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All the Best Trading CC and Others v S N Nayagar Property Development and Construction CC and Others (4938/04) [2005] ZAGPHC 17; 2005 (3) SA 396 (T) (15 February 2005)

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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
DATE:

CASE NO: 4938/2004

IN THE MATTER BETWEEN:
ALL THE BEST TRADING CC          FIRST APPLICANT
(t/a PARKVILLE MOTORS)
FRED WHELPTON BELEGGINGS CC
(t/a NTT TOYOTA WHITE RIVER)              SECOND APPLICANT
GOEDBEL BELEGGINGS (PTY) LTD     THIRD APPLICANT
(t/a NUMBI AUTO)
LE ROUX PETROLEUM (PTY) LTD      FOURTH APPLICANT
(t/a SITANANI CALTEX)
CYMBIDIUM BELEGGINGS (PTY) LTD   FIFTH APPLICANT
(t/a WHITE RIVER PLAZA SERVICE
STATION)
AND
S.N. NAYAGAR PROPERTY
DEVELOPMENT &
CONSTRUCTION CC                            FIRST RESPONDENT
E B SHELF INVESTMENTS NUMBER
SIXTY TWO (PTY) LTD                        SECOND RESPONDENT
NEDBANK LIMITED                            THIRD RESPONDENT
SASOL OIL (PTY) LTD                                 FOURTH RESPONDENT
THE DIRECTOR-GENERAL,
ENVIRONMENTAL MANAGEMENT,
DEPARTMENT OF AGRICULTURE,
CONSERVATION AND ENVIRONMENT,
MPUMALANGA PROVINCE                        FIFTH RESPONDENT
THE MEMBER OF THE EXECUTIVE
COUNCIL OF THE DEPARTMENT OF
AGRICULTURE, CONSERVATION
AND ENVIRONMENT,                                    SIXTH RESPONDENT
THE MINISTER OF MINERALS
AND ENERGY AFFAIRS                         SEVENTH RESPONDENT
THE MBOMBELA LOCAL
MUNICIPALITY                                         EITH RESPONDENT

JUDGMENT

PATEL, J

The five applicants are petrol service stations in White River. They are seeking the following relief:

“1. That this application be treated as one of urgency and that the normal rules relating to time periods be dispensed with in terms of the provisions of rule 6(12) of the Uniform Rules.

2.

Alternatively to prayer 1, and in the event of the above Honourable Court not disposing of the whole of the application on an urgent basis, that the following order be granted:

2.1

That an order be issued whereby it is ordered pending finalisation of this application in the normal course, that first and/or second and/or fourth respondents are interdicted and prevented from continuing with any development work on the property known as portion 2 of holding 85 of White River Agricultural Holdings X1, White River, Mpumalanga.

2.2

That first and/or second and/or fourth respondents are interdicted and prevented from doing any further work to develop a petrol filling station and convenience store on the aforementioned immovable property.

That a declaratory order be issued whereby it is declared that the record of decision issued by the sixth respondent on 12 July 2001 has expired and/or has been repealed and is therefore no longer of any force or effect.

Alternatively to prayer 3 that a declaratory order be made that the record of decision issued by the sixth respondent on 12 July 2001 is null and void and of no force and effect.

That an interdict be granted whereby first and/or second and/or fourth respondents are interdicted and prohibited from proceeding with any development or the taking of any steps to develop a petrol filling station on the property known as Portion 2 of Holding 85 of White River Agricultural Holdings X1, White River, Mpumalanga.

That an interdict be granted whereby first and/or second and/or fourth respondents are interdicted and prevented from doing any earthworks and/or any excavations on the aforesaid property in order to erect a petrol filling station on the property.

That second and fourth respondents be ordered to pay the costs of this application but should any of the other respondents oppose this application that such respondent and/or respondents be ordered to pay the costs of this application jointly and severally with the second and fourth respondents the one paying the other to be absolved.

Further and/or alternative relief.”

The application is opposed by the second respondent, EB Shelf Investments Number Sixty Two (Proprietary) Limited and the fourth respondent, Sasol Oil (Proprietary) Limited. They are referred to as the respondents.

On 25 February 2004 the applicants launched this proceeding in the normal course. Subsequently, they proceeded with the matter on an urgent basis and set it down for hearing on 30 March 2004 in the urgent Court. I read the papers and was of the view that the matter was of some importance to the parties, therefore, I was amenable to hear the matter in the urgent Court. It was simply to accommodate the parties without forming a prima facie view whether or not the matter was urgent. In accommodating the parties the issue of urgency remained contested by respondent.

