Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others

• Jurisdiction: South Africa
• Citation: 1996 (1) SA 283 (C)

Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others
1996 (1) SA 283 (C)

1996 (1) SA p283

Citation	1996 (1) SA 283 (C)
Case No	6570/95
Court	Cape Provincial Division
Judge	Farlam J
Heard	June 15, 1995
Judgment	June 28, 1995
Counsel	D P de Villiers QC (with him T D Potgieter) for the applicants.; G D van Schalkwyk SC (with him R C Hiemstra) for the first, second and third respondents.; M Helberg SC for the sixth and seventh respondents.; No appearance for the fourth, fifth, eighth and ninth respondents.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Protection of — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of C 1993 — Persons who may claim relief — Claim by 'person acting in his or her own interest' in s 7(4)(b)(i) — Words 'own interest' wide enough to cover an interest as trustee.

Constitutional law — Human rights — Right of access to State information in terms of s 23 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Owner of residential erf near to land proposed for D erection of steel mill and for necessary rezoning — Owner seeking copies of documents in possession of Minister of Environmental Affairs relevant to such proposal — Owner entitled thereto.

Constitutional law — Human rights — Right to administrative justice in E terms of s 24 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 24(b) must be generously interpreted — Does not merely codify existing law of natural justice — Latter not confined to audi alteram partem and nemo iudex in sua causa rules — Test of 'procedurally fair administrative action' under s 24(b) is whether principles and procedures were followed which, in particular situation, F were right, just and fair — Procedurally unfair to owner of nearby residential land for application under Land Use Planning Ordinance 15 of 1985 (C) for rezoning of farmland as industrial land to be decided before completion of investigation by board of enquiry appointed under s 15(1) of Environmental Conservation Act 73 of 1989 into proposal to build steel G mill on the land to be rezoned — Owner entitled to interdict against provincial functionaries from deciding rezoning application pending finalisation of enquiry by board.

Environmental law — Environmental policy — Compliance in terms of s 3 of H Environmental Conservation Act 73 of 1989 with policy determined under s 2 — Effect of on provincial administration functionaries considering rezoning application under Land Use Planning Ordinance 15 of 1985 (C) — Functionaries obliged to exercise powers in accordance with policy determined under s 2 of Act.

Environmental law — Board of investigation in terms of s 15 of I Environmental Conservation Act 73 of 1989 — Minister cannot be compelled to appoint board of investigation in terms of s 15(1) — Likewise cannot be compelled to amend or amplify an appointed board's terms of reference.

Environmental law — Board of investigation in terms of s 15 of J Environmental Conservation Act 73 of 1989 — Investigation by board under

1996 (1) SA p284

A that section markedly superior to a provincial departmental enquiry because of advantages of evidence under oath, interrogation, publicity and right to subpoena.

Headnote : Kopnota

Section 15(1) of the Environmental Conservation Act 73 of 1989 empowers but does not oblige the Minister of Environmental Affairs to appoint a B board of enquiry to assist him in evaluating a proposed development and, consequently, no one can compel him to do so. It follows too that, where a board has been appointed, no one has the right to demand the amplification or amendment of its terms of reference. (At 298C-299D, summarised.)

Any Minister or official charged with making a rezoning decision under the Land Use Planning Ordinance 15 of 1985 (C) is obliged, by s 3 of the C Environmental Conservation Act 73 of 1989, to exercise the powers conferred on him by the ordinance in accordance with the policy determined under s 2 of that Act. (At 302J-303E.)

By reason of s 24(b) of the Constitution of the Republic of South Africa Act 200 of 1993, anyone whose rights will be affected by a rezoning decision has the right to procedural fairness in respect of such decision. That section does not merely codify the common law relating to natural justice which, in any event, is not limited to the audi alteram partem and nemo iudex in sua causa rules. (At 303F/G-304B, summarised.)

