South Durban CEA v MEC for Economic Development, Tourism and Environmental Affairs: KZN

Conflating appeal and review and SCA stated that this ‘may well have been the kind of matter, where both decisions should have been challenged. That, in and of itself, ought to have led to the failure of the Alliance’s application before the court below. However, I make no firm finding in that regard and shall, in its favour, proceed to a consideration of the substantive merits of the application.’ [para 14]

‘The construction of what is described as ‘a logistics park’, located on the site of the old Clairwood Park Racecourse in the South Durban Industrial Basin(the Basin), has given rise to the present dispute. The logistics park comprises warehouses, vehicular parking and a distribution yard, to service heavy haulage vehicles transporting containers to and from the logistics park. The need for a logistics park in this location was said to arise from its proximity to the port of Durban and the fact that 70 to 80 per cent of all cargo that lands there, leaves the eThekwini Municipality.” [para 1]

Essence

Conflating appeal and review and according to SCA incorrect to dress up grounds of appeal as groups of review when MEC exercised an appellate power.

Decision

(SCA 231/19) [2020] ZASCA 39 (17 April 2020)

Order:

On appeal from: KwaZulu-Natal Division of the High Court, Durban (Vahed J, sitting as court of first instance):

Save for setting aside the order of costs of the court below, the appeal is dismissed.

Judges

PETSE DP and PONNAN, SWAIN, MAKGOKA and NICHOLLS JJA

Heard: 6 March 2020

Delivered: 17th day of April 2020

Reasons

“Central to the present appeal and the review of the appellate decision of the MEC, is the finding by the high court, that the main issue was whether the air quality in the vicinity of the proposed logistics park was likely to be significantly affected, by the proposed activity. In dismissing the application on its merits, the high court concluded that the Alliance had not put forward any evidence in support of its complaints and assertions, with regard to air quality. The four grounds raised all have as a common theme, that the high court in reaching this conclusion, failed to appreciate the correct facts. The Alliance submitted that the Department and the MEC also ignored facts which rendered their decisions unsustainable.

The conflation of grounds of review with grounds of appeal, gives rise to difficulties which are compounded by the inherent problems that may arise, in distinguishing between review and appeal proceedings. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA) para 31, this was said to be caused by the following factors:. . . . . [Paras 11 – 12]

Quotations from judgment

Note: Footnotes omitted and emphasis added

[insert]

Court summary

“National Environmental Management Act 107 of 1998 (NEMA) – s 24 – construction of logistics park – environmental authorisation granted by Department – s 43 of NEMA – unsuccessful appeal to MEC – unsuccessful review on facts of appellate decision of MEC – failure to demonstrate uncontentious and objectively verifiable facts resulting in a different decision – failure to seek review of decision of Department – conflation of grounds of review and appeal – appeal dismissed.”