THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE

Case number:  337/06
In the matter between:

HTF DEVELOPERS (PTY) LTD
Appellant

and

THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND TOURISM
1st Respondent
THE MEMBER OF THE EXECUTIVE
COUNCIL OF THE DEPARTMENT OF
AGRICULTURE, CONSERVATION
AND ENVIRONMENT, GAUTENG
2nd Respondent
DR S T CORNELIUS
3rd Respondent
[In his capacity as Head of the
Department Agriculture, Conservation
And Environment, Gauteng]
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
4th Respondent

CORAM:

HARMS, BRAND, JAFTA, COMBRINCK JJA and MUSI AJA
HEARD:

9 MARCH 2007
DELIVERED:
28 MARCH 2007

Summary:
Environmental law – Environmental Conservation Act 73 of 1989 : s 21 and 31A -
‘cultivation or any other use of virgin ground’ in regulation –  vagueness
Neutral citation:
This judgment may be referred to as HTF Developers (Pty) Ltd v The Minister
of Environmental Affairs and Tourism [2007] SCA 37 RSA

_____________________________________________________________________

COMBRINCK JA:

[1] The Minister of Environment Affairs and Tourism has, in terms of the Environmental
Conservation Act 73 of 1989 (‘ECA’) wide ranging powers to protect and control utilisation
of the environment.  This appeal concerns the extent of these powers, more particularly
those conferred on the Minister in terms of s 21 and 31A of the Act.

[2] The appeal is against an order of Murphy J in the Pretoria High Court dismissing an
application by the appellant (‘HTF’) for a declaration of rights and the setting aside of a
directive made in terms of  s 31A of the Act.  The judgment is reported as HTF Developers
v Minister of Environmental Affairs and Tourism  2006 (5) SA 512 (T).  The declarator which
was sought relates to the meaning of the phrase ‘cultivation or any other use of virgin
ground’ read with the definition of ‘virgin ground’ in Government Notice 1182 and the
concept of listed activities in s 21 of the Act.   Events subsequent to the delivery of the
judgment (in March 2006) have rendered the issues largely academic for future cases.  As
foreshadowed in s 50 of the National Environmental Management Act 107 of 1998
(‘NEMA’) the regulations pertaining to s 21 and 22 have been repealed with effect from 3
July 2006 (GN R615 published in GG 28938 of 23 June 2006).  The activities dealt with in s
21 of the Act are now governed by s 24 of NEMA read with the regulations thereanent
(published in GN 386 in GG 28753 of 21 April 2006).  Of significance is the fact that the
concept of cultivation of virgin ground as a s 21 activity has not been retained – an aspect I
will return to later in the judgment.

[3] The facts, which are in the main common cause, are fully set out in the reported
judgment (par [2]-[14]).  For the purpose of this judgment a brief summary shall suffice.
HTF owned a property described as the remainder of erf 232, Riviera Township, Pretoria.
The property was zoned ‘special residential’.  It was intended that the property be sub-
divided  into 12 residential stands which would then be marketed to individual buyers.
Approval for the development in accordance with the relevant legislation was obtained from
the Municipality, the fourth respondent.  HTF commenced clearing the site preparatory to
the installation of services.  On 18 July 2005 the third respondent, the head of the provincial

Department of Agriculture, Conservation and Environment addressed a letter to HTF
indicating that, for reasons set out in the letter, he intended issuing a directive in terms of s
31A of the Act that the development of the property cease until such time as authorisation
in terms of the Act is obtained.  The content of the letter is dealt with in detail by the court
below (par [6]-[11]).  The paragraph in the letter relevant to this judgment is the following:
‘This Department is of the opinion that you have undertaken an illegal activity in that you have begun clearing
the above site for the purposes of construction prior to obtaining authorisation from this Department.
Authorisation is required from this Department, in addition to any local authority approval, for the cultivation or
any other use of virgin ground as set out in item 10 of Schedule 1 of Regulation 1182 (as amended) issued in
terms of the Environment Conservation Act, Act 73 of 1989 (“the ECA”).’

