FUEL RETAILERS ASSOCIATION OF DIRECTOR …

1 CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 67/06 [2007] ZACC 13 FUEL RETAILERS ASSOCIATION OF SOUTHERN AFRICA Applicant versus DIRECTOR -GENERAL ENVIRONMENTAL MANAGEMENT, DEPARTMENT OF AGRICULTURE, conservation AND ENVIRONMENT, MPUMALANGA PROVINCE First Respondent MEC DEPARTMENT OF AGRICULTURE, conservation AND ENVIRONMENT, MPUMALANGA PROVINCE Second Respondent DEPARTMENT OF AGRICULTURE, conservation AND ENVIRONMENT, MPUMALANGA PROVINCE Third Respondent MINISTER OF WATER AFFAIRS AND FORESTRY Fourth Respondent REGIONAL DIRECTOR .

2 DEPARTMENT OF WATER AFFAIRS AND FORESTRY Fifth Respondent MEC DEPARTMENT OF TRANSPORT AND PUBLIC WORKS, MPUMALANGA PROVINCE Sixth Respondent MBOMBELA LOCAL MUNICIPALITY Seventh Respondent SOPHIA LEKEISANG INAMA NO Eighth Respondent MATEBOGO MARIA INAMA NO Ninth Respondent PODUDU OWEN INAMA NO Tenth

3 Respondent ARCHIBALD INAMA NO Eleventh Respondent LOWVELD MOTORS (PTY) LTD Twelfth Respondent Heard on : 6 March 2007 Decided on : 7 June 2007 JUDGMENT NGCOBO J: Introduction [1] This application for leave to appeal against the decision of the Supreme Court of Appeal concerns the nature and scope of the obligations of environmental authorities when they make decisions that may have a substantial detrimental impact on the In particular, it concerns the interaction between social and economic development and the protection of the environment.

4 It arises out of a decision by the Department of Agriculture, conservation and Environment, Mpumalanga province (the Department), the third respondent, to grant the Inama Family Trust (the Trust)2 authority in terms of section 22(1) of the Environment conservation Act, 1989 (ECA)3 to construct a filling station on a property in White River, Mpumalanga (the property). [2] Section 22(1) of ECA forbids any person from undertaking an activity that has been identified in terms of section 21(1) as one that may have a substantial detrimental 1 The decision of the Supreme Court of Appeal is reported as Fuel RETAILERS ASSOCIATION of SA (Pty) Ltd v DIRECTOR -General, Environmental Management, Mpumalanga, and Others 2007 (2) SA 163 (SCA).

5 2 The Trust was represented in the proceedings by its trustees who are the eighth to eleventh respondents. 3 Act 73 of 1989. 2 NGCOBO J impact on the environment without written authorisation by the competent It was not disputed that the MEC Agriculture, conservation and Environment, Mpumalanga, (the MEC) the second respondent, is the competent authority designated by the Before authorisation can be granted, a report concerning the impact of the proposed development on the environment must be furnished. The relevant authority has a discretion to grant or refuse such authorisation.

6 In granting it, the relevant authority may impose such conditions as may be necessary to ensure the protection of the environment. [3] Section 21(1) of ECA empowers the Minister of Environmental Affairs and Tourism (the Minister) to identify activities which in his or her opinion may have a substantial detrimental effect on the Subsection (2) sets out some of 4 Section 22 of ECA provides: (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 authorization issued by the Minister or by a competent authority or local authority or an officer, which competent authority, authority or officer shall be designated by the Minister by notice in the Gazette.

7 (2) The authorization 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. (3) The Minister or the competent authority, or a local authority or officer referred to in subsection (1), may at his or its discretion refuse or grant the authorization for the proposed activity or an alternative proposed activity on such conditions, if any, as he or it may deem necessary.

8 (4) If a condition imposed in terms of subsection (3) is not being complied with, the Minister, any competent authority or any local authority or officer may withdraw the authorization in respect of which such condition was imposed, after at least 30 days written notice was given to the person concerned. 5 These proceedings were conducted on the footing that Dr Batchelor and Mr Hlatshwayo were duly designated by the Minister for the purposes of considering applications for authorisation in terms of section 22 (1). 6 Section 21 of ECA provides: (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.

9 3 NGCOBO J these activities and they include land use and In Schedule 1 of GN R1182, dated 5 September 1997, the Minister identified the activities that may have a substantial detrimental effect on the environment. These include the construction or upgrading of transportation routes and structures, and manufacturing, storage, handling or processing facilities for any substance which is dangerous or hazardous and is controlled by national legislation .8 It is common cause that the construction of a filling station falls within this category and thus requires the authorisation contemplated in section 22(1) of ECA.

10 [4] The decision to grant or refuse authorisation in terms of section 22(1) of ECA must be made in the light of the provisions of the National Environmental (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.