environment cases

8/11/2019 Environment Cases

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Van Hyussteen & Ors. v. Minister for Environmental Affairs and Tourism and Ors.

(Before the Supreme Court of South Africa)

Please read the first four pages of this case as given in Maams notes, its a very long case

note types.

Facts:

1. Please read the complete list of Applicants and Respondents from page 57 of

Maams notes.

2. Sixth and seventh Respondents, Iscor Ltd. and Saldanha Steel (Pvt.) Ltd.,

respectively, sought to build a steel factory at Verdenburg-Saldanha. This would

occupy an area of 40-80 hectares.

3. South Africa is a party to the Convention on Wetlands of International Importance, to

protect the wetlands of the Langebaan Lagoons, near where the factory was to be

located. This is a sensitive eco-system of international importance. Langebaan is

hereinafter referred to as the trust property. One of its intended uses by the trustees

is as a spot for holiday homes.

4. The Applicants, being trustees of the Witterdrift Trust, are trustees of this property.

Mr. Van Hyussteen, in his personal capacity, is one of the beneficiaries of this trust

property.

5. Sixth respondent applied to the Provincial Administration of the Western Cape as per

the Land Use Planning Ordinance, 1985, for the rezoning of the land, so that the steel

mill could be erected. Difference of opinion arose amongst experts as to whether this

construction was desirable or not.

6. A CSIR Environmental Impact Study was conducted, drawn up by the Council for

Environment at the request of the respondent.

7. South Africa has international obligations under the Ramsar Convention.

Contentions:


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1. Applicants contend that the best way to resolve this is by way of an investigation

under Section 15(1) of the Environmental Conservation Act, Act 73 of 1989.

2. They further contest that a departmental investigation as has been carried out already,

is merely superficial and real substitute for the thorough investigation as provided for

by the 1989 Act. This will involve subpoenaing of witnesses and documents,

interrogation under oath, etc. Interested parties can also be heard and refuted, as

necessary.

3. The Respondents countered saying in the procedure as followed by them, regarding

the rezoning application, interested parties and experts with opposing views are

allowed to be heard. The expertise of the Cape Nature Conservation, a division of the

Provincial Administration, was also utilized.

4. The Respondents did admit that the Provincial Administration does not have the same

statutory powers, but denied that the second Respondent will not be able to make a

lawful decision in terms of the 1989 Act without such powers.

Questions before the Court:

1.

Have the Applicants a right to an order compelling the first respondent to appoint a board of investigation?

2. Have they the right to ask for an order compelling him to amend and/or modify the

terms of reference of the board appointed by him?

3. Have they the right to have documentation in the possession of the first respondent

relating to the proposed steel mill development made available to them?

4. Do the applicants have the locus standi to claim an order requiring second and third

respondents to refrain from deciding the rezoning application before the board,

appointed in terms of Section 15(I) of the 1989 Act, has finalized its investigation?

5. Have the Applicants showed that they have a right, which is going to be infringed?

6. If they have shown that they have such a right, have they shown an actual or

threatened infringement?

7. Have the Applicants an alternative remedy?

8. Have the Applicants shown that they will suffer irreparable harm unless the interdict

sought is granted?

9. Have the Applicants shown that the balance of fairness is in their favour?


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10. Should the Court, in exercise of its discretion, grant the interdict sought?

Judgement:

1. Sections 7, 23, 24 and 35 of the Constitution are then read out, theyre there in the

notes itself, page 61 onwards, please read from there. Relevant Sections of the 1989

Act and the Land Use Planning Ordinance are also listed, immediately after the

Constitutional provisions, please read these as well.

2. Please read p ages 61 to 68, its just a plain reading of the bare acts in question.

3. As regards issue (I): The Applicants rely on the word shall presen t in the text of

Section 15(I) to show that such a right exists. However, the Respondents countered

that shall does not necessarily mean a legislative intent to impose an obligation; it

could be simply directory. The Court held that the Minister is not obliged to appint a

Board. The purpose of such a Board is to assist the Minister in evaluating the matter

at hand. This issue was decided in favour of the Respondents, as the Minister is

empowered to appoint such a Board, but not obliged to do so.