The nub of the applicants’ contention for the urgency is that the second and fourth respondents are continuing with the development of a petrol filling station, and if the application is to be heard in the normal course then the petrol station would be completed and become operative, concomitantly the applicants would not receive proper redress in due course.

On 28 January 2004 the applicant’s attorneys wrote to the second respondent threatening legal proceedings unless they received confirmation of cessation of building operations by 2 February. Subsequently, the applicants sought certain undertakings that building operation would cease. The respondents declined to give such undertakings. They continued with the development since they enjoyed written authorisation to lawfully develop the site. The authorisation was granted in terms of section 22(3) of the Environment Conservation Act 73 of 1989 (ECA).

The respondents contended that the applicants expressly disavowed urgency when the application was initially launched in the normal course. In the applicants supplementary affidavit they asserted that they had to convert the application into an urgent one because of the respondents’ failure to cease building operations. The applicants were aware of the respondents’ stance since February and that was before launching the application. Nothing had changed in the respondents’ attitude. The applicants converted the application into an urgent one on the pretext that they did not anticipate that the development of the petrol station and convenience store would be completed prior to the hearing of this application. The fact that the applicants were aware that building operations were in progress and that the respondents were not acceding to their demands since February were certainly not compelling reasons to transform an ordinary application into an urgent one. However, if any urgency that may have existed was rendered ineffective by the applicants’ own making. Even though my hearing this matter in the urgent Court does not lead to a finding that the application was indeed urgent. In the circumstances, I find that the applicants failed to make out a case for urgency and that is sufficient reason for striking the matter from the roll. However, there are other reasons why this application stands to be dismissed on the merits.

I now turn to consider the pertinent aspects of the merits of the application. The first question is: have the respondents acted unlawfully in their persistence to develop the site? My starting point is to allude to the relevant statute. The preamble of the Environment Conservation Act states that it is “to provide for the effective protection and controlled utilisation of the environment and for matters incidental thereto”. Part 4 of the ECA, comprises of sections 21, 22 and 23. It is headed “control of activities which may have detrimental effect on the environment.” Section 21(1) empowers the Minister of Environmental Affairs and Tourism by notice in the Government Gazette, to “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”.

On 5 September 1997 the Minister issued Government Notice R1182. It identified certain activities, in Schedule 1 to the Government Notice which may have a substantial detrimental effect on the environment. Section 1(c) of the Schedule stipulates the activity to be “the construction or upgrading of … manufacturing, storage, handling or processing facilities for any substance which is dangerous or hazardous and is controlled by national legislation”. It is characterised as “the listed activity”. This activity is the construction or upgrading of certain facilities, namely those for manufacturing, storage, handling or processing of any dangerous or hazardous substance. The respondents accepted that the development of the filling station entailed the construction of certain storage and handling facilities for fuel and it is a dangerous or hazardous substance for purposes of the Government Notice. Section 22(1) prohibits any person from undertaking or causing to be undertaken any activity identified in terms of section 21(1) except by virtue of a written authorisation issued by the Minister or other designated authority. And section 22(3) provides that the Minister or other designated authority may at his/her or its discretion refuse or grant the authorisation for the proposed activity on such conditions, if any, as he/she or it may deem necessary.

Suffice to indicate that the listed activity in respect of which authorisation may be refused or granted was considered by Willis J in Sasol Oil (Pty) Ltd and Another v Metcalf NO 2004 (5) SA 161 (W) and by Classen J in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 123 (W). In my view both these cases do not have any bearing upon this present application. They are factually distinguishable from the present matter. However, the Sasol case is authority for the proposition that the authority vested in the decision-maker is intrinsically related environment as opposed to any consideration of trade competition. In principle a commercial entity or consortium that attempts to frustrate a rival’s lawful endeavour to conduct business ought not to be able to promote its trade interests on the back of environmental considerations, particularly where it fails to show that issues catered for by the ECA and its regulations may be affected by economic activities. This principle is certainly not compromised by the BP case, supra. Both the Sasol and BP cases (supra) have no bearing upon the present matter.

It is common cause that on or about 12 July 2001 the respondents were granted written authorisation to undertake the listed activity. It is not disputed by the applicants that the authorisation afforded the respondents a period of two years within which to commence as opposed to complete the building operations.

During June 2003 the second respondent sought an extension of the period of authorisation to undertake the listed activity. The authorised official, Mr Batchelor considered the merits of the matter and was of the view that the factors which motivated the original authorisation were still applicable and that there was no environmental reason why the extension of the period should not be granted. On 9 July 2003 he decided to grant a six-months extension of the period. The written authorisation for the undertaking of the listed activity was granted on 16 July 2003. The applicants did not seek either to have the granting of authorisation reviewed or have it set aside. The applicants were complacent in not challenging the lawfulness of the authorisation by way of review application. Thus, the authorisation remained intact and continued to be valid. Under the circumstances, the applicants failed to persuade me that the respondents acted unlawfully. In the absence of any unlawfulness on the respondents’ part, the applicants failed to make out a persuasive case to disturb the authorisation that was granted to the respondents by the relevant authority and subsequently extended by an authorised official. Therefore, I find that the respondents did not act unlawfully in developing the site since they were lawfully authorised to do so. Hence the application stands to be dismissed.

