Minister of Forestry, Fisheries and the Environment and Others v Badenhorst N.O. and Others (1004/2023) [2025] ZASCA 68 (28 May 2025)

---

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

           
Reportable

Case no: 1004/2023

In
the matter between

MINISTER
OF FORESTRY, FISHERIES AND

THE
ENVIRONMENT                                     

                                  

   FIRST APPELLANT

 

CHIEF
DIRECTOR: INTEGRATED ENVIRONMENTAL

AUTHORISATIONS,
DEPARTMENT OF ENVIRONMENT,

FORESTRY
AND FISHERIES                                                     

    SECOND APPELLANT

 

HIGHLANDS
SOUTH WIND ENERGY FACILITY RF                     

(PTY)
LTD                                                                                       

    THIRD APPELLANT

 

HIGHLANDS
CENTRAL WIND ENERGY FACILITY RF             

(PTY)
LTD                                                                                       

FOURTH APPELLANT

 

HIGHLANDS
NORTH WIND ENERGY FACILITY RF                     

(PTY)
LTD                                                                                            

FIFTH APPELLANT

and

HEINRICH
JACOBUS BADENHORST N.O.                       

             FIRST
RESPONDENT

 

FREDERIC
JOHANNES BADENHORST N.O.                            SECOND

RESPONDENT

 

ETIENNE
FRANS BADENHORST N.O.                       

                   THIRD
RESPONDENT

 

LENE
HULL JENSEN
N.O.                                                          

FOURTH RESPONDENT

 

TERTIUS
NICOLAAS VAN DER WALT N.O.                                   

FIFTH RESPONDENT

 

FLEMMING
GEORG JENSEN N.O.                                                 

SIXTH RESPONDENT

 

Neutral citation:    
Minister of Forestry, Fisheries and the Environment & Others v
Badenhorst N.O. & Others (1004/2023) [2025] ZASCA 68
(28 May 2025)

Coram:      
MOCUMIE, MBATHA and KATHREE-SETILOANE JJA and GORVEN and MAKUME AJJA

Heard:         
14 November 2024

Delivered:  
 28 May 2025

Summary:
Administrative law – review under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), s 7(2) – failure
to
exhaust internal remedies before the institution of judicial
review proceedings – application for exemption in terms of s

7(2)(c) of PAJA – meaning of ‘exceptional
circumstances’ – decision by the Chief Director to
approve Environmental
Authorisations under National Environmental
Management Act 107 of 1998 (NEMA) – Environmental
Authorisations conditional
on further steps being taken before
implemented – interpretation of regulations 26(1)(c)(iv)
and 26(1)(d)(iv) of the Environmental Impact Assessment
Regulations, 2014 read with section 47A(1) of NEMA – purposive
interpretation – substantial compliance sufficient –
Environmental Authorisation only final
once capable of
implementation.

 

ORDER

On appeal from: 
The Eastern Cape Division of the High Court, Makhanda (Bloem J,
sitting as court of first instance):

1       
The appeal is upheld with no order as to costs.

2       
The order of the high court is set aside and substituted with the
following order:

‘The application is
dismissed with no order as to costs.’

JUDGMENT

 

 

Mocumie
JA (Makume AJA concurring)

[1]     
This is an appeal against the judgment and order of the Eastern Cape
Division of the High court,
Makhanda, per Bloem J (the high court),
with the leave of that court. The high court reviewed and set aside
the decisions of the
Chief Director: Integrated Environmental
Authorisations, Department of Environment, Forestry and Fisheries
(the chief director).
The central issue in this appeal is whether the
chief director acted properly in granting Environmental
Authorisations (EAs) to
the third, fourth and fifth appellants (the
Highlands companies). The high court also set aside the refusal of
internal appeals
by the first to the sixth respondents (the
respondents to the first appellant, the Minister of Forestry,
Fisheries and Environment
(the Minister) against the chief director’s
impugned decisions.

 

[2]     
The Minister is the cabinet minister responsible for protecting the
natural environment and promoting
wildlife conservation. The chief
director is responsible for issuing EAs upon application in terms of
s 24 of the National Environment
Management Act 107 of 1998 (NEMA).
They will be referred to collectively as the state appellants. The
third to fourth appellants
(the Highlands companies), are independent
wind energy developers who applied for EAs in respect of three
proposed Wind Energy
Facilities (WEFs) in the Eastern Cape: the North
WEF, the Central WEF and the South WEF.

 

[3]     
The first to third respondents are the trustees of Schuster’s
River Trust whilst the fourth
to sixth respondents are the trustees
of Side by Side Trust. The trusts are the registered owners of
several immovable properties
in the proposed development area, which
collectively comprise almost 4,900 hectares. They are registered
interested and affected
parties (I&APs) and participated as such
in the assessment processes that preceded the granting of the EAs.

 

Factual
Background

[4]     
To promote energy generation from renewable resources, the National
Department of Environment
Affairs and the Council of Scientific and
Industrial Research identified renewable energy development zones
(REDZs) across the
country in terms of s 24(3) of NEMA. This involved
assessing regions by industry specialists, considering the
availability of wind
energy resources, other necessary technical
criteria for renewable energy facilities, as well as suitable
environmental features
for large-scale wind energy placement.

 

[5]     
The Minister issued the Wind and Solar Regulations in terms of s
24(5)(a)
and (b)
of NEMA,[1] identifying eight
REDZs across the country, including the Cookhouse REDZs where the
Highlands companies plan to operate. These
regulations prescribe the
procedure to be followed in applying for EAs in respect of
large-scale wind energy development activities
occurring within the
REDZs.

 

[6]     
In September 2018, the Highlands companies proposed establishing a
complex of three WEFs in the
Cookhouse area about 20 km west of
Somerset East. The facilities (known as the Highlands Project) were
identified as Highlands
South, Central and North; these required the
Highlands companies to apply for EAs to the chief director as
contemplated in Regulations
19 and 20 of the Environmental Impact
Assessment Regulations, 2014 (the EIA Regulations)^[2]
for wind energy development activities with respect to all three
WEFs. Attached to the applications submitted to the chief director

were Basic Assessment Reports (BARs), which included specialist
impact studies and Environmental Management Programmes (EMPrs).

