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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NUMBER:  2809/2012

DATE HEARD: 9 JUNE 2014

DATE DELIVERED: 12 JUNE 2014

NOT REPORTABLE

In the matter between

THE WIND FARM CONCERNED GROUP                                                        First Applicant

PETRUS JOHANNES VERMAAK                                                                Second Applicant

ROBERT C.A. BELL                                                                                         Third Applicant

JENNIFER BELL                                                                                            Fourth Applicant

LESTER DE BEER                                                                                            Fifth Applicant

GEORGE CHAMBERLAIN                                                                               Sixth Applicant

GERHARD SAAYMAN                                                                                Seventh Applicant

CAREL SCHEEPERS                                                                                     Eighth Applicant

LERISCHIA SCHEEPERS                                                                                Ninth Applicant

SHIRLEY WAGNER-WELSH                                                                           Tenth Applicant

JOHAN C WAGNER                                                                                   Eleventh Applicant

DEON P GOUWS                                                                                          Twelfth Applicant

DEAL MAKING INVESTMENTS (PTY) LTD                                            Thirteenth Applicant

JAN LOUW JANSEN                                                                              Fourteenth Applicant

JAN BURGER PIENAAR                                                                           Fifteenth Applicant

DAVID LISTER                                                                                          Sixteenth Applicant

VIRGINIA LISTER                                                                                Seventeenth Applicant

and

THE MINISTER OF WATER

AND ENVIRONMENTAL AFFAIRS OF THE

REPUBLIC OF SOUTH AFRICA                                                                   First Respondent

NELSON MANDELA BAY MUNICIPALITY                                              Second Respondent

METROWIND (PTY) LTD                                                                             Third Respondent

RUBICEPT (PTY) LTD                                                                               Fourth Respondent

JUDGMENT

GOOSEN, J.

[1] The first, second, third, fourth, seventh, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth applicants seek leave to appeal against the judgment and cost order is made on 17. April 2014. In the main review application and the order made on 19, March 2013 in the interlocutory striking out and Rule 30 applications. The remaining applicants, referred to in the citation heading above, do not seek leave to appeal. The third and fourth respondents oppose the application for leave to appeal.

[2] The notice of application for leave to appeal sets out in some 11 pages 49 grounds of appeal. These are founded upon the submission that the court erred in respect of almost every the finding made in the matter. Rigour and attention to detail are never to be regarded as a fault in the conduct of litigation. There is however much to be said for a clear, unambiguous and succinct statement of the grounds upon which leave to appeal is sought. Indeed it was argued by Mr Ford, that the notice of appeal did not meet the requirements of Rule 49(1)(b) inasmuch as the “grounds” amount to no more than an assertion of alleged error, without indicating the basis upon which it is suggested that the court erred. Mr Ford referred to the judgment of Leach J (as he then was) in Sangono v Minister of Law and Order [1] where the learned judge described a notice of appeal as constituting “a diatribe of some 17 pages criticising the judgment” and found that the notice of appeal was defective insofar as it did not clearly and unambiguously set out the grounds upon which leave to appeal was sought. Whilst the notice of appeal in this matter does primarily consist of the assertion of error in the form of generalised and repetitive statements, it does not warrant a finding similar to that made in the Sangono matter.

[3] Since the grounds upon which leave to appeal is sought effectively cover all of the findings made by this court, I shall deal with the assessment as to whether or not there is a reasonable prospect of success on appeal under three separate headings, namely the Rule 30 application; the application to strike; and the merits of the review.

The Rule 30 application.

[4] In relation to the orders made in this interlocutory application it is submitted that the court erred in striking out the filing notice enclosing the NEMA[2] appeals on essentially three grounds, namely:

(a) A failure to have regard to the allegation that the appeals deal with the same issues as those raised in the fourteenth applicant’s appeal;

(b) A failure to pay due regard to the fact that it was common cause that the applicants had lodged appeals; and

(c) A failure to dismiss the application having regard to the provisions of Rule 53.

