later than 4 May 2006 they should have caused the urgent application to be shelved. The respondents have urged the court to make it clear that applicants acting unreasonably must not believe that they will not be penalized. In this matter the applicants must be penalized for their conduct in the urgent application after 4 May 2006. Felehetsa and Bombela employed three counsel to represent them on the question of costs. That was rather extravagant. One counsel could also do it. The arguments on costs were not so involved that more than one counsel was neededThe following order is made:A.

A.

In case number 28192/04:1.

1.

The application is dismissed..2.No order of costs is made.

2.

B In case number 12137/06:The applicants are ordered to pay the respondents costs incurred after 4 May 2006. The costs will be limited to the employment of one counsel by each one of the respondents who opposed the application.………………………………

W J HARTZENBERGJUDGE OF THE HIGH COURT

I agree..

……………………

B M NGOEPE

JUDGE PRESIDENT OF THE HIGH COURTI agree

…………………………..

F LEGODIJUDGE OF THE HIGH COURT

Representation :For the Applicant:Counsel : F Southwood.

Attorneys: Macroberts Inc.

For the MEC and the HOD of the Department of Agriculture Conservation and Environment, Gauteng Provincial Government.:Counsel: Gilbert Marcus S C , M Sikhakhane and Nasreen Rajab-BudlenderAttorneys: The State Attorney.For The Department of Public Transport, Roads and Works, Gauteng Provincial Government::Counsel: G L Grobler S C, R J Raath S C, S P Mothle and A LiversageAttorneys: The State AttorneyFor Bohlweki Environmental (Pty) Ltd..Counsel: P LazarusAttorneys.Warburton Attorneys (Johannesburg) Ledwaba Mazwai Attorneys (Pretoria)For Felehetsa Environmental (Pty) Ltd. and Bombela Consortium.

Counsel: D M Fine S C, P Lazarus and C Malema

Attorneys: Webber Wentzel Bowens (Johannesburg) Gildenhuys Lessing Malatji Inc. (Pretoria)