THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  487/08

NATURE’S CHOICE PROPERTIES
(ALRODE) (PTY) LIMITED                                                                           Appellant

and

EKURHULENI METROPOLITAN MUNICIPALITY                                    Respondent

Neutral citation: Nature’s Choice v Ekurhuleni Municipality (487/08) [2009] ZASCA
90 (11 SEPTEMBER 2009)

Coram:
HARMS DP, NUGENT, MAYA JJA, LEACH AND BOSIELO AJJA
Heard:
28 AUGUST 2009
Delivered:
11 SEPTEMBER 2009
Updated:

Summary:
Atmospheric Pollution Prevention Act 45 of 1965 – smoke control
regulations – plans and specifications for installation of boiler required
– failure to comply – effect.

ORDER

On appeal from: High Court of South Africa (WLD): Masipa J sitting as court of first
instance.
(a) The appeal is upheld with costs.
(b) The order of the court below is amended to read: ‘The application is
dismissed with costs’.

JUDGMENT

HARMS DP (NUGENT, MAYA JJA, LEACH AND BOSIELO AJJA concurring)

INTRODUCTION
[1] This appeal deals with environmental issues arising from the provisions of the
Atmospheric Pollution Prevention Act 45 of 1965. The main purpose of the Act is to
prevent pollution of the atmosphere. It has, accordingly, provisions dealing with the
control of noxious or offensive gases, atmospheric pollution by smoke, dust control,
and air pollution by fumes emitting from vehicles. It fits in with the Bill of Rights which
guarantees the right to an environment that is not harmful to health or well-being and
to have the environment protected for the benefit of present and future generations
through reasonable legislative and other measures that prevent pollution and
ecological degradation (s 24). In interpreting the Act and regulations it is necessary
to have regard to s 39(2) of the Bill of Rights which requires of us to promote the
spirit and objects of the Bill of Rights.

[2] The appeal is, more particularly, concerned with smoke control regulations
issued under the Act. The regulations in question apply to Alberton, which is now
part of the respondent municipality, the Ekurhuleni Metropolitan Municipality. The
high court issued an interdict at the behest of the municipality restraining Nature’s
Choice Properties (Alrode) (Pty) Ltd, the appellant, from utilising a coal boiler at its
food processing factory in the Alrode industrial township. The court also ordered
Nature’s Choice to remove the boiler from the property within 30 days and in the
event of a failure to comply, made provision for removal by the sheriff. The appeal is
before us with the leave of the court below.

[3] The facts on which the municipality relied for the relief sought were these.
Nature’s Choice, as owner of the property concerned, erected a coal fired boiler on
the property without the prior consent of the municipality. This, the municipality
alleged, amounted to a contravention of regulation 3 of its Smoke Control
regulations. They were promulgated under s 18 of the Act.1 Regulation 3 provides
that one may not install any fuel burning appliance (which includes a boiler)2
designed to burn solid or liquid fuel in or on any premises, unless the plans and
specifications in respect of such installation were approved by the municipality.3 The
right to have the boiler removed was based on regulation 4.4 Non-compliance with
the regulations is, under regulation 9, an offence.

1 Administrator’s Notice R2057 of 21 September 1979. The procedure is set out in s 18(5) which
reads:
‘No such regulation shall have any force or effect unless it has been approved by the Minister on the
recommendation of the committee (and in the case of any regulations under paragraph (d) or (h) of
subsection (1) also after consultation with the Minister of Trade and Industry, and has been
promulgated by the Minister by notice in the Gazette.’
2 Section 1:
‘“fuel burning appliance” means any furnace, boiler or other appliance designed to burn or capable of
burning liquid fuel or gaseous fuel or wood, coal, anthracite or other solid fuel, or used to dispose of
any material by burning or to subject solid fuel to any process involving the application of heat.’
3 Regulation 3:
‘No person shall install or cause or permit to be installed or alter or extend or cause or permit to be
altered or extended any fuel burning appliance designed to burn solid or liquid fuel in or on any
premises, unless the plans and specifications in respect of such installation, alteration or extension
have been approved by the Council.’
4 Regulation 4:
‘If any fuel burning appliance has been installed, altered or extended in contravention of regulation 3,
the Council may by notice in writing require the owner or occupier of the premises in question to
remove, within a period specified in the notice and at his own expense, such fuel burning appliance
from such premises.’

