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South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government ZASCA 39 (17April 2020)

17 April 2020

Supreme Court of Appeal

While the application made by the South Durban Community Environmental Alliance for the review of an environmental authorisation was dismissed, this appeal judgment contains important dicta relating to cost orders against public-interest groups acting on behalf of the environment.

Coram: Petsa DP,  Ponnan, Swain, Makgoka and Nicholls JJA

Majority Judgment on issue of Costs: Makgoka JA (Petse DP and Nicholls JA concurring)

Heard on: 6 March 2020

Judgment delivered on: 17 April 2020

Case Number:  231/2019

Neutral citation: South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government  [2020] ZASCA 39 (17 April 2020)

Download the judgment here.

Order: Appeal dismissed but cost order of High Court set aside.

Facts: The second respondent, Capital Property Fund Lmited (Capital) wished to construct a logistics park near the Durban port. It applied for and received environmental authorisation under the National Environmental Management Act (NEMA) from the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs (the Department).

The appellant, the South Durban Community Environmental Alliance (the Alliance) opposed the project and appealed the environmental authorisation to the MEC arguing that the logistics park would produce vehicular emissions of disproportionate scale and the communities residing in its vicinity, which had a negative history of serious air pollution from heavy industry, were at high risk for exposure to significant levels of ambient air pollution. The MEC dismissed the Alliance’s appeal.

The Alliance applied to the High Court for a review of this decision in 2016. The High Court dismissed the application with costs in 2018 holding that the Alliance had failed to provide evidence supporting its contentions relating to air pollution.

The SCA also dismissed the Alliance’s appeal and criticised the Alliance for not applying for an interdict prior to construction of the logistics park commencing. While Swain and Ponnam JA wrote the main judgment dismissing the appeal, three appeal judges (Makgoka, Nicholls and Petse) disagreed with the main judgment on the issue of a costs order against the Alliance (but agreed with the reasons for the dismissal of the appeal).

In his majority judgment on the issue of costs, Makgoka JA held as follows:

“[74] The chilling effect which a costs order in the circumstances of this case will have on environmental non-governmental organisations, is manifest. The failure by the appellant to interdict the works at the outset, could be attributable to a number of factors. Because this was never pertinently raised as a discrete issue in the papers, the appellant has never had an opportunity to meaningfully explain it. In Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and Others 2002 (1) SA 478 (C) at 484G Davis J pointed to the difficulties which non-governmental organisations have to confront in order to litigate, particularly in that many of them possess limited means.”