Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism and Another

• Jurisdiction: South Africa
• Judge: Griesel J, Davis J and Moosa J
• Judgment Date: 26 January 2005
• Citation: 2005 (3) SA 156 (C)
• Docket Number: 7653/2003
• Counsel: W H Trengove SC (with A M Stewart and P Naidu) for the applicant. R C Hiemstra SC (with N Bawa) for the first respondent. P M Kennedy SC (with L H Barnes) for the second respondent.
• Court: Cape Provincial Division

Griesel J:

Introduction

[1] The second respondent (Eskom) wishes to construct a demonstration model 110 MegaWatt class pebble bed modular reactor (PBMR) at the site of its Koeberg Nuclear Power Station near Cape Town. F On 25 June 2003, the first respondent, the Director-General of the Department of Environmental Affairs and Tourism (the DG), granted Eskom the requisite authorisation in terms of s 22(3) of the Environment Conservation Act 73 of 1989 (ECA), subject to certain conditions which are not material for present purposes. This G application is brought by the applicant to review and set aside that decision by the DG.

[2] The applicant is Earthlife Africa (Cape Town), a non-governmental, non-profit, voluntary association of environmental and social activists in Cape Town. Its professed aims are to campaign against perceived 'environmental injustices' in the Cape Town area H and to participate in environmental decision-making processes with a view to promoting and lobbying for good governance and informed decision-making. It is an autonomous branch of Earthlife Africa, which has several branches throughout South Africa. The applicant brings this application on its own behalf, on behalf of the residents of Cape Town who may be exposed to potential risks posed by the PBMR, and in the I public interest.

Applicable legislation

[3] Although the decision under review was made primarily in terms of s 22(3) of ECA, there is a closely interwoven framework of related J

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legislation impacting on the present matter: it includes the National A Environmental Management Act 107 of 1998 (NEMA); the Nuclear Energy Act 46 of 1999 (the NE Act); the National Nuclear Regulator Act 47 of 1999 (the NNR Act); as well as a number of regulations, treaties and policies that fall under the jurisdiction of different government departments, all containing their own unique processes and requirements. For present purposes, however, the enquiry can be B confined to ECA and its regulations.

[4] The starting point for purposes of this application is s 21(1), read with s 22(1), of ECA. In terms of these provisions, the national Minister of Environmental Affairs and Tourism (the Minister) may identify 'activities which in his opinion may have a substantial C detrimental effect on the environment'. Having identified such activities, nobody may then undertake any of them without authorisation in terms of s 22. One of the activities that has been identified by the Minister in terms of the Act is the 'construction, erection or upgrading' of, inter alia, nuclear reactors, including the PBMR. It is also common cause that the Minister designated the DG to D perform the function of determining Eskom's application in terms of s 22(3).

[5] In terms of s 22(2), read with the applicable regulations, the DG was required first to consider environmental impact reports (EIRs), which reports were to be compiled and submitted by such persons and in such manner as might be prescribed, dealing with the impact of E the proposed activity on the environment.

[6] Section 22(3) authorises the Minister or 'competent authority' (in casu, the DG) 'at his or its discretion (to) refuse or grant the authorisation for the proposed activity . . . on such conditions, if any, as he or it may deem necessary'. F

[7] Section 35(3) of ECA provides for appeals to the Minister by any person who feels aggrieved by a decision. Such person 'may appeal against such decision to the Minister . . . in the prescribed manner, within the prescribed period'. Regulation 11(1) of the applicable regulations provides that such an appeal must be lodged within thirty G days from the date on which the record of decision was issued.

[8] Section 36(1) of ECA goes on to provide that, '(n)otwithstanding the provisions of s 35', any interested party may request reasons for a decision within 30 days after becoming aware of H it, while s 36(2) permits such interested party to apply to the High Court for review of the decision within 30 days after being furnished with the reasons or after expiry of the period within which they had to be given.

