THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 106/2015
Reportable

In the matter between:

MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS
APPELLANT

and

KLOOF CONSERVANCY
RESPONDENT

Neutral citation:
Minister of Water and Environmental Affairs v Kloof Conservancy
(106/2015) [2015] ZASCA 177 (27 November 2015)

Bench:
Ponnan, Mhlantla, Saldulker and Dambuza JJA and Van Der
Merwe AJA

Heard:

20 November 2015

Delivered:

27 November 2015

Summary:
Environmental law
–
National
Environmental
Management:
Biodiversity Act 10 of 2004 (NEMBA) – failure on the part of the Minister to publish a
national list of alien and invasive species (AIS) and regulations within the time required
by s 70(1)(a) of (NEMBA) – Minister published the requisite AIS list and regulations
even though overdue – high court issuing orders imposing a general obligation upon the
Minister to oversee that all organs of State comply with the NEMBA – having regard to
principles of legality, separation of powers and co-operative government, it was not
competent for the high court to make such declaratory orders.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: KwaZulu-Natal Local Division of the High Court, Durban (Vahed J,
sitting as court of first instance):

The appeal succeeds and paragraphs c. and d. of the order of the court below are set
aside.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Mhlantla, Saldulker and Dambuza JJA and Van Der Merwe AJA
concurring):

[1] Section 24 of our Constitution provides:
„24 Environment
Everyone has the right-
(a) to an environment that is not harmful to their health or well-being; and
(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.‟
The National Environmental Management Act 107 of 1998 (NEMA) was enacted with a
view to protecting the environmental rights guaranteed under s 24 of the Constitution.
Section 2 of NEMA embodies a set of guiding principles by which the State is required
to act in relation to environmental management. The National Management: Biodiversity

Act 10 of 2004 (NEMBA) is one of a suite of environmental management Acts to which
the principles embodied in NEMA are applicable. The objectives of NEMBA (s 2) are:
within the framework of NEMA to, inter alia, provide for the management and
conservation of biological diversity within the Republic and of the components of such
biological diversity (s 2(a)(i)); to give effect to ratified international agreements relating
to biodiversity which are binding on the Republic (s 2(b)); to provide for co-operative
governance in biodiversity management and conservation (s 2(c)); and to provide for a
South African National Biodiversity Institute to assist in achieving the objectives of
NEMBA (ss 10-12).

[2] The commencement date of NEMBA was 1 September 2004.1  In terms of s
70(1)(a), the appellant, the Minister of Water and Environment Affairs (Minister), was
required, within 24 months of that date, to publish, by notice in the Gazette, a national
list of what is commonly referred to as alien and invasive species (AIS). The list had to
thus be published by 31 August 2006.

[3] Section 1 of NEMBA defines „invasive species‟ as:
„any species whose establishment and spread outside of its natural distribution range –
(a)
threaten ecosystems, habitats or other species or have demonstrable potential to
threaten ecosystems, habitats or other species; and
(b)
may result in economic or environmental harm or harm to human health.‟
Whereas it defines „alien species‟ as:
„(a)   a species that is not an indigenous species; or
(b)   an indigenous species translocated or intended to be translocated to a place outside its
natural distribution range in nature, but not an indigenous species that has extended its natural
distribution range by natural means of migration or dispersal without human intervention;‟

Section 71(1) and (2) of NEMBA restricts activities involving certain AIS, by requiring a
person wishing to carry out such activity involving AIS to obtain a permit for that

1 In terms of GN 700 in GG 26436 (7 June 2004), the commencement date of the NEMBA is 1 September
2004 unless otherwise indicated [Proc No. R47, GG 26887 (8 October 2004)]. While the commencement
date for ss 49, 57, 65, 66 and 71 and Chapter 7 is 1 April 2005, and the commencement date of Chapter
6 and section 105 is 1 January 2006.

purpose. This type of AIS is determined by reference to the list contemplated in s
70(1)(a). Section 71(3) empowers the Minister by notice in the Gazette to exempt a
person from the requirement to obtain a permit ordinarily required under s 71(1) and (2)
subject to such conditions as the Minister specifies in the notice. Section 71A empowers
the Minister through notice in the Gazette to prohibit specific specimen of AIS for which
no permit may be issued for carrying out a restricted activity, subject to such conditions
as the Minister may specify in the notice. Section 75 requires the control and eradication
of certain other AIS to be conducted in an appropriate manner. The list also determines
which AIS must be controlled or eradicated. The workability of Chapter 5 accordingly
depends on the publication of the list.