 

[7]     
In February and April 2019, due to the inadequacies of the findings
and assessments submitted
as part of the environmental impact
assessment (EIA) process for the applications, additional avifauna,
ecological and visual assessments
were undertaken.  This process
entailed submitting representations, raising issues, and making
comments at every stage during
public participation. These
representations and comments were all noted in peer review reports.
Consequently, in March 2019, the
consideration of the EAs was
suspended pending an investigation in terms of regulation 14(1)(a)
of the EIA Regulations.

 

[8]     
In April 2019, the Highlands companies were required to conduct
further avifauna assessments,
including Verreaux’s Eagle Risk
Assessment (VERA) modelling, along with an amendment of a peer review
by Mr John Smallie
and an amendment of the BARs to account for the
additional impact assessments and the updated peer review. All
potential registered
I&APs, including the respondents, were
granted the opportunity to submit comments on the amended BARs and
EMPrs submitted.

 

[9]     
In July 2019, the suspension of the EA applications was lifted due to
the Highlands companies
addressing the queries and comments from the
I&APs, including the risk assessment reviews. Consequently, the
avifauna assessments
were updated, and Mr Smallie’s peer review was
revised. These revised avifauna assessments resulted in changes to
the layout of
each of the three WEFs, which included: 

(a)
reducing the number of turbines originally applied for across all
WEFs from 49 to 41;

(b)
reducing the number of sub-stations from two to only one in the South
WEF; and

(c)
shifting the location of certain turbines and the location of the one
remaining substation in the South WEF.

 

[10]   
On 14 October 2019, the amended BARs were circulated for further
public comments. Amongst others, the revised
bird impact assessment
recommended that the turbine layout be changed. This resulted from a
report indicating that several turbines
fell within or were on the
edge of an area of considerable risk for certain bird species due to
the identification of an active
martial eagle nest approximately 4.6
km north of the development area, within 5.3 km of the nearest
turbine.

 

[11]    
On 11, 12, and 13 November 2019, three letters were sent to the
Highlands companies requesting them
to address various issues in the
final BARs and to amend the EMPrs. The Amended BARs and EMPrs were
accordingly submitted in November
2019. On 21 and 25 January, and 4
February 2020 respectively, the chief director approved the EAs of
the Highlands companies, subject
to several conditions.

 

[12]   
In February 2020, the respondents appealed to the Minister in terms
of s 43 of NEMA against the decisions
of the chief director approving
the EAs of the Highlands companies. They raised one ground of appeal,
that the chief director,
in reaching his decision, acted ultra
vires the requirements of NEMA and the EIA Regulations by failing
to require compliance with the peremptory requirements of the
legislation
pertaining to the content of the EAs. Specifically, they
contended that an EMPr should have been approved prior to, or at the
same
time as, the approval of an EA.

 

[13]   
After the Highlands companies lodged a responding statement, and the
chief director made further comments,
the Minister considered the
appeal, concluding:

‘Having
carefully considered the above-mentioned information and in terms of
s 43(6) of NEMA, I have decided to dismiss the appeal
by the
appellants and to confirm the decision of the Department. . .’

 

[14]   
Discontented with the Minister’s dismissal of the appeals, the
respondents approached the high court
to review and set aside the
decisions of the chief director and the Minister. The review
application was based on the Promotion
of Administrative Justice Act
3 of 2000 (PAJA). The three appeals in respect of the three WEFs were
treated as one by the high
court.

 

[15]   
In their notice of motion, the respondents raised three grounds for
review. First, the chief director granted
the EAs without the final
plans or maps locating the proposed activities authorised at an
appropriate scale, contrary to the provisions
of regulation 26(c)(iv)
of the EIA Regulations. Second, the chief director granted the
EAs without the approved EMPrs, contrary to the provisions of
regulation 26(d)(iv) of the EIA Regulations. Third, the
EAs were granted pursuant to applications which had been made
separately from the applications
for the EAs pertaining to three grid
connections required between the proposed onsite substations for each
WEF and the existing
Eskom overhead power lines running over the
northern part of the North site (the grid applications). As such, the
chief director
made decisions without evaluating the cumulative
impact of the WEFs on the one Eskom grid that will be relied upon.

 

[16]   
Apart from opposing these three contentions on their merits, the
appellants raised a point in limine that the respondents were
barred from raising grounds one and three without an application for
exemption as envisaged in s 7(2)(c) of PAJA. This is because
only the second ground had been relied on in the internal appeal and,
as such, they had not exhausted
their internal remedies as regards
grounds one and three.

 

[17]   
The high court reviewed and set aside the impugned decisions. It
remitted the applications for the EAs to
the chief director for
reconsideration and granted costs orders against the chief director
and the Minister.

 

Before
this Court

[18]   
The issues before this Court were those raised before the high court.
The appellants contended that the high
court erred in failing to
uphold the point in limine. This was to the effect that the
respondents could not raise any ground of review unless it had been
raised in the internal appeal
to the Minister. The point was based on
the provisions of the regulations under NEMA.

 

[19]   
The respondents conceded that they raised only one ground in their
form for the internal appeal before the
Minister. They argued that
the appeal they lodged with the Minister was within the scheme of
NEMA and provided for in the National
Appeal Regulations[3]
(Appeal Regulations, 2014) in terms of Regulation 4 of the Appeal
Regulations, 2014,^[4]
which is clear. They also conceded that no application had been made
for exemption from the obligation to exhaust internal remedies.
They
submitted that they had so complied, since they had appealed under
s 43 of NEMA. Having done so, the respondents argued,
they were
not confined to the grounds raised in that appeal. As a result,
although Uniform rule 53 was not strictly available to
them, as the
high court held, they proposed that this Court expand the scope of
the application of s 7(2) of PAJA to mean that
an applicant, having
exhausted internal remedies on one cause of action, may in a
subsequent review, raise new causes of action
in attacking an
original decision which has been confirmed on appeal.

 

[20]   
The respondents argued that while s 7(2)(c)
of PAJA does not expressly include applicants who have not sought an
exemption from raising new grounds of review, it also does
not
expressly bar them from raising new grounds of review. They contended
that a restricted application of s 7(2) would limit the
scope of the
internal remedy available under NEMA. They argued that courts should
adopt a generous interpretation of the regulation
since s 39 of the
Constitution provides for the development of the common law or law of
general application. However, they did
not challenge the
constitutionality of the regulation(s). They relied on Helen
Suzman Foundation v Judicial Service Commission[5]
as authority for the generous approach.