D A party entitled to procedural fairness, as contemplated in s 24(b) of the Constitution, is entitled to 'the principles and procedures . . . which, in any particular situation or set of circumstances, are right and just and fair' (as stated by Lord Morris of Borth-y-Gest in Wiseman v Borneman [1971] AC 297 (HL) at 308H-309B ([1969] 3 All ER 275 at 278E)). Even if that statement does not correctly reflect the South African common law, then it is nonetheless the correct test to apply under s 24(b) of the E Constitution, where the words 'the right to procedurally fair administrative action' must be generously interpreted and the austerity of tabulated legalism must be avoided. (At 305B/C-F/G.)

An investigation by a board of enquiry appointed under s 15(1) of the Environmental Conservation Act 73 of 1989 is markedly superior to a departmental investigation by a provincial administration in relation to a rezoning application because of the advantages it has in attempting to F arrive at the truth in regard to disputed facts and to differing expert opinions, namely testimony on oath, interrogation, publicity and the right to subpoena any person who in its opinion may give material information and/or who may produce any book, document or thing which may have a bearing on the subject of the investigation, to give evidence and be interrogated and/or to produce the book, document or thing. (At 300B-D/E.)

The sixth and seventh respondents proposed to build a steel mill on portion of a farm at Saldanha, near the West Coast National Park and the G Langebaan Lagoon, and had applied to the Provincial Administration of the Western Cape for the rezoning of the land under the Land Use Planning Ordinance 15 of 1985 (C). The lagoon's wetlands were protected in terms of the Convention on Wetlands of International Importance to which South Africa was a contracting party. Erf 2121 Langebaan was situated opposite the lagoon and was owned by the W Trust, the trustees of which were the first three applicants. The first applicant was joined as fourth applicant in his personal capacity as one of the trust beneficiaries. The H trustees intended to build a holiday home or a permanent home on the trust property. Expert opinion was divided on whether the proposed mill would be environmentally undesirable. The applicants applied in a Provincial Division, as a matter of urgency, for a rule nisi ordering (a) the first respondent (i) to make available, in terms of s 23 of the Constitution, copies of all documents in his possession relevant to the proposed mill; (ii) to appoint a board of investigation in terms of s 15(1) of the I Environmental Conservation Act 1989 to assist him in the evaluation of the proposed mill and of certain specified, related issues; (b) ordering the second and third respondents (the Premier of the Western Cape Province and the Minister of Agriculture, Planning and Tourism of that province) to hold in abeyance the rezoning decision, pending the finalisation of the enquiry under s 15(1), the latter order to operate as an interim interdict pending the return day of the rule nisi. Before the hearing, the first respondent appointed a board of investigation under s 15(1) and offered, without admitting that he was obliged to do so, to make the relevant J documents available to

1996 (1) SA p285

A the applicants. The applicants accordingly did not pursue the orders sought in (a)(i) and (ii) above but did ask for an order calling on the first respondent to amend and/or amplify the board's terms of reference. The first respondent resisted the latter and further contended that the applicants had not been entitled to the documents they had sought. The second, third, sixth and seventh respondents opposed the order sought in (b) above.

Held, that the applicants had no right to compel the first respondent to B appoint a board of enquiry under s 15(1) of the Environmental Conservation Act 1989 and therefore no right to an order compelling him to amplify or amend the board's terms of reference (at 298C-299D); accordingly, the applications for the order on him to appoint a board and to amend and/or amplify the terms of reference of the board which he did appoint were dismissed with costs.

Held, further, that, applying the interpretation of s 23 of the Constitution laid down in Nortje and Another v Attorney-General, Cape, and C Another 1995 (2) SA 460 (C) ((1995 (1) SACR 446 (C)), the applicants did reasonably require the documents sought for the purpose of protecting their rights to the trust property which was potentially threatened by the proposed mill in order to exercise their rights to object to the rezoning (at 300B-D/E); accordingly, the first respondent was ordered to pay the applicant's costs of the application seeking the said documents.

Held, further, in regard to the application for an order interdicting the second and third respondents from making a decision on the rezoning D application pending the finalisation of the board's investigation, that the words 'in his or her own interest' in s 7(4)(b)(i) of the Constitution were wide enough to cover an interest as a trustee and the first three applicants accordingly had locus standi, as their rights in respect of the trust property would be threatened if second and...