[4] Section 97(1)(c) of NEMBA empowers the Minister to make regulations, inter
alia, for: facilitating or implementing the enforcement of ss 65,67 or 71 (s 97(1)(c)(iii));
prescribing compulsory conditions for any permits (s 97(1)(c)(iv)); assessing the risks
and potential impacts on biodiversity of restricted activities involving listed AIS (s
97(1)(c)(v)); controlling and eradicating listed AIS (s 97(1)(c)(vi)) and co-ordinating and
implementing programmes for the prevention, control or eradication of AIS (s
97(1)(c)(vii)). The effective discharge of the prescripts in ss 71 and 75 requires detailed
regulations. Section 76 sets out the manner in which the implementation of these
powers and obligations is to be carried out by the numerous organs of State which are
engaged. It seeks to integrate the powers and obligations which exist under the various
statutes which affect AIS. Accordingly: (a) the management authority of a protected
area under the National Environmental Management: Protected Areas Act 57 of 2003
must prepare a management plan that incorporates a strategy for controlling and
eradicating AIS (s 76(1)); (b) all organs of State in all spheres of government must
prepare a plan for monitoring, controlling and eradicating AIS, as part of their
environmental management plans in terms of s 11 of NEMA (s 76(2)(a)); (c) all
municipalities must incorporate their AIS monitoring, control and eradication plans into
their integrated development plans (IDPs) under the Local Government: Municipal
Systems Act 32 of 2000 (Systems Act) and the regulations under that Act (s 76(2)(b)).

NEMBA thus forms part of a complex latticework of legislation. It overlaps with and has
to be integrated with the processes envisaged under related legislation.

[5] The Minister published a series of draft lists for public comment,2 but did not
publish or bring into operation a final list and regulations. The respondent, the Kloof
Conservancy (Kloof),3 asserting that the Minister had failed to timeously fulfil her
obligations under NEMBA and the Constitution, applied to the KwaZulu-Natal Local
Division, Durban (high court), for an order compelling the Minister to do so, and for
related relief. Kloof launched two substantive applications. In the first, launched on 3
December 2012, it sought extensive relief including a structural interdict. The relief was
cut back substantially in Kloof‟s replying affidavit to focus on the Minister‟s duty to
publish a list and make regulations. In the second, launched on 11 October 2013, it
sought the review and setting aside of the interim AIS lists and regulations that had
been published in July 2013. A draft consolidated order, prepared by Kloof, set out the
relief which it ultimately sought. It read:
„1.
The following regulations and species lists published by the [Minister] on 19th July 2013
are declared to be unlawful and unconstitutional, and are reviewed and set aside:
1.1.
the Alien and Invasive Species Regulations under Government Notice R506 dated 19th
July 2013;
1.2.
the Exempted Alien Species List under Government Notice R509 dated 19th July 2013;
1.3.
the National List of Invasive Species under Government Notice R507 dated 19th July
2013;
2.
the [Minister]‟s failure to publish by 31st August 2006 a national list of invasive species in
terms of Section 70(1)(a) of the [NEMBA], in respect of which chapter 5 of NEMBA must be
applied nationally, is declared unlawful and unconstitutional;
3.
the [Minister] is ordered to publish on or before 30th June 2014, by notice in the Gazette,
a national list of invasive species referred to in Section 70(1)(A) of NEMBA, in respect of which
list chapter 5 of NEMBA must be applied nationally;

2 The first on 17 September 2007, the second on 3 April 2009 and the third on 12 February 2014.
3 The Kloof Conservancy is a registered non-profit organisation also registered as a public benefit
organisation founded in 1993, it is a member of the Kwazulu-Natal Conservancy Association. Its mission
is to protect the biodiversity, empower the community to sustain a better future and to preserve natural
heritage, and its objectives include the eradication of invasive alien plants, the protection and
rehabilitation of indigenous ecosystems and the conservation and cultivation of indigenous plants.

4.
the [Minister]‟s failure to make and publish, in terms of NEMBA, Regulations appropriate
and necessary to ensure the full and proper implementation of chapter 5 of NEMBA, is declared
unlawful and unconstitutional;
5.
the [Minister] is ordered to make and publish in terms of NEMBA, on or before 30th June
2014, Regulations appropriate and necessary to ensure the full and proper implementation of
chapter 5 of NEMBA;
6.
the First [the Government of the Republic of South Africa], Second [ie the Minister], Fifth
[Provincial Government of KwaZulu-Natal] and Sixth Respondents [MEC for Agriculture,
Environmental Affairs and Rural Development, Province of KwaZulu-Natal] are ordered to do all
such things and take all such steps as are necessary, and as are within their authority under the
law, to ensure that all organs of State in every sphere of Government:
6.1.
comply with their duties under Section 76(2) and (4) of NEMBA to prepare invasive
species monitoring, control and eradication plans for land under their control, as part of their
environmental plans in accordance with s 11 of the [NEMA], within a period of six months from
the date of this Order;
6.2.
comply with and implement properly and fully their invasive species monitoring, control
and eradication plans under Section 76 of NEMBA;
7.
the Second Respondent is directed to appoint and mandate by 30th June 2014 sufficient
numbers of Environmental Management Inspectors in relation to Invasive Alien Species in the
province of KwaZulu-Natal to ensure compliance with the Government‟s duties in relation to IAS
under section 24 of the Constitution and chapter 5 of NEMBA;
8.
the First, Second, Third [the Minister of Agriculture, Forestry and Fisheries], Fifth and
Sixth Respondents are ordered to pay the costs of the main application jointly and severally, the
one paying the others to be absolved, on the scale as between attorney and own client,
including the costs occasioned by the employment of two Counsel;
9.
the [Minister] is ordered to pay the costs of the review application, such costs to include
the costs occasioned by the employment of two Counsel;
10.
an Order in terms of Section 32(3)(a) of the [NEMA], that the Respondents are ordered
to pay the costs on the scale as between attorney and own client of any person or persons
entitled to practice as advocate or attorney in the Republic of South Africa who provided free
legal assistance or representation to the Applicant in the preparation for or conduct of the
proceedings, as follows:
10.1. the main application, the First, Second, Third, Fifth and Sixth Respondents, jointly and
severally, the one paying the others to be absolved;