[4] In reply, HTF in a letter dated 20 July 2005, disputed that it was conducting a listed
activity in as much as the concept of ‘virgin land’ was intended to apply to agricultural land
and not land which is part of an erf in a proclaimed township.  The third respondent was
unpersuaded and on 12 August 2005 issued a directive in terms of s 31A that clearing and
other construction related activities on the site cease until authorisation from the
Department had been obtained.  HTF then by way of application on notice of motion sought
the following:
‘1.
An order declaring that the property described as remainder of Erf 232 Riviera Township is not virgin
ground as defined in item 10 of Schedule 1 of Regulation 1182 promulgated in terms of the
Environment Conservation Act, No 73 of 1989;
2.
An order declaring unlawful and setting aside the directive issued in terms of section 31A of Act 73 of
1989 by the third respondent in respect of remainder of Erf 232 Riviera Township, [the letter of 12
August 2005];
3.
Costs of suit against such respondents who oppose this application.’

The application was dismissed with costs.  With leave of the court below HTF appeals
against the order.

[5] Before dealing with the issues it is necessary to set out the legislative framework
relevant to this case.  The Minister has in terms of ss 21(1) the power to identify activities
which he considers will have a detrimental effect on the environment.  The sub-section
reads:

‘(1)  The Minister may by notice in the Gazette identify those activities which in his opinion may have a
substantial detrimental effect on the environment, whether in general or in respect of certain areas.’
The categories in which the activities so identified may be found are set out in s 21(2).  The
first such category is ‘Land use and transformation’.  Section 22 makes it an offence to
undertake any such identified activity without the written authorization of the Minister or
other competent authority.  The procedure whereby authorisation may be obtained is laid
down in the regulations promulgated in terms of s 26 (GN 1183 of 5 September 1997 as
amended).  The activities which the Minister identified in terms of s 21 are set out in
Regulation R1182.  The item we are concerned with is item 10 which was inserted in the
regulation by GN 670 of 10 March 2002.  The activity in item 10 is described as:
‘The cultivation or any other use of virgin ground.’
‘Virgin ground’ is defined in the regulation as
‘land which has at no time during the preceding 10 years been cultivated’.
The directive by the Minister as mentioned was issued in terms of s 31A(1).  The sub-
section reads thus:
‘(1)  If, in the opinion of the Minister or the competent authority, local authority or government institution
concerned, any person performs any activity or fails to perform any activity as a result of which the
environment is or may be seriously damaged, endangered or detrimentally affected, the Minister, competent
authority, local authority or government institution, as the case may be, may in writing direct such person –
(a)
to cease such activity;  or
(b)
to take such steps as the Minister, competent authority, local authority or government institution, as
the case may be, may deem fit,
within a period specified in the direction, with a view to eliminating, reducing or preventing
the damage, danger or detrimental effect.’

[6] In the court below HTF argued that on a proper construction of item 10 it was only
applicable to agricultural land and was not intended to relate to land within a proclaimed
township.  The judge dealt with this argument in par [28] of the reported judgment.  For
ease of reference the paragraph is quoted:
‘The concept of virgin ground is defined in reg 1182 to mean “land which has at no time during the preceding
10 years been cultivated”.  There is no definition of the concept “cultivate” in reg 1182.  At first glance it
conjures up the image of preparing ground for the purpose of cultivating crops.  The definition seems to have
been borrowed, some might say inappropriately, from the Conservation of Agricultural Resources Act 43 of

