Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 27 June 1996
• Citation: 1996 (3) SA 1095 (TkS)
• Hearing Date: 21 June 1996
• Docket Number: 1672/95
• Counsel: J J Gauntlett SC (with him R A K Vahed) for the applicants. M T K Moerane SC (with him L P Pakade) for the first respondent. X M Petse for second and third respondents. No appearances for fourth to seventh respondents.
• Court: Transkei Supreme Court

Pickering J:

The four applicants herein, namely the Wildlife Society of Southern Africa, J Keith Cooper, the Conservation Director of the

Pickering J

A Wildlife Society, and two lawful occupiers of certain cottages on the Transkei Wild Coast, seek, as first to fourth applicants respectively, an order against the Minister of Environmental Affairs and Tourism of the Republic of South Africa (first respondent); the Premier of the Eastern Cape Province (second respondent); the Member of the Executive B Council for Agriculture and Environmental Planning of the Eastern Cape Province (third respondent) and four chiefs or headmen of certain administrative areas (fourth to seventh respondents) in the following terms:

'1.

That the first, second and third respondents are ordered forthwith to take such steps and to do such things as may be necessary:

(a)

C to enforce the provisions of Decree No 9 (Environment Conservation) promulgated by the former Government of Transkei on 24 July 1992 ("the Decree");

(b)

to, without derogating from the generality of para 1(a) hereof, enforce D the provisions of s 39(2) of the Decree in the coastal conservation area established in terms of s 39(1) of the Decree.

2.

That it is hereby declared that, save to the extent that the Environment Conservation Act 73 of 1989 ("the Act") and the General Policy determined E in terms of s 2 of the Act on 21 January 1994 and 9 May 1994 conflicts with or contradicts the Decree in particular and other legislation of the former Government of Transkei in general, the Act and the said General Policy apply to and are enforceable in the territory that formerly constituted the Republic of Transkei.

3.

That subject to para 2 of this order, the first, second and third respondents F are ordered forthwith to take such steps and to do all such things as may be necessary to:

(a)

enforce the provisions of the Act;

(b)

comply with the aforesaid General Policy;

(c)

secure compliance with the aforesaid General Policy

in the territory that formerly constituted the Republic of Transkei.

4.

G That, save to the extent that they may be permitted to in terms of any law, the fourth, fifth, sixth and seventh respondents be and they are hereby restrained and interdicted from granting or purporting to grant any rights in land which formed part of the territory that formerly constituted the Republic of Transkei.

5.

H That the respondents, jointly and severally, are ordered to pay the costs of this application.'

First applicant, an association incorporated not for gain in terms of s 21 of the Companies Act 61 of 1973, was incorporated with its main object being

I 'to promote environmental conservation and environmental education in Southern Africa'.

Its aim is 'to promote public participation in caring for the Earth' and its credo and mission is

'to contribute to conserving the Earth's vitality and diversity by:

(a)

promoting and participating in environmental education;

(b)

J building environmental values and sustainable life styles;

Pickering J

(c)

A securing the protection and wise use of natural areas of wild life;

(d)

generating individual and community action;

(e)

serving as an environmental watchdog;

(f)

influencing policy and decision-making;

(g)

operating democratically'.

B Third and fourth applicants are members of the Wild Coast Cottage Owners Association ('the Cottage Owners Association'), a voluntary association of persons who are all owners or occupiers of approved sites in designated and recognised resort areas along the Transkei Wild Coast.

It is common cause between the parties that over the past few years certain land use practices have developed along almost the entire Transkeian coast line which have been C destructive, are destructive and are potentially destructive of the ecological integrity of that coast line and that, as such, they constitute a very real threat to the environmental sensitivity of the area in question.

In order fully to understand applicants' complaints in respect of such land use practices it D is necessary to set out the provisions of s 39 of Decree 9 (Environmental Conservation) (Tk) ('the Decree') referred to in para 1 of the notice of motion. Section 39 provides as follows:

'39(1) There is hereby established on the landward side of the entire length of the sea-shore excluding any national park, national wildlife reserve, municipal land, seaside resort, site occupied in terms of Proc 174 of 1921 or Proc 26 of 1936, E privately-owned land and leasehold land, a coastal conservation area 1 000 metres wide measured -

(a)

in relation to the sea, as distinct from a tidal river and tidal lagoon, from the high-water mark;

(b)

in relation to a tidal river or tidal lagoon, from the highest water-level reached during ordinary storms during the most stormy period of the F year, excluding exceptional or abnormal floods.