10.2. the review application, the [Minister].‟

[6] On 12 February 2014 the Minister published a draft AIS List and Regulations for
public comment. These drafts were placed before the high court. Accompanying the
drafts, and also before the court, was a media statement issued by the Minister on 17
February 2014. It drew the attention of the public to the drafts, and invited comments
within 30 days. The Minister made clear her intention to put a final list and regulations
into effect. The application was heard on 25 April 2014. On 1 August 2014, and after
judgment had been reserved in the matter, but before its delivery, the Minister published
the Alien Invasive Species Lists4 (the 2014 AIS List) and the Alien and Invasive Species
Regulations.5 This was brought to the attention of the high court.

[7] The regulations stipulate timeframes for the implementation of chapter 5 of
NEMBA. Regulation 8, which is of particular relevance, provides:
„(1)
The Minister must –
(a)
within one year of the date on which these regulations come into effect, develop
guidelines for the development of Invasive Species Monitoring, Control and Eradication Plans
for listed invasive species as contemplated in section 76 of the Act;
(b)
publish the guidelines contemplated in paragraph (a) on the Department‟s website; and
(c)
review, at least every five years, the guidelines contemplated in paragraph (a).
(2)
The Management authorities of protected areas and organs of state in all spheres of
government must –
(a)
prepare their Invasive Species Monitoring, Control and Eradication Plans contemplated
in section 76 of the Act based on priorities identified through the guidelines referred to in
subregulation (1); and
(b)
submit those plans to the Minister and to the Institute within one year of the publication
of the guidelines contemplated in subregulation (1).
(3)
The Invasive Species Monitoring, Control and Eradication Plans referred to in
subregulation (2) must be reviewed every 5 years by those organs of state and management
authorities responsible for such plans.‟

4 Published in GN 559 in GG 37886 (1 August 2014).
5 Published in GN R598 in GG 37885 (1 August 2014).

[8] The 2014 AIS List and Regulations detail the various AIS in accordance with
chapter 5 of NEMBA. These are: (a) AIS that must be combatted or eradicated
(category 1a);6 (b) AIS that must be controlled (ie have their spread contained until a
Management Plan has been implemented) (category 1b);7 (c) AIS for which a permit is
required in order to carry out a restricted activity, subject to any prescribed conditions
(category 2); and (d) AIS for which an exemption from the requirement to obtain a
permit applies or which are prohibited and in respect of which no permit may be issued
(category 3).

[9] The primary relief sought by Kloof had been to require the Minister to publish the
list and regulations. By the time the high court delivered its judgment the Minister had
taken those steps. The high court (per Vahed J) delivered its judgment on 22 October
2014. It noted that the 2014 AIS List and Regulations „impact dramatically upon the
relief sought in that the nub of the relief sought has apparently been rendered moot‟.
That is so because in publishing the 2014 AIS List and Regulations, the Minister had
discharged her duty in terms of s 70(1)(a) and her power in terms of s 97(1)(c) - it was
the Minister‟s prior failure in that regard which was the thrust of Kloof‟s complaint. In
addition those publications superseded and repealed the 2013 AIS List and
Regulations, which were the subject-matter of the review. That notwithstanding, the high
court proceeded to issue the following order:
„a.
The [Minister]‟s failure to publish by 31 August 2006 a national list of invasive species in
terms of Section 70(1)(a) of the [NEMBA], in respect of which chapter 5 of NEMBA must be
applied nationally, is declared unlawful and unconstitutional;
b.
The [Minister]‟s failure, by 31st August 2006, to make and publish, in terms of NEMBA,
Regulations appropriate and necessary to ensure the full and proper implementation of chapter
5 of NEMBA, is declared unlawful and unconstitutional;
c.
The First, Second [Minister], Fifth and Sixth Respondents are ordered to do all such
things and take all such steps as are necessary, and as are within their authority under the law,
to ensure that all organs of State in every sphere of Government:

