2 Interdict Requirements for Final Interdict Set Out

Thomas v Head of the Department of Agriculture, Conservation, Environment &Tourism, North West Province and others
[2008] 1 All SA 392 (T)

[1] Environmental law – Construction of petrol filling station – Where construction proceeded contrary to conditions imposed by provincial authority, such construction was unlawful.

[2] Interdict – Requirements for final interdict set out.

Editor’s Summary

The Court was faced with two applications. In the first application, the applicant sought an interdict preventing the third and fourth respondents from continuing with the construction of a petrol filling station on a certain site. In the second application, the applicant sought to prevent the same respondents from conducting business in all petroleum products pending the outcome of an application for a licence, and from competing unfairly with applicant.

The third and fourth respondents had applied for authorisation for the construction of a petrol filling station. The provincial department had granted authorisation subject to certain conditions. The applicant was served with an incomplete record of the latter decision, and was consequently not informed of its right to lodge an appeal. In opposing the application, the respondents’ counsel argued that the applicant lacked locus standi as it was only an owner of a licensed petrol station business in the relevant area who had locus standi to oppose the application for construction of a filling station, and to take the department’s authorisation on appeal.

Held – The Court began by setting out the relevant statutory provisions in the Environment Conservation Act 73 of 1989 and the National Environmental Management Act 107 of 1998. It also set out the applicable regulations promulgated under the former Act.

Turning to the applications, the Court pointed out that the conducting of a retail business for the sale of petroleum products, as well as all works and activities associated with that activity, constitute an activity identified in section 21 of the Environment Conservation Act as an activity which will probably have a detrimental effect on the environment.

On the issue of the applicant’s locus standi, the Court held that insofar as the second respondent lacked authority to sell petroleum products to the public, and in light of the environmental issues involved in the case, the applicant was an interested or affected party, and did have locus standi.

The Court found on the evidence before it that the relevant respondents were proceeding with the construction of the filling station, in conflict with the

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conditions imposed thereon. That rendered the applicant entitled to the relief sought in the first application.

In the second application, the applicant had to prove his entitlement to a permanent interdict. Setting out the well-established requirements for final interdicts, the Court found the applicant to have established those requirements, and the application succeeded.

For Environmental Law see:

· LAWSA Second Edition (Vol 9, paras 245–571)

· Jan Glazewski Environmental Law in South Africa Durban LexisNexis Butterworths 2005

For Interdict see:

· LAWSA First Reissue (Vol 11, paras 302–338)

· Jan Glazewski Environmental Law in South Africa Durban LexisNexis Butterworths 2005

Cases referred to in judgment

Page 394 of [2008] 1 All SA 392 (T)

Judgment

VISSER AJ:

The applications:

[1]

There are two interrelated applications before me, namely an application under case number 27858/2006 (the “first application”) and an application under case number 36972/2006 (the “second application”).

[2]

The first application relates to environmental issues and alleged contraventions of the Environment Conservation Act 73 of 1989 and associated legislation, while the second application deals with the Petroleum Products Act 120 of 1977 and associated legislation.

[3]

Most of the facts required to be determined in the first application are also relevant to the determination of the second application, and vice versa.

The parties:

[4]

Mr De Gouveia is cited as being the only member of Euronooi Petrol Station Close Corporation, and being the only, or one of two, members of Euronooi Properties Close Corporation.

[5]

In each of the two applications, Mr Du Plessis SC, assisted by Mr Rip, appeared for the applicant, MJ Thomas, trading as Elandskraal Garage, and Mr Segal appeared for Mr De Gouveia, Euronooi Petrol Station and Euronooi Properties. In order to avoid confusion, I shall refer to these three respondents by name, and collectively as “the first three respondents” in the second application and to Mr De Gouveia and Euronooi Properties as “the third and the fourth respondents” in the first application. The other respondents in both applications indicated that they will abide by the decision of the Court. I shall refer to the applicant in both applications as “the applicant”.

