Sharwood NO and Others v Transnet Ltd t/a National Ports Authority of South frica and Others (1038/2011) [2012] ZAECPEHC 61 (6 September 2012)

Sharwood NO and Others v Transnet Ltd t/a National Ports Authority of South frica and Others (1038/2011) [2012] ZAECPEHC 61 (6 September 2012)

The court found that neither specific condition 2.8 nor 2.48 of the revised Record of Decision imposed an obligation on the first or second respondents to provide the majority of the infrastructure or funding for the seabird and marine mammal rehabilitation centre. The only obligation was to submit a strategic plan, which was done and found compliant by the Minister. The applicants' attempt to import recommendations from the Comet report into the conditions was rejected, as the revised ROD specifically omitted such obligations. The second respondent was not referenced in the relevant conditions and was governed by a separate ROD. The administrative functionaries were best placed to...

Citation
[2012] ZAECPEHC 61
Parties
Applicant: Clive Arthur Sharwood N.O.; Applicant: Richard Anthony Cook N.O.; Applicant: Ian Forester Gray N.O.; Applicant: Norbert Theodor Wilhelm Klages N.O.; Applicant: Mark Hylton Marshall N.O.; Applicant: Alexander Ian Mitchell N.O.; Applicant: Eckart Hermann Schumann N.O.; Applicant: Elizabeth Ann Ruth Sharwood N.O.; Respondent: Transnet Limited t/a National Ports Authority of South Africa; Respondent: Coega Development Corporation; Respondent: Minister of Water and Environmental Affairs; Respondent: Director-General: Department of Environmental Affairs
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
6 September 2012
Case Number
1038/2011
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed.
Judges
Chetty
Legal Topics
Environment Conservation Act, Environmental Authorisation, Record of Decision, Public Participation, Judicial Review, Mitigation Measures
Environmental Law Administrative Law Environment Conservation Act Environmental Authorisation Record of Decision Public Participation Judicial Review Mitigation Measures

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Parties

Clive Arthur Sharwood N.O.

Applicant

Richard Anthony Cook N.O.

Applicant

Ian Forester Gray N.O.

Applicant

Norbert Theodor Wilhelm Klages N.O.

Applicant

Mark Hylton Marshall N.O.

Applicant

Alexander Ian Mitchell N.O.

Applicant

Eckart Hermann Schumann N.O.

Applicant

Elizabeth Ann Ruth Sharwood N.O.

Applicant

Transnet Limited t/a National Ports Authority of South Africa

Respondent

Coega Development Corporation

Respondent

Minister of Water and Environmental Affairs

Respondent

Director-General: Department of Environmental Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the first and second respondents were obliged to provide the majority of infrastructure and funding for the establishment and operation of a seabird and marine mammal rehabilitation centre under the revised Record of Decision.
  2. 2 Whether the first and second respondents complied with specific conditions 2.8 and 2.48 of the revised Record of Decision.
  3. 3 Whether the Minister and Director-General correctly concluded that the respondents complied with the obligations imposed by the revised Record of Decision.

Ratio Decidendi

The court found that neither specific condition 2.8 nor 2.48 of the revised Record of Decision imposed an obligation on the first or second respondents to provide the majority of the infrastructure or funding for the seabird and marine mammal rehabilitation centre. The only obligation was to submit a strategic plan, which was done and found compliant by the Minister. The applicants' attempt to import recommendations from the Comet report into the conditions was rejected, as the revised ROD specifically omitted such obligations. The second respondent was not referenced in the relevant conditions and was governed by a separate ROD. The administrative functionaries were best placed to...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • Each party is to bear its own costs.