1983, which contains a similar definition of the concept of “virgin soil”.  The primary meaning of the term is
therefore an agricultural one.  However, the term can be interpreted more extensively to mean “improve” or
“increase”.  Considering the context in which it is used, that is, in a statutory list of activities identified for
environmental protection purposes as requiring authorisation from the regulatory authority, including the
construction of roads, energy-generating facilities, nuclear reactors, rail infrastructure, cableways, marinas,
harbours, racing tracks and the like, a more extensive conception of the word “cultivate”, to mean any
improvement or variation of the land, would seem legitimate.  Such a construction is supported by the wording
of the actual activity identified.  It is not only cultivation of virgin ground that is targeted, but also “any other
use”.  On such a basis, “virgin ground” can be construed purposively and generously, taking account of the
constitutional imperative, to promote conservation and ecologically sustainable development, to mean land
that has not been used or developed in the last ten years, such land being of obvious concern to the
environmental authorities in the present age of accelerated environmental degradation.  Interpreting the term
in this way is compatible with the provisions of s 39(2) of the Constitution, mandating the interpretation of
legislation in a manner promoting the spirit and purport of the rights in the Bill of Rights, including the
environmental right.’

[7] I am unable to agree with this interpretation.  It is not permissible or logical to use
the prohibition of ‘any other use’ of virgin land in item 10 to determine the meaning of
‘cultivate’ in the definition of ‘virgin ground’.  One has first to determine what ‘virgin ground’
means and then determine whether the activity which is sought to be prevented falls within
the prohibition contained in item 10.   ‘Cultivate’ in relation to ground is essentially an
agrarian term and relates to an activity associated with agriculture.  There is no reason why
the primary meaning should not be applied considering that the Act makes serious inroads
on the rights of owners.  The reference to the prohibition of the construction, erection and
upgrading of a number of activities is also unhelpful.  They are all grouped together under
item 1 (what is significant is that township development is not included).  Item 2 to 10 on
the other hand all apply prima facie to agricultural activities related thereto.  As correctly
stated in the above passage the term ‘virgin ground’ is undoubtedly borrowed from the
Conservation of Agricultural Resources Act 43 of 1983 (‘CARA’), though it is not
understood why this was considered to be inappropriate.  In CARA ‘virgin soil’ is defined as
‘. . . land which in the opinion of the executive officer has at no time during the preceding 10
years been cultivated’.  (s 1)   ‘Cultivate’ is in the same section defined as ‘any act by
means of which the topsoil is disturbed mechanically’.  In the light of this it is difficult to see

how ‘cultivate’ in the definition of virgin ground can be extended beyond agricultural
activity.  From this it follows that the definition is limited to land destined for agricultural
purposes.  It is therefore not necessary to attempt to give any meaning to ‘any other use’
because HTF’s activities do not concern ‘virgin ground’, ie agricultural land.  This
interpretation is not incompatible with the Constitution considering the Minister’s wide
powers and his failure to have included township development in item 1.  The Constitution
does not permit a court to strain the meaning of a statutory provision under its guise
particularly when there is more than one constitutional value involved.

[8] There is, however, a more compelling reason why HTF should have succeeded in
having the directive set aside, and that is that item 10, whether applicable to urban or
agricultural land, was (it now having been repealed) in my view void for vagueness.  This
issue was raised in argument by counsel for HTF in this court but was not debated in the
court below.  From the above-quoted passage in the judgment it is clear that it would,
however, not have found favour.

[9] In Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) at par [108]
Ngcobo J said the following:
‘The doctrine of vagueness is founded on the rule of law, which, as pointed out earlier, is a foundational value
of our constitutional democracy.  It requires that laws must be written in a clear and accessible manner.  What
is required is reasonable certainty and not perfect lucidity.  The doctrine of vagueness does not require
absolute certainty of laws.  The law must indicate with reasonable certainty to those who are bound by it what
is required of them so that they may regulate their conduct accordingly.’

As mentioned, it is an offence to undertake any of the s 21 identified activities in the
absence of written authorisation by the Minister or other competent authority (ss 22(1) read
with s 29(4) of the Act).  What ‘reasonable certainty’ does the owner of land have that he is
not committing an offence when he puts part of his property which has not been utilised for
10 years to a particular use?  A few examples will illustrate the point.  An owner has a wire
fence around his property which has been there for 10 years.  He wishes to replace it with a
stone wall.  Is this ‘any other use’ of ‘virgin ground’ for which he requires authorisation?