6 Regulation 2(1).
7 Regulation 3(1).

i.
Comply with their duties under Section 76(2) and (4) of NEMBA to prepare invasive
species monitoring, control and eradication plans for land under their control, as part of their
environmental plans in accordance with s 11 of the [NEMA], within a period of six months from
the date of this Order.
ii.
Comply with and implement properly and fully their invasive species monitoring, control
and eradication plans under section 76 of NEMBA;
d.
The [Minister] is directed to appoint and mandate, within six months of the date of this
Order, sufficient numbers of Environmental Management Inspectors in relation to Invasive Alien
Species in the province of KwaZulu-Natal to ensure compliance with the Government‟s duties in
relation to AIS under section 24 of the Constitution and chapter 5 of NEMBA.
e.
The First, Second [Minister], Third, Fifth and Sixth Respondents are ordered to pay the
costs of the main application jointly and severally, the one paying the others to be absolved, on
the scale as between attorney and own client, including the costs occasioned by the
employment of two Counsel;
f.
The [Minister] is ordered to pay the costs of the review application, such costs to include
the costs occasioned by the employment of two Counsel;
g.
In terms of Section 32(3)(a) of the [NEMA], that the Respondents are ordered to pay the
costs on the scale as between attorney and own client of any person or persons entitled to
practice as advocate or attorney in the Republic of South Africa who provided free legal
assistance or representation to the Applicant in the preparation for or conduct of the
proceedings, as follows:
i.
the main application, the First, Second [Minister], Third, Fifth and Sixth Respondents,
jointly and severally, the one paying the others to be absolved;
ii.
the review application, the [Minister].‟8

[10] The appeal by the Minister, which is directed only against orders c. and d., is with
the leave of the high court. The preambular part of order c. now requires the Minister to
do all such things and take all such steps as are necessary, and as are within her
authority under the law, to ensure that all organs of State in every sphere of
Government, discharge the duties and carry out the functions set out in c. (i) and (ii).
Such an order appears to misconceive the powers and responsibilities of a national

8 Sub-paragraphs i. and ii. of paragraph g. of the judgment are incorrectly referred to as paragraphs h.
and i. in the order of the high court.

Minister under our constitutional system of co-operative government. It seems to be
based on the erroneous premise that our system of government is hierarchical, with
national government having the power to supervise the performance of all organs of
State in every sphere of government, and compel them to comply with their duties. The
Constitution establishes government at three levels. The principle of co-operative
government is based on the proposition that the Constitution devolves legislative and
executive powers among three distinctive spheres of government, as defined in section
40 of the Constitution.9 Each sphere of government has autonomous powers and
responsibilities, and must exercise them within the parameters of its defined space.10 In
doing so, the different spheres of government must also work together to ensure that
government as a whole meets its constitutional responsibilities.11 Thus, Nugent JA
observed in Johannesburg Municipality v Gauteng Development Tribunal & others 2010
(2) SA 554 (SCA) para 14, that:
„The structure of government authority under the present constitutional dispensation departs
markedly from that which existed under the previous constitutional regime. Under the previous
regime all public power vested in Parliament and devolved upon the lower tiers of government
by parliamentary legislation. Under the present regime, however, certain powers of government
are conferred directly upon the lower tiers by the Constitution. To the extent that that has
occurred the lower tiers exercise original constitutional powers and no other body or person may
be vested with those powers.‟

[11] In exceptional circumstances, the national sphere of government may intervene
in a provincial sphere;12 a provincial sphere of government may intervene in a local
sphere;13 and the national sphere may interfere in a local sphere where the provincial
sphere has failed to do so.14 In Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal & others 2010 (6) SA 182 (CC) para 44, the Constitutional Court
explained:

9 The principles of co-operative government are set out in s 41 of the Constitution. See Premier, Western
Cape v President of the Republic of South Africa 1999 (3) SA 657 (CC) para 50.
10 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others 2010 (6) SA 182
(CC) para 43.
11 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 26.
12 Section 100 of the Constitution.
13 Section 139 of the Constitution.
14 Section 139(7) of the Constitution.

„The scope of intervention by one sphere in the affairs of another is highly circumscribed. The
national and provincial spheres are permitted by ss 100 and 139 of the Constitution to
undertake interventions to assume control over the affairs of another sphere or to perform the
functions of another sphere under certain well-defined circumstances, the details of which are
set out below. Suffice it now to say that the national and provincial spheres are not entitled to
usurp the functions of the municipal sphere, except in exceptional circumstances, but then only
temporarily and in compliance with strict procedures. . . .‟
Ordinarily, no interventions are permitted outside the scope of ss 100 and 139 of the
Constitution, and neither of those sections permits an intervention by the national
government in the affairs of a municipality with regard to compliance with NEMBA.
Insofar as the high court order obliges the Minister to ensure that all organs of State in
every sphere of government comply with their duties under s 76 of NEMBA, it in effect
requires a form of intervention which is inconsistent with the structure of our
Constitution. It incorrectly assumes that the national government has a supervisory and
ultimately a directory role in respect of the other spheres. The high court order thus
impinges (rather than upholds) the principle of co-operative government.