(2) Notwithstanding anything in any other law or in any condition of title contained, no person (including any department of State) shall within the coastal conservation area, save under the authority of a permit issued by the Department in accordance with the plan for the control of coastal development approved by G resolution of the Military Council -

(a)

clear any land or remove any sand, soil, stone or vegetation;

(b)

develop any picnic area, caravan park or like amenity;

(c)

erect any building;

(d)

construct any railway, landing-strip, slipway, landing stage or jetty;

(e)

build any dam, canal, reservoir, water purification plant, septic tank or sewerage works;

(f)

H lay any pipeline or erect any power-line or fencing;

(g)

establish any waste disposal site or dump any refuse;

(h)

construct any public or private road or any bridle-path or footpath; or

(i)

carry on any other activity which disturbs the natural state of the vegetation, the land or any waters or which may be prescribed.'

I The land practices and other activities with which applicants are concerned are set out in the affidavit of Mr Cooper as follows:

'(a)

the grant of rights of occupation and the allocation of sites within the coastal conservation area by individual chiefs, headmen or tribal authorities (including the fourth to seventh respondents) to private individuals which result in effect to a disposal of the land in question J for a relatively small consideration;

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(b)

A the construction of shacks, dwellings and other structures on such sites aforesaid resulting in environmental degradation and detracting from the aesthetic qualities of the coastal conservation zone;

(c)

the construction of roads, pathways and tracks along cliff edges, through forests and other environmentally sensitive areas causing B permanent damage to such areas and which again detract from the environmentally aesthetic qualities of the coastal conservation zone;

(d)

the insensitive and unsustainable exploitation of the resources (including the marine resources) in such areas'.

These practices occur along and within almost the entire Transkeian coastal conservation zone established in terms of s 39(1) of the Decree. In some instances, in return for the C allocation of a site to a particular individual, the chief or headman involved was paid an amount in the order of approximately R200 together with a bottle of brandy. Neither chiefs nor headmen have authority to allocate sites.

All these averments are admitted by first respondent.

Applicants have set out in great detail specific instances of such abuses which have been D and are occurring within areas falling within the coastal conservation zones. The abuses are graphically illustrated in the photographs annexed both to the founding affidavit and to the replying affidavit attested to by third applicant, Mr MacRobert. The destruction of natural vegetation; of indigenous bush; of coastal dunes and forest; and of mangrove E areas, in order to clear the way for construction to take place, is clearly depicted. It is clear, therefore, and this is not denied by the respondents, that considerable and irreversible environmental degradation of the Transkei Wild Coast within the coastal conservation zone has been and was occurring at the time of the institution of these F proceedings on 7 September 1995, in blatant contravention of the provisions of s 39 of the Decree.

Second applicant avers in his affidavit that he has been, both personally and in his capacity as Conservation Director of first applicant, closely associated with and interested in the environmental and nature conservation priorities along the Wild Coast for more than 20 G years. He was the chief architect of a report published by first applicant during April 1977 at the request of the then Transkei government, in which a preliminary survey of the Wild Coast was undertaken in order to assist that Government with its developmental plans. During 1992 first applicant was retained by the then Transkei government to H compile a survey of Transkei forests, including all the coastal forests, and second applicant was again involved in the publication thereof.

Because of the concern of the applicants at the unabated environmental degradation observed by them, they, together with certain others, instructed their attorneys to address I a letter on 16 May 1995 to, inter alia, first, second and third respondents in which attention was drawn to the unlawful practices which were occurring and in which the respond-ents were requested to take the requisite action in order to put a halt to such practices. On 17 May 1995 fourth applicant, Mr Taylor, and his attorney, Mr Ridl, attended a meeting at Bisho with third respondent, Minister Delport, at which, inter alia...