Eagles Landing Body Corporate v Molewa NO and Others

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Kroon J
• Judgment Date: 22 March 2002
• Citation: 2003 (1) SA 412 (T)
• Docket Number: 2001/19666
• Counsel: T J Kruger SC (with him C van Jaarsveld) for the applicant. No appearance for the first and second respondents. W L Wepener SC (with him P A Meyer) for the third respondent.

Kroon J:

Introduction C

[1] At issue in this application is the lawfulness of the action taken by the three respondents in respect of the construction of certain earthworks undertaken by the third respondent on the bank of the Hartebeespoort Dam (hereinafter referred to as 'the peninsula').

[2] The applicant is the body corporate of the Tradewinds Sectional Title Scheme, which is also situate on the bank of the dam D and neighbours on the peninsula.

[3] The first and second respondents are, respectively, the MEC for, and the head of, the Department of Agriculture, Conservation and Environment of the North West Province (DACE). E

[4] The third respondent is the developer of a golfing estate on land on the banks of the dam, which now includes the peninsula.

[5] Whilst the works constituting the peninsula (also referred to in the papers as extension 9 of the development) were in the process of construction, the applicant lodged a complaint with DACE against the F works. Invoking the provisions of s 28 of the National Environmental Management Act 107 of 1998 (NEMA), DACE issued a directive to the third respondent to cease the works and to submit (a) an environmental impact assessment in terms of the procedures laid down in Government Notice R1182 of 5 September 1997 (R1182) promulgated in terms of the Environment Conservation Act 73 of 1989 (ECA) (it appears G that the reference should have been to Government Notice R1183 of the same date (R1183) promulgated under the same Act); (b) an environmental management plan in terms of s 28 of NEMA. The third respondent was advised that DACE would thereafter make certain H decisions concerning the works. The third respondent complied with the directive and in due course submitted the documentation directed. It applied for authorisation to continue with the works. That authorisation, reflected as having been granted by the second respondent in terms of s 22 of ECA, was forthcoming. Aggrieved at this decision the applicant noted an appeal in terms of s 35 of ECA to I the first respondent. The appeal was dismissed and the grant of the authorisation to the third respondent was confirmed. The construction of the peninsula was for all practical purposes completed thereafter.

[6] The main relief sought by the applicant was an order: J

Kroon J

(1)

declaring that the decisions of the first and second respondents referred to above were contrary to the doctrine of A legality, alternatively ultra vires their competence in terms of s 22 of ECA in that they purported retrospectively to authorise the reclamation of land in the dam for the purpose of the peninsula development;

(2)

setting aside the decision of the first respondent on appeal and replacing it with an order upholding the appeal, denying the third respondent's application for authorisation and setting aside B the authorisation granted to it by the second respondent;

(3)

declaring that the construction of the peninsula proposed to become Pecanwood Extension 9 took place without the necessary authorisation in terms of s 22 of ECA and is unlawful. C

[7] In the alternative, the applicant sought an order reviewing and setting aside the decisions referred to and correcting same with the result set out in para [6](2) above, and a further order declaring that the reclamation of land for the proposed Pecanwood Extension 9 took place without the necessary authorisation in terms of s 22 of ECA, and is unlawful. D

Points in limine

[8] The arguments on behalf of the respondents embraced the taking of certain points in limine. At the commencement of the hearing I was requested to hear argument on, and decide, certain of these points and thereafter, if necessary, to hear further argument on E the other issues arising in the matter. I considered, however, that it would be convenient for all the issues to be canvassed during argument, the merits as well as all the points in limine, and I ruled accordingly. The points taken in limine are those that are discussed in the paragraphs that follow. F

The authority of the deponent to the applicant's founding affidavit

[9] This aspect was raised by Mr Wepener (who, with Mr Meyer, appeared for the third respondent) as part of the attack of the respondents on the locus standi of the applicant in this matter. It may conveniently be considered separately. G

[10] That proceedings brought in the name of an artificial person must be duly authorised by it, and that the fact of such authorisation should appear from the papers, is not to be gainsaid. See, for example, Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C); Cekeshe and Others v Premier, Eastern Cape, and Others 1998 (4) SA 935 (Tk). H

[11] The founding affidavit filed on behalf of the applicant was deposed to by a Mr Drysdale. Paragraph 1.2 thereof was the only portion dealing with his authority to represent the applicant in these proceedings. It read as follows: I

'I am the managing agent of the applicant and duly authorised to make this affidavit.'

