10 September 2021
Judgment available here.
Court: High Court, Gauteng Division, Pretoria.
Neutral citation: Federation of South African Fly Fisheries v Minister of Environmental Affairs (62486/2018)  ZAGPPHC 575 (10 September 2021)
Coram: A Vorster AJ
Heard: 21 May 2021
Judgment delivered: 10 September 2021
Outcome: Draft Alien and Invasive Regulations and Notices published under the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) declared invalid:
- Draft Alien and Invasive Species Regulations in GGN 41445 in GN 112 (16 February 2018) declared invalid and of no force or effect.
- Draft amendments to the Alien and Invasive Species List in GGN 41445 in GN 115 (16 February 2018) declared invalid and of no force or effect.
The Applicant, the Federation of South African Fly Fisheries (FOSAF), applied to court for a declaration of invalidity relating to the Minister’s publication of Alien and Invasive Species legislation due to the Minister’s failure to comply with public participation requirements mandated under sections 99 and 100 of NEMBA. This section requires mandatory procedures (such as the publication of notices in national newsletters and government gazettes containing certain information and providing adequate opportunity for interested and affected parties to submit comments) which FOSAF argued had not been complied with by the Minister.
Vorster J agreed with FOSAF that the Minister had failed to publish the required content when publishing the Notices which invited comment. In particular, no rationale behind the draft Regulations or Listing Notice was provided by the Minister, and this meant that interested parties were not able to submit meaningful representations.
Because of this failure, the court declared the draft Regulations and Listing Notice invalid.
The judge held that “Public participation in democratic processes is not the exclusive preserve of educated members of society who can read English, or the privileged few who have access to the internet. Participative democracy is one of the foundational values of the Constitution and everyone should be encouraged and enabled to participate. Section 100 gives effect to the notion of participative democracy and should be interpreted in a manner which is consistent with the notion.
The notices published by the Minister paid lip service to the notion and did not comply with the content requirements of section 100. The notices are therefore invalid and without any force or effect.”
Note that the current Alien and Invasive Species Regulations and Alien and Invasive Species List which were published in 2020, subsequent to the litigation, remain in force – with the commencement relating to brown trout and rainbow trout extended until further notice.