[6]

It is necessary to deal immediately with the interest, citation and joinder of the various other respondents. It is relevant to mention that it was not disputed by or on behalf of any of the respondents in either application that the provincial authority was the authorised entity in respect of the administration of the Environment Conservation Act in respect of the activities in question. However, I nevertheless considered it to be my duty to investigate the question lest orders were made against incorrect respondents, or there should be a non-joinder. In particular, I was concerned whether the National Minister, as head of the National Department of Agriculture Conservation Environment and Tourism, (“the National Department”) ought not to have been joined as a respondent in the first application. This concern arose after the matter had been argued in court, judgment was reserved and I was in the

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process of studying the papers, the heads of argument of counsel and my notes, writing my judgment. As a result, I addressed a written request to both counsel to make submissions if they so wished, in respect of the issue. I also could not find any note in which the question of the costs of two counsel for the applicant was addressed. There was a last aspect which concerned me. That concerned the fact that Mr Du Plessis referred in his written heads of argument to the “fifth respondent” in the first application. It appeared to me that such reference should rather have been to the “second respondent”. I consequently included these issues as well in my written request to counsel. Having received written replies by counsel to my requests, I am now able to deal with the issue of possible non-joinder.

[7]

The Head of the Department of Agriculture Conservation Environment and Tourism, Northwest Province was cited as the first respondent and the MEC of that Department as the second respondent in the first application and as fifth and sixth respondents respectively in the second application. I shall refer to these two respondents collectively as “the Provincial Department”. The following is relevant to this Department:

7.1.

It appears from the papers in the two applications that a “Record of Decision” which is relevant to the present proceedings and to which I shall refer later, was amended by the Provincial Department. A directive to cease further construction and building operations was given in this communication. Two further directives, dated 11 May 2006 and 15 May 2006, were issued by the office of the MEC of the Provincial Department.

7.2.

If regard is had to the regulations regarding the identification of activities which may have a substantial detrimental effect on the environment, to which I shall also refer more fully later, it appears that the relevant delegated authority is defined as “The Minister, Provincial Authority or Local Authority contemplated in Regulation 4(2), 4(3) or 4(4) as the case may be”. Regulation 4(2) provides that an application in terms of the Environment Conservation Act must be submitted to the relevant provincial authority for consideration, except if it falls under sections 4(3) and 4(4). In this matter the application was submitted to the provincial authority. As was pointed out above, the provincial authority gave the Record of Decision. It also dealt with an appeal in respect of the Record of Decision in terms of Regulation 11 of R1183. It is to be observed that the National Minister was not involved in these proceedings at all.

7.3.

Mr Du Plessis submitted that for these reasons alone, it was unnecessary for the National Minister to be joined in the first application, because the relief there sought was only against the provincial authorities. The National Department therefore had, and still has, no interest in the relief sought in the first application.

7.4.

The Minister of Environmental Affairs and Tourism, National Government, was cited as the eleventh respondent in the second application. Section 22 of the Environment Conservation Act refers to the Minister, or a competent authority, or a local authority, or an officer with competent authority, which shall be designated by the

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Minister by notice in the Gazette. Section 21(3)(c) of the Act provides that the Minister may identify an activity after consultation with the competent authority of the province concerned.

7.5.

The regulations which make provision for the identification of the activities and procedures in respect thereof, namely Regulations in Government Notice R1182 and Government Notice R1183 refer to “competent authority” and “relevant authority”. The “relevant authority” is the authority defined in Regulation 1 of Government Notice R1183. The “competent authority” in terms of the definitions in the Environment Conservation Act means the competent authority to whom the administration of the Act, under sections 2, 3, 5 and 8 of the Constitution of the Republic of South Africa, 1996, had been assigned in a particular province. It was submitted by Mr Du Plessis that it was for this reason that the National Minister was not cited in the first application. It was further submitted by counsel that the National Minister, or his department, need not have been cited in any of the applications. Counsel submitted that the National Minister was cited in the second application simply because of the possible interest he may have had in respect of the matter. I have carefully considered the situation set out above and Mr Du Plessis’s arguments, and I conclude that his arguments are correct and should be upheld.

[8]

In the second application a ninth respondent, namely the “MEC of Minerals and Energy Department, Northwest Province” was cited. There is no such entity in existence. It was agreed at the hearing that, rather than striking out the references to this non-existing respondent wherever it appears on the papers in the second application, and thereby possibly creating confusion, those references shall be left as is.

[9]

For the sake of clarity, because of the different descriptions in the two applications to the same respondents, I shall refer to those respondents by name, unless they are referred to collectively, in which I event I shall refer to them as “the respondents”. Because of the long description of the Department of Agriculture, Conservation Environment and Tourism, Northwest Province, I shall, as indicated above, refer to that respondent as “the Provincial Department” and to the Head and the MEC of that Department by the same reference.

Amendment

[10]

At the inception of the hearing, an amendment to the notice of motion in the second application was applied for by Mr Du Plessis. I shall deal with the amended notice of motion when I deal with the second application.

