IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT)

In the matter between:

ASTRAL OPERATIONS LTD

PIONEER FOODS (PTY) LTD

And

THE MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS &

AND

JUDGMENT DELIVERED ON TUESDAY, 11 MAY 2010

DLODLO, J
INTRODUCTION

[1] On 7 April 2009 the First Respondent took a decision in terms of sections 22 (3) and 35 (4) of the Environment Conservation Act, 73 of 1989 (hereinafter "the ECA"):
(a)	Upholding appeals in terms of section 35 (3) of the ECA against the decision by the Director: Integrated Environmental Management (Region B) in the Western Cape Department of Environmental Affairs and Development Planning (hereinafter "the Director", "the Department") on 16 July 2007 to authorize the activities required for the establishment of a new regional landfill site and associated infrastructure to service the City of Cape Town ("the City") on a site which became known as "the Atlantis site"; and
(b)	
It is common cause that the Applicants were registered "Interested and Affected Parties" in relation to the environmental impact assessment process arising from application for environmental authorization of such activities in terms of section 22 of the ECA made by the City to the Department.

GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING 

Messrs Duminy (SC) and Edmunds appeared for the Applicants. Mr. Breitenbach (SC) and Ms Thaysen appeared for the Respondents. Messrs Mitchell (SC) and Janse van Rensburg appeared for the First Intervening Party and Mr. Grobelaar appeared for the Fourth Intervening Party.

BACKGROUND
[4]    The main application in this matter is in terms of section 6 of the PAJA for judicial review of two (2) decisions taken simultaneously on 7 April 2009 by the decision-maker being the competent authority in the Provincial Government to whom the administration of the Act had been assigned in terms of section 235 (8) of the Constitution of the Republic of South Africa as designated by the National Minister (Government Notice R1184 in Government Gazette 18261 of 5 September 1997 (read with the definition of 'competent authority' in section 1 of the ECA): (a)    Overturning a decision which had been taken on 16 July 2007 by the First Respondent's  delegate,  the  Director  in the  Provincial Government, granting for the reasons set out in his Record of Decision   ('ROD',    'the   Director's   ROD'),    environmental authorization in terms of section 22 of the ECA for the activities described in Part A of his ROD, at the location described in Part B of the Director's ROD, being the Atlantis site; and (b) Granting authorization for the same activities at a location described in Part A of the Minister's ROD dated 7 April 2009, being the Kalbaskraal site ("the second decision').

[5] The City is the Applicant for the environmental approval of a new regional landfill site and associated infrastructure. The landfill site will receive general and household waste having a hazard rating of H:h which means that it will also receive some waste with a low to moderate hazardous rating. The First Respondent is the decision-maker in respect of the decision on 7 April 2009. At the time when the Director's decision was made in 2007 the incumbent was Ms Tashneem Essop and her designation was 'Minister for Environmental Planning and Economic Development'. In July 2008 Ms Essop resigned and was replaced by Mr. Pierre Uys, whose designation was 'MEC for Local Government, Environmental Affairs and Development Planning'. After the general election held on 22 April 2009 Mr. Anton Bredell was appointed as 'Minister of Local Government, Environmental Affairs and Development Planning'.

[6]    The relevant provisions of the ECA are set out briefly hereunder. Section 21 (1) of the ECA states the following:
"The [national] 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."
Section 22 of the ECA creates a prohibition on the undertaking of identified activities ('listed activities') without a 'written authorization'. Sub-sections 22 (1), (2) and (3) read as follows:
"(1) 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, or officer shall be designated by the Minister by notice in the Gazette.
(2) The Authorization referred to in subsection (1) shall only be issued after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment, which shall be compiled and submitted by such persons and in such manner as may be prescribed.
(3) The Minister or the competent authority, or a local authority or officer referred to in subsection (1), may at his or its discretion refuse or grant the authorization for the proposed activity or an alternative proposed activity on such conditions, if any, as he or it may deem necessary".

