IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 563/12
Reportable

In the matter between:

MAGALIESBERG PROTECTION ASSOCIATION                           Appellant

And

MEC: DEPARTMENT OF AGRICULTURE,

First Respondent
CONSERVATION, ENVIRONMENT AND RURAL
DEVELOPMENT NORTH WEST PROVINCIAL
GOVERNMENT

CHIEF DIRECTOR: ENVIRONMENTAL

Second Respondent
COMPLIANCE, DEPARTMENT OF
AGRICULTURE, CONSERVATION,
ENVIRONMENT AND RURAL DEVELOPMENT,
NORTH WEST PROVINCIAL GOVERNMENT
KGASWANE COUNTRY LODGE (PTY) LTD                     Third Respondent

Neutral Citation:
Magaliesberg Protection Association v MEC of  griculture
& others (563/2012) [2013] ZASCA 80(30 May 2013)
Coram:
NAVSA, MAYA & TSHIQI JJA, PLASKET & SWAIN AJJA
Heard:

13 May 2013
Delivered:

30 May 2013
Summary:

Application
for
ex
post
facto
environmental
authorisation in terms of s 24G(1) of National Environmental
Management Act 107 of 1998 – factors to be considered – impact on
environment – mitigation measures, public participation process –
environmental
management
programme
–
failure
to
consider
Environmental Management Framework – in circumstances of case
inconsequential – no costs order against conservation group acting in
the public interest.

______________________________________________________________
ORDER

______________________________________________________________

On appeal from: North West High Court, Mafikeng (Leeuw JP sitting as court
of first instance).
The following order is made:
(1)
The appeal is dismissed, save to the extent reflected in the substituted
order set out in 3 below.
(2)
Each party is to bear its own costs.
(3)
The order of the court below is set aside and substituted as follows:
The application is dismissed and each party is ordered to pay its own costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

NAVSA JA (MAYA & TSHIQI JJA, PLASKET & SWAIN AJJA concurring):

[1] This appeal is directed against a judgment of the North West High
Court Mafikeng, (Leeuw JP), which refused with costs an application by the
appellant, the Magaliesberg Protection Association (MPA), to review and set
aside a decision of the first respondent’s predecessor. The decision in
question was one dismissing an internal appeal against an earlier decision by
the second respondent to grant environmental authorization ex post facto, to
the third respondent, Kgaswane Country Lodge (Pty) Ltd (Kgaswane) to
construct an hotel and conference centre.

[2] The first respondent is the Member of the Executive Council:
Department
of
Agriculture,
Conservation,
Environment
and
Rural

Development, North West Provincial Government (the MEC). The second
respondent is the Chief Director (the Chief Director) in that department. The
appeal is before us with the leave of this Court. The detailed background is
set out hereafter.

[3] The MPA is a voluntary association established in 1975, brought into
being, as its name suggests, with the objective of fostering and encouraging
the conservation and protection of the Magaliesberg mountain range, a well-
known conservation area. It is common cause that over the years the MPA, in
its conservation efforts, had interacted with government authorities. It also
appears that it had made a contribution to the enactment of presently
applicable environmental legislation. In addition the MPA is also actively
involved, with others, in an initiative to have the Greater Magaliesberg Region
declared a Biosphere Reserve by the United Nations Educational, Scientific
and Cultural Organisation (UNESCO).

[4] During July 2008, members of the MPA, whilst in an airplane flying
across the Magaliesberg mountain range within the Magaliesberg Protected
Environment, just to the west of where the R24 road crosses the
Magaliesberg at Olifantsnek, noticed a huge development nearing completion.
This was Kgaswane’s hotel and conference centre. At an early stage of the
litigation between the parties the extent of the development was a major
issue. More specifically, the MPA had unsuccessfully sought an interdict to
prevent further construction work from being done. That question has been
rendered academic as the interdict was refused, resulting in the completion of
at least one phase of the intended final development. Presently the
development is in the form of a Country Lodge comprising 47 en-suite units; a
conference block; a reception and office block; as well as a restaurant and
massage parlour.

[5] The MPA’s members were alarmed that such a massive development
was taking place within an ecologically sensitive area and leapt into action.
They contacted officials in the Chief Director’s office, who in turn informed
them that they too had only recently become aware of the development and
were in the process of investigating the matter, with a view to taking action
against the developer as the necessary statutory environmental authorization
had not been obtained.

[6] In November 2008, the Chairperson of the MPA addressed a letter to
the MEC’s predecessor expressing the applicant’s concern at what it
considered to be a violation of the area. It took the view that the development
threatened the environment and the initiative to have the Greater
Magaliesberg Region declared a biosphere under the UNESCO Charter.
From a very early stage and for a continuing period thereafter, including in
submissions before us, the MPA was concerned that, if the development were
to remain extant it would open the floodgates to a spate of developments in
the area.

[7] During December 2008 the MPA, through a sister organization, the
Mountain Club of South Africa, became aware that a consulting firm, Lesekha
Consulting (Lesekha), an environmental assessment practitioner appointed by
Kgaswane, was requesting comments from affected and interested parties
regarding an application by the latter for ex post facto authorization, as
contemplated in s 24G of the National Environmental Management Act 107 of
1998 (NEMA). Kgaswane has stated consistently that when it applied for
building approval it was unaware that it required environmental authorisation
and that its attention was not drawn to that requirement by the Rustenburg
Municipality. I will in due course deal with the applicable statutory provisions.

[8] It appears that the application for authorization had been submitted to
the department by Lesekha as far back as July 2008. An environmental
assessment report compiled by Lesekha was submitted to the department in
October 2008. The MPA wrote to Lesekha insisting that the only way forward
was that the development be demolished and the environment restored.

[9] In January 2009 the MPA wrote to the Rustenburg Local Municipality,
which apparently had approved the building plans, registering its objection to
the development.