[12] The allegation was admitted by the first and second respondents. It was, however, challenged by the third respondent, per the answering affidavit of Mr Hindle, its project manager, who contended that the J

Kroon J

omission by Drysdale to support his allegations of authority (presumably, documentary support) was A significant and supported the inference that he did not have the requisite authority to represent the applicant in these proceedings. (A further submission was that if the applicant did not have the requisite capacity to bring the present proceedings, it would follow that Drysdale could not have the requisite authority to represent the applicant in the proceedings. The applicant's locus standi in these proceedings will be considered below; the resolution of that B issue has, however, nothing to do with the question whether Drysdale was authorised to represent the applicant.)

[13] In response, Drysdale annexed a resolution to his replying affidavit, which, he said, authorised him to represent the applicant in these proceedings. That resolution read as follows: C

'Resolution

passed by the Eagles Landing Body Corporate

on 23 July 2001

It is herewith resolved that Douglas Drysdale be authorised to sign all documents on behalf of the Eagles Landing Body Corporate D pertaining to the application to be brought against the North West Province and Peaconwood Holdings (Pty) Ltd to enforce compliance with the provisions of the applicable environmental legislation.

Signed at Johannesburg on this 23rd day of July 2001 E

(Sgd)

Roger Hartley.'

(It should be noted that the applicant's notice of motion and the founding affidavit of Drysdale were both dated 24 July 2001.)

[14] During the course of the hearing of the argument in the matter - indeed, on the second day thereof (14 F February 2002) and while Mr Wepener was still presenting his submissions - Mr Kruger (who, with Mr Van Jaarsveld, appeared for the applicant) tendered an affidavit, dated 14 February 2002, by a Mr Roger Barrow Hartley (who, it must be inferred, signed the resolution referred to in para [13] above). Therein Hartley describes himself as a trustee and, as at 23 July 2001, the chairman of the board of trustees of the applicant. The G affidavit proceeded as follows:

'3.

On 23 July 2001 I duly convened a meeting of the trustees of the said body corporate. The only business to be transacted at the meeting was the decision to challenge the dismissal of the appeal the body corporate had noted to the first respondent in H terms of the Environment Conservation Act, 1989.

4.

At the meeting, duly convened and constituted it was resolved that Douglas Drysdale, the managing agent of the scheme be authorised to sign all documentation on behalf of the body corporate as applicant.

5.1

I am informed that despite having drafted and signed both a basic and a further and more expansive resolution on 23 July 2001, the specific resolve of the applicant at the meeting in question was I questioned during argument on the first day of the hearing of this matter. The application referred to in the resolution in question is the application thereafter brought under case No 19666/2001 for the relief as set out in the notice of motion filed therein.

5.2

The trustees of the body corporate specifically referred to the enforcement J

Kroon J

of the applicable environmental legislation in the expanded resolution to avoid confusion and because that was our A understanding of what the effect of the relief to be sought in the notice of motion was namely that the authorisation of the peninsula after it had been built was not provided for in the statutes and that the peninsula was unlawful.'

[15] Mr Wepener signified his opposition to the reception of the affidavit. I allowed the document to be handed in and intimated that I would decide later whether it should be received as B evidence.

[16] Mr Wepener's attack on the alleged authority of Drysdale to represent the applicant in these proceedings was two-pronged. The first contention proceeded on the premise that the affidavit of Hartley was to be left out of consideration. The C submission was that the document headed 'Resolution', referred to in para [13] above, did not, and could not, qualify as the requisite authority. Two points were made: there was no indication of who 'Roger Hartley' was, and no indication of the provenance of the document. D

[17] I am not persuaded (subject to the first point being resolved in favour of the applicant) that the latter point has any merit. The document in terms states that it is a resolution passed by the Eagles Landing Body Corporate, ie the applicant. The first point was, however, well taken: without any indication of who Hartley, the signatory...