Another erects a chicken run or a pig sty or a feed kraal on part of his property which has
not been used for 10 years.  He does not have the authority of the Minister.  Is he
committing an offence?  Does the erection of a new building or the extension of an existing
one on ground not used for 10 years fall under ‘any other use’?  On the papers the Minister
has stated that he would allow the building of a single dwelling on the affected property
without the necessary scoping and environmental assessment procedure being followed.
This statement demonstrates the uncertainty intrinsic in item 10.  On what basis is the
building of one dwelling on virgin ground without authorisation legitimate but the building of
two, three or twelve is prohibited?  It is also of significance that in the regulations which now
deal with these matters under NEMA, the concept of cultivation of virgin ground has been
abandoned. The equivalent activities now requiring authorisation are described as follows:
‘The transformation of undeveloped, vacant or derelict land to-
(a)
establish infill development covering an area of 5 hectares or more, but less than 20 hectares;  or
(b)
residential, mixed, retail, commercial, industrial or institutional use where such development does not
constitute infill and where the total area to be transformed is bigger than 1 hectare.’

‘Infill development’ is defined as:
‘”Infill development” means urban development, including residential, commercial, retail, institutional,
educational and mixed use development, but excluding industrial development, in a built up area which is at
least 50 percent abutted by urban development and which can be readily connected to municipal bulk
infrastructure services.’
(GN 396 in GG 28753 of 21 April 2006 with effect from 3 July 2006 as amended by GN 613
of 23 June 2006.)

[10] There is one further issue to be dealt with and that is the finding in the court below
that even if the interpretation accorded item 10 was wrong the third respondent could
nevertheless issue a direction under s 31A without relying on the undertaking of a listed
activity by HTF for which authorisation was required (see par [32] of the judgment).  For the
purposes of argument, counsel for HTF accepted that s 31A imbued the Minister with
separate powers, distinct from those in s 21 and 22.  The Minister, so he argued, however,
then if he wished to invoke this section had to comply with the provisions of s 32(1) and (2).
They read as follows:

‘(1)  If the Minister, the Minister of Water Affairs, a competent authority or any local authority, as the case may
be, intends to-
(a)
issue a regulation or a direction in terms of the provisions of this Act;
(b)
make a declaration or identification in terms of section 16 (1), 18 (1), 21 (1) or 23 (1);  or
(c)
determine a policy in terms of section 2,
a draft notice shall first be published in the Gazette or the Official Gazette in question, as the case may be.
(2)  The draft notice referred to in subsection (1) shall include-
(a)
the text of the proposed regulation, direction, declaration, identification or determination of policy;
(b)
a request that interested parties shall submit comments in connection with the proposed regulation,
direction, declaration, identification or determination of policy within the period stated in the notice,
which period shall not be fewer than 30 days after the date of publication of the notice;
(c)
the address to which such comments shall be submitted.’

[11] It is common cause that no such publication took place.  This issue was not raised or
considered by the court a quo.  In this court counsel for the Minister contended that the
procedure prescribed in s 32(1) only applied to matters of general application to the public.
Otherwise, he contended, the Minister would not be able to employ s 31(A) in matters of
urgency.  Furthermore, so it was argued, before the issue of the direction HTF were, in
writing, given the opportunity to make representations.  There was therefore no prejudice.

[12] In MEC for Economic Affairs Environment and Tourism v Mackay Bridge Farm CC
[1996] 3 All SA 340 (SE) the court held that the powers provided in s 31A are governed by
the procedure prescribed in s 32.  The issue was debated in Evans v Llandudno  Houtbay
Transitional Metropolitan Substructure 2001 (2) SA 342 (C) but the court found it
unnecessary to make a finding (348C-349D).  The wording of s 32(1) is clear and
unambiguous – if the Minister intends issuing a direction he ‘shall’ publish a notice.  Section
31A was inserted in the Act by Act 79 of 1992 – long after s 32.  The direction the
legislature had in mind in s 31A had, as a matter of logic, to be the same as that referred to
in ss 32(1).  As to the argument based on urgency, the first answer is, of course, that the
legislature could have made provision for matters of this nature should it have chosen to do
so.  Examples of these types of enactments are to be found in comparable legislation with
reference, eg to water pollution (see s 20 of the National Water Act 36 of 1998) and with
regard to threats to the environment in general (see s 30 of NEMA).  A second possible