[10] During March 2009, after receiving no response from any of the
authorities it had sought to engage, the MPA was sent a letter by Kgaswane,
advising that its application for ex post facto authorization had been granted
on 9 March 2009. Approximately two months later and after receiving a copy
of the environmental assessment report compiled on Lesekha’s behalf, the
MPA lodged an appeal against the Chief Director’s decision to grant the ex
post facto authorization. The appeal was based on the following grounds:

‘[T]he second respondent’s decision was issued pursuant to a flawed public
participation process in that the applicant, as a key interested and affected party,
was not notified or consulted during the rectification application process;

[T]he report submitted by Lesekha Consulting in support of the rectification
application was inadequate in that insufficient detail and information was provided
to enable the second respondent to make an informed decision as to the impact
of the development on the MPE;

[T]he mitigation measures proposed in the report compiled by Lesekha consulting
were not site specific but generic in nature and wholly inadequate.

[T]he area in which the development had taken place is a protected area by virtue
of its status as the MPE for the purposes of the National Environmental
Management: Protected Areas Act 57 of 2003 and authorization of the

development is contrary to the environmental integrity and strategic plans for this
area; and

[T]here were numerous instances of inaccurate and contradictory statements
made in the report which render the information contained therein unreliable and
misleading and as a result any decision made on the basis of the information
provided was necessarily ill informed.’

[11] On 5 February 2010, the MPA received the MEC’s decision dated 19
January 2010, in terms of which its appeal was dismissed. The following was
stated by the MEC in respect of each of the grounds of appeal in the
sequence in which they appear in the preceding paragraph:

‘After perusal of the contents of the project file I am satisfied that the public
participation process followed in this matter was in line with the procedure to be
followed and stipulated in GNR 28753 of 21 April 2006.

I am of the opinion that the information submitted to the department was sufficient
for the decision maker (Mr Moremi) to conclude that the activity may be rectified
based on the information at hand.

I am satisfied that the mitigation measures contained in the report and
Environmental Management Plan is adequate.

It is acknowledged that the MPE is regarded as a protected environment as
contemplated in section 28(7) of the NEMPAA. It should also however be noted
that the legislation does not prohibit development in the MPE in toto, but that
permission must be granted for development to take place. The required
permission was obtained through the application for rectification in terms of
section 24G of the NEMA. The decision maker in granting the said authorization
in terms of section 24G of the NEMA, stated that the development is seen and is
acknowledged to be in line with the spirit of eco-tourism within the MPE. This
would have been different if the development was an industrial or mining
development. I therefore agree with Mr Moremi that the development is in line
with eco-tourism in this area and that the authorization for this development was
done in the light thereof.


I am of the opinion that there was no bias or irrelevant considerations taken into
account when the decision maker came to the conclusion to allow the
development to take place. I am further convinced that, as indicated above, the
development can be seen in the light and spirit of eco-tourism in this area and
that the impacts on the environment can be managed in a sustainable way.’

[12] In conclusion the MEC stated:
‘After assessing all the information placed before me, I am of the opinion that the
objectives of integrated environmental management, the principles set out in section
2 of the NEMA as well as the ideal of sustainable development have been
adequately addressed by the Respondents. I am furthermore convinced that,
provided the proposed mitigation and management of impacts as contained in the
Environmental Management Plan are adhered to, this development will be well
managed in the spirit of eco-tourism in the area.’

[13] Subsequent to the appeal decision by the MEC, the extent to which the
development was nearing completion was still an issue between the MPA and
Kgaswane. In the court below, as stated above, the MPA had initially sought
an interim interdict to prevent Kgaswane from continuing construction
activities, pending the finalization of a review application. The North West
High Court refused to grant the interdict. The MPA persisted in seeking to set
aside the MEC’s decision to dismiss the appeal brought by it and to overturn
the decision to grant ex post facto authorization. Importantly, and in line with
the MPA’s consistent attitude, it also sought an order demolishing the Country
Lodge, accompanied by an order to rehabilitate the affected environment to
the state it was in prior to the commencement of construction activities.

[14] The court below dealt with submissions on behalf of the MPA that the
MEC ought to have taken into account an Environmental Management
Framework (the EMF), a policy document compiled by the department in
conjunction with interested parties, as well as the Rustenburg Spatial

Development Framework, a document that informs sustainable development
within the Rustenburg Municipality.

[15] After considering applicable legislation and related regulations the
court below took the view that at the time the Chief Director had made his
decision the EMF had not yet come into operation and that although it had
come into existence by the time of the internal appeal, it was not incumbent
on the MEC to consider it because it had not yet come into force at the time
that the primary decision was made.

[16] The court below had regard to contentions on behalf of the MPA that
there had been a failure by Kgaswane to consult with it as an interested party
and that it did not have any or adequate opportunity to address the Chief
Director or the MEC before a decision was reached. The High Court
concluded that the evidence showed the contrary.

[17] In respect of the submissions by the MPA that the decision to grant ex
post facto authorisation was not rationally connected to the information
presented before the MEC,1 the court below concluded that the Chief Director
and the MEC had taken into account factors relevant to the environment as
well as mitigation and monitoring measures to reduce adverse impacts. The
court below ultimately decided this point against the MPA.

[18] In awarding costs against the MPA the court below took into account
that despite its unsuccessful application for and interdict to prevent Kgaswane
from continuing with construction activities, it nevertheless persisted with a
review application. The court below reasoned that it did so despite its principal

1 This submission was based on s 6(2)(f)(ii)(cc) of the Promotion of Administrative Justice Act 3 of
2000.

deponent acknowledging the difficulty of persuading a court to demolish such
a substantial development. The court was thus disinclined to not award a
costs order against the MPA, despite its protestations that it had legitimately
attempted to assert its constitutional right to have the environment protected
for the benefit of present and future generations.2

[19] Before us it was submitted that the MEC’s decision ought to have been
declared invalid on the basis that he had:
(a)
failed to consider the EMF for the MPE and other relevant planning
documents;
(b)
relied on a flawed Environmental Impact Assessment report;
(c)
disregarded a flawed public participation process during the
Environmental Impact Assessment process;
(d)
failed to consider remedies consequent upon the finding of invalidity,
namely to set the decision aside and to order the demolition of the Lodge; and
(e)
that he was biased, alternatively the MPA had a reasonable
apprehension that he was biased.
It was submitted that all these factors ought to have been recognised by the
MEC, and that his decision was flawed because he failed to do so.