[4] In the high court Nature’s Choice sought to meet this case by alleging that the
regulations were ultra vires the Act and in the alternative that the municipality had
been unreasonable or had acted with an ulterior motive when it refused a
subsequent application by Nature’s Choice to install the boiler.

[5] The high court found for the municipality on the basis that the regulations
were not ultra vires and that the coal boiler was installed on Nature’s Choice’s
property in conflict with regulation 3 because plans and specifications for its erection
had not been submitted and approved before installation.

[6] The relief sought in the notice of motion was in addition based on the
provisions of s 17, which deals with nuisance. If, as a result of representations made
to it, a local authority is satisfied that smoke or any other product of combustion
emanating from any premises is a nuisance, it may call on the person responsible to
abate the nuisance within a given period, and to take all necessary steps to prevent
a recurrence of the nuisance. The court below did not rule on this alternative and the
municipality did also not on appeal rely thereon, presumably because the
municipality never called on Nature’s Choice to ‘abate’ any nuisance – its case was
all along that the boiler had to be removed.

[7] Reverting to the Act, s 15(1) provides, inter alia, that one may not install any
fuel burning appliance unless it is so far as is reasonably practicable capable of
being operated continuously without emitting dark smoke or smoke of a colour
darker than may be prescribed by regulation, or one designed to burn solid fuel,
unless it is provided with effective appliances to limit the emission of grit and dust.5

5 Section 15(1):
‘No person shall install or cause or permit to be installed in or on any premises—

(a)
any fuel burning appliance, unless such appliance is so far as is reasonably
practicable capable of being operated continuously without emitting dark smoke or smoke of a colour
darker than may be prescribed by regulation: Provided that in applying the provisions of this
paragraph due allowance shall be made for the unavoidable emission of dark smoke or smoke of a
colour darker than may be so prescribed during the starting up of the said appliance or during the
period of any breakdown or disturbance of such appliance; or

(b)
any fuel burning appliance designed—

(i)
to burn pulverised solid fuel; or

(ii)
to burn solid fuel in any form at a rate of one hundred kilograms or more per hour; or

(iii)
to subject solid fuel to any process involving the application of heat, unless such
appliance is provided with effective appliances to limit the emission of grit and dust to the satisfaction
of the local authority or the chief officer, as the case may be.’

[8] The Act does not prohibit the installation of fuel burners or burners of any
particular type. It only prohibits burners that emit smoke and grit in contravention of s
15(1), including the regulations. Consequently, if smoke is emitted in contravention
of any regulation, the local authority may call on the owner or occupier to cease the
emission of the smoke (s 19(1)).6 A failure to comply is an offence (s 19(5)) and if
after one month from the date of the conviction steps have not been taken to the
satisfaction of the local authority to comply, it may take measures necessary to bring
about the cessation of the emission or emanation, and it may recover the cost
incurred (s 19(6)).

[9] To ensure that only burners that comply with s 15(1) are installed, s 15(2)
provides that no person may install any fuel burning appliance in respect of which
sub-sec (1) applies, unless prior notice in writing was given to the local authority or
the chief officer of the proposed installation.7 Sub-section (5) creates an irrebuttable
presumption: a fuel burning appliance installed in accordance with plans and
specifications approved by the local authority is deemed to comply with s 15(1).8
And s 16 provides that a local authority may not approve a plan which provides for
the installation of a fuel burning appliance unless it is satisfied that it is suitably sited
in relation to other premises in the surrounding areas.9 It is different with the