4. As regards issue (II): Court held that, as Applicants have no power to compel

formation of a Board, they have no right to demand amplification or amendment of its

terms of reference. The Minister alone will decide if he needs assistance on a

particular point and appoint a Board, the Applicants do not have a right to decide

where the Minister may need assistance.

5. As regards issue (III): The Court held that there is no question of a possible limitation

of Section 33(I) of the Constitution, because the Respondents did not suggest that, if

the documents that were sought by the Applicants under Section 23 of the

Constitution was required by them for the protection of any of their rights, first

respondent could refuse to make it available becaus e of any limitation on Applicants

rights under Section 23 of the Constitution. The Applicants, as trustees of the

property, did reasonable require the documents for protecting their rights to the trust


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property. Further, Section 23 does not limit the rights to documentation which is the

Applicant is entitled to seek access to as it is officially held.

6. As regards issue (IV): The Constitution has adopted a very liberalized notion of legal

standing. As Section 7(4) makes it clear, this includes all cases where infringement of

or threat to any right is alleged. Applicants relied on a threatened infringement of

Section 24 (b) of the Constitution, which gives them an entrenched right to

procedurally fair administrative action, where any of their rights or legitimate

expectations are affected or threatened. The Court held that as trustees, the Applicants

would have interest in the trust property, which, directly opposite the lagoon, must of

necessity be diminished by industrial activity. One of the purposes for property is for

use as a holiday home, and the potential value of this will be reduced if there is

pollution. Therefore, the Court can take judicial notice of this.

7. As regards issue (V): The Court held that the principles of natural justice are not

limited to audi alterem partem and nemo iudex in sua causa. Section 24 (b) does not

codify the existing lay unless read in a wide and flexible manner so as to include the

concept of procedural fairness. A party is entitled to procedural fairness as per this

section is entitled not just to these two principles but also to principles and procedureswhich in that particular situation are right, fair and just, as the Applicants are in this

case.

8. As regards issue (VI): According to the Court, experience shows that there is no better

way of getting at the truth than through a hearing where the witnesses who hold

opposing views can testify under oath and in public, where they are subject to

interrogation. In this matter, different experts have differing opinions about the

environmental impact of just a steel mill. This advantage is not there in the Provincial

Administrations procedure. The advantages enjoyed by the Board render its

investigation superior to so-called administrative investigation. Such an investigation

by the Board would cover the aspect of sound scientific knowledge as espoused in

Section 2(I) of the 1989 Act. If the investigation is carried out by the Board, the

further advantage is, if the Board comes to the conclusion that the steel mill cannot be

built because of its potential to cause environmental damage, Respondents 6 and 7


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will be compensated accordingly. The Court was satisfied that the Applicants had an

infringement of their right to procedurally fair administrative action is threatened.

9. As regards issues (VII) & (VIII): The respondents contended that if the rezoning

decision is given in their favour, and the Applicants are of the view that, after the

Boards investigation, there is still harm, that harm can be mitigated by means of a

review. The Court did not agree with this, as a review is a discretionary remedy.

Further, the Court also rejected the contention that if the Board concluded that there

would be harm caused, the first respondent could still stop respondents 6 and 7 from

the development of the mill. This, also, was rejected by the Court, and it was satisfied

that the Applicants will suffer irreparable harm and there is no alternative remedy.

10. As regards issues (XI) and (X): The Court held that it is clear from the provisions of

Section 15 of the 1989 Act that the investigation does not take the form of a trial and

the chairman, who is a respected retired judge, will be in charge. He will be able to

put a stop to anything amounting to a filibuster on the part of anyone appearing for the

Board. He will also be aware of the first Respondents desire for investigation to be

finalized as soon as reasonable possible and act accordingly. Therefore, the Court

found that the balance of fairness or convenience favours the Applicants and theCourt would exercise its discretion in favour of the Applicants.

Order:

1. The Orders sought by the Applicants in the first two issues were dismissed.

2. Second and third Respondents were asked to hold in abeyance the decision on the

rezoning application, pending the finalization of the investigation as carried out by the

Board as per Section 15 of the 1989 Act. This was with the condition that the second

and third respondents will have the right to set the matter down for further argument

that this Order be lifted if the Boards investigation is unduly delayed. Respondents 6

and 7 were to have 10 days notice of this.

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