[20] I shall, in due course, deal with each of these grounds. It is necessary
at the outset to have regard to the conservation history of the Magaliesberg

2 Section 24(b) of the Constitution states:
‘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.’

and the applicable statutory framework. In 1965, in response to increasing
intrusion by developers, the then Department of Planning and the
Environment recommended the establishment of a nature reserve
encompassing the Magalilesberg. On 12 August 1977 an area comprising
approximately 30 000 hectares in the Magaliesberg was declared a natural
area in terms of the Physical Planning Act 88 of 1967. The immediate effect
was that no one could, in the absence of a permit, use the land for any
purpose other than what it was being used for before the proclamation. In
October 1986, in terms of the Environment Conservation Act 100 of 1982, the
minister of environmental affairs and tourism issued directions which
prohibited the building of structures and the subdivision of land within the area
without the consent of the Administrator of the then Transvaal.

[21] On 4 May 1994 the Administrator published two notices in terms of the
Environment Conservation Act 73 of 1989.3 The first declared the area a
‘protected natural environment’ and the second identified a number of
activities that could not be undertaken in the area except by virtue of a written
approval from the Administrator or the Chief Director: Nature and Environment
Conservation within the Department of Environmental Affairs.

[22] When the National Environmental Management: Protected Areas Act
57 of 2003 (the NEMPAA) came into being on 1 November 2004 the status of
the Magaliesberg Protected Environment (MPE) was preserved in terms of
s 28(7) which provides:
‘An area which was a protected environment immediately before this section took
effect must for purposes of this section be regarded as having been declared as such
in terms of this section.’

3 Notices 126 and 127 of 4 May 1994.

[23] Section 12 of the NEMPAA states as follows:
‘A protected area which immediately before this section took effect was reserved or
protected in terms of Provincial legislation for any purpose for which an area could in
terms of this Act be declared as a nature reserve or a protected environment, must
be regarded to be a nature reserve or protected environment for the purpose of this
Act.’

[24] The MPE is therefore a protected environment for the purposes of the
NEMPAA and is deemed to be declared as such in terms of s 28(7). This had
the effect that the restriction on the activities listed in the Administrator’s
notice mentioned earlier remain in force. Such activities may not be
undertaken, except by virtue of written approval acquired on application from
the MEC of the Province.

[25] Section 24(1) of the NEMA provides:
‘In order to give effect to the general objectives of integrated environmental
management laid down in this Chapter, the potential consequences for or impacts on
the environment of listed activities or specified activities must be considered,
investigated, assessed and reported on to the competent authority or the Minister of
Minerals and Energy, as the case may be, except in respect of those activities that
may commence without having to obtain an environmental authorisation in terms of
this Act.’4

[26] Section 24(2)(a) states:

4 The relevant part of s 23(2) of NEMA provides:
‘(2)
The general objective of integrated environmental management is to –
(a) . . . .
(b) identify, predict  and  evaluate  the actual  and potential  impact  on the environment, socio‐
economic conditions and cultural heritage, the risks and consequences and alternatives and
options for mitigation of activities, with a view to minimising negative impacts, maximising
benefits, and promoting compliance with the principles of environmental management set
out in section 2.’

‘(2) The Minister, or an MEC with the concurrence of the Minister, may identify –
(a) activities which may not commence without environmental authorisation from the
competent authority.’

[27] In s 24F(1) the following is stated:
‘(1) Notwithstanding any other Act, no person may –
(a) commence an activity listed or specified in terms of section 24(2)(a) or (b) unless
the competent authority or the Minister of Minerals and Energy, as the case may
be, has granted an environmental authorisation for the activity; or
(b) commence and continue an activity listed in terms of section 24(2)(d) unless it is
done in terms of an applicable norm or standard.’

[28] The Environmental Impact Assessment Regulations (the EIA
regulations), published in terms of s 24(5) read with s 44 of NEMA provide for
the listed activities in terms of Government Notice R385, R386 and R387.5
Listed activity 1(d) requires environmental authorisation for the construction of
facilities or infrastructure, including associated structures or infrastructure, for
resorts, lodges, hotels or other tourism and hospitality facilities in a protected
area contemplated in the NEMPAA.

[29] The EIA regulations were designed to regulate procedures and criteria
as contemplated in chapter 5 of the Act6 ‘for the submission, processing,
consideration and decision of applications for environmental authorisation of
activities and for matters pertaining thereto’.7

5 GG 28753 of 21 April 2006 (as amended).
6 This chapter of the Act deals with integrated environmental management and contains, inter alia, ss
23 and 24.
7 Section 2 of the EIA regulations.

[30] In the ordinary course applications would precede the commencement
of a development and any intended development would materialise only
subsequent to the envisaged environmental authorisation. Section 24G of
NEMA applies to the situation presently under discussion, namely, where a
development has already commenced or is completed without prior
environmental authorisation. The material parts of s 24G provide:
‘(1) On application by a person who has committed an offence in terms of section
24F(2)(a) the Minister, Minister of Minerals and Energy or MEC concerned, as the
case may be, may direct the applicant to –
(a) compile a report containing –
(i) an assessment of the nature, extent, duration and significance of the
consequences for or impacts on the environment of the activity, including
the cumulative effects;
(ii) a description of mitigation measures undertaken or to be undertaken in
respect of the consequences for or impacts on the environment of the
activity;
(iii) a description of the public participation process followed during the course of
compiling the report, including all comments received from interested and
affected parties and an indication of how issues raised have been
addressed;
(iv) an environmental management programme; and
(b) provide such other information or undertake such further studies as the Minister
or MEC, as the case may be, may deem necessary.
(2)
The Minister or MEC concerned must consider any reports or information
submitted in terms of subsection (1) and thereafter may –
(a)
direct the person to cease the activity, either wholly or in part, and to
rehabilitate the environment within such time and subject to such conditions as the
Minister or MEC may deem necessary; or

(b)
issue an environmental authorisation to such person subject to such
conditions as the Minister or MEC may deem necessary.’8