 

[21]   
The parties agreed that this Court should commence with the point in
limine. This is so because if the point in limine is
decided in favour of the appellants (ie if this Court is with them
that absent an application for exemption from the obligation
to
exhaust internal remedies as contemplated in s 7(2)(c), the
high court was precluded from reviewing the impugned decisions on the
grounds not advanced before the Minister on appeal)
this should be
partially dispositive of the appeal. The only issue remaining alive
for determination would be that which is captured
in the second
ground: whether, on a proper interpretation of NEMA, an EMPr must
either be approved prior to, or at the same time
as, when the EA is
granted by the competent authority, and whether the failure to do so
invalidates the EA. This, the respondents
contend, the high court
found in their favour.

 

[22]   
Regulation 4(2) of the Appeal Regulations, 2014, provides for an
appeal process under NEMA. It sets out how
an aggrieved person must
submit an appeal, as the respondents did, in a standard form. In
terms of the regulations, an aggrieved
person is obliged to provide a
statement setting out the grounds of appeal. The statement must
disclose the grounds upon which
the applicant relies for the appeal.
Those grounds raised in the internal appeal define the ambit of the
appeal and therefore the
sole issue(s) in an appeal in terms of s 43
of NEMA.

 

[23]   
Section 7(2) of PAJA, the relevant parts of which provide:

‘(2)
(a) Subject to paragraph (c), no court or tribunal may
review an administrative action in terms of this Act unless any
internal remedy provided for in any other
law has first been
exhausted.

…

(c)       
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person
from the obligation to exhaust any internal remedy if the court
or tribunal deems it in the interest of justice.’
(Emphasis added.)

 

[24]   
In DPP
Valuers Pty Ltd v Madibeng Local Municipality and Another,[6]
this Court described the internal remedy to be exhausted as a
platform in the same organisation whereby an aggrieved person can

have a chance to be heard by another forum or tribunal which has the
powers to vary, substitute or confirm the decision taken by
the
organisation at a lower level. It held that these internal remedies,
which are part of our law, are designed to help a public
body correct
its mistakes before they get to courts or tribunals.

 

[25]   
In Koyabe
v Minister of Home Affairs
and
Lawyers for Human Rights as Amicus Curiae (Koyabe),[7]
the Constitutional Court held that an aggrieved party must take
reasonable steps to exhaust internal remedies for dispute resolution

where available. The Constitutional Court underscored the importance
of exhausting internal remedies in the same judgment[8]
as follows:   

‘First,
approaching a court before the higher administrative body is given
the opportunity to exhaust its own existing mechanisms
undermines the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping the executive
role and
function.[9] The scope of
administrative action extends over a wide range of circumstances, and
the crafting of specialist administrative procedures
suited to the
particular administrative action in question enhances procedural
fairness as enshrined in our Constitution. Courts
have often
emphasised that what constitutes a “fair” procedure will
depend on the nature of the administrative action
and circumstances
of the particular case.[10]
Thus, the need to allow executive agencies to utilise their own fair
procedures is crucial in administrative action. In Bato
Star,
O’Regan J held that––

 “a court
should be careful not to attribute to itself superior wisdom in
relation to matters entrusted to other branches of government.
A
court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience
in the
field. The extent to which a court should give weight to these
considerations will depend upon the character of the decision
itself,
as well as on the identity of the decision-maker . . . A
decision that requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the courts. Often a power will identify
a goal to be
achieved, but will not dictate which route should be followed to
achieve that goal. In such circumstances a court
should pay due
respect to the route selected by the decision-maker.”[11]

Once
an administrative task is completed, it is then for the court to
perform its review responsibility, to ensure that the administrative

action or decision has been performed or taken in compliance with the
relevant constitutional and other legal standards.[12]

.
. .

Internal
administrative remedies may require specialised knowledge which may
be of a technical and/or practical nature.[13]
The same holds true for fact-intensive cases where administrators
have easier access to the relevant facts and information. Judicial

review can only benefit from a full record of an internal
adjudication, particularly in [light] of the fact that reviewing
courts
do not ordinarily engage in fact-finding and hence require a
fully developed factual record.

.
. .

The
duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law. However, that requirement should

not be rigidly imposed. Nor should it be used by administrators to
frustrate the efforts of an aggrieved person or to shield the

administrative process from judicial scrutiny. PAJA recognises this
need for flexibility, acknowledging in section 7(2)(c) that

exceptional circumstances may require that a court condone
non-exhaustion of the internal process and proceed with judicial
review
nonetheless.[14] Under
section 7(2) of PAJA, the requirement that an individual exhaust
internal remedies is therefore not absolute.’

 

[26]   
This Court in Nichol
and Another v The Registrar (Nichol)[15]
explained the responsibility to exhaust internal remedies as follows:

‘Under
the common law, the mere existence of an internal remedy was not, by
itself, sufficient to defer access to judicial review
until the
remedy had been exhausted.  Judicial review would in general
only be deferred where the relevant statutory or contractual

provision, properly construed, required that the internal remedies
first be exhausted.[16]
However, as is pointed out by Iain Currie and Jonathan Klaaren,[17]
“by imposing a strict duty to exhaust domestic remedies, [PAJA]
has considerably reformed the common law”. It
is now compulsory for the aggrieved party in all cases to exhaust the
relevant internal remedies unless exempted from doing so
by way of a
successful application under s 7(2)(c).
Moreover,
the person seeking exemption must satisfy the court of two matters:
first, that there are exceptional circumstances and
second, that it
is in the interest of justice that the exemption be given.’[18]
(Emphasis added).

 

[27]   
More recently, the
position was explained as follows in Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Co
Ltd:[19]

‘The
exemption is granted by a court, on application by the aggrieved
party. For an application for an exemption to succeed, the
applicant
must establish “exceptional circumstances”. Once such
circumstances are established, it is within the discretion
of the
court to grant an exemption. Absent an exemption, the applicant is
obliged to exhaust internal remedies before instituting
an
application for review. A review application that is launched before
exhausting internal remedies is taken to be premature and
the court
to which it is brought is precluded from reviewing the challenged
administrative action until the domestic remedies are
exhausted or
unless an exemption is granted. Differently put, the duty to exhaust
internal remedies defers the exercise of the
court’s review
jurisdiction for as long as the duty is not discharged.’
(Citation omitted.)