[5] What is absent from the grounds relied on in this regard it is any suggestion that the reasoning set out in the judgment, based on the principles applicable to determining an application in terms of Rule 30, is flawed or otherwise erroneous.

[6] I do not intend to repeat that reasoning here. It suffices to point out that the reasoning proceeded on the basis that in application proceedings a party may not by mere filing notice seek to introduce evidentiary material upon which it intends to rely. To do so constitutes an irregular step. This finding is not challenged. The reasoning proceeded on the basis that it was not common cause that appeals had been lodged by all of the applicants or that such appeals as had been lodged contained applications for condonation. The judgment specifically records that it was not common cause. That finding was based upon a reading of the clear and unambiguous averments contained in the respondent’s answering affidavits. The further reasoning was founded upon the basis that a central allegation upon which the applicants would rely in the main review application was in dispute and that no evidentiary material relating to that critical aspect had been adduced by the applicants in their founding papers. It was accordingly found that insofar as the applicants sought by the mere filing notice to introduce evidentiary material relating to the lodging of appeals, that such step was irregular and necessarily prejudiced the respondents in the conduct of their defence.

[7] Consideration was then given to the nature of the review application and in particular whether Rule 53 could be relied upon as a basis for the introduction of the evidentiary material. It is accordingly simply incorrect on the part of the applicants to contend in this application, as a ground of appeal, that this court did not take into consideration the provisions of Rule 53 in deciding the application brought in terms of Rule 30.

[8] The notice of appeal does not set out any grounds suggesting that the findings made by this court as to the effect of the applicants’ election not to employ the provisions of Rule 53. The effect was, it was found, that no record of the proceedings before the first respondent was made available in terms of Rule 53 and, furthermore, that it does not lie in the mouth of the applicants to state what the content of that record was. Accordingly the applicants could not assert that the filing of copies of appeal documents by a filing notice constituted merely the filing of a portion of the record which was the subject of the review.

[9] In my view there is no prospect that another court would come to a different conclusion in regard to the nature and effect of the irregular step which was the subject of complaint in the Rule 30 application and accordingly there is no reasonable prospect that another court would interfere with the finding made by this court in that regard.

The application to strike out

[10] The application to strike out was dealt with on the basis of three categories of objection. The grounds of appeal enumerated in the notice of appeal assert errors in regard to the findings in respect of each of these categories, without, as already indicated, specifying the basis upon which it is submitted that such error was committed. I shall deal with the grounds in relation to each of the three categories of complaint raised in the application to strike out.

[11] In respect of the first of these categories, namely the scandalous and/or vexatious matter, the applicants contend that the court erred by striking out entire paragraphs “having regard to the context and the nature of the alleged offending portions of these paragraphs and the manner in which the EAP managed to the public participation process in terms of NEMA”. It was not disputed that the offending portions of the paragraphs are indeed scandalous and vexatious. As I understood the argument it was that the error was to strike out the paragraphs because no real prejudice arose and because the EAP’s conduct was central to determining the issues relating to public participation.

[12] The argument that there was no substantial prejudice was to the effect that the incorporation of the scandalous and/or vexatious material did not have the effect of side-tracking the respondents from the real issues to be determined in the application. The submission loses sight of the fact that the applicant’s case as to the failure of the public participation process was primarily founded upon the suggestion that the EAP was deliberate and conscious in his desire to subvert the public participation process. The prejudice which flows from those statements extends beyond the attack on the character of the EAP, as was found, and bears upon the determination of the applicants’ case in relation to the public participation process.

[13] There is in my view no basis for an attack on the findings made in regard to these paragraphs and the grounds of appeal did not disclose any such basis. There is accordingly no prospect that another court would come to a different conclusion in relation to this issue.