[31] The application by Kgaswane for ex post facto authorisation falls
squarely within the provisions of s 24G(1). In line with the requirements of that
provision, Kgaswane compiled a report purportedly addressing what is set out
in 24(G)(1)(a)(i)-(iv). Significantly, that report contained an Ecological Fauna
and Flora Habitat Survey compiled by Reinier Terblanche (Terblanche), a
botanist with impressive credentials. Counsel representing the MPA conceded
that he could not legitimately criticise the contents of the survey, nor its
thoroughness and obvious attention to detail. The conclusion at the end of the
report is worth noting in full:
‘The general biodiversity of fauna and flora appears to be moderate to high at the
site. It is unlikely that there have been or will be a loss of any fauna species and flora
species which are red listed or of particular high conservation priority if the site were
developed. There will be a loss of natural vegetation and habitat to the important
Magaliesberg Protected Environment if the site were to be developed, especially at
the rocky ridges. Fortunately the rocky ridge at the site and a buffer zone around it,
escaped any developments. It is of the utmost importance and obligatory that no
developments should take place at the rocky ridges at the site. These rocky ridges
are part of an important conservation corridor of the Magaliesberg Protected
Environment which at this stage is only discontinued by tar roads.’

[32] Terblanche’s recommendation was as follows:
‘If the development were approved, any developments or activities during the
constructional phase should strictly not enter further south within 30m of the rocky
ridge. The rocky ridges of the Magaliesberg are particularly sensitive areas,
containing a number of threatened plant and animal species and overall very
important conservation corridors.

8 Section 24G(2)(A) provides that a transgressor must pay an administrative fine not exceeding R1
million to the competent authority.

Exotic plant species such as on the site include Jacaranda mimosifolia (jacaranda),
Pinus sp. (pine trees), Melia azedarach (syringa) and Solanum mauritianum
(bugweed) should be eradicated since it habitats that could have been suitable for
indigenous fauna and flora. This eradication will also limit the possible dispersal of
such exotic invasive plant species to other areas where it may lead to the loss of
more habitats in a sensitive area.’

[33] Also attached to the report by Lesekha on behalf of Kgaswane, was a
specialist landscape architect’s report on the visual impact of the
development. It is necessary to record that counsel on behalf of the MPA was
unable to challenge the substance of the report and its conclusions. Using
established criteria the architect’s report concluded as follows:
‘The proposed project:

Has a moderate negative effect on the visual quality of the site’s landscape
and its immediate surrounds as it contrasts moderately with the patterns that
define the landscape – the visual resource is rated high. The surrounding hills
and ridges that form a backdrop to the project site will “absorb” them into the
landscape assuming that the mitigating measures described in section 7.0 are
successfully implemented.

Is partially compatible with land use, settlement or enclosure patterns –
Tourist activities exists in the study area. The proposed new lodge would not
be considered totally “out of place” or dramatically affect the existing sense of
place of the study area, which is currently characterized by tourist, residential
and agricultural activities.

Has a low change in key views – Most nearby public views of the lodge will be
blocked by vegetation and ridge lines. Middle distant to distant views of the
project from residences associated with the agricultural activities to the east
will not necessarily focus on the lodge as it would be seen within the context
of a broader landscape panorama. The lodge will also be seen against a
natural backdrop and its features will therefore not break the horizon line. The
result is that the buildings will tend to be absorbed into the landscape setting.’

[34] The architects also suggest what mitigation measures should be taken
and propose certain actions. In the letter from the Chief Director dated 9
March 2009, advising Kgaswane about the ex post facto authorisation, he
states that the report compiled by Lesekha and other related correspondence
had been evaluated and verified to determine whether this activity will have
significant negative impacts on the environment. The remainder of the letter
reads as follows:
‘The construction of facilities or infrastructure, including associated structures or
infrastructure for resorts, lodges, hotels or other tourism and hospitality facilities in a
protected areas which refers to the 47 Ensuite rooms, a conference block, reception,
office block, a restaurant and a massage parlour on portions 21 and 85 of the farm
Boschfontein 330 JQ, Rustenburg Local Municipality North West Province.
Permission is not granted for the day picnic area.
Enclosed please find the Environmental Authorisation and the conditions under which
your application is authorised.
In terms of section 43 of the National Environmental Management Act (Act No. 107 of
1998) (as amended) formal appeals relating to this rectification and environmental
authorisation may be lodged to the Member of the Executive Council, Department of
Agriculture, Conservation and Environment.’

[35] In his affidavit resisting the application by the MPA the Chief Director
said the following:
‘I have, after consideration of legislation, policies, and other prescripts, and after
having applied my mind to the said activity authorized it in terms of section 24(G) of
NEMA.’

[36] It is common cause that by the time the MEC heard the appeal the
MPA had made representations raising its concerns that ultimately served
before the court below. In communicating the decision to dismiss the appeal
the MEC stated the following:

‘In reaching my decision, I have considered the following information –
(a) the contents of the appeal documents;
(b) the written submissions of:
(i) Ms T Charters from Cameron Cross Attorneys on behalf of the Appellant;
(ii) Mr J Ntemane on behalf of the Respondent;
(c) the contents of the project file;
(d) the facts established and oral submissions made during a site visit held on 14
September 2009;
(e) a subsequent meeting held with Prof Fatti and Mr Ntemane on 11 December
2009;
(f) The Constitution of the Republic of South Africa of 1996;
(g) The National Environmental Management Act of 1998 (as amended);
(h) The National Environmental Management: Protected Areas Act of 2003;
(i) Administrator’s Notice No 126 of May 1994;
(j) The Promotion of Administrative Justice Act of 2000.’
As set out in para 11, the MEC, in dismissing the appeal, dealt with each of
the grounds of objections/representations, and provided the bases for
rejecting them.

[37] In October 2007 an Environmental Management Framework (EMF)
was finalised, pursuant to the provisions of s 24(3) of NEMA, which provides:
‘The Minister, or an MEC with the concurrence of the Minister, may compile
information and maps that specify the attributes of the environment in particular
geographical areas, including the sensitivity, extent, interrelationship and significance
of such attributes which must be taken into account by every competent authority.’