[12] In terms of the high court order, the Minister must ensure that every municipality
and other organ of State „fully‟ complies with its obligations. From the bar we were told
that there are 278 municipalities spread across and in excess of 24 000 public entities
and organs of State. It must follow that so as to avoid the risk of liability for contempt of
court, the Minister will have to monitor closely those bodies to ensure that they comply
with their NEMBA obligations. In that regard, what the order appears to require is for the
Minister is to ensure that they have a plan, with which she must – on an on-going basis
– ensure that they comply. For that she may well need to deploy an army of inspectors
around the country. If she does discover any non-compliance, she will have to do „all
such things and take all such steps as are necessary‟ to ensure that they do indeed
comply. Precisely what that entails is not clear. In the case of a municipality, by way of
example, the obligatory steps could possibly include: (a) trying to persuade the
municipality to comply – it being unclear whether she does in fact have the power to
compel it to do so; (b) trying to persuade the province to try, in turn, to persuade the
municipality to do so; (c) trying to persuade the provincial government to intervene

under s 139 of the Constitution; (d) declaring an inter-governmental dispute under the
Intergovernmental Relations Framework Act 13 of 2005; and, perhaps as a last resort,
(e) instituting litigation against the municipality to compel it to comply with its obligations.
This, self-evidently, is not the role of a national Minister under our system of co-
operative government. National government is not intended to function as a supervisor
and enforcer of other spheres of government. But, if the Minister does not take these
steps in every part of the country, on an on-going basis, she is at risk of being held to be
in contempt of court.

[13]  There was some suggestion that all that the order requires of the Minister is to do
that which is within her authority under the law; and therefore it does not conflict with the
constitutional principle of co-operative government. But, that raises pointedly the
purpose of ordering the Minister to carry out these far-reaching tasks in respect of every
organ of State in every sphere of government, where it is clear that her powers
particularly in that respect are not untrammelled. It seems to me that it would simply be
impossible for the Minister to know what the source of her legal powers are to take the
various steps ordered by the court. Moreover, interrogating the suggestion appears to
lead one to the conclusion that the order is indeterminate, open ended and
irredeemably vague. For, it seems impossible for the Minister to know with any measure
of confidence what she is obliged by the order of court to do. Here, the court offers the
Minister no guidance as to when to she is required to step in. Litigants who are required
to comply with court orders, at the risk otherwise of being in contempt if they do not,
must know with clarity what is required of them (Minister of Home Affairs v Scalabrini
Centre & others 2013 (6) SA 421 (SCA) para 77). Courts are entitled to operate on the
assumption that government will comply with orders of court (Minister of Home Affairs v
Somali Association of South Africa 2015 (3) SA 545 (SCA) para 27). But, in order to do
that, it has to know where its obligations start and end. It does seem to me to be difficult
in the extreme for the Minister to know with any measure of confidence precisely what
steps she is required to take to comply with the order of the high court.

[14] An order or decision of a court binds all those to whom, and all organs of State to
which, it applies.15 All laws must be written in a clear and accessible manner.16
Impermissibly vague provisions violate the rule of law, which is a founding principle of
our Constitution.17 Orders of court must comply with this standard. In Mazibuko NO v
Sisulu NO & others 2013 (6) SA 249 (CC), which concerned the right of a Member of
Parliament to move a motion of no confidence in the President, the Constitutional Court,
in its consideration of a similarly worded prayer to paragraph c. of the order of the high
court, stated (in para 24) that:
„the prayer in the applicant‟s notice of motion that the Speaker personally take whatever steps
are necessary to vindicate the applicant‟s constitutional right, is so open-ended and vague as to
render the relief incompetent.‟
As the preambular part of order c. governs the whole of that order and determines the
Minister‟s obligations under it, it may well be that, without more, order c. falls in its
entirety, to be set aside. But, in addition, the remainder of that order can also hardly
withstand scrutiny.

[15] The order of the high court creates unjustified disharmony with the statutory
scheme under NEMBA. The 2014 AIS Lists and Regulations are presumptively valid.
They have never been the subject of any legal challenge. Accordingly, they remain
operative and binding. Regulation 8 prescribes time periods for the achievement of
certain steps to give effect to chapter 5 of NEMBA. Regulation 8(1) provides that the
Minister must develop guidelines for the development of AIS plans, as contemplated in
s 76 of NEMBA, within one year from the coming into effect of the 2014 AIS
Regulations. Regulation 8(2) provides that the management authorities and organs of
State in all spheres of government must, in turn, prepare their AIS plans and submit
them to the Minister and to the South African National Biodiversity Institute, established
in terms of s 10 of NEMBA, within one year of the publication of the guidelines.18 As
acknowledged by Kloof, the Minister has wide discretionary powers to implement

15 Section 165(5) of the Constitution.
16 Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247 (CC) para 108.
17 National Credit Regulator v Opperman & others 2013 (2) SA 1 (CC) para 46. See also s 1(c) of the
Constitution.
18 Regulation 8(2) read together with section 76 of NEMBA.

