Sibanyoni v Executive Mayor of Nkangala District Municipality and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 11 November 2022
• Docket Number: 3542/2020
• Hearing Date: 26 May 2022
• Citation: 2022 JDR 3432 (MN)

Langa J:

Introduction

[1]

This is an application for judicial review ostensibly brought in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000, (PAJA), for the judicial review and also for relief in terms of the National Environmental Management: Air Quality Act, Act 39 of 2004 ("NEMA: QA").

[2]

The application apparently results from the issuing of an environmental or Atmospheric Emission Licence by the Nkangala Municipality to Eskom's Kusile Power Station in terms of section 42 and 43 of NEMA:QA. The applicant launched the present application on 17 November 2020 and challenges the alleged administrative decisions purportedly made on 14 November 2018 by the Municipality Respondents, namely the Executive Mayor of the Nkangala District Municipality, ("first respondent"), the Municipal Manager, Nkangala Municipality, ("second respondent") and Stanford Mofore, an Atmospheric Emissions Licencing Officer, Nkangala District Municipality, ("third respondent"). The fourth respondent is Eskom Kusile Power Station while the fifth respondent is Engen Oil.

[3]

All the respondents opposed the application and the first to third respondents also launched a counter-claim against the applicant in terms of the Vexatious Proceedings Act, Act 3 of 1956. In their submissions and arguments all the respondents raised the issue of condonation amongst other issues and argued that this application was brought out of time and not in compliance with the requirements of PAJA.

Relief sought by the applicant

[4]

The relief sought by the applicant in a convoluted 11-page notice of motion can best be summarized as follows:

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Prayer 1.1

An order to review, set aside, alternatively vary, and further alternatively, declare invalid the decision of the third respondent, the Municipal Manager of Nkangala Municipality, dated 14 November 2018 granting atmospheric emission licences to the fourth and fifth respondents, Eskom Kusile Power station and Engen Oil, respectively;

Prayer 1.2

In this alternative prayer the applicant seeks several orders including the granting of a mandamus against the first, second and third respondents to vary their decision granting the atmospheric emissions licences to the fourth and fifth respondents. He further seeks an order that the fourth and fifth respondents, create and finance what he refers to as the Internal Pollution Risk Funds in terms of sections 39, 41, 45 and 46 of the NEMA: QA and sections 24(b) and 27 (2) of the Constitution. The applicant further seeks in this prayer an order that Kusile and Engen contribute 1% of their gross profits to the fund on a monthly basis in order to finance mobile health clinics for the employees of Kusile and Engen who are allegedly ill due to air pollution caused by Kusile and Engen. He also seeks as relief that Engen provide him with the financial statements of the said risk fund on a monthly basis.

Prayer 1.3

In this prayer the applicant repeats the relief in prayer 1.2 that a mandamus be granted against Kusile and Engen to formulate the Internal Risk Fund in terms of sections 39, 41, 45 and 46 of the NEMA: QA and sections 24(b) and 27 (2) of the Constitution and that they be ordered to make contributions to the fund.

Prayer 1.4

In this prayer the applicant seeks supervisory orders against the respondents and an order against Engen to file monthly affidavits with the Registrar of the High Court in order to ensure that the orders sought are timeously and expeditiously implemented;

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Prayers 1.5 and 1.6

In these prayers he seeks a declarator declaring him the owner of the deeds of trust formulating the said internal air pollution risk funds, alternatively, declaring him to be the intellectual property owner of the idea of formulating internal air pollution risk funds.

Prayers 1.7 and 1.8

The relief sought in these prayers is an order declaring him entitled to acquire to acquire 1% gross proceeds flowing from internal air pollution risk funds, alternatively declaring him entitled to acquire monthly reasonable and/or royalties flowing from the said funds.

Prayer 1.9

Lastly the applicant prays for costs of the application if opposed.

Facts

[5]

It is common cause that on 15 March 2017 the second respondent granted Engen Oil the Atmospheric Licence and which was subsequently renewed on 21 June 2018 by the second respondent. It is evident from the papers that on 31 May 2018, prior to the renewal of the said licence, the applicant requested the Municipality in writing to attach certain conditions to the renewal of the licence. These included a condition that Engen Witbank terminal be required to formulate the Engen Witbank Terminal Petrol Air Pollution Trust Fund.