[38] Section 24O of NEMA sets out criteria to be taken into account by
competent authorities when considering applications for environmental
authorisation and encompasses ‘any information and maps compiled in terms
of section 24(3), including any prescribed environmental management
frameworks, to the extent that such information, maps and frameworks are
relevant to the application’.9 Regulation 34 of the EIA sets out what a draft
EMF should contain. That regulation is in accordance with the general
structure of NEMA and related legislation.

[39] The Rustenburg Spatial Development Framework (RSDF) addresses
sustainable development in the Rustenburg municipal area in which the
Kgaswane development is located. As to the environment, its objectives are
noted as the following:

‘Protect ecologically sensitive natural areas

Create a municipal open space system, comprising ridges, mountains, rivers
and dams

Respect the flood lines of the major rivers and dams

Enforce the conservation guidelines for the Magaliesberg Natural Protected
Area (MNPA), Kgaswane and Vaalkop Dam Nature Reserves

Only support urban development that is in line with the recommendations of
the Rustenburg Strategic Environmental Assessment (SEA).’

[40] Before turning to deal with the grounds of appeal and the parties’
respective submissions, it is necessary to pause to consider s 24 of the
Constitution, the provisions of which are set out earlier in this judgment. In
Fuel
Retailers
Association
of
Southern
Africa
v
Director-General
Environmental Management, Department of Agriculture, Conservation and

9 Section 24O(1)(b)(v).

Environment, Mpumalanga Province and others 2007 (6) SA 4 (CC); 2007
(10) BCLR 1059 (CC) the Constitutional Court stated at para 44:
‘What is immediately apparent from s 24 is the explicit recognition of the obligation to
promote justifiable “economic and social development”. Economic and social
development is essential to the well-being of human beings. This Court has
recognised that socio-economic rights that are set out in the Constitution are indeed
vital to the enjoyment of other human rights guaranteed in the Constitution. But
development cannot subsist upon a deteriorating environmental base. Unlimited
development is detrimental to the environment and the destruction of the
environment is detrimental to development. Promotion of development requires the
protection of the environment. Yet the environment cannot be protected if
development does not pay attention to the costs of environmental destruction.’
At para 45 the following appears:
‘The Constitution recognises the interrelationship between the environment and
development; indeed it recognises the need for the protection of the environment
while at the same time it recognises the need for social and economic development.
It contemplates the integration of environmental protection and socio-economic
development. It envisages that environmental considerations will be balanced with
socio-economic considerations through the ideal of sustainable development. This is
apparent from s 24(b)(iii) which provides that the environment will be protected by
securing “ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development”. Sustainable development
and sustainable use and exploitation of natural resources are at the core of the
protection of the environment.’
This case is about the crossroads between development and the preservation
of the environment.

[41] At the hearing of the appeal the main ground on which the MPA
appeared to rely was the failure by the Chief Director and the MEC to have
regard to the EMF. It is common cause that neither the Chief Director nor the
MEC had any regard to the EMF because they both adopted the position that
the EMF had not come into operation at the time that the Chief Director had

made his decision. They based this view on the fact that although it had been
finalised by the MEC’s department a year and a half prior to the decision by
the Chief Director, it had not yet been published in the Government Gazette of
17 March 2009. It was accepted by the parties that an appeal to the MEC was
an appeal in the broad sense in that new evidence could be placed before the
MEC which had not served before the Chief Director. By the time the MEC
heard the appeal, the EMF had been published and was submitted by the
MPA as part of its representations.

[42] The EMF is a policy document and not legislation. It therefore does not
require promulgation in order for it to come into force. One of the functions of
publication of the policy document in the Government Gazette is set out in
Foulds v Minister of Home Affairs and others 1996 (4) SA 137 (W) at 149I-
150A:
‘In the circumstances of this case, the Board was obliged to disclose to the applicant
adverse information obtained and adverse policy considerations and to give the
applicant an opportunity to respond thereto. Because of its failure to do so its
decision was fatally flawed.’
In Tseleng v Chairman , Unemployment Insurance Board and another 1995
(3) SA 162 (T) the following was stated:
‘[I]f a statutory body considers that (a policy) consideration is so material as of itself
to determine the fate of an application, then it should at the very least afford an
applicant the opportunity of dealing with its difficulty and not keep the policy to itself .
. . To hold otherwise would be to countenance injustice, since persons who might
otherwise be fully able to justify their application would be deprived of the opportunity
of doing so.’10

[43] As best as can be discerned the argument on behalf of the MPA is as
follows: The Chief Director and the MEC, within whose department the EMF

10 At 178E‐F.

was finalised and who bore the statutory obligation to take it into account and
upon whom it rested to bring it to the attention of the wider public including the
attention of the applicants for environmental authorisation, can hardly now be
heard to be excused because of their failure to publish it in the Government
Gazette.

[44] As pointed out earlier, s 24O(1)(b)(iv) of NEMA obliges a competent
authority to take an environmental management report into account when
considering an application for environmental authorisation. Section 24(4)(a)
states:
‘(4) Procedures for the investigation, assessment and communication of the potential
consequences or impacts of activities on the environment –
. . . .
(iv)
Investigation of the potential consequences for or impacts on the environment
of the activity and assessment of the significance of those potential consequences or
impacts; . . .’

[45] The contents of the EMF in question was debated extensively with
counsel for the MPA to determine what precisely in the report differed from
what is generally acknowledged to be the ecologically sensitive nature of the
MPE. Such acknowledgement is set out in the environmental impact report
compiled on behalf of Lesekha. Section 24G(1) of NEMA requires that a
report on the impact of an activity on the environment be assessed. That
aspect too is addressed in the Lesekha report.

[46] What emerged from this debate is that counsel was advancing a case
foreshadowed in its founding affidavit, namely, that listed activities within the
MPA were almost totally prohibited,11 In submissions before us, counsel,

11 In para 65 of the founding affidavit on behalf of the MPA the following appears:

although disavowing that the MPA was proposing that the prohibition was
absolute, nevertheless suggested that if consideration was given to the
provisions of the EMF it would almost always compel the competent authority
to lean against granting authorisation.