 

[28]   
As alluded to earlier, the respondents did not purport to have taken
any steps, let alone reasonable steps,
to exhaust internal remedies
on the two additional grounds. Even before this Court, the
respondents did not purport to have taken
any steps to exhaust their
internal remedies on these two additional grounds. It is trite that
‘exceptional circumstances’
are not defined in PAJA.
However, ‘the circumstances must be such as to require the
immediate intervention of the courts
rather than resort to the
applicable internal remedy’.[20]
Having regard to the facts of this matter, the remedy was available
but was ignored for no reason; no case was made out that being

remitted to the chief director would be prejudicial to them.
Consequently, the circumstances do not shout out for ‘the
interests
of justice’ to be invoked.

 

[29]   
On the strength of the authorities cited above, it follows that the
high court ought to have found that it
was precluded by the
provisions of s 7(2) of PAJA from reviewing the impugned decisions on
grounds not advanced before the Minister,
without an application for
exemption in terms of s 7(2)(c) of PAJA, because the
consequence is that such internal remedy is not ‘effectively
exhausted’ in the sense contemplated
in s 7(2)(a) of
PAJA. It follows that the high court lacked jurisdiction to entertain
the two additional grounds of review, as the respondents
were
non-suited on the two grounds of review. The review ought to have
been solely decided on the first ground of appeal. Therefore,
these
two grounds must fall away as regards this appeal.

 

[30]   
Tritely, once a jurisdictional point is decided in favour of one
party, it is dispositive of the entire matter.
However, since the
high court was of the view that there was non-compliance with the
regulation in respect of the North EA, albeit
that it found the other
two EAs (the South and East) in compliance, it follows that the only
ground of review which this Court
ought to consider is whether the
high court was correct in that respect. That is the ground of review
to which I now turn.

The
law: regulation 26

[31]   
Regulation 26 of the EIA Regulations sets out what an EA makes
provision for: the ‘Content of Environmental
Authorisation’,
ie what an EA must specify. It states:

‘(a)
      the name, address and contact
details of the person to whom the environmental authorisation is
issued;

(b)
       a description of the activity
that is authorised;

(c)
       a description of the
location of the activity, including:

.
. .

(iv)           
a plan which locates the proposal activity or activities authorised

at [an] appropriate scale, or, if it is:

(aa)     
a linear activity, a description and coordinates of the approved
corridor of the activity or activities;
or

(bb)     
on land where the property has not been defined, the coordinates of
the area within which the activity
is to be undertaken;

(d)       
the conditions subject to which the activity may be undertaken,
including conditions
determining:

.
. .

(iv)      
requirements for the avoidance, management, mitigation, monitoring
and reporting of the impacts of the activity on the environment

throughout the life of the activity additional to those contained in
the approved EMPr, and the closure plan in the case of a closure

activity;’ (Emphasis added.)

 

[32]   
As this ground of review involves interpretation issues under NEMA
and the EIA Regulations, understanding
the current state of our law
regarding interpretation is necessary. It is trite that the
principles thereof are now settled and
unnecessary to repeat in light
of the most recent judgment of the Constitutional
Court in University
of Johannesburg v Auckland Park Theological Seminary and Another,[21]
citing with approval the judgment of this Court in Natal
Joint Municipality Pension Fund v Endumeni Municipality.[22]
Suffice it to reiterate that the interpretation of documents is a
unitary exercise, which means that the interpretation is to be

approached holistically: simultaneously considering the text, context
and purpose of the document in question.[23]
In the context of this matter, the focus is on the Minister’s
decisions within the meaning of the EIA Regulations in the context
of
NEMA.

 

Submissions
by the respondents

[33]   
The respondents contend that the chief director granted the EAs
without the EAs containing the final plans
locating the proposed
activities authorised at an appropriate scale as required by
regulation 26(c)(iv). They contend that contrary to the
provisions of regulation 1 of the EIA Regulations, at the time that
the chief director granted
the EAs, the final location of all the
activities identified in the notice published by the Minister in
terms of s 24D(1)(a) of NEMA as listed activities were not
fixed or settled. In terms of the EIA regulations,
‘activity’ means an activity identified in any
notice published by the Minister
or MEC in terms of section
24D(1)(a) of
the Act as a listed activity or specified activity. Section 24D(1)(a)
of NEMA provides for the publication of
a list of ‘activities or areas identified in terms of s 24(2)’.

 

[34]   
The respondents therefore argued, that at the time the EAs were
granted, the final location of the turbines
and their associated
infrastructure were unknown because inter alia, as noted by the
applications, in respect of South EA for instance,
the Highlands
companies still had to ‘submit the “final site layout
map” to the Department for the written approval
prior to the
commencement of the activities authorised by the EAs’. They
submitted that even if regulation 26(d) of the EIA regulations
permitted adjustments to be made to the turbines after the granting
of EAs without the need to amend the
EAs, it is clear that the EAs
envisaged something well beyond that. This is particularly true in
the case of the North EA, which
contains no layout plan whatsoever,
as they argued.

 

[35]   
The respondents further submitted that regulation 26(c)(iv)(aa)
is not applicable because the WEFs are not ‘linear activities’
as defined in regulation 1 of the EIA Regulations. The
turbines,
which are the dominant features of the WEFs, occur at discrete
locations within an approximately 10 000 ha site,
unlike the
railways etc listed in the definition. They argued that the character
of the unlisted activities that are ‘arranged
or extending
along one or more properties’ must be eiusdem
generis[24]
with those of listed activities. Overall, so they submitted, contrary
to what the high court found in respect of the South and
the Central
EAs, none of the EAs for the WEFs complied with the requirement in
regulation 26(c)(iv)
that they contain a plan which locates the authorised activities at
an appropriate scale.

 

Submissions
by the appellants

[36]   
The state appellants submitted that regulation 26 merely stipulates
the requirements relating to the content
of an EA, once granted. It
is not an empowering provision as contemplated in s 6(2)(b)
of
PAJA, which requires a certain procedure to be followed or certain
conditions to be met before a decision to grant an EA is taken.
And
that ground, therefore, does not avail the respondents. They contend
that they presented adequate evidence to show that there
was
compliance with regulation 26(c)(iv)(aa).
Page 8 of the North EA contains the coordinates of the ‘approved
corridor’ of the activities, ie the coordinates
of the entire
footprint of the area in which the approved activities will take
place. Furthermore, the North EA contains a description
of the
location of the activities and the coordinates of the location where
the activities will take place, as depicted in AW6.1,
Figures 1 to 4
of the Development Plan Highlands North, Central and South WEFs.[25]
The Highlands companies made common cause with the state appellants
on all the issues.