NEMBA, including through the promulgation of regulations. In promulgating the 2014
regulations, the Minister exercised that discretion. It has not been contended that she
did not exercise it properly. The high court emphasised that it had „not given any
consideration to the content of the August 2014 publications‟. In its order the high court
imposed a timeframe of six months on the Minister and other respondents19 to prepare
their AIS plans. As a consequence of its failure to consider the substantive and
procedural obligations created by the 2014 Regulations, and in particular the timeframe
stipulated in Regulation 8, the high court imposed a shorter time period for compliance
with s 76. Since the 2014 AIS Lists and Regulations remain valid, the effect of the high
court‟s order c. (i) is to create two different time periods for discharging the same
obligations under the same statute.

[16] As I have pointed out various other statutes interlink with NEMBA, forming a
carefully configured legislative latticework. The timeframes for completion of the
relevant plans under each of the those statutes are as follows: The Protected Areas Act
stipulates that management authorities must submit a management plan for a protected
area to the Minister or MEC for approval within one year of the assignment.20 This
accords with the time period in Regulation 8(2) of the 2014 regulations. NEMA
stipulates that all national departments exercising functions that may affect the
environment and every province must prepare an environmental implementation plan at
least every five years.21  Section 11 of NEMA is incorporated by reference in s 76 of
NEMBA. Regulation 8(2) of the 2014 regulations thus imposes a more stringent time
period of one year on these organs of State. NEMA stipulates that the Minister may by
notice in the Gazette extend the submission of any environmental implementation or
management plan, but by no more than a period of one year. The Systems Act
stipulates that municipalities must review their IDPs on an annual basis.22 Since s
76(2)(b) of NEMBA requires municipalities to incorporate their AIS plans into their IDPs,

19 Including the First, Fifth and Sixth Respondents a quo.
20 Section 39(2) of the Protected Areas Act.
21 Section 11(1) and (2) of NEMA.
22 Section 34(a) of the Systems Act.

the detailed process for amending their IDPs must be followed.23 The envisaged time
frame of one year for preparing AIS plans under Regulation 8(2) among municipalities is
already stringent. The high court‟s truncation by half of the one year time period
contemplated in Regulation 8, thus conflicts with the one year time frame envisaged in s
39(2) of the Protected Areas Act and it imposes an obligation on all organs of State in
all spheres of government to comply with their duties under s 76 of NEMA in a much
shorter period of time. There can be little doubt that the high court did not intend this.
After all, it did not consider at all the implications of these related statutes. It must follow
that the high court erred in imposing a time limit which was different from (and more
stringent) to those imposed by Regulation 8 and the other applicable legislation, without
even having regard to those time limits. Thus in the absence of a direct and successful
challenge to the published list and regulations, which are legally binding, it was not
permissible for the high court to ignore their content when making its order.

[17] Turning to order d.: Sections 31B, 31BA and 31C of NEMA govern the
designation of EMIs by inter alia the Minister, the Minister responsible for the
Department of Water Affairs and the MEC responsible for environmental affairs in each
of the provinces respectively. Section 31D of NEMA provides for the mandating of EMIs
by the relevant Ministers and MECs. It places on each of them the responsibility to
mandate EMIs in respect of those functions in relation to which he or she bears a duty
under NEMBA. Paragraph d of the high court‟s order destroys this distribution of
responsibility, and places it exclusively on the Minister. This is not competent because:
first, paragraph d creates an impermissible inconsistency with the statutory scheme of
responsibility; second, the order places a responsibility on the Minister which does not
exist under the statute and third, it violates the principle of co-operative government by

23 Regulation 3 of the Local Government: Municipal Planning and Performance Management Regulations,
2001 (published under GN R796 in GG 22605 (24 August 2001)). The process entails, at least the
following:

The introduction of a proposal to amend by a councillor or committee, including a memorandum.

The proposal must be adopted by the council, which requires prior notice to all members and
publication of the proposed amendment for public comment at least 21 days in advance.

If the municipality is a district municipality, it must consult with all local municipalities in its area
and take comments submitted by local municipalities into account before taking a final decision.

If the municipality is a local municipality, it must consult the district municipality in whose area it
falls and take comments submitted by the district municipality before taking a final decision.

appropriating functions of the Minister responsible for the Department of Water Affairs
and the relevant MEC, and assigning them to the Minister.

[18] In any event, there was material evidence about the current number of
Environmental Management Inspectors (EMIs), and anticipated appointments, before
the high court. As at 23 February 2013, the KZN Nature Conservation Services had a
total of 310 EMIs and the Provincial Department 37. By 30 July 2013 the KZN Provincial
Department had increased its number of EMIs to 51, whilst 17 candidates were awaiting
the results of their examinations, since having undergone training in 2013. In the MEC‟s
estimation, if all trainees passed their examinations, only 11 EMIs would reasonably be
required for KZN. Also as at 30 July 2013, in the Working for Water Programme, 34
officials were being trained to become EMIs, and a further 35 were scheduled for
training in the final quarter of 2013. The high court made no mention of the number of
EMIs currently qualified or about to qualify in KZN. It made no finding on whether the
current and projected numbers were sufficient. In the absence of such a finding, it could
hardly have been open to the high court to make order d.24 The evidence before the
high court was that there are „no clearly definable criteria [for] determining what
constitutes a sufficient number of EMIs‟. The result is that the reference in the order to
„sufficient numbers‟ of EMIs is impermissibly vague. The Minister is subject to the
potential threat of contempt proceedings, where there are no objectively definable
criteria for determining the extent of the obligation that she has been ordered to
perform. Accordingly, the court erred in imposing this duty upon the Minister, in
circumstances where she is not the only authority with the power, duty and resources to
appoint and mandate EMIs. What is more, is that the court made the order without any
finding on whether the current or projected numbers were sufficient and without having
regard to what other organs of state would or should do to appoint and mandate EMIs.