[14] Insofar as the order striking out inadmissible material is concerned the applicants’ grounds suggest, in essence, that the court erred in striking out inadmissible and hearsay evidence on the strength of alleged admissions made by the respondents and or the incorporation of statements made by experts in the Environmental Impact Assessment report which served as foundation for the Environmental Authorisation granted to the developers. It is not in dispute that the averments struck out are indeed hearsay or otherwise inadmissible. There is also no suggestion that that the principle, that an applicant is not entitled to incorporate unsubstantiated hearsay evidence in its application papers save in exceptional circumstances of urgency, was incorrectly applied. The argument, as I understood it, was rather that the application, being a review in the context of an endeavour to protect environmental rights should be approached on the basis that the content of appeals lodged in terms of NEMA do not prescribe a particular form and also do not require the submission of evidence on oath. It was therefore suggested that this court in exercising its review jurisdiction ought to have had regard to evidentiary material even if it was not supported on oath. The argument is without merit. This court was not dealing with a consideration of an appeal in terms of NEMA. It was dealing by way of ordinary application proceedings with a review of the lawfulness or otherwise of a decision taken by a decision maker. Such application procedure is regulated by the Rules of Court and by the principles of the law of evidence. In regard to the application of those principles, there is no reasonable prospect that another court would come to the conclusion that unsubstantiated hearsay material ought to have been admitted for purposes of adjudicating the issues in the application.

[15] In respect of the finding as to the striking out of irrelevant material, that primarily concerned annexure PV7. It was submitted that the court erred in as much as it did not take into account the provisions of section 24O of NEMA which provides in subsection (1) (b), inter-alia, that the MEC or competent authority must take into account all relevant factors, which may include any guidelines, departmental policies in decision-making instruments that have been developed or any other information in the possession of the competent authority which is relevant to the application.

[16] It was argued that since the provision refers to “any guideline” that it was permissible to rely upon the guidelines developed by the Western Cape Province in respect of public participation.

[17] The difficulty with the submission now made is that the applicant’s counsel conceded, at the hearing of the matter, that the guidelines are not binding upon the Department in this Province nor on the Department as a whole and, furthermore, that the document is wholly irrelevant to the issues to be determined in the application. The present reliance upon section 24O is ill-advised in the light of this concession. In any event that section, in its terms, does not oblige the competent authority to take into account such guidelines as may have been issued by the Western Cape Department.

[18] In respect of the orders made striking out the matter introduced in reply the applicants assert merely that the court erred in that regard, without specifying the basis for the submissions.  In argument it was suggested that the objection was of a technical nature inasmuch as the founding affidavit had contained reference to the salient portions of annexure PV2. It was furthermore submitted that the court was called upon to determine, having regard to annexure PV2 as being the record of proceedings before the first respondent, whether the first respondent had taken the decision in accordance with the provisions of PAJA.

[19] I did not understand the applicants to suggest that this court had not taken into account the contents of annexure PV2. The order striking out reference in the replying affidavits to PV2 did not have the effect of striking out PV2. It remained part of the papers as referred to by the deponent to the founding affidavit and was considered in the light of the allegations set out in the founding papers. What was struck out was the incorporation of those portions of PV2 into the replying affidavits. The basis upon which that order was made, it was not suggested, was erroneous or otherwise assailable.

[20] In the circumstances I cannot conclude that there is a reasonable prospect that another court would come to a different conclusion either in respect of the Rule 30 application or the application to strike out portions of the affidavits filed by the applicants. There is accordingly no prospect of success on appeal in this regard.

The merits of the application.

[21] The applicants advance a number of grounds upon which it is contended that the court erred in relation to the merits of the application. These grounds suffer the same deficiency that applies in respect of the grounds advanced in relation to the interlocutory applications. What compounds the difficulty however is the fact that the grounds upon which it is alleged that the court erred are so broadly stated as to render it almost impossible to assess whether, having regard to the findings actually made, that there is a prospect that another court, taking into account the basis of the alleged error, might come to a different conclusion in respect of that finding. A few examples will suffice. It is, for instance, submitted that the court erred “in failing to find that the first respondent’s reason for a decision did not comply with the provisions of PAJA[3]”. It is difficult to discern whether the complaint relates to the adequacy of reasons, or whether the reasons disclose that the decision was not justifiable or not rational, as is provided by PAJA. The question of adequacy of reasons was not at issue in the review application.