[47] In relation to the critical content of the EMF on which the MPA relied,
counsel on its behalf relied on a graphic  in relation to the activity in question,
namely the construction of the facility developed by Kgaswane, alongside
which there were multiple crosses denoting incompatibility on all relevant
levels. For the remainder, counsel could not point to any other part of the EMF
which differed from the concerns addressed by the legislation referred to
earlier in this judgement and those expressed in the documentation that
served before the Chief Director and the MEC. Insofar as the RSDF is
concerned, counsel for the MPA was once again unable to draw our attention
to any part of it which contained material likely to be different to the concerns
addressed in the Lesekha report. Of course the RSDF notes the sensitivity of
the area which, as stated before, is generally acknowledged.

[48] It follows that, unless one adopts the position which was eschewed by
counsel on behalf of the MPA, that in assessing an application for ex post
facto authorisation or, indeed, for pre-commencement authorisation, a
decision-maker is bound to refuse environmental authorisation, then one is
left with the conclusion that, in the present case, neither the EMF nor the
RSDF added any further relevant factors for consideration. Put simply, they
were inconsequential. If a competent authority were to act in the predisposed
manner suggested on behalf of the MPA, such a decision would no doubt be
challengeable on account of it constituting a rigid adherence to a fixed policy.

‘Had the first respondent taken the EMF into account it is clear that environmental authorization for
the Kgaswane Country Lodge would inevitably not have been granted.’

[49] Section 24G(1)(a), which one can reasonably accept ought to be the
exception rather than the norm, sets out the considerations that ought to be
addressed by an applicant and considered by a competent authority. Counsel
on behalf of the MPA was pointedly requested by this Court to indicate where
in the affidavits filed in support of its case one could find the basis on which it
could be contended that those concerns had not been addressed by either the
applicant, or considered by the Chief Director or the MEC. He was
constrained to concede that the papers were deficient in that regard.

[50] It is necessary to record that Terblanche’s report indicates that in the
immediate area in which the development is located there were no signs of
flora or fauna that could be classified for conservation priority. Terblanche was
concerned about preserving the integrity of the rocky ridge near the
development and was intent on ensuring that no encroachment occured within
30 metres. That concern was addressed in Terblanche’s recommendations. It
must be noted that the development has not actually encroached on any part
of the rocky ridge.

[51] It is important to note that the application to the High Court was
directed mainly at ensuring the demolition of the development. The same
pertains to the position the MPA adopted before this Court. The MPA feared
that a declaration of invalidity on its own would be insufficient. It took the view
that allowing the development to remain extant would cause it to serve as a
symbol against conservation and it would open the floodgates to extensive
intrusions upon the environment. A further concern was that prospective
developers would build first and seek authorisation thereafter, presenting
municipal and other regulatory bodies with a fait accompli. A fundamental
problem facing the MPA is that it bore the onus of proof in satisfying the court
below that it was entitled to an order for demolition, which it acknowledged

was a far-reaching remedy. As far back as the Corpus Juris Civilis it was
recognised that he who seeks a remedy must prove the grounds therefore.12

[52] Having regard to the concession made by counsel and referred to at
the end of para 49 and considering further that the in-depth studies attached
to the Lesekha environmental report remained unchallenged, it is difficult to
conclude that the competent authority or the MEC did not comply with their
obligations in terms of s 24G(2) of NEMA. The MPA failed to show, at the
most basic level, that it was entitled the relief sought. Equally importantly, in
considering the remedy of demolition, the image of wrecking equipment,
bulldozers, earth moving machines and the like, with concomitant pollution
and potential further harm to the environment cannot be ignored. Without
knowing what the further devastating effects of acceding to such a remedy
may be, it becomes even more problematic. This was an issue not addressed
at all by the MPA.

[53] I now turn to deal with the contention that the Chief Director had
followed a flawed public participation process. The allegation on behalf of
Lesekha that, prior to the decision of the Chief Director it had dispatched a
letter to the Mountain Club of South Africa and that it had retained a
registered slip to that effect, cannot effectively be contested. It is not
challenged that a notice was placed near the development and that a local
newspaper carried such a notice. The complaint by the MPA about the notice
near the development was that it was not in a prominent enough position. In
respect of the letter allegedly dispatched to them, the MPA denied receipt
thereof. It is not insignificant that the MPA acknowledges that it became
aware of Lesekha seeking comment on the ex post facto authorisation
Kgaswane was seeking through a sister organisation. It is undisputed that
before the MEC the MPA had a full opportunity to make representations and

12 D. 22.3.21. See also Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A).

indeed did so. Against the background that the appeal before the MEC was a
wide one enabling a full hearing, the MPA can hardly be heard to complain
that it did not have a full say on the ultimate decision to uphold the
environmental authorisation. The MPA’s complaint that other interested
parties might not have been aware of the application for ex post facto
environmental authorisation is vague and unsubstantiated in my view and
Kgaswane could hardly be expected to respond to it. Kgaswane’s conduct in
relation to engaging interested parties can hardly be described as being
secretive or deceptive. The Chief Director and MEC rightly concluded that a
satisfactory public participation process was followed.

[54] I now turn to the submission that the mitigation measures proposed in
the report compiled by Lesekha were not site specific but generic in nature
and wholly inadequate. As set out earlier in this judgment, both the
Terblanche and architect’s reports were very specific about mitigation
measures. The conditions imposed by the Chief Director specifically require
those measures to be adopted.13

[55] The fourth ground relied on by the MPA, referred to in para 46,
approximates the almost total prohibition stance adopted by the MPA. The
envisaged ex post facto authorisation referred to in s 24G does not exclude
environmental authorisation in a conservation area. The question remains
whether, in granting the authorisation, the Chief Director or the MEC had
regard to the factors set out in s 24G. In my view it is important to keep at the
back of one’s mind the distinction between pre-building approval and ex post
facto authorisation.