[6]

The Municipality however, proceeded to renew the licence on 21 June 2018 without attaching any conditions. On 19 October 2018 the applicant again requested the Municipality to attach conditions to the renewal of Engen's licence. On 14 November 2018 the Municipal Manager wrote a letter to the applicant informing him that his proposed conditions were ultra vires the NEMA: QA and could therefore not be incorporated into the

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renewal of the licence as he proposed. It was only after he received this letter from the Municipal Manager that the applicant decided to go to court.

[7]

Although in his notice of motion the applicant avers that the impugned decision was taken on 14 November 2018 it is, however, clear that this is wrong as the decision he purports to be challenging, the renewal of the licence, was made on 21 June 2018 and not on 14 November 2018 as alleged in his notice of motion. In fact, from the papers no administrative decision appears to have been taken on 14 November 2018 as will be clear from the ensuing paragraphs. Therefore, based on the papers there is no administrative act capable of judicial review under prayer 1.1 of the notice of motion. I however deal with this issue as well as the application for condonation and prospects of success on the merits fully below. I thereafter deal with the applicant's assertion that he is litigating in the public interest under section 38 (1) (c) of the Constitution. Lastly, I deal with the counter claim by the first to third respondents as well as the costs.

Condonation application by the applicant

[8]

The applicant seeks condonation for launching his application for judicial review only on 17 November 2020. In terms of the provisions of section 7(1) of PAJA any person who is unhappy with an administrative decision can challenge the decision in court within 180 days (6 months) of the final decision or the internal appeal having been decided. It is common cause that this application was brought way out of time even if the calculation of the days prescribed in the above section is based on the applicant's own version that the impugned decision was taken on 14 November 2018. It is however, not in dispute that the applicant only launched his application in this court on 17 November 2020, more than two years late. Although he states in his papers and the notice of motion that the impugned decision was taken on 14 November 2020, this is however, clearly incorrect as the

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decision granting the emission licence was made 15 March 2017 and the extension of the licence granted on 21 June 2018 as stated above.

[9]

Although the applicant argued that he was not deliberately late in bringing this application, this averment is not supported by the facts. The applicant's defence that he erroneously first approached the Pretoria High Court within the prescribed time is incorrect. According to the undisputed facts he approached the Pretoria High Court in April 2019, 10 months late according to the correct calculations and 5 months based on his calculations. So even if the calculations are based on the first application he was still out of time.

[10]

Notwithstanding this reason, the applicant however, did not lodge his application in the Middelburg High Court even after the matter was removed then from the Pretoria High Court roll for lack of jurisdiction. The applicant decided instead to directly approach the Constitutional Court instead of approaching the correct court which by then he was aware of.

[11]

Unsurprisingly he was denied direct access by the Constitutional Court on 12 February 2020. Subsequent to that unsuccessful application in the Constitutional Court, the applicant once again did not launch his application in this court. Instead the applicant decided to approach the Judicial Services Commission with a complaint against the Chief Justice and 8 Constitutional Court judges, apparently as a result of the dismissal of his application for direct access. As a result, the applicant eventually only brought the application in this court on 17 November 2020 even though direct access to the Constitutional Court was denied 9 months earlier on 12 February 2020. Therefore, even if the date of 12 February 2020 is used in the calculation of the period prescribed in Section 7(1) of PAJA,

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the applicant would still have brought this application more than 8 months late.

[12]

It is trite that an applicant asking for condonation must show good cause for his non-compliance with the rules. Condonation is not there for the taking but must be fully and properly motivated. In an application for condonation the court essentially exercises a judicial discretion upon a consideration of all the relevant facts. Factors such as the degree of non-compliance, the explanation for the delay, the prospects of success, the importance of the case, the nature of the relief, the interests in finality, the convenience of the court, the avoidance of unnecessary delay in the administration of justice and the degree of negligence of the persons responsible for...