Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Court: Durban and Coast Local Division
Case Number or  Citation: 1994 (3) SA 569 (D)
Date of judgement: 24 November 1993
Judge/s: Magid, J.
Type of application: Interdict
Legislation considered: Environment Conservation Act, 1989
Also known as:
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Headnote

The requirement, enacted in s 20(1) of the Environment Conservation Act 73 of 1989, of a permit issued by the Minister of Water Affairs to D ‘establish, provide or operate’ a waste disposal site is plainly couched in the most peremptory language. (At 573A.) The clear intention of the Legislature as expressed in s 20(1) of the Act cannot be overridden by the Minister’s failure, whether inadvertent or intentional, to make the appropriate regulations as intended in s 20(2) providing for a form of application for such permit and the prescribed information required. (At 573D/E-E.)

The Court accordingly held that the Minister’s failure to promulgate the E regulations foreshadowed in s 20(2) of the Act did not render lawful the conduct of the first respondent local authority in operating the waste disposal site (which the applicant sought to interdict) without a permit in terms of s 20(1) of the Act. (At 573G/H-H.)

It is clear from the language of the Environment Conservation Act 73 of 1989 that the Legislature intended the provisions of the Act to operate in the interests of the public at large. That being the case, an applicant seeking an interdict against the unlawful operation of a waste disposal F site without a permit issued in terms of s 20(1) of the Act is required to show that the contravention of the Act by the respondent has caused or was likely to cause him/her some special damage. (At 574C/D-E.)

The Court held on the facts that the applicant had not shown that she had suffered any special damage at all. (At 574I.)

The applicant also sought to establish her locus standi in judicio to apply for an interdict restraining the first respondent local authority from committing the illegality of operating the waste disposal site G without the aforementioned permit on the basis that she was a ratepayer of the first respondent and that in several reported cases the Courts had afforded ratepayers the right to interdict local authorities from dealing with their funds or property contrary to law. (At 575B.) The Court held that it did not consider that the mere fact that some municipal funds were obviously spent in managing and operating the waste disposal site in question could conceivably afford the applicant locus standi to interdict what she regarded as an illegality. The Court held that it had not been H established on the papers that the first respondent’s manner of operation of the waste disposal site was more expensive than any of the various methods suggested by the applicant. (At 575E/F-F/G.)

The manner in which the grant or refusal of an interim interdict would affect the immediate parties to the litigation is not the only matter relevant to a determination of the balance of convenience, which is relevant to the exercise by the Court of its discretion to grant or refuse I an interdict. Where, as in the present case, the wider general public is affected, the convenience of the public must be taken into account in any assessment of the balance of convenience. (At 576G/H-H/I.)