[11]

In effect the amendment entailed an abandonment of some of the relief sought previously. Mr Segal objected to the amendment, arguing that the respondents for whom he appeared are prejudiced thereby. He could, however, at my request to do so, not advance any grounds for the alleged prejudice. In a brief ex tempore judgment, I concluded that the amendment should be granted and I so ordered.

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[12]

It needs to be stated in passing, that by the end of Mr Du Plessis’s argument, the amended notice of motion was further diluted by virtue thereof that prayer 2 was not proceeded with, and that prayer 3 (subject to the proviso that there is no ninth respondent) was only requested in the event of me not allowing prayer 1.

Application for postponement

[13]

Having granted the application for amendment, Mr Segal requested a postponement of the second application, alleging that there is a need for considering the implications of the amendment which I had granted. I invited Mr Segal to inform me why he would be unable to argue on the amended notice of motion, as it did away with previously existing issues and did not add any new issues. Upon reconsideration, Mr Segal informed me that he would be able to present his arguments under the regime of the amended notice of motion, but he nevertheless did not withdraw his application for a postponement. I consequently refused the application for postponement.

The first application

[14]

On 24 August 2006, the applicant issued an application out of this Court in which the following relief was prayed for in the notice of motion:

“1.

That an interim interdict be granted against the third and fourth respondents whereby:

1.1

Third and fourth respondents are prohibited from:

1.1.1

Continuing with the construction of the petrol filling station on the property situated at corner of Wilkenson and Condro Avenue, Mooinooi, Northwest Province;

1.1.2

Taking any further steps to construct a petrol filling station on the property situated at corner of Wilkenson and Condro Avenue, Mooinooi, Northwest Province;

1.1.3

Arranging for, accepting delivery of and/or storage of fuel (petrol, diesel, paraffin and the like) at the aforesaid property or do any [sic] or conduct business, including, but not limited to, the sale of fuel as set out hereinbefore, which may contravene the provisions of the Environment Conservation Act, 1989 (Act 73 of 1989) and/or the National Environmental Management Act, 1998 (Act 107 of 1998).

2.

The interdict is granted pending:

2.1

the finalisation of the Appeal in terms of Section 35 of the ECA in respect of the proposed filling station presently serving before the MEC;

2.2

the finalisation of the Department’s investigation into the actions pursuant to the third and/or fourth respondent’s non-compliance with the mandatory conditions of the Record of Decision issued herein and particularly condition 7.2.8 thereof; and/or

2.3

the upliftment or setting aside of the cease and desist directives issued to the third and/or fourth respondents in respect of the construction of the filling station in question.

2.3

That the third and fourth respondents be ordered to pay the costs of this application and in the event of any respondents opposing

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the application that such respondents be ordered to pay the costs jointly and severally with the third and fourth respondents, the one paying, the other to be absolved.

4.

Further and/or alternative relief.”

Statutory provisions

[15]

Whenever an applicant wishes to conduct an activity which would probably have a detrimental environmental effect, there are statutory and regulatory provisions which are to be complied with.

[16]

The Environment Conservation Act, 1989, provides in section 21:

“Identification of activities which will probably have detrimental effect on environment

(1)

The Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.

(2)

Activities which are identified in terms of subsection (1) may include any activity in any of the following categories, but are not limited thereto:

(a)

land use and transformation;

(b)

water use and disposal;

(c)

resource removal, including natural living resources;

(d)

resource renewal;

(e)

agricultural processes;

(f)

industrial processes;

(g)

transportation;

(h)

energy generation and distribution;

(i)

waste and sewage disposal;

(j)

chemical treatment;

(k)

recreation.

(3)

The Minister identifies an activity in terms of subsection (1) after consultation with–

(a)

the Minister of each department of State responsible for the execution, approval or control of such activity;

(b)

the Minister of State Expenditure; and

(c)

the competent authority of the province concerned.”

[17]

Section 22 of the Environment Conservation Act provides for the prohibition of undertaking of identified activities in the following terms:

“(1)

No person shall undertake an activity identified in terms of section 21(1) or cause such an activity to be undertaken except by virtue of a written authorisation issued by the Minister or by a competent authority or a local authority or an officer, which competent authority, local authority or officer shall be designated by the Minister by notice in the Gazette.

(2)

The authorisation referred to in subsection (1) shall only be issued after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment, which shall be compiled and submitted by such persons and in such manner as may be prescribed.