13 See 8.2 of the conditions.

[56] In the first instance it might be possible to avoid any disturbance of the
environment and proper surveys could be conducted to determine the precise
impact of intended development. In the second instance one is regrettably left
with an already disturbed environment which then requires thought to be
given to whether any further degradation might occur, coupled with how much
actual disturbance of the environment has already occurred. In pre-building
approvals demolition considerations are not likely to occur. As stated before,
s 24G does not postulate a total prohibition on building in ecologically
sensitive areas.

[57] A further ground of attack was that the Lesekha report, which was in
general terms and made reference to the more substantial and accurate
surveys conducted by the architects and Terblanche, was littered with
inaccuracies and contradictory statements and was therefore unreliable as a
basis upon which to make the necessary decisions. It is correct that the
Lesekha report is not a model of elegance, does not make for easy reading
and is in parts confusing. Nonetheless, the conclusions reached are
supported by the substantial and persuasive reports by Terblanche and the
architects. Those reports in themselves provide sufficient material upon which
an informed decision could be reached and are expressly and directly
incorporated into the Lesekha report.

[58] Lastly, the MPA contends that the MEC’s decision ought to have been
set aside because he displayed bias towards the MPA. This ground of review
is based mainly on the minutes of a meeting held on 11 December 2009
between the MEC, his advisor, Ms Carene Wessels, Mr Jan Ntemane, a
director of Kgaswane. That part of the minutes on which reliance is placed is
reproduced hereunder:
‘His view on the Kgaswane development:
It is a R30 million investment focusing on tourism.

He cannot be part of a decision where eco-tourism project of R30 million is just
destroyed as this will be equivalent to murder. Mr Ntemane’s father probably died
without having millions of money and the history if of such that Mr Ntemane therefore
had to borrow money to commence with this tourism development. I cannot destroy
him. I also noted that if this development is to be destroyed, there will be irreparable
damage to the environment and the environment will then never be the same. It is
also noted that all the competitors in the MPE are white and there have been
constant interference from them. Mr Ntemane went to the MPA to attempt to enquire
what they would require but nothing came of it.
The MEC indicated that the MPA should not come with the approach of no
development in the MPE as from the level of government there must be attempts to
negotiate in the right spirit to bring people together. He has his own suspicions on
why this matter is so extremely opposed, but he will raise his concerns when he meet
with the MPA in future. It was indicated that when people negotiate in bad spirit it will
not take anybody anywhere – and this is a pity.
The route which Mr Ntemane wanted to take was to talk to the MPA about this. Part
of the site visit was to assess the surroundings and the attitudes of parties regarding
this matter. When he came back from the site visit his conclusion was that the spirit
of the MPA is to destroy relationships and people and not to build. This will not work.
Government cannot take decisions based on race of gender. This forms part of the
Freedom Charter which states that SA belongs to all who live in it – black and white.
The ultimate strategic objective is therefor that people should be united, non-racial,
non-sexist to be a prosperous country.’

[59] It was contended that these minutes demonstrate that the MEC had
approached the appeal with a closed mind and was not open to persuasion
and that it meant that he was, in fact, biased. In the alternative it was
contended that, as a result of these utterances, that the MPA had a
reasonable apprehension that the MEC did not bring an impartial mind to bear
on the appeal. According to the MPA, the suggestion by the MEC was that the
MPA was racist when, in fact, it was motivated solely to protect the MPE. It
was submitted that the MEC’s attitude as displayed in the minutes is different

to that displayed towards other recalcitrant developers. No details in this
regard were provided by the MPA.

[60] In my view, the minutes by themselves do not prove actual, or
reasonably perceived, bias. The words are, at worst, unfortunate. The
observation that Mr Ntemane would be destroyed by a demolition order is not
irrelevant nor is it unlikely that the majority of hotel or guesthouse owners in
the area, who would be his competitors, are from advantaged backgrounds.
As stated above, the MEC provided substantiated reasons for his decision.
More importantly, the MPA failed to present evidence to justify the remedy
sought by it.

[61] For all the reasons set out above the appeal must fail. A remaining
aspect is the question of costs. We should all laud the efforts of
conservationists such as the MPA. It is beyond dispute that the MPA has a
genuine concern about the environment and that they generally act to
preserve and protect the environment for the benefit of present and future
generations. They are conservation conscious and promote ecologically
sustainable development. Section 32 of NEMA provides:
‘(1) Any person or group of persons may seek appropriate relief in respect of any
breach or threatened breach of any provision of this Act, including a principle
contained in Chapter 1, or of any provision of a specific environmental management
Act, or of any other statutory provision concerned with the protection of the
environment or the use of natural resources –
(a) in that person’s or group of person’s own interest;
(b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to
institute such proceedings;
(c) in the interest of or on behalf of a group or class of persons whose interests are
affected;

(d) in the public interest; and
(e) in the interest of protecting the environment.’

[62] Section 32(2) of NEMA gives the court a discretion not to award costs
against a person or group of persons which fails to secure the relief sought in
respect of any breach or threatened breach of any of the provisions of NEMA
or of any provisions of a specific environmental act, or any other statutory
provision concerned with the protection of the environment, if the court is of
the opinion that a person or group of persons acted reasonably out of a
concern for the public interest or in the interest of protecting the environment
and it made due efforts to use other means reasonably available for obtaining
the relief sought.

[63] In my view, the court below was a trifle harsh in criticising the MPA for
persisting in the final relief sought by it. It did not take into consideration that
the MPA was an organisation which genuinely has the concerns and
objectives set out in para 61 above. Accordingly, it should not have awarded
costs against the MPA. Kgaswane might be aggrieved in having to pay its
own costs but it should not be forgotten that the malfeasance that led to all the
trouble and the subsequent costly litigation was of its own making.

[64] The following order is made.
(1)
The appeal is dismissed, save to the extent reflected in the substituted
order set out in 3 below.
(2)
Each party is to bear its own costs.

(3)
The order of the court below is set aside and substituted as follows:
The application is dismissed and each party is ordered to pay its own costs.