 

[37]   
The high court, however, found that ‘[u]nlike the South EA and
Central EA, the North EA did not describe
the coordinates of the
activities to be undertaken. The location of the activities to be
undertaken was accordingly not described.
The purpose of regulation
26(c)(iv) was accordingly not achieved. The applicants’
submission, that there has been non-compliance with the provisions of
regulation
26(c)(iv)(aa), must therefore be sustained
in respect of the North phase.’ The high court reasoned that
this is so because, in respect
of the North EA, no locality map was
attached at all.

 

[38]   
Regulation 1 defines a ‘linear activity’ to mean ‘an
activity that is arranged in or extending
along one or more
properties and which affects the environment or any aspect of the
environment along the course of activity, and
includes railways,
roads, canals, channels, funiculars, pipelines, conveyor belts,
cableways, power lines, fences, runways, aircraft
landing strips,
firebreaks and telecommunication lines’. When one examines
Figures 1 to 4 of the Development Plan Highlands
North, Central and
South WEFs carefully, it describes the coordinates of the approved
corridor of all the activities. The respondents
did not lead or
produce any evidence to refute this. It is not surprising therefore,
that the high court concluded that ‘there
can be no doubt that
the development of the North phase is a linear activity as it extends
along more than one property it affects
the environment along the
course of the activity and it includes roads and powerlines.’
This is underscored by page 8 of
the North EA application.

 

[39]   
Regulation 26(d)(iv)
of the EIA Regulations provides that the EA must specify the
conditions subject to which the activities may be undertaken in

addition
to the conditions contained in the approved EMPr, not including
the conditions contained in the approved EMPr. It follows that since
it is the additional conditions which must be specified, not
the
conditions which are included in the approved EMPr, the ‘approval’
of an EMPr does not necessarily have to precede
the approval of the
EA. It means that although regulation 26 has multiple references to
the approved EMPr, as counsel for the appellants
correctly contended,
none of these references stipulate or presuppose a ‘final’
approval or that the EMPr ought to
have been approved at the same
time or prior to the granting of the EA. What fortifies this view is
that regulation 26(g)
of the EIA regulations refers to the necessity to provide for the
frequency of ‘updating the approved EMPr’. Meaning,
an
approved EMPr may have to be continually updated and amended.[26]

 

[40]   
I agree with the appellants in that there is no express provision in
NEMA, the regulations, and in particular
regulation 26 of the EIA
Regulations, which provides that the EMPr should be approved
simultaneously or prior to the granting or
approval of an EA. The
respondents too concede that there is no such express provision. To
appreciate the scheme of the EIA Regulations,
one has to start with
regulation 25, which provides for the issuance of an EA in
compliance with regulation 26. The overarching
regulations,
regulations 19 and 20, provide for what must be contained in the
application and how the application should be assessed.

 

[41]   
Section 24N(1A) of NEMA provides that:

‘Where
an environmental impact assessment has been identified as the
environmental instrument to be utilised as the basis for a decision

on an application for environmental authorisation, the Minister, the
Minister responsible for mineral resources or an MEC must
require the
submission of an environmental management programme before deciding
an application for an environmental authorisation.’

The
provision clearly states that in an application for an EA, the
relevant official must require the submission of an EMPr
before deciding on an application for an EA. Expressed
differently, the section does not require approval of an EMPr before
deciding on an application
for an EA. What is required is that,
before deciding on an application for an EA, an EMPr must be
submitted. The Minister does
not have the discretion to exercise to
require an EMPr where an environmental impact assessment is
identified as the environmental
instrument. It is a mandatory
requirement by operation of law.

 

[42]   
The submission of an EMPr is a requirement in terms of a statute. It
does not require a factual inquiry,
contrary to what the high court
found. The contention of the Highlands companies in the high court,
their statement before the
Minister, and before this Court stands
uncontroverted that all the assessments were undertaken at the
relevant stages as guided
by the Department of Environment, Forestry
and Fisheries (the Department). This contention is underpinned by
regulation 8 of the
EIA Regulations. The regulation provides that:

‘A
competent authority, subject to the payment of any reasonable
charges, if applicable-

(a)       
may advise or instruct the proponent or applicant of the nature and
extent of any processes
that may or must be followed or decision
support tools that must be used in order to comply with the Act and
these Regulations;

(b)       
must advise the proponent or applicant of any matter that may
prejudice the success
of an application;

(c)       
must, on written request, furnish the proponent or applicant with
officially adopted
minutes of any official meeting held between the
competent authority and the proponent, applicant or EAP; and

(d)       
must, on written request, provide access to the officially adopted
minutes of meetings
contemplated in paragraph (c), to any
registered interested or affected party.’

 

[43]   
To make matters even clearer, s 24N(5) of NEMA provides that:

‘The
Minister, the Minister responsible for mineral resources or an MEC
may call for additional information and may direct that the

environmental management programme in question must be adjusted in
such a way as the Minister, the Minister responsible for mineral

resources or the MEC may require.’

Section
24N(6) of NEMA stipulates that at ‘any time’ after the
approval of an EA, an amended EMPr may be approved.

 

[44]   
Section 47A(1)(a) of NEMA requires two factors before EAs are
validated:

(a)
materiality and (b) prejudice. The section provides:

‘(1)      
A regulation or notice, or an authorisation, permit or other
document, made or issued in
terms of this Act or a specific
environmental management Act –

(a)            
but which does not comply with any procedural requirement of the
relevant Act, is nevertheless valid if the non-compliance is
not material and does not prejudice any person.’
(Emphasis added.)

 

[45]   
The section provides that the prejudice must be against any
person. It does not expressly state when the prejudice should be
suffered by an aggrieved person. However, the section certainly does
not make reference to the anticipated or future detrimental impact of
the proposed activities on the environment, which the respondents

relied on from the bar. Prejudice in this context cannot be implied.
It must be specifically pleaded and substantiated with evidence,

which is common cause; the respondents did not plead.