6 Section 19(1):
‘If smoke is emitted or emanates from any premises in contravention of any regulation made under
section eighteen, the local authority concerned may, subject to the provisions of subsection (3), cause
to be served on the owner or occupier of such premises, a notice in writing calling upon him to bring
about, within a period specified in the notice, the cessation of the emission or emanation of such
smoke from those premises.’
7 Section 15(2):
‘No person shall install any fuel burning appliance in respect of which sub-section (1) applies, in or on
any premises unless prior notice in writing has been given to the local authority or the chief officer, as
the case may be, of the proposed installation of such appliance.’
8 Section 15(5):
‘A fuel burning appliance which has been installed in accordance with plans and specifications
approved by the local authority concerned, shall not for the purposes of subsection (1) be deemed to
have been installed in contravention of the provisions of that subsection, but nothing in this
subsection shall be construed as precluding any action under section seventeen or nineteen in
respect of any such fuel burning appliance.’
9 Section 16:
‘(1)  No local authority shall approve of any plan which provides for the construction of any chimney or
other opening for carrying smoke, gases, vapours, fumes, grit, dust or other final escapes from any
building or for the installation of any fuel burning appliance, unless it is satisfied—

(a)
. . .

(b)
in the case of any such fuel burning appliance, that it is suitably sited in relation to
other premises in the surrounding areas.’

acceptance of plans for chimneys because then the municipality is entitled to take
the considerations set out in s 16(2) into account.

[10] It follows from this that regulations requiring prior plans and specifications are
intra vires, something accepted by Nature’s Choice on appeal. However, the
purpose of such regulations is to enable the municipality to determine in advance
whether or not the relevant burner would comply with s 15(1). If it complies, the
municipality is obliged to accept the plans unless the boiler is not suitably sited or
there are other relevant regulations issued under s 18(1)(b) – there is not one.10 In
other words, the municipality has no free discretion to reject plans and
specifications.

[11] Against this background I turn to the facts. As mentioned, Nature’s Choice
installed the boiler without having submitted plans and specifications. This, it is
common cause, was in contravention of regulation 3. In terms of regulation 4,
mentioned earlier, the municipality was entitled, but not obliged, to require of
Nature’s Choice to remove the boiler. The municipality elected, instead, to require of
Nature’s Choice to remedy the situation by submitting plans and specifications.
Nature’s Choice was so informed by letter of 7 April 2006, and on 23 May the
necessary application was filed.

[12] On 6 July 2006, the municipality turned the application down. It gave a
number of reasons11 for the rejection but ultimately the reason was this:

10 Section 18(1)
‘A local authority may make regulations—

(a)
. . .

(b)
prohibiting the installation in any premises or the alteration or extension of any fuel
burning appliance which does not comply with such requirements as may be specified in such
regulations or determined by a person authorized thereto by or in accordance with such regulations or
otherwise than in accordance with and subject to such conditions as may be so specified or
determined; . . .
11 ‘Your application has been rejected taking the following into consideration;
-
the location of your premises which is bordering a neighbouring residential area,
(Mayberry Park)
-
the type of fuel burning appliance to be used
-
the type of fuel to be used
-
the start-up of the boiler which will result in black smoke emissions and subsequent
complaints from residents.
-
Soot blowing procedures which is allowed by current air pollution legislation in order to
prevent clogging of boiler tubes will cause a problem because soot will end up in

‘This department will only consider an application for a gas fired appliance as there will be
minimal pollution although other issues of heat waves and noise from the appliance might
be a future problem to the neighbouring residents.’

Importantly, the municipality did not reject the boiler because it emitted smoke in
contravention of s 15(1). It rejected the application because it was for a coal burner
and not for a gas burner. The municipality overstepped the mark. It was entitled to
refuse the application if, and only if, the boiler’s smoke emission did not comply with
s 15(1). It was not, in the absence of an appropriate regulation, entitled to require
that the boiler had to be gas fired and not coal fired. As its counsel mentioned,
regulatory power conferred through enabling legislation is constrained by the need to
stay within well established boundaries such as expressed within the enabling Act
itself and the constraints of the Constitution (Pharmaceutical Society of SA v
Tshabalala-Msimang NO; New Clicks SA (Pty) Ltd v Minister of Health
2005 (3) SA 238 (SCA)
at
para
41;
Road
Accident
Fund
v
Makwetlane
2005 (4) SA 51 (SCA) at para 19 and 31). If it had a problem with the positioning of
the boiler that was something it had to raise with Nature’s Choice. Instead it simply
refused the application and made it clear that any further application for a coal
burning boiler would be refused.