____________________
MS NAVSA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

P Lazarus (with him F Southwood)

Instructed by:

Cameron Cross Attorneys, Centurion

Naudes Attorneys, Bloemfontein

FOR FIRST AND
SECOND RESPONDENT:

W Mokhari SC (with him H Masilo)

Instructed by:

State Attorney, Mafikeng

State Attorney, Bloemfontein

FOR THIRD RESPONDENT:

K Hopkins

Instructed by:

BKM Attorneys, Johannesburg

Hill, McHardy and Herbst, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 May 2013
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.
Magaliesburg Protection Association v MEC of Agriculture & others
(563/2012) [2013] ZASCA 80 (30 May 2013)
The Supreme Court of Appeal (SCA) today dismissed an appeal against a judgment of the
North West High Court, Mafikeng, which had refused with costs an application by the
appellant, the Magaliesberg Protection Association (MPA), to review and set aside a decision
of the first respondent, the North West MEC of Agriculture, Conservation, Environment and
Rural Development. The decision in question was one dismissing an internal appeal against
an earlier decision by the second respondent, the Chief Director: Environmental Compliance
of that same Department, to grant ex post facto environmental authorisation to the third
respondent, Kgaswane Country Lodge (Pty) Ltd, to construct a hotel and conference centre.
Among other relief, the MPA sought the demolition of that development and the
rehabilitation of the affected environment. The core dispute is therefore one which squares
the preservation of the environment against development, and the effects thereof.
Kgaswane had begun construction of a 47-room Country Lodge within what is a protected
natural environment in terms of the National Environmental Management Protected Areas
Act 57 of 2003, which development is now complete. The area in question is the well-known
Magaliesburg mountain range. At the time it began the construction, Kgaswane had not
sought environmental authorisation, as required by, inter alia, the National Environmental
Management Act 107 of 1998 (the NEMA).
Upon discovering the development in 2008, the MPA, a voluntary association aimed at
encouraging environmental conservation and protection throughout the Magaliesburg
mountain range, and which has worked closely with government in its conservation efforts
over the years, contacted the provincial department to express its concerns. Among fears for
the impact of the development on the ecologically sensitive environment, the MPA was also

distressed that its construction, absent the necessary environmental authorisation, would lead
to a spate of similar such developments.
Kgaswane subsequently applied for ex post facto environmental authorisation for its
development pursuant to s 24G of the NEMA, which was granted by the Chief Director in
March 2009. The MPA then took that decision on appeal to the MEC, which appeal was
dismissed in February 2010.
Aggrieved, the MPA then brought an application to the High Court seeking a review of both
the initial decision of the Chief Director, as well as that of the MEC on appeal. The grounds
of review included that the public participation process accompanying the Chief Director’s
decision had been flawed; that the environmental report submitted alongside Kgaswane’s
application for authorisation had been inaccurate and inadequate; and that both administrators
had failed to have regard to a relevant departmental policy document, namely the
Environmental Management Framework (EMF), which had been finalised over a year prior
to the Chief Director’s decision and which seeks to assists administrators in taking decisions
which implicate ecologically sensitive areas.
The High Court refused the MPA’s concomitant application for an interdict to prevent further
construction work being done to the development pending the outcome of its review
application. In later refusing the application for review, the Court held, inter alia, that neither
administrator had erred in failing to consider the EMF as it had only been published
subsequent to the Chief Director’s decision and was thus not in force at that time. Further,
although the EMF had come into existence by the time the MEC heard the internal appeal, it
was not incumbent on the MEC to consider it because it was not the law at the time that the
primary decision was made. The Court made a costs order against the MPA on the basis of its
persistence with the application despite the court’s refusal to grant the interdict sought, and
despite an acknowledgement of the difficulties inherent in its application for demolition of
the development.
The SCA, in noting the significance of the constitutional right to a protected environment and
the principle of sustainable development inherent therein, recognised that the evidence
tendered nevertheless indicated that the development posed no immediate further threat to
flora, fauna or the general ecology of the surrounding environment that could be classified for
conservation priority.
Regarding the issue of the administrator’s failure to take the EMF into account, the SCA
acknowledged that an applicant must be apprised of any policy considerations which a
decision-maker will consider in adjudicating their application, but nonetheless held that the
effect of that document on the administrators’ decision had not been sufficiently proved. In
particular, the MPA had not shown that the EMF – or, for that matter, any other policy
documents which were alleged to be relevant to the decision to grant environmental
authorisation – added any further factors for consideration over and above those outlined in
the applicable legislative framework, which framework the administrators had been shown to
have considered. Consequently, the EMF and similar documents were inconsequential and
thus this ground for review was dismissed.
Moreover, with regard to the particular relief sought by the MPA – that of the demolition of
the development – the SCA held that the MPA had failed to meet the onus resting upon it to
prove the grounds therefor. Essentially, as the Court held,

‘The MPA failed to show, at the most basic level, that it was entitled the relief sought.’
Furthermore, no evidence had been tendered on the effect of such demolition on the
environment. Absent such evidence this Court is not well-placed to determine whether the
remedy sought effectively achieves the aim of sustainable development and environmental
preservation. The speculated probabilities were such that the environment might well be
further damaged.
In concluding that the MPA had failed to establish any grounds on which the decision of
either administrator fell to be reviewed, the SCA sought to amend the costs order of the High
Court. In particular, this court acknowledged the laudable goals of parties such as the MPA,
and therefore invoked s32(2) of the NEMA, which
‘[G]ives the court a discretion not to award costs against a person or group of persons which fail to
secure the relief sought in respect of any breach or threatened breach of any of the provisions of
NEMA or of any provisions of a specific environmental act, or any other statutory provision
concerned with the protection of the environment, if the court is of the opinion that a person or group
of persons acted reasonably out of a concern for the public interest or in the interest of protecting the
environment and it made due efforts to use other means reasonably available for obtaining the relief
sought.’
Consequently, the parties were directed to bear their own costs. The High Court’s order was
consequentially also amended. While acknowledging that Kgaswane might be aggrieved at
having to bear its own costs, the SCA concluded that
‘[I]t should not be forgotten that the malfeasance that led to all the trouble and the subsequent costly
litigation was of its own making.’