 

[46]   
Furthermore, the evidence presented on behalf of the state appellants
includes:  

(a)     
The location of the activities had already been determined and the
impact on the environment had
already been assessed based on the
entire footprint of the activities as described in the EA;

(b)     
A condition was attached to the EA that a final layout plan should be
submitted for approval prior
to the commencement of the activities;
and

(c)     
The impact studies and investigation that preceded the granting of
the EA were adequate and all
relevant environmental factors were
taken into account by the chief director as he set out in detail the
amendments which were
required.

 

[47]   
Section 47A(1)(b) of NEMA provides that an EA may be amended
or replaced at any time without following any procedural requirements
if the ‘correction
does not change the rights and duties of any
person materially’. It follows that an EA can be amended to
include the final
layout map once the chief director approves this.
It may be that the EA application form is not a model of perfection.
However,
the pragmatic approach is to consider the overall
application. And to see whether it is good and acceptable that
nothing can be
done until the Highlands companies have shown the
chief director eg that the public participation process has been
dealt with.
It cannot be expected of the chief director to hold back
the EA until absolutely all processes are in place. To do so would be
to put form above substance. It is a value judgment.

 

[48]   
Most significantly, one of the fundamental principles in legislative
interpretation is that regulations are
subordinate legislation and
cannot override legislation, for example, an Act of Parliament. In
this context, where there is ambiguity,
uncertainty or lack of
clarity or express provision in the regulations, the provisions of
NEMA should prevail. Contextually, when
the provisions of the
regulations are interpreted, NEMA should prevail. E A Kellaway in
Principles of Legal Interpretation of Statutes, Contracts and
Wills at 374-375 states parenthetically as follows:

‘A
provision in a statute must be interpreted before the regulation is
considered, and if the regulation purports to vary the provision
as
so interpreted, it is ultra vires and void. Also, the
regulation cannot be used to cut down or enlarge the meaning of the
statutory provision.’

 

[49]   
This Court in Moodley
and Others v Minister of Education and Culture, House of Delegates
and Another[27]
stated:

‘It
is not permissible to treat the Act and the regulations made
thereunder as a single piece of legislation; and to use the latter
as
an aid to the interpretation of the former.’

This
approach is affirmed by this Court most recently in Optivest
Health Services Pty Ltd v Council for Medical Schemes and Others,
albeit
in a different context, it emphasises the interrelationship between
the Act and its regulations in applying ‘a contextual
and
purposive interpretation.’[28]

 

[50]   
The purpose of NEMA and the EIA Regulations, is to protect the
environment and to ensure that only authorised
activities can be
undertaken. Therefore, neither the approval of the EAs in the form
issued by the chief director, nor the Minister’s
dismissal of
the appeals, give rise to a material failure to implement the
legislation. The respondents would not suffer any prejudice
if the
EAs are not reviewed and set aside because they still have the
opportunity to comment on the further steps taken toward
final layout
maps and EMPrs.

 

[51]   
As such, the appeal must succeed and the order of the high court set
aside and substituted with an order
dismissing the application.

 

[52]   
The issue of costs remains. The appellants accepted that the
respondents meant no malice in challenging the
regulations and the
interpretation adopted by the appellants, especially the chief
director and the Minister. Neither were the
applications frivolous or
vexatious. For that reason, they proposed that this Court either
adopt the Biowatch
approach^[29]
or make no order of costs against the respondents if the appeal is
successful. I agree that there should be no such order against
the
respondents.

 

[53]   
In the result, the following order issues:

1       
The appeal is upheld with no order as to costs.

2       
The order of the high court is set aside and substituted with the
following order:

‘The application is
dismissed with no order as to costs.’

 

 

 

B
C MOCUMIE

JUDGE
OF APPEAL

 

 

Gorven
AJA (Mbatha and Kathree-Setiloane JJA concurring)

 

[54]        
I agree with the order proposed by my colleague Mocumie JA. However,
I prefer
to arrive at it by a different path. I do not think it best
to decide the first and third grounds by upholding the point in
limine. In the light of the conclusion to which I have come on
the merits, it is not necessary to deal with the point in limine.
I shall assume, without deciding, that the respondents were entitled
to rely on the three substantive grounds for review raised
by them in
the high court and before us even though they were not referred to in
the internal appeal to the Minister.

 

[55]        
Before addressing these three grounds, it is important to sketch the
legislative
backdrop to the approval of EAs. Section 24N(1A) of NEMA
provides that:

‘Where
an environmental impact assessment has been identified as the
environmental instrument to be utilised as the basis for a decision

on an application for environmental authorisation, the Minister, the
Minister responsible for mineral resources or an MEC must
require the
submission of an environmental management programme before deciding
an application for an environmental authorisation’.

That
was clearly the case in the present circumstances. EMPrs were
required for each WEF.

 

[56]        
And s 24N(5), stipulates that

‘The
Minister, the Minister responsible for mineral resources or an MEC
may call for additional information and may direct that the

environmental management programme in question must be adjusted in
such a way as the Minister, the Minister responsible for mineral

resources or the MEC may require.’

 

[57]        
The purpose of these provisions is abundantly clear. Section 24(b)
of the Constitution, 1996 provides:

‘Everyone
has the right– 

(b)       
to have the environment protected, for the benefit of present and
future generations,
through reasonable legislative and other measures
that–

(i)        
prevent pollution and ecological degradation;

(ii)       
promote conservation; and

(iii)      
secure ecologically sustainable development and use of natural
resources while promoting
justifiable economic and social
development.’

NEMA
was promulgated in order to give effect to s 24. Its stated
purpose was:

‘To
provide for co-operative environmental governance by establishing
principles for decision-making on matters affecting the environment,

institutions that will promote cooperative governance and procedures
for co-ordinating environmental functions exercised by organs
of
state; to provide for certain aspects of the administration and
enforcement of other environmental management laws; and to provide

for matters connected therewith.’[30]

The
preamble to NEMA included the provisions of s 24 of the
Constitution.

