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Zukulu v Minister of Water and Environmental Affairs and others

18 October 2017

High Court of the Republic of South Africa, Gauteng Division, Pretoria 

Case No. 18553/12

Date: 18 October 2017

Judge: Tuchten J

This matter concerns the locus standi of an activist opposing the proposed N2 toll road through the Wild Coast. Mr Zukulu brought an application to the High Court for an order reviewing and setting aside the decision of the Department of Environmental Affairs to grant environmental authorisation of the toll road and the decision of the Minister of Environmental Affairs to dismiss the appeal against that decision, which was brought by the Baleni community. Mr Zukulu is part of the Baleni community. However, after launching the review application, the Baleni community decided to withdraw from the application.

The respondents contended that the applicant had not exhausted all of his internal remedies before approaching court and that he was therefpre precluded in terms of section 7(2) of the Promotion of Administrative Justice Act, 2000 from continuing with the review application. They alleged that, because Mr Zukulu was not one of the appellants in the appeal, he had to submit and wait for the outcome an internal appeal in terms of the National Environmental Management Act, 1998 (NEMA) before he could approach court.

The Court held that Mr Zukulu had indeed exhausted his internal remedies as he appealed in “his capacity” as a member of the Baleni community and was therefore personally a party to the appeal. The Court also found that, even if it was wrong on that point, the exceptional circumstances of the community withdrawing from the application, justified a departure from the requirement to exhaust internal remedies.

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Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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