24 The limits of judicial decision-making were exemplified by this court in National Director of Public
Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 15.

[19] Moreover, the ordering of public resources is pre-eminently a matter that falls
within the competence and remit of the executive arm of government.25 That calls for
the exercise of circumspection and care as to the potential trenching on the separation
of powers when a court formulates an order that implicates public resources. The
Minister sought to explain the difficulties in attempting to control, much less eliminate,
AIS. It was pointed out that a cost-benefit analysis has to be undertaken. This entails
the weighing up of the marginal benefits against the marginal costs of undertaking a
particular project. The inherent complexities of AIS make their impact difficult to
quantify, and render the exercise highly technical. Such an analysis must perforce
inform the decision as to how many EMIs should be appointed. That is quintessentially
a matter of policy, implicating multiple factors and considerations of a technical nature,
and the on-going exercise of judgment in the light of all of the available information.
Those are matters best left to the executive arm of government. Courts should not
impermissibly assume a function that falls within the domain of the Executive, unless
the reasons for doing so are compelling and mandated by the Constitution.26 Indeed,
Kloof itself stated that it does not desire that the judicial arm of the State intrude into the
province of the Executive. However, Kloof‟s asserted position is inconsistent with the
order sought and ultimately granted.

[20] In arriving at its conclusion that orders c. and d. were necessary, the high court
stated:
„In the circumstances, given the history of the matter, and notwithstanding the fact that the
regulations and lists have now been published, [Kloof] is entitled to the order it seeks that the
[Minister and] first, . . . , fifth and sixth respondents take such steps as they are authorised in
law to take to ensure that organs of State comply with their duties under s 76 of NEMBA within a
period of six months of the Order‟.
The high court found that the conduct of the various State parties did not reflect any
sense of urgency, and that the Minister had not acted reasonably or in good faith. These
considerations, however, related directly and exclusively to the Minister‟s failure to

25 National Treasury & others v Opposition to Urban Tolling Alliance & others 2012 (6) SA 223 (CC) para
68.
26 National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA)
para 51.

publish the list and regulations during the time period prescribed by s 70(1)(a) of
NEMBA. That failure had been cured by the publication of the 2014 Lists and
Regulations. Those considerations did not, and could not, have had any bearing on the
Minister‟s anticipated future conduct. There was no evidence before the high court to
suggest that, having published the 2014 AIS List and Regulations, the Minister would
not thereafter discharge her obligations. The Minister suggests – and the high court
accepted - that despite her failure to publish the lists and regulations timeously, she and
her Department do take the issue of AIS very seriously. She points out that: (a) the
Working for Water programme, which focuses on the management of AIS, is the largest
conservation programme in Africa, with a Medium Term Expenditure Framework budget
of over R4 billion; and (b) South Africa has the largest budget of any country in the
world relative to Gross National Product for the management of AIS. The high court‟s
approach thus amounted to this: You have failed in the discharge of obligation A, the
court is thus entitled, without more, to assume that, before it even fully ripens into an
obligation as such, you will likewise fail in the future to discharge obligation B and, what
is more, in anticipation of such failure, an order directing you to perform obligation B
prospectively is warranted.

[21] In these circumstances the following dictum from Ekurhuleni Metropolitan
Municipality v Dada NO & others 2009 (4) SA 463 (SCA) para 10, seems to me to be
apposite:
„In his judgment the judge expressed his disapproval of the level of inactivity, with regard to the
circumstances of the occupiers, shown the municipality particularly over the period between the
lodging of the eviction application and the date of the hearing. He found that this constituted a
failure by the municipality to comply with its constitutional duties. In the course of reviewing the
law concerning the court‟s role in the enforcement of fundamental rights, such as the right of
access to housing, he referred to the well-known decisions in Government of the Republic of
South Africa & others v Grootboom & others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169), but
expressed the view that the courts had not gone far enough towards enforcing the rights in s 26
of the Constitution in these cases.  On this basis, it seems, he apparently decided that the
courts should be galvanised into taking a “robust approach” to the implementation of the
provisions of the Constitution. This type of approach is probably the very antithesis of the