solution would be the one alluded to by Ludorf J in MEC for Economic Affairs Environment
and Tourism v MacKay, supra at 346, namely:
‘It may well be that once the applicant [the Minister] has formed a firm opinion as required by s 31(A), he has a
prima facie right sufficient to seek a temporary interdict affording him time within which to bring about the
necessary publication and to conform with other formalities prescribed by the Act . . ..’

[13] It is true that thus construed, the procedural prerequisites for actions by the Minister
under s 31(A) would be more onerous than those imposed by the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).  But, if the legislature chose to
afford a party affected by particular administrative action greater procedural protection by
means of the specific provisions of the Act, those provisions cannot be ignored in favour of
less onerous prescriptions in general legislation such as PAJA.  It follows that it was
intended that before a direction was issued there had to be compliance with s 32.  There
was none.  The direction was therefore invalid.

[14] The appeal is upheld with costs such costs to include the costs of two counsel and
are to be paid by second respondent.  The order of the court a quo is set aside and
substituted by the following:
‘1.
The direction issued in terms of s 31A of Act 73 of 1989 in respect of the Remainder
of Erf 232, Riviera Township, Pretoria, dated 12 August 2005 is set aside.
2.
The second respondent is to pay the costs.’

P C COMBRINCK JA

CONCUR:

HARMS JA
BRAND JA
MUSI AJA

JAFTA JA

[15] I have had the benefit of reading the judgment of my Brother Combrinck and I agree
that the appellant must succeed on the issue of whether its property constitutes ‘virgin
ground’ as envisaged in the regulations. However, I am constrained to disagree that it
should succeed also in respect of whether the direction issued by the third respondent is
invalid.

[16] The appellant seeks to impugn the validity of the direction on the basis that it should
have been preceded by the publication of a draft notice in the official gazette so as to afford
it, amongst others, a period of 30 days within which to comment thereon. This, it argued,
constitutes a prerequisite for the exercise of power in terms of s 31A of the Environment
Conservation Act 73 of 1989 (the Act). Since the third respondent has failed to comply with
this requirement, so the argument went, the direction purportedly issued in terms of s 31A
was invalid. Reliance for this proposition was sought in s 32 quoted in para 10 above.

[17] We are obliged, in construing the Act, to promote the spirit, purport and the objects
of the Bill of Rights as contemplated in s 39(2) of the Constitution. In other words we must
interpret it through the prism of the Bill of Rights. In Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs 2004 (4) SA 490 (CC) the Constitutional Court affirmed this principle.
Writing for the Court in that case Ngcobo J said at para 88:

‘I accept that the ordinary meaning of the phrase “have regard to” has in the past been construed by our
Courts to mean “bear in mind” or “do not overlook”. However, the meaning of that phrase must be determined
by the context in which it occurs. In this case that context is the statutory commitment to redressing the
imbalances of the past, and more importantly, the constitutional commitment to the achievement of equality.
And this means that the phrase as it relates to s 2(j) must be construed purposively to “promote the spirit,
purport and object of the Bill of Rights”’.

See also Minister of Defence & Others v Sandu & Others 2007 (1) SA 402 (SCA) para 6
and Rustenburg Platinum Mines Ltd v Commissioner for Conciliation, Mediation and

Arbitration 2007 (1) SA 576 (SCA) para 23.

[18] In Transnet Ltd t/a Metrorail v Rail Commuters Action Group 2003 (6) SA 349 (SCA)
the following statement was made at para 70:

‘The proper approach to a case on which a court is asked to interpret a provision of a statute so as to
incorporate constitutional norms is to consider, inter alia, its context, the overall purpose of the statue, the
legislative history and to hold the provision concerned up to constitutional scrutiny.’