[9] In terms of the Order any such interested and affected parties and persons who intend opposing the granting of the relief sought had until Monday 22 February 2010 to deliver their notices to that effect and until Tuesday 23 March 2010 to deliver their Opposing Affidavits. This matter was to be heard in this Court on Tuesday 20 April 2010. In response to publication of the draft order in the press and its sending to all interested and affected parties and persons, four parties delivered notices of intention to oppose the confirmation of the rule nisi on the return day (20 April 2010) and the Third Intervening Party delivered a notice in terms of Uniform Rule 30A complaining that the record has not been delivered. The reason why the Applicants have not insisted on the record being delivered is that the matter has been settled between the Applicants and the Respondents on the procedural ground adverted to above and, as appears from what follows, the salient facts regarding the procedural fairness of Mr. Uys' decision are a matter of public record and appear from the Applicants' Founding papers and certain of the annexures thereto:
(a) The appeals Mr. Uys had to consider were from people who believed that Mr. Barnes had been wrong to authorize the establishment of the new regional landfill on the Atlantis site. Most, (if not all), people who may or would be adversely affected if the new regional landfill was established on the Kalbaskraal site would not have appealed because they would have been happy with Mr. Barnes' decision or at least have preferred it to the alternative of an authorization for the Kalbaskraal site.

[11] If the Applicants and the Respondents are right in their assessment of the procedural unfairness of Mr. Uys' decision, the appropriate order seemingly is the confirmation of the rule nisi and there is no need for the parties or this Court to engage with the Applicants' other, wide-ranging grounds of review. These include allegations concerning the adverse impacts of establishing the regional landfill on the Kalbaskraal site, the adequacy of the information for decision-making purposes, the relative costs of establishing and operating the regional landfill on the two (2) alternative sites and the information to support Mr. Uys' main reasons for deciding that the Atlantis site was not suitable. If Mr. Uys' decision is set aside, those issues I am told will be canvassed, to the extent that it is necessary to do so, in the process aimed at a fresh decision from the current Minister on the appeals against Mr. Barnes' decision.

THE COURT'S POWERS TO ORDER A SEPERATION

"[53] ... [the appellants] contended that they had a right to a ruling on the preliminary issue and a right to appeal against an unfavourable ruling. The SCA declined to order that the issue of jurisdiction be separated from the other issues and required the parties to address it on all the issues including the merits of the appeal...

'This Court is in principle strongly opposed to the hearing of appeals in piecemeal fashion...An exception may be made, however, where unusual circumstances call for such procedure... Substantial grounds should exist for the exercise of the power. The basis of the jurisdiction is convenience - the convenience not only of the parties but also of the Court. The advantages and disadvantages likely to follow upon the granting of an order must be weighed. If overall, and with due regard to the divergent interests and consideration of convenience affecting the parties, it appears that the advantages would outweigh the disadvantages, the Court would normally grant the application."

[14] The procedural unfairness issue has been conceded by the City and the Minister. It is accordingly decisive of the matter and in a manner which is expeditious and cost effective to all the parties concerned. The procedural unfairness of the Minister's decision agreed to by not only the Applicants but also the Respondents is set out in the Founding Affidavit as follows:

…..................................................................................................

LEAVE TO INTERVENE (FIRST AND FOURTH INTERVENING PARTIES)
[16]  Mr. Roy Thomas Isted, a director and shareholder of the First Intervening Party deposed to an Affidavit on behalf of this party. Principally Mr. Roy Thomas Isted dealt with what he himself entitled "The First Intervening Party's Business and Property." According to Mr. Isted the First Intervening Party is busy with mining operations in the boundaries of the proposed Kalbaskraal landfill and it is envisaged that the property it owns would be expropriated to make provision for the establishment of a landfill site. The property of the First Intervening Party and its entire running operation are located within the boundaries of the proposed Kalbaskraal landfill and therefore its expectation was that the establishment of the site at Kalbaskraal would necessitate the expropriation of the property from the First Intervening Party. Therefore the expectation was that the First Intervening Party would be entitled to receive financial compensation in the event of the property being expropriated. Mr. Isted further averred as follows: 
"25.  The First Intervening Party would, in the case of expropriation, probably have to retrench its full workforce due to its operational requirements. This might be prevented if the first Intervening Party could acquire other viable mining operations prior to expropriation taking place. This is an aspect which the First Intervening Party can only investigate once it has certainty regarding whether the property will be expropriated or not. 26.    The substantial impact which expropriation will have on the First Intervening Party's business and its employees necessitates that the First Intervening Party performs detailed and specific
financial and operational planning, relating to all aspects associated with expropriation. 
29. Given the fact that Kalbaskraal was considered as the preferred site for a long period of time the First Intervening Party, being mindful of the fact that it might be expropriated, took certain business decisions having regard to the risk of expropriation. The First Intervening Party for instance limited its capital expenditure and decided not to exploit the development of the kaolin reserves on the property, as the exploitation of koalin is a very long term process."