[9] Regulations promulgated in terms of the Act (the EIA Regulations) [1] prescribe the procedures for the I preparation, submission and consideration of EIRs for purposes of applications for authorisation in terms of

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s 22. It is not necessary for present purposes to summarise the EIA Regulations in detail, save A to point out, first, that an applicant for authorisation is required, in terms of reg 3(1)(a), to appoint an independent consultant to comply with the regulations on its behalf; and second, one of the responsibilities of an applicant for authorisation in terms of reg 3(1)(f) is 'to ensure that all interested parties . . . are given the opportunity to participate in all the relevant B procedures contemplated in these regulations'.

Factual background

[10] In an application dated 26 June 2000, Eskom applied to the DG for the necessary authorisation in terms of s 22 of ECA for 'the construction, commissioning, operation/maintenance and C decommissioning' of a PBMR. The purpose of the proposed plant, according to Eskom, was to assess the techno-economic viability of the technology for South African and international application for electricity generation and other commercial applications. The application was prepared by a consortium of consultants, appointed by D Eskom pursuant to the provisions of reg 3(1)(a).

[11] The consultants duly undertook an environmental impact assessment, accompanied by an extensive process of public participation. During the period from the beginning of 2001 to March 2002, they completed the steps contemplated by regs 5, 6 and 7 of the E EIA Regulations, comprising the preparation, submission and acceptance of a plan of study for scoping, a scoping report and a plan of study for the EIA. On 3 June 2002, they submitted a draft EIR to the department and to interested parties, including the applicant, for comment. F

[12] Prior to filing its submissions, and during the period from June to September 2002, the Legal Resources Centre (the LRC) made various efforts on behalf of the applicant to obtain access to further information and documents relating to the draft EIR from the department, Eskom, the consultants and others. Their efforts were, however, largely unsuccessful. This aspect forms the basis of one of G the applicant's complaints in the present review, as will appear below.

[13] On 4 September 2002, being the extended deadline for the submission of comments, the applicant submitted detailed written submissions on the draft EIR to the department. According to the H applicant, its submissions were 'a serious study of complex technology and its implications', which took 'many hundreds of hours' to prepare and involved input from lawyers, scientists and social activists. It was intended as 'a serious contribution to the process'. In its covering letter, the LRC requested an opportunity to make further submissions to the relevant departmental chief on behalf of the applicant regarding its input. I

[14] The consultants subsequently produced their final EIR, which they submitted to the department on 28 October 2002. The final EIR was later published and distributed to interested parties. It was also made available on the internet and in certain public libraries. J

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[15] During the period from October to May 2003, the LRC made A various efforts on behalf of the applicant to be afforded a 'hearing' by the DG on the final EIR and on his decision whether to grant or refuse the authorisation sought by Eskom. The applicant, however, was persistently rebuffed and was not afforded the opportunity it sought. As will emerge later, this aspect forms the applicant's main ground of review. B

[16] On 21 May 2003, the applicant launched an urgent application against the DG and Eskom in the Pretoria High Court, seeking access to all the information that Eskom had placed before the DG in support of its application for authorisation, and a reasonable opportunity to make representations to the DG on his decision whether to grant or refuse Eskom's application for authorisation. Both the DG C and Eskom opposed the application, which ultimately failed because the Court held 'that the applicant has failed to establish that this is an urgent application and it is accordingly struck off the roll of this Court'.

[17] Early in the whole process, during 2001, the DG appointed a panel of experts to advise him on Eskom's application. On 28 D March 2003, and having studied the final EIR, the panel reported to the DG, recommending that the application be granted.

[18] On 25 June 2003, the Deputy DG of the department, Mr Wynand Fourie, submitted a memorandum to the DG in which he recommended E that Eskom's application for authorisation be granted. The memorandum did not address or even mention the applicant's submissions on the draft EIR. On the same day, the DG formally approved Eskom's application for authorisation and issued his record of decision accordingly. F

[19] On 24 July 2003, ie within 30 days after the decision, the applicant lodged an appeal to the Minister against the DG's decision, as required by s 35(3) of ECA, read with reg 11(1) of the EIA Regulations. That appeal has not yet been finalised. G

[20] The present application for review, which is being brought in terms of s 36 of ECA, read with s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), was thereupon launched on 15 September 2003 and is being opposed by both the DG and Eskom.

Internal remedies H

[21] Before considering the individual review grounds, it is necessary first to consider two preliminary points. One of the grounds of opposition raised by Eskom - though not by the DG - was...