Vermaak and Others v Minister of Environmental Affairs of the Republic of South Africa and Others (224/2013) [2013] ZAECPEHC 36 (19 March 2013)

Vermaak and Others v Minister of Environmental Affairs of the Republic of South Africa and Others (224/2013) [2013] ZAECPEHC 36 (19 March 2013)

The court held that the nature of the relief sought required the applicants to establish not merely that they had invoked section 44 of LUPO, but that they were legally vested with a right of appeal. The existence of this right was disputed and its resolution was a necessary condition for granting the interdict. The MEC, as the appeal authority, had a direct and substantial interest in the determination of whether appeals were pending before him. Accordingly, the failure to join the MEC was material and the application could not be determined in his absence. The court upheld the respondents' in limine objection and ordered postponement to allow for joinder of the MEC. The applicants were...

Citation
[2013] ZAECPEHC 36
Parties
Applicant: Petrus Johannes Vermaak; Applicant: Robert C.A. Bell; Applicant: Jennifer Bell; Applicant: George Chamberlain; Applicant: Gerhard Saayman; Applicant: Carel Scheepers; Applicant: Lerischia Scheepers; Applicant: Shirley Wagner-Welsh; Applicant: Johan C Wagner; Applicant: Deon P Gouws; Applicant: Deal Making Investments (Pty) Ltd; Applicant: Jan Burger Pienaar; Applicant: David Lister; Applicant: Virginia Lister; Respondent: Minister of Water and Environmental Affairs of the Republic of South Africa; Respondent: Nelson Mandela Bay Municipality; Respondent: Metrowind (Pty) Ltd; Respondent: Rubicept (Pty) Ltd; Respondent: Jacobus Olivier N.O.; Respondent: Deon Olivier N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 March 2013
Case Number
224/2013
Procedural Posture
Urgent Application / Interlocutory Application for Interim Interdict; in Limine Objection Regarding Non Joinder
Outcome
Application postponed sine die to enable joinder of the MEC; applicants ordered to pay wasted costs.
Judges
Goosen
Legal Topics
Non Joinder, Interim Interdict, Environmental Authorisation, Land Use Planning, Right of Appeal, Urgency
Administrative Law Environmental Law Civil Procedure Non Joinder Interim Interdict Environmental Authorisation Land Use Planning Right of Appeal +1 more

Case Brief

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Parties

Petrus Johannes Vermaak

Applicant

Robert C.A. Bell

Applicant

Jennifer Bell

Applicant

George Chamberlain

Applicant

Gerhard Saayman

Applicant

Carel Scheepers

Applicant

Lerischia Scheepers

Applicant

Shirley Wagner-Welsh

Applicant

Johan C Wagner

Applicant

Deon P Gouws

Applicant

Deal Making Investments (Pty) Ltd

Applicant

Jan Burger Pienaar

Applicant

David Lister

Applicant

Virginia Lister

Applicant

Minister of Water and Environmental Affairs of the Republic of South Africa

Respondent

Nelson Mandela Bay Municipality

Respondent

Metrowind (Pty) Ltd

Respondent

Rubicept (Pty) Ltd

Respondent

Jacobus Olivier N.O.

Respondent

Deon Olivier N.O.

Respondent

Procedural Posture

Urgent Application / Interlocutory Application for Interim Interdict; in Limine Objection Regarding Non Joinder

Legal Issues

  1. 1 Whether the failure to join the MEC for Local Government and Traditional Affairs, Eastern Cape, is fatal to the application for interim interdict.
  2. 2 Whether the applicants have a right of appeal in terms of section 44 of the Land Use Planning Ordinance (LUPO).
  3. 3 Whether the application should be postponed to allow for joinder of the MEC.

Ratio Decidendi

The court held that the nature of the relief sought required the applicants to establish not merely that they had invoked section 44 of LUPO, but that they were legally vested with a right of appeal. The existence of this right was disputed and its resolution was a necessary condition for granting the interdict. The MEC, as the appeal authority, had a direct and substantial interest in the determination of whether appeals were pending before him. Accordingly, the failure to join the MEC was material and the application could not be determined in his absence. The court upheld the respondents' in limine objection and ordered postponement to allow for joinder of the MEC. The applicants were...

Court Disposition

Application postponed sine die to enable joinder of the MEC; applicants ordered to pay wasted costs.

Orders

  • The Second, Third and Fourth Respondents' in limine objection to the non-joinder of the MEC for Local Government and Traditional Affairs, Eastern Cape is upheld.
  • The application is postponed sine die to enable the Applicants to take steps to join the MEC for Local Government and Traditional Affairs, Eastern Cape.