Other considerations, which may be added to this, are the function of the provision
construed in the general scheme of the statute and its impact on constitutional values and
fundamental rights contained in the Bill of Rights.

[19] It is against this background that I now turn to construe the relevant sections with a
view to determine whether the appellant’s contention for invalidity has merit or not. I must
say at the outset that the two sections serve different purposes and are designed to
promote different rights entrenched in the Bill of Rights. The purpose of s 32 is to promote
the right to administrative justice, particularly the right to procedural fairness. It prescribes
the procedure to be followed by administrative functionaries so as to afford persons who
may be affected by their decisions a hearing before such decisions are taken. The
procedure provided for is commonly known as the notice and comment procedure, the
invocation of which is most suitable to decisions that affect the general public. That much is
clear from what the draft notice is required to contain. This view is fortified by the provisions
of PAJA. The notice and comment procedure appears in s 4 of PAJA which deals
specifically with procedural fairness in administrative actions which affect the general
public. This procedure does not feature at all under the section dealing with procedural
fairness in actions affecting individuals (s 3).

[20] In this context procedural fairness, by its very nature, demands that its requirements
be complied with before the performance of an administrative action. This does not,
however, mean that the hearing constitutes a prerequisite for the exercise of administrative

power. There is, therefore, no justification for reading s 32 as if it creates a prerequisite
for the exercise of the power in s 31A. In my view there are factors which clearly militate
against the construction contended for by the appellant. First, the notice and comment
procedure is not suitable for emergency cases such as where there has been an oil spillage
which requires immediate action to be taken to contain it, clean-up and rehabilitate the
damage caused. In such a case the administrative functionary cannot be expected to
publish a draft notice and wait for 30 days before issuing a direction, calling upon the
person responsible for the spillage to take remedial steps. In these circumstances
approaching a court, on an urgent basis, for a mandamus would be inappropriate as such
relief, if granted, would amount to usurping of an administrative power by the court.

[21] Section 32 must not be given an interpretation which, if applied, would defeat the
objects of s 31A. The two sections must, to the extent possible, be reconciled. The primary
purpose of s 31A is to promote the right to an environment that is not harmful to the well-
being and health of the people. It also imposes an obligation on the respondents to
maintain a clean and healthy environment. In cases of damage they are required to direct
the person responsible for the damage to remedy it as soon as possible. In the event of
such person failing to do so, the respondents must take remedial steps themselves and
recover costs incurred in the process from that person. However, the respondents cannot
undertake remedial steps without first calling upon the offending party to do so because s
31A(3) requires the offending party’s failure before they themselves could act.

[22] The appellant’s argument on the application of the procedure in s 32 to decisions
taken in terms of s 31A is based on two premises. It was contended on its behalf that the
word ‘direction’ appears in both sections and that it must be accorded the same meaning.
Because s 31A provides for extra-ordinary powers, it was argued, the procedure in s 32
must be followed before such powers are exercised so as to protect the rights of innocent
parties who might be affected by the decision.

[23] As I understand it, the argument raised in the preceding paragraph is directed more
at the question of procedural fairness and not the issue of a prerequisite. It is indeed trite

that a word used in a statute must carry the same meaning wherever it appears. But this
is a rule of general application which admits of exceptions. It is also trite that if the context
in which a word is employed in a particular section differs from the rest of the statute, such
word may assume a different meaning which is consistent with the context. In that event
context may manifest a different intention on the part of the lawmaker (Minister of Interior v
Machadadorp Investments 1957 (2) 395 (A) at 404D-E).

[24] In my view the word ‘direction’ in s 31A is used in a context different from the one in,
for example, ss 16(2) and 20(5). In the context of s 31A the phrase that the functionary
‘may in writing direct such person’ means the functionary may order or instruct the person
responsible for the environmental damage. Thus, the proper noun for the context in s 31A
is directive. What was intended there is quite different from what was intended in both ss
16(2) and 20(5). In the latter sections ‘direction’ means a set of rules designed for the
management of the subject matter covered in those sections. In that context nobody is
instructed to do or refrain from doing anything.