The next question for consideration is, did the applicants have locus standi to bring these proceedings. Mr Bham contended on behalf of the respondents that the applicants do not have locus standi. It is for the applicant to demonstrate their interest to enforce compliance with the provisions of the ECA. The grounds upon which they assert a direct and substantial interest to prevent the respondents from continuing with the development are that the proposed development is taking place along the R40 route and that they, the applicants have filling stations along or in the trinity of that route. However, if the development is allowed then it will have a direct and substantial impact upon the sales of the applicants. I am of the view that a party may not rely upon the provisions of the ECA or the Government Notice to prevent the respondents from developing the site. The scope of the listed activity is narrower than that. In any event the applicants do not indicate that they have an interest of an environmental nature that needs to be protected. They are in essence seeking to protect their commercial interest. Therefore, I am of the further view that the applicants’ reliance upon the constitutional provisions is indeed misplaced since there is nothing in their papers to indicate that their complaint is the violation of their constitutional right to a clean environment. Therefore, I find that the applicants have failed to show that they have the requisite locus standi by virtue of the ECA to pursue the relief they claim in these proceedings. This is a further reason for dismissing the application.

A further consideration is that the applicants seek a declaratory order and consequent on it an interdict. This raises the pertinent question, is the interdictory relief sought by the applicant competent. The respondents acted in developing the site in accordance with the written authorisation by an authorised official. Although the applicants may consider the extension of the time period of the authorisation to be invalid, but they have not sought to have the administrative decision reviewed and set aside. Their failure to do so is that the decision stands and that the respondents are within their lawful right to act in terms of it. Under the circumstances, the applicants surely cannot succeed in securing the interdictory relief. Consequently, the declaratory relief that the applicant seeks is of no more than academic significance and the Court will not issue a declaratory in such circumstances.

There is another reason why declaratory relief is incompetent. There is no longer distinction between the common law judicial review and constitutional control of administrative action. (Pharmaceutical Manufacturers Association of South Africa V President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) at para [33]); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA 490 (CC) at para [22]. The Court’s power is derived from the Constitution and Promotion of the Administrative Justice Act 2 of 2000 (“PAJA”) both of which gives effect to the right to administrative justice. (See: Section 33 of the Constitution). PAJA makes provision for declaratory relief within the context of a review application. It contemplates no independent entitlement to seek declaratory relief in respect of administrative decisions. Since the applicants failed to seek the review of an administrative decision, therefore they are not entitled to the declaratory relief.

Since this application stands to be dismissed, I am of the view that it is not necessary for me to consider whether or not the administrative decision stands until set aside on review or whether it was necessary for the applicants to have exhausted internal remedies and whether the relief sought by the applicant is overboard.

Finally on the issue of costs, Mr Bham, for the respondents, submitted that if the respondents are successful then their costs should include the costs of two counsel. The basis for seeking such cost is that the respondents were entitled to engage two counsel because the work had to be done at short notice and affidavits had to be prepared. These are certainly not cogent reasons to justify the granting of costs for two counsel. Further, counsel submitted that the issues were not straightforward since there were some difficult legal concepts involved in the matter. I am not persuaded. However, taking into consideration that there was some novelty in the matter but it was certainly not too complex a matter that a competent junior counsel could not have handled without assistance and undue stress (see: Ally and Others v Taxing Master and Others 1954 (3) SA 728 (W) at 733S/H.) In the circumstances, I am of the considered view that it was not necessary for the applicants to have briefed two junior counsel. Therefore, in exercising my discretion I decline to award the costs of two counsel.

In the result, the application is dismissed with costs, such costs does not include the costs of the second counsel.

E M PATEL

JUDGE OF THE HIGH COURT

FOR THE APPLICANTS: ADV M C ERASMUS
INSTRUCTED BY: SWANEPOEL PARTNERS
FOR THE SECOND AND
FOURTH RESPONDENTS: ADV A E BHAM AND ADV R M PEARSE
INSTRUCTED BY: MALULEKE, MSIMANG & ASS
FOR THE FIRST AND THIRD

RESPONDENTS: NO APPEARANCE
DATE OF JUDGMENT: 15 FEBRUARY 2005
HEARD ON: 30 MARCH 2004