[17] On the effect of the setting aside of the Minister's decision Mr. Isted averred that the effect will be delays which would cause the First Intervening Party not to be in a position to adequately plan and manage its business as it would have no way of knowing when its business activities would come to an end, whether it be due to the exhaustion of the property's resources or expropriation. In conclusion, according to Mr. Isted, the First Intervening Party seeks to join the proceedings as a Respondent not only to secure the possible financial advantage which it may acquire through expropriation, but, more importantly, to prevent delaying the authorization process, as such a delay would, in his view, inevitably prevent it from properly conducting and planning its mining operations. According to Mr. Isted, this, in turn, will impact on the First Intervening Party's workforce, all of whom reside in the vicinity of the property. Another point made by Mr. Isted in the First Intervening Party's Supporting Affidavit is that the latter was registered as an interested and affected party during the environmental assessment process relating to the Kalbaskraal site.

PARTIES TO OPPOSE THIS APPLICATION

"9.2 I have been advised, verily believe and aver, that the First Intervening Party is a landowner in the area where the Kalbaskraal site is situated. It is not clear why such a landowner would want to intervene, unless it has hopes of heaving its property expropriated to accommodate the landfill site. A landowner in that position may have a commercial interest in the matter, but that would fall short of the requisite legal interest. In the circumstances the Applicants deny that the First Intervening Party has locus standi to intervene in the present application."

[24] It is not sufficient for an applicant merely to state that the applicant has an interest in the action. Such applicant must also make such allegations as would show that:

(b) that the application was seriously made; and
(c) that it was not frivolous. (Erasmus op cit)

IS THE INTERVENING PARTY ENTITLED TO REQUIRE THE PRODUCTION OF THE RECORD?
[25]  Uniform Court Rule 53 provides as follows in regard to the production of the record:
"53 (1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi judicial or administrative functions shall be by way of notice of motion directed and delivered by the partyseeking to review such decision or proceedings to the
magistrate, presiding officer or chairman of the court,
tribunal or board or to the officer, as the case may be and to
all other parties affected -
(a)	
(b) Calling upon the magistrate, presiding officer, chairman or officer as the case may be, to dispatch, within 15 days after receipt of the notice of motion, to the registrar the record of such proceedings to be corrected ... and to notify the applicant that he has done so.
(2)   	

WAS THE DECISION "ADMINSITRATIVE ACTION" ENVISAGED IN TERMS OF SECTION 3 OF PAJA?

It does not follow that material and adverse effects can only be demonstrated in relation to "all the issues" and not just one of them (especially if that single ground - that the decision was taken in a manner which was procedurally unfair - is meritorious). It does also not follow that one can only determine whether a decision has a material and adverse effect on a right or legitimate expectation by reference to the actual consequences of the decision. Section 3 of PAJA provides as follows:
"3 Procedurally fair administrative action affecting any person

(2)    	
(a) a fair administrative procedure depends on the circumstances of each case;
(b) in order to give effect to the right to procedurally fair administrative action, administrator, subject to subsection (4) must give a person referred to in subsection (1) -

"	The subsection must be construed consistently with the Constitution

(2) When interpreting any legislation, and when developing the common law or customary law, every Court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights."