[13] In summary, Nature’s Choice installed the boiler contrary to the provisions of
the regulations. This meant that the municipality could have insisted that it be
removed. It chose not to do so and, instead, gave Nature’s Choice the opportunity to
submit plans and specifications. They were rejected and this was unlawful. The
municipality now wishes to interdict the use of the boiler and have it removed. It
wishes to revert to the position before it made its election. The effect of this is that
the municipality is seeking to enforce an illegal decision, something it cannot do. To
the extent that the municipality sought to argue that Nature’s Choice was not entitled

neighbouring residential premises resulting in (swimming pool water covered with soot,
clothes on washing lines with black soot spots etc) complaints
-
the distance between the fuel burning appliance and residential premises is of great
concern
-
the sensitivity of the neighbouring residents with regard to air and noise pollution.
-
Complaints from neighbouring residents.
-
Noise from the appliance and delivery of coal.’

to challenge the decision under the so-called Oudekraal principle it misunderstands
the scope of the decision. There is nothing in that case which holds that a subject
may not raise the defence that the underlying administrative decision is unlawful
and, instead, has to comply with it while seeking to set it aside in collateral
proceedings; the case in fact holds the contrary (Oudekraal Estates (Pty) Ltd v City
of Cape Town 2004 (6) SA 222 (SCA) at para 34).

[14] The appeal must therefore be upheld with costs. Although Nature’s Choice
used the services of two counsel in both courts the case does not justify the costs of
two counsel.

[15] The order:
(a) The appeal is upheld with costs.
(b) The order of the court below is amended to read: ‘The application is
dismissed with costs’.

_____________________
L T C HARMS
DEPUTY PRESIDENT

For Appellant:
S JOSEPH SC

M SMIT

Instructed by:
FELDMAN & NANCE-KIVELL

JOHANNESBURG

LOVIUS BLOCK

BLOEMFONTEIN

For Respondent:
J C UYS

Instructed by:
KLOPPER-JONKER INC

c/o BOTHA & SUTHERLAND

JOHANNESBURG

WESSELS & SMITH

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  11 SEPTEMBER 2009
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

NATURE'S CHOICE PROPERTIES (ALRODE) (PTY) LTD V EKURHULENI
METROPOLITAN MUNICIPALITY

The Supreme Court of Appeal (SCA) today held that smoke control regulations
issued under the Atmospheric Pollution Prevention Act requiring prior plans and
specifications are intra vires and that the purpose of such regulations is to enable
the municipality to determine in advance whether or not the relevant burner complies
with the regulations.  If the burner complies, the municipality is obliged to accept the
plans. The municipality has no free discretion to reject plans and specifications.

The appeal was brought by Nature's Choice against the interdict made by the High
Court at Johannesburg restraining it from utilising a coal burner at its food
processing factory and against the order to remove the boiler from the property.

The High Court found for the municipality on the basis that the regulations made in
terms of the Atmospheric Pollution Prevention Act were not ulta vires and that the
coal boiler installed on the appellant's property was in contravention of the

regulations because plans and specifications for its erection had not been submitted
and approved before installation.

The SCA held that as Nature's Choice had not submitted plans and specifications
prior to the installation of the boiler, this entitled the municipality to either require the
removal of the boiler or require Nature's Choice to remedy the situation.  Having
made the choice of requiring Nature's Choice to remedy the situation the
municipality has no free discretion to reject plans and specifications if they comply
with the relevant regulations.  Allowing the municipality to interdict Nature's Choice,
after having made the choice not to require the removal of the boiler, would be the
enforcement of an unlawful decision.

The appeal against the interdict restraining Nature's Choice from utilising a coal
boiler and the order to remove the boiler made by the High Court was upheld and
the order was amended to read 'The application is dismissed with costs'.

---ends---