Environmental Law

• Author: Kidd, M.
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 470
• Pages: 470-508

470

1. INTRODUCTION

As was the case in 2020, there was no legislative activit y (in the form of

national Acts) during the cur rent review period. Several cases, however,

dealt with a variety of diffe rent subject areas. There a re a number of

potentially importa nt interpretations, and the judgment th at will probably

be the most influentia l is the case involving SLAPP suits.1

2. LEGISLATION

No new national Acts were enacted during t his period.

3. CASES

3.1 ENVIRONMENTAL AUTHORISATIONS

Five cases dealt with environmental authori sations during the period under

review, some raising interesting legal question s; others really turne d on

the facts. Two of the five cases concerned appeals against envi ronmental

authorisations.

In Wakkerstroom Natural Heritage Association v Dr Pixley k a Isaka Local

Municipality,2 the respondent municipalit y decided in 2018 on an Integrated

Development Plan (IDP), which included approval of a water pipeline

from Martin’s Dam on the outskirt s of Wakkerstroom, in the dire ction

of Piet Retief to Volksrust, particularly the Vukaza khe area. The plan for

the pipeline indicated that it would cross si x watercourses along its route,

* BCom LLB LLM PhD (Natal); Professor of Law, University of KwaZulu-Natal. ORCID:

https://orcid.org/0000-0001-7800-1810.

1 Mineral Sands Resources (Pty) Ltd v Reddell; Mineral Commodities Limited v Dlamini; Mineral

Commodities Limited v Clarke (unreported, [2021] ZAWCHC 22, 9 February 2021, available online

at http://www.saflii.org/za/cases/ZAWCHC/2021/22.html).

2 Unreported, [2019] ZAMPMHC 20, 20 October 2019, available online at http://www.

saflii.org/za/cases/ZAMPMHC/2019/20 html (Wakkerstroom case).

Environmental LawEnvironmental Law

Michael Kidd*

2020/2021 YSAL 470

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eNvIroNmeNtAL LAW 471

including the Wakkerstroom V lei. The applicant became aware of the IDP

and the pipeline’s approval some six months after publication of the IDP.

Its repeated requests for informat ion on the pipeline to the municipal ity,

including an application for inform ation under the Promotion of Access to

Information Act (PAIA),3 came to naught.

The applicant then approached the court a nd requested an interdict

preventing the furt her construction of the proje ct until an envi ronmental

authorisation in terms of the Nationa l Environmental Man agement Act

(NE MA)4 i s obtained by the munic ipality; an interdict preventing t he

abstraction of any water from Marti n’s Dam in excess of what is permitted

by the current water use licence; and an order rev iewing and sett ing aside

the decision of the municipalit y to construct the pipeline project.5

The court considered the mun icipality’s argument that there had been an

unreasonable delay in bri nging the review. Despite there being no obvious

reference to the Promotion of Admin istrative Justice Act (PAJA),6 the court

decided that the delay was not unreason able. This was influenced by bot h

the municipality’s uncooperative conduct, and the importa nt environmental

matters under scrutiny.7

The applicant alleged that the propose d pipeline triggered activ ity 12

in Listing Notice 3 of 2014,8 which means that th is is an activity re quiring

an environmental authori sation. The activity entai ls the ‘clearance of an

area of 300 square metre s or more of indigenous vegetation except where

such clearance of indigenous vegetation is r equired for mainten ance

purposes underta ken in accordance with a ma intenance management

plan’ but only in specified ty pes of areas, including ‘with in any critically

endangered or endangered ecosystem l isted in terms of s52 of the NEMBA’.9

The municipality arg ued that the planned pipeli ne was not in a critically

endangered ecosystem and th at it would not involve clearing indigenous

vegetation, as it would be in the road reserve. According to expert ev idence

brought by the applicant, the road reserve had remained u ndisturbed

for more than a decade, which means th at there would be disturbance of

indigenous vegetation. In the absence of a ny rebuttal of this evidence by the

municipality, the court accepted that the act ivity would be triggered. The

court’s reasoning as to whether it was in a c ritically endangered ecosyste m

is not so clear. The court correctly identi fied that the Wakkerstroom/

3 2 of 2000.

4 73 of 1989.

5 Wakkerstroom case (note 2) para 30.

6 3 of 2000. There are some references in the judgment to ‘PAIA’, the context of which seem

to refer to PAJA.

7 Paras 20–29.

8 GN R985 in GG 38282 of 4 December 2014.

9 NEMBA is the National Environmental Management: Biodiversity Act 10 of 2004.

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YeArbooK oF south AFrICAN LAW

472

Lunneburg grassla nds ecosystems were listed as cr itically endangered

ecosystems10 in term s of s52 of the Biodiversity Act.11 The court also referr ed

to a report by the municipality’s consultant to t he effect that the pipe would

traverse an ‘ecosystem’.12 The rather indistinct m ap in the government notice

does suggest that the whole of Wakkerstroom town is part of t he listed

ecosystem, but the court could have reasoned more clearly on th is aspect.

The municipality al so argued that it had received advice from the

provincial environme nt department to the effect t hat an environmental

authorisation was not required for the proje ct. The court referred to a

letter which dealt with the si ze and flow specification s of the pipeline;13

it appeared that the department’s opinion was based on a con sideration of

activities in the other l isting notices, and that it had not considered activity

12 (the clearing of indigenous vegetation). As the provincial depart mental

opinion was based on infor mation provided by the municipality,14 and the

municipality was of the opin ion that indigenous vegetation was not going

to be disturbed, the mun icipality would not have furnished i nformation to

this effect to t he department for the latter’s evaluation.

An interesting arg ument in thi s respect was that the depar tment’s

advice – that the municipality did not nee d an authorisation – constituted

administrat ive action and that this ‘should first be set aside before t he

applicant may review the project’.15 The municipality sought to support this

argument by referring to r eg 8 of the 2014 environmental impact as sessment

regul ation s,16 which provides that a competent authority (the official or body

that decides the environmenta l authorisation) ‘may advise or instruct the

proponent of the nature and extent of any of the proces ses that may or must

be followed for decision support tools that must be used in order to comply

with the act and these reg ulations’. The court did not directly respond to

this argu ment, instead deciding that an envi ronmental authorisation was

necessary due to the dist urbance of indigenous vegetation as desc ribed

above. At first glance, the decision to advise a person t hat they do not need

an environmental authori sation does appear to be administrative action, but

this needs fu rther reflection, particularly in t his type of context.

It is difficult to understa nd the judgment on the water use licence. As far

as I can understand it, the munic ipality had an existing lawful us e to extract

0.39 million m3 from Martin’s Dam annually. It subsequently applied for

and was apparently granted a licence in ter ms of s22 of the National Water

10 GN1002 in GG 34809 of 9 December 2011.

11 Para 59.

12 Ibid.

13 Para 63.

14 Ibid.

15 Para 64.

16 GN R982 in GG 38282 of 4 December 2014.

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