Nugent JA stated the following for the Court in paragraph [23]:
"While PAJA's definition purports to restrict administrative action to decisions that, as a fact, 'adversely affect the rights of any person', I do not think that literal meaning could have been intended. For administrative action to be characterized by its effect in particular cases (either beneficial or adverse) seems to me paradoxical and also finds no support from the construction that has until now been placed on s 33 of the Constitution. Moreover, that literal construction would be inconsonant with s 3 (1), which envisages that administrative action might or might not affect rights adversely. The qualification, particularly when seen in conjunction with the requirement that it must have a 'direct and external legal effect', was probably intended rather to convey that administrative action is action that has the capacity to effect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals."

WHY WAS THE DECISION PROCEDURALLY UNFAIR?

"[15] As a result of the second appellants' decision that any amount of the 50 972kg reserved for allocation on appeal would be proportionately allocated to the applicants who had received allocations, the successful applicants acquired a contingent right to a proportionate share of the amount reserved for allocation on appeal, the contingency being the dismissal of the appeals. The word 'contingent' is used by me in the narrow sense. In this regard Watermeyer JA said in Durban City Council v Association of Building Societies 1942 AD 27 at 33:
'In the large and vague sense any right which anybody may become entitled to is contingent so far as that person is concerned, because events may occur which create the right and which may vest it in that person; but the word "contingent" is also used in a narrow sense, "contingent" as opposed to "vested", and then it is used to describe the conditional nature of someone's title to the right. For example, if the word "contingent" be used in the narrow sense, it cannot be said that I have a contingent interest in my neighour's house merely because my neighbour may give or bequeath it to me; but my relationship to my neighbour, or the terms of a will or contract, may create a title in me, imperfect at the time, but capable of becoming perfect on the happening of some event, whereby the ownership of the house may pass from him to me. In those circumstances I have a contingent right in the house.'
[16] The difference can also be illustrated by reference to the respondents' position, before they had been granted any commercial fishing rights in terms of s 18, in respect of the total allowable catch and their position in respect of the portion of the total allowable catch reserved for allocation on appeal. In the former case the respondents had a contingent right to the total allowable catch in the wide sense which is in fact not a right. In the latter case they actually had a right, albeit a contingent right, to the portion of the total allowable catch reserved for allocation on appeal."

[31] Mr. Duminy (SC) submitted that this failure to observe procedural fairness is not dependent upon the record and can be adjudicated upon without recourse to any further facts. The Intervening Parties have, furthermore, not stated - or even suggested - why this issue cannot be determined as a separate one, based on the information currently before the Court. I agree with this submission particularly in that even the Respondents who obviously have material interests in the decision taken have conceded that the decision impugned was unfairly arrived at.

NEW INFORMATION TAKEN ACCOUNT OF BY THE MINISTER

infra:

'Were new facts to be placed before the "administrator" which could be prejudicial to the appellant, it would be only fair that the latter be given an opportunity to counter them if he were able to do so, more particularly were the matter one in which the extant rights of an appellant could be detrimentally affected.'"

[35] I remain mindful of the submissions made by Mr. Breitenbach (SC) in support of the proposed directions contained in the draft order from his side. I hasten to mention though that I am always reluctant to prescribe to the Government officials how they should go about in the discharge of their duties. There is, in any event, more than sufficient statutory framework at their disposal that specify to such officials what needs to be done and how and what consequences will follow should the decisions be taken without adherence to the provisions of enabling legislation and the prescripts of the Constitution. Mr. Breitenbach (SC) referred me to cases where such directions were given by Courts. I am not going to deal with those cases for present purposes. It suffices to mention that each case has its own unique facts and must be dealt with on its own facts. In those cases such directions were deserved. In the instant case it is unfair and unwarranted to presume that the current Minister may wrongly handle this matter. I am told that up to now the Minister is innocent of wrongdoing. There are indeed many aspects in decisions taken by Government officials. Some of such aspects necessitate that they use their discretion. It is my view that the decision of the Minister should not be circumscribed in any way as I will not do so.

[36]  In the circumstances, I make the following order:
(a) The application for leave to intervene by the First and the Fourth Intervening Parties is hereby dismissed with costs including the costs of two (2) counsel.

DLODLO, J