 

[58]        
The approach to interpretating legislative provisions, whether Acts
or regulations
made pursuant to an Act, is well settled. It was
recently restated in AmaBhungane Centre for Investigative
Journalism NPC and Another v President of the Republic of South
Africa:

‘(O)ne
must start with the words, affording them their ordinary meaning,
bearing in mind that statutory provisions should always
be
interpreted purposively, be properly contextualised and must be
construed consistently with the Constitution. This is a unitary

exercise. The context may be determined by considering other
subsections, sections or the chapter in which the keyword, provision

or expression to be interpreted is located. Context may also be
determined from the statutory instrument as a whole. A sensible

interpretation should be preferred to one that is absurd or leads to
an unbusinesslike outcome.’[31]
(Citations omitted.)

 

[59]        
In order to consider this appeal, and the interpretation to be placed
on various
legislative provisions in NEMA and the EIA regulations, it
will be illuminative to set out some of the salient features of the
EAs and, in particular, the conditions to which they were made
subject. Each of them recorded the decision as follows:

‘The
Department is satisfied, on the basis of information available to it
and subject to compliance with the conditions of this
environmental authorisation, that the applicant should be
authorised to undertake the activities specified below.’
(Emphasis added.)

As
conditions, each EA provided:

‘Authorisation
of the activity is subject to the conditions contained in this
environmental authorisation, which form part of the
environmental
authorisation and are binding on the holder of the authorisation.’

 

[60]        
As regards layout maps, all of the EAs provided:

‘A
copy of the final site layout map must be made available for comments
by registered Interested and Affected Parties and the holder
of this
environmental authorisation must consider such comments. Once
amended, the final development layout map must be submitted
to the
Department for written approval prior to commencement of the
activity.’

There
followed a detailed set of requirements in drafting the final layout
map. The South EA listed twelve items to be indicated
on the final
layout map, the Central EA listed seven items and the North EA listed
eleven.

 

[61]        
As regards EMPrs, the EAs for the South and North WEFs provided:

‘The
Environmental Management Programme (EMPr) submitted as part of the
revised BAR is not approved and must be amended to include
measures
as dictated by the final site lay-out map and micrositing, and the
provisions of this environmental authorisation. The
EMPr must be made
available for comments to registered Interested and Affected Parties
and the holder of this environmental authorisation
must consider such
comments. Once amended, the final EMPr must be submitted to the
Department for written approval prior to commencement
of the
activity. Once approved, the EMPr must be implemented and adhered
to.’

That
for the Central WEF provided:

‘The
Environmental Management Programme (EMPr) submitted as part of the
Application for EA must be amended to include the information
that
will be obtained after the final walkthrough of the site and be
submitted to the Department for written approval prior to

commencement of the activity. The recommendations and mitigation
measures recorded in the BAR dated 18 November 2019
must be
incorporated as part of the EMPr. Once approved, the EMPr must be
implemented and adhered to.’

 

[62]        
A plain reading of these provisions makes it clear that the EAs were
not final,
unconditional authorisations which would allow the
Highlands companies to commence with the activities of the WEFs. It
is equally
clear that, before any action could be taken, each WEF
would be obliged to:

(a)     
Make a copy of the final layout map available to registered I&APs
for comment;

(b)     
Consider any comments made by the I&APs;

(c)     
Thereafter submit the final layout map to the Department, along with
the comments received; and

(d)     
Receive the written approval of the Department.

Only
then, and if other conditions have been met, would the WEFs be able
to commence activities.

 

[63]        
In addition, it is clear that, even once a final plan had been
approved and
prior to commencing activities, the North and South WEFs
would be obliged to:

(a)     
Amend the previous EMPrs to include measures as dictated by the final
site lay-out map and micrositing,
and the provisions of the
respective EAs;

(b)     
Make the amended EMPrs available for comments to registered I&APs;

(c)     
Consider any comments made by the I&APs;

(d)     
Thereafter submit the final EMPrs to the Department, along with the
comments received;

(e)     
Receive the written approval of the Department;

(f)      
Only then commence activities; and

(g)     
After commencing activities, implement and adhere to the approved
EMPrs.

 

[64]        
As for the Central WEF, even once a final plan had been approved and
prior
to commencing activities, it would be obliged to:

(a)     
Conduct a final walkthrough of the site;

(b)     
Amend the submitted EMPr to include information obtained after the
final walkthrough of the site;

(c)     
Incorporate as part of the EMPr the recommendations and mitigation
measures recorded in the BAR
dated 18 November 2019;

(d)     
Thereafter submit the amended EMPr to the Department;

(e)     
Receive the written approval of the Department;

(f)      
Only then commence activities; and

(g)     
After commencing activities, implement and adhere to the approved
EMPrs.

 

[65]        
The
language of the EAs was that ‘[a]uthorisation of the activity
is subject to the conditions contained in’ the EAs.
This, in
contractual terms, is a classic expression of a suspensive condition.
The effect of this in contract was explained by
Hoexter JA in
Peri-Urban
Areas Health Board v Tomaselli and Another:[32]

‘If
the contract is subject to a casual suspensive condition, then it is
impossible to say, before the condition is fulfilled, whether
or not
the making of the contract disposed of the right concerned. If the
condition is fulfilled, then the making of the contract
was the legal
act of disposal, and if the condition is not fulfilled the making of
the contract had no legal effect at all; but
the fulfilment of a
casual condition can never constitute an act of disposal on the part
of either party to a contract. This view
is entirely in keeping with
what the authorities have to say as to the effect of the fulfilment
of a casual suspensive condition
(see e.g. Pothier on Obligations,
sec. 220; Goudsmit on Roman Law, sec. 61; Wessels on Contract,
sec. 1352).’

I
am not saying that the provision in question in the EAs is
contractual in nature. I refer to this to illustrate that the grant

of the EAs did not have the effect that the WEFs were, without more,
entitled to commence with the activities to which the EAs
related.
This could only be done once all the steps set out above had taken
place.

 

[66]        
In all cases, the WEFs were obliged to give written notification of
commencement
fourteen days prior to commencement. In addition,
provision was made for the EMPrs to be updated after approval where
findings
of the obligatory environmental audit reports ‘indicate
insufficient mitigation of environmental impacts associated with the

undertaking of the activity or insufficient levels of compliance
with’ the EAs or EMPrs. The updated EMPrs ‘must contain

recommendations to overcome the shortcomings identified in the
environmental audit report.’ The updated EMPrs must then be

subjected to a public participation process and submitted to the
Department for approval. Prior to approval, the Department may

request any amendments to the amended EMPrs ‘as it deems
appropriate to ensure that the EMPr[s] sufficiently provide for

avoidance, management and mitigation of environmental impacts
associated with the undertaking of the activity’ giving a date

on which it was proposed that the activity would commence.