approach which this court and the Constitutional Court have endorsed in a number of recent
decisions. In Logbro Properties CC v Bedderson NO & others 2003 (2) SA 460 (SCA) ([2003] 1
All SA 424), para 21, Cameron JA referred, in the context of a necessity for “judicial deference”,
with approval to the following passage from an article by Cora Hoexter entitled “The Future of
Judicial Review in South African Administrative Law” (2000) 117 SALJ 484, at 501-502, which is
to the following effect:
“. . . the sort of deference we should be aspiring to consists of a judicial willingness to
appreciate the legitimate and constitutionally-ordained province of administrative agencies; to
admit the expertise of these agencies in policy-laden or polycentric issues; to accord their
interpretation of fact and law due respect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and the practical and financial constraints under
which they operate. This type of deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate maladministration.”‟
This passage was also referred to with approval and the theme taken up by Schutz JA
in Minister of Environmental Affairs and Tourism & others v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism & others v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407 (SCA) ([2003] 2 All SA 616) paras 52 and 53, where, after quoting the
passage set out above, the learned judge said:
“I agree with what is said by Hoexter (op cit at 185):
„The important thing is that Judges should not use the opportunity of scrutiny to prefer their own
views as to the correctness of the decision, and thus obliterate the distinction between review
and appeal.‟”‟ (Footnotes omitted.)

[22] It is plain that the learned judge in the high court was exasperated by the
Minister‟s desultory approach to the discharge of her statutorily imposed obligation. He
thus obviously thought that her conduct was deserving of censure. That was achieved
by the grant of orders a. and b., as also, by mulcting her with a punitive costs order. Her
generally lackadaisical attitude, however, did not extend to the matters covered by
orders c. and d. In these circumstances, as Justice O‟Regan observed in her Helen
Suzman Memorial Lecture titled „The role of the ConCourt in our democracy‟,27

27 Kate O‟Regan „The role of the ConCourt in our democracy‟ the Helen Suzman Memorial Lecture
delivered on 22 November 2011 at Johannesburg, available on the Legal Resources Centre website at
http://www.lrc.org.za/publications/papers/item/the-role-of-the-concourt-in-our-democracy-by-kate-o-regan-

„Courts must accordingly avoid what a respected Indian commentator has termed the
jurisprudence of exasperation: the tendency to reach decisions or make statements that are an
expression of judges‟ exasperation with the state of affairs in the country, rather than on the
basis of “carefully thought out arguments based on the law‟s possibilities and limits.” . . . . In
South Africa a jurisprudence of exasperation might result in the requirements of rationality being
unduly tightened or in courts being too slow to accept that government‟s policies in achieving
social economic rights are reasonable, or in insisting that government adopt the court‟s own
views as to what is an appropriate government policy.
Such a result would be damaging, as Pratap Bhanu Mehta has observed. “Often judicial
interventions, unless disciplined by law and carefully crafted, produce worse outcomes [than
bad government policy]. In some ways judicial policy-making magnifies rather than corrects the
deficiencies of executive policy-making. … Ad hominem interventions based on nothing more
than confidence in the judges‟ good intentions, are no substitute for a policy-making process.”‟
(Footnotes omitted.)

[23] The Constitutional Court has held in Rail Commuters para 107-108 that: 28
„It is quite clear that before it makes a declaratory order a court must consider all the relevant
circumstances. A declaratory order is a flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection and enforcement of our
Constitution and its values. Declaratory orders, of course, may be accompanied by other forms
of relief, such as mandatory or prohibitory orders, but they may also stand on their own. In
considering whether it is desirable to order mandatory or prohibitory relief in addition to the
declaratory, a court will consider all the relevant circumstances.
It should also be borne in mind that declaratory relief is of particular value in a
constitutional democracy which enables courts to declare the law, on the one hand, but leave to
the other arms of government, the Executive and the Legislature, the decision as to how best
the law, once stated, should be observed.‟
This approach respects the separation of powers. Thus in a case such as this, where
the primary issues raised had become moot, but the matter nonetheless raised issues
of public importance or constitutional principle, a declaratory order may well have been
warranted, but the consequential relief was hardly justified, particularly absent a finding

judge-of-the-constitutional-court-1994-2009-helen-suzman-memorial-lecture-johannesburg-november-22-
2011, accessed on 21 November 2015.
28 Rail Commuters Action Group & others v Transnet Ltd t/a Metrorail & others 2005 (2) SA 359 (CC).

by the court (still less any evidence) that the Executive would not observe the law. It
follows that paragraphs c. and d. of the high court‟s order cannot stand.

[24] As to costs: In the event of the appeal succeeding and in accordance with the
principle articulated in Biowatch Trust v Registrar, Genetic Resources & others 2009 (6)
SA 232 (CC), the Minister commendably did not seek costs.

[25] In the result the appeal succeeds and paragraphs c. and d. of the order of the
court below are set aside.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:

G M Budlender SC (with him U K Naidoo)

Instructed by:

The State Attorney, KwaZulu-Natal

The State Attorney, Bloemfontein

For First Respondent:

M D C Smithers SC (with him A Coutsoudis)

Instructed by:

Shepstone & Wylie, Durban

Matsepes, Bloemfontein