[22] Still another ground alleges that the court erred “in failing to find that the first respondent did not pay due regard to NEMA and its regulations in coming to her decision” and furthermore, that the court erred “in finding that the First Respondent had considered the Applicant’s submissions and in finding (by implication) that the First Respondent had paid due regard thereto”.

[23] The judgment deals at some length with the reasons furnished by the first respondent. It also deals with the applicants’ contentions that the first respondent did not take into consideration the submissions regarding condonation and that she did not, as a matter of fact, have regard to the applicants’ submissions in regard to the alleged failures in the public participation process. All that is asserted in this regard is that the court erred without indicating the basis upon which that submission is made. In my view, giving careful consideration to the basis upon which the application for leave is founded and having regard to the nature of the findings made, there is no reasonable prospect of success on appeal.

[24] The applicants also allege that the court erred in finding that only the second and fourteenth applicants had established locus standi in the application. In this regard reliance was placed on section 32 of NEMA. The applicants argued that that the court erred in finding that the first applicant did not have locus standi and that section 32 of NEMA has no application in the matter “having regard to the provisions of NEMA”. The following finding was made on this issue:

“The first applicant did not lodge such an appeal. It is not alleged that its members did or that such members as did lodge appeals are not able to prosecute this application themselves. Accordingly the first applicant, to the extent that it is indeed a legal entity capable of suing and being sued, can have no interest in the subject matter of the dispute in this application. Nor can it rely on section 32 of NEMA as a basis for “acting in the interest of its members” in relation to this review application. It has no standing and its joinder in this application is perplexing.”

[25] Regard was indeed had to the provisions of NEMA, in particular, section 32. This much is apparent from the judgment. Regard was also had to the interaction between NEMA and PAJA and the fact that the application which served before the court was a review application, brought in terms of PAJA in which particular individuals who had lodged administrative appeals were contesting the unlawfulness of the first respondent’s decision to refuse condonation to them to prosecute those administrative appeals.

[26] It was argued that the underlying basis of the application was the provisions of NEMA and that therefore the court ought to have considered that the first respondent was a body that would otherwise have had locus standi to prosecute claims in terms of NEMA and therefore ought to be accorded locus standi in the review application. In support of its contentions in this regard the applicants relied on a passage in the judgment in Walele v City of Cape Town and others[4] where Jaftha AJ stated that “all statutes which authorise the making of administrative action must now be read with PAJA unless the provisions are inconsistent with it. PAJA was intended to interface with all statutes (whether enacted before or during the current constitutional order) which authorise administrative action.” The passage relied on requires that all administrative action taken in terms of particular empowering statutes must comply with the provisions of PAJA.

[27] The passage does not mean that for purposes of a PAJA review the locus standi provisions provided for in NEMA apply I do not consider that there is any prospect that another court would come to a different conclusion in relation to the first respondent s lack of standing. In this review application.

[28] Finally in respect of costs it was submitted that the courts order dismissing the application with costs was inconsistent with the recognition that Dona Me attempts to protect environmental rights by parties should not be visited with an adverse cost order. That general principle was dealt with in the judgment. The costs order made in the matter was one made in the exercise of the court's discretion. In that regard. The grounds of appeal did not advance any substantial basis upon which it was suggested that the exercise of that discretion is assailable on appeal.

[29] It follows from what is set out above that I am of the view that no reasonable prospect of success on appeal has been established and accordingly the applicant’s application falls to be dismissed.

[30] In the result make the following order:

The application for leave to appeal is dismissed with costs

G. GOOSEN

JUDGE OF THE HIGH COURT

For the applicants:                         Mr H. J. Van der Linde SC

                                                             Instructed by Wilke Weiss incorporated

For third & fourth respondents:      Mr E. A. S Ford SC and

                                                             Mr J.G Richards

                                                             Instructed by Rushmere Noach incorporated

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