 

[67]        
After all of these steps had been taken, a pre-construction walk
through ‘must
be conducted by a heritage specialist, aquatic
specialist, ecologist, bat specialist and avifaunal specialist, to
ensure that the
micro-siting of the facility infrastructure,
including the turbines, access roads, onsite substation and power
line alignments
have the least possible impact, that all protected
plant species and sensitive habitats impacted are identified and that
any nests/breeding/roosting
activity of priority species are
identified.’ There follows a detailed list of requirements
bearing on this aspect.

 

[68]        
Turning, then, to the submissions of the respondents. They relied on
the provisions
of regulation 26(d)(iv) of the EIA Regulations,
contending that it required finally approved EMPrs before issuing the
EAs to the Highlands companies.
The regulation provides:

‘(d)      
An environmental authorisation must specify the conditions subject to
which the activity may
be undertaken, including conditions
determining-

.
. .

(iv)      
requirements for the avoidance, management, mitigation, monitoring
and reporting of the
impacts of the activity on the environment
throughout the life of the activity additional to those contained in
the approved EMPr,
and the closure plan in the case of a closure
activity’.

As
is clear from the conditions to which the EAs were made subject, they
could only be acted on once the EMPrs had been amended
and approved.
They also made provision for ‘the avoidance, management,
mitigation, monitoring and reporting of the impacts
of the activity
on the environment throughout the life of the activity’ to take
place after approval of the amended EMPrs
following the process set
out to amend them. I see no lack of compliance with the regulation in
question as a result. It is clear
that the purpose of NEMA and the
EIA regulations is given effect. The high court erred in finding that
it had not been complied
with.

 

[69]        
As regards the second issue, the respondents relied on the provisions
of regulation 26(c)(iv) of the EIA Regulations which
requires:

‘.
. . a plan which locates the proposed activity or activities
authorised at an appropriate scale, or, if it is-

(aa)     
a linear activity, a description and coordinates of the approved
corridor of the activity or activities;
or

(bb)     
on land where the property has not been defined, the coordinates of
the area within which the activity
is to be undertaken’.

There was much debate
before us whether the activity was a linear one as mentioned in
regulation 26(c)(iv)(aa) of the EIA Regulations
and whether the description and coordinates of an approved corridor
of activity was reflected in the North
EA. The short answer is that
we do not need to determine that issue. Once more, the EAs all
envisaged the submission of final layout
plans after taking the
detailed steps set out as conditions to the EAs prior to commencing
the proposed activities. Once the activities
commenced, the EAs would
contain final layout plans arrived at after a further public
participation process in which the respondents,
as registered I&APs,
could register any comments. The purpose of NEMA and the EIA
regulations was given effect.

 

[70]        
The third ground of complaint is that the WEF EAs were considered
without taking
into consideration the grid applications. For this
proposition, the respondents set store by regulation 11(3) of
the EIA Regulations
which provides:

‘If
a proponent or applicant intends undertaking more than one activity
as part of the same development within the area of jurisdiction
of a
competent authority, a single application must be submitted for such
development and the assessment of impacts, including
cumulative
impacts, where applicable, and consideration of the application,
undertaken in terms of these Regulations, will include
an assessment
of all such activities forming part of the development.’

It
seems clear that the WEFs and the grid applications are hit by this
provision. However, the uncontroverted evidence was that
the
Department had insisted on separate applications being brought for
the WEFs and the grid connections. This did not do away
with the need
for the assessment to take into account all of those activities. Once
more, however, the unchallenged evidence was
that the chief director
had regard to the grid connection applications at the time the EAs
were being considered. This is further
buttressed by the requirement
in each of the EAs for the final layout maps to include the depiction
of connection routes to the
grid.

 

[71]        
The upshot of this is that none of the three grounds relied on by the
respondents
formed a valid basis for reviewing and setting aside the
impugned decisions. The high court erred in arriving at that
conclusion.
In summary, this resulted from a failure to properly
analyse what the EAs encompassed and the explicitly conditional
nature of
the authorisations contained in them. As such, it can be
said that the EAs would only be finally granted once all of the
conditions
had been met and the Highlands companies were entitled to
commence the proposed activities.

 

[72]        
Even if, on a highly technical reading of the various provisions, it
can be
said that the chief director and Minister failed to give
effect to the legislative provisions governing the grant of the EAs,
s
47A(1)(a) of NEMA requires two factors before EAs are
invalidated. This section provides:

‘A
regulation or notice, or an authorisation, permit or other document,
made or issued in terms of this Act or a specific environmental

management Act –

(a)       
but which does not comply with any procedural requirement of the
relevant Act, is nevertheless
valid if the non-compliance is not
material and does not prejudice any person’.

In
the light of the purpose of the legislation, viz to protect the
environment and to ensure that only activities which are authorised

can be undertaken, it can hardly be said that the approval of the EAs
in the form issued in the present matter amounted to a material

failure on the part of the chief director. The Minister’s
dismissal of the appeals likewise does not give rise to a material

failure to implement NEMA and the EIA regulations. Since the
respondents still have the opportunity to comment on the further
steps taken toward final layout maps and EMPrs, it can also not be
said that they would suffer any prejudice if the EAs are not
reviewed
and set aside.

 

[73]        
As a result of all of the above, the impugned decisions are not
susceptible
of review. As such, the appeal must succeed and the order
of the high court set aside and substituted with an order dismissing
the application. I am in respectful agreement with my colleague
Mocumie JA on the issue of costs, both in the high court and in
this
Court.

 

 

 

T
R GORVEN

 ACTING
JUDGE OF APPEAL

 

Appearances

For the First and Second Appellants	R G Buchanan SC with G Appels
Instructed by:	State Attorney, Gqeberha
	State Attorney, Bloemfontein
For the Third, Fourth and Fifth Appellants	J J Nepgen SC
Instructed by:	Cullinan & Associates Inc., Cape Town
	Honey Attorney, Bloemfontein
For the Respondents	A M Breitenbach SC with G A Du Toit
Instructed by:	Nicholas Smith Attorneys, Cape Town
	Webbers Attorneys
	Bloemfontein.

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