[25] Regarding the nature and extent of the powers in s31A, it is true that they are extra-
ordinary. They were clearly intended to deal with extra-ordinary situations. The lawmaker
must have been aware that some situations may call for drastic urgent action in order to
achieve the objective of the Act which is the effective protection of the environment. In the
current constitutional dispensation the right to a clean environment must enjoy recognition
equal to that which is accorded to other rights. This court in Director: Mineral Development,
Gauteng Region and Another v Save the Vaal Environment and Others 1999 (2) SA 709
(SCA) said at 719C-D:

‘Our Constitution, by including environmental rights as fundamental, justiciable human rights, by necessary
implication requires that environmental considerations be accorded appropriate recognition and respect in the
administrative process in our country. Together with the change in the ideological climate must also come a
change in our legal and administrative approach to environmental concerns.’

[26] The provisions of ss31A and 32 have been considered by the high court in MEC for

Economic Affairs Environment and Tourism v MacKay Bridge Farm CC [1996] 3 All SA
340 (SE) and Evans and Others v Llandudno Houtbay Transitional Metropolitan
Substructure 2001 (2) SA 342 (C). In both cases the court did not apply s32 as it disposed
of the matters on other bases. In MacKay Bridge Farm CC Ludorf J found that the
repository of power had not formed the opinion that the activities he wanted to interdict
were damaging the environment. The learned Judge said at 346F:

‘In the present matter it is clear in my judgment that the applicant has not formed the required opinion within
the meaning of section 31(A) of the Act. To do so is a prerequisite to the powers conferred upon the applicant
in terms of section 31(A) read with section 32 and before the existence of that jurisdictional fact (the opinion)
no rights accrue to the applicant in terms of the Act, and in my judgment the Act regulates the applicant’s
powers and duties and it does so exhaustively.’

[27] For reasons set out above, I conclude that publication of a draft notice is not a
prerequisite for the exercise of the power in s 31A. All that the third respondent was
required to do, by way of a prerequisite, was to form an opinion that the activities in which
the appellant was engaged, were damaging the environment. The evidence in the present
case shows that such an opinion was indeed formed prior to the issuing of the direction.

[28] The conclusion reached above does not, however, mean that the power in s31A can
be exercised with disregard of the requirements of procedural fairness. Since the Act has to
be read together with PAJA, the nature of the offending activity would ordinarily determine
which requirement for procedural fairness in PAJA, is to be followed in exercising the
power. In this case the appellant was given notice of the impending administrative action in
a letter dated 18 July 2005 addressed to it by the third respondent. After stating that, in
their view, the clearing of the site was causing serious damage to the environment, the third
respondent stated:

‘[You] are hereby afforded an opportunity to make a written representation to this Department within 48 (forty
eight) hours of receipt of this notice if you believe there are any compelling reasons for the Department not to
exercise its powers in terms of Section 31A of the ECA and issue a directive requiring you to, inter alia, cease
immediately with all construction – related activities on site until such time as you are in possession of an

authorisation issued by this Department in terms of ECA.’

[29] Two days later the appellant’s attorneys responded to the notice and made certain
representations. The direction was then issued on 12 August 2005. The procedure followed
by the third respondent complies with the requirements of s 3 of PAJA. For these reasons I
would therefore dismiss the appeal.
____________________
C N JAFTA
JUDGE OF APPEAL
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
Wednesday, 28 March 2007
Status:
Immediate

The appellant, a development company intended sub-dividing an
undeveloped property in Riviera, Pretoria, and selling off the
individual properties.  When it commenced clearing the site, the
provincial head of the Department of Environmental Affairs issued a
directive prohibiting further work until environmental approval had
been obtained.  The appellant applied unsuccessfully to the
Pretoria High Court for an order that the aforesaid directive was
invalid.

The Supreme Court of Appeal in a majority judgment found that the
regulation relied upon by the environmental authorities was so
vague that it was unenforceable.

The appeal was accordingly upheld.

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