Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the Supreme Court of Appeal is available here.

Neutral citation: The Black Eagle Project Roodekrans v The MEC: Department of Agriculture, Conservation and Environment, Gauteng Provincial Government and Others (Case No. 542/2019) [2021] ZASCA 84 (17 June 2021)

Coram: Ponnan, Zondi and Schippers JJA and Carelse and Mabindla-Boqwana AJJA

Heard: 4 May 2021

Judgment delivered: 17 June 2021

Outcome: appeal dismissed

Summary:

This matter revolves around decisions made in 2007 in which the Black Eagle Project Roodekrans (the Applicant) challenged the decisions of the MEC for the Department of Agriculture, Environment and Conservation, Gauteng Provincial Government (MEC) to –

• dismiss its appeal to the MEC against the decision of the Gauteng Department of Agriculture, Conservation and Environment (Department) to grant a developer exemption from applying for environmental authorisation for changing land use from “agricultural or undetermined to any other land use” in terms of the Environment Conservation Act, 1989 (ECA); and
• uphold an appeal to the MEC brought by the developer against the decision of the Department to dismiss the developer’s application for an amendment of the exemption alluded to above.

High Court

The proposed development was to take place in the vicinity of the Walter Sisulu National Botanical Garden, which is the nesting site for a pair of black eagles. It is also located in the area between the Walter Sisulu National Botanical Garden and the Cradle of Humankind World Heritage Site which is a biodiversity corridor.

The High Court found for the MEC on the first point and for the Applicant on the second. The High Court was satisfied that the MEC’s to decision to dismiss the Applicant’s appeal was rational and reasonable under the circumstances. But since the MEC did not give reasons for overturning the Department’s decision to refuse the developer’s amendment application, it found that the MEC’s decision was irrational. In the High Court’s view, giving reasons for a decision is a requirement for passing the rationality test. In addition, no public participation was conducted in relation to the amendment application process.

As for costs, on the strength of the Biowatch principle, the High Court did not award costs against the Applicant even though it was partially unsuccessful. The Court awarded the Black Eagle Project half its costs for being partially successful in its application; those costs to be paid by the MEC.

Supreme Court of Appeal

Fourteen years after the decisions in question, the Black Eagle Project appealed both orders of the High Court to the SCA. The SCA dismissed the appeal for the following reasons:

• in its pleadings, the Applicant had not sought to review the original decision of the Head of Department (HoD) which was then appealed to the MEC; and
• the Applicant did not review the HoD’s decision within 180 days as required by section 7 of PAJA.

Because of this failure, the original decision of the HoD to grant planning permission was revived by the successful appeal to the MEC by the developer (see Wings Park v Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern Cape and Others).

The SCA dismissed the appeal and ordered that Black Eagle Project pay the costs of the Third Respondent (the developer) – but not the MEC’s costs as the MEC had not sought costs on appeal.