7. Ex post facto EIAs
7.7. Implications of the judgment
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owners in the area, who would be his competitors, are from advantaged backgrounds. As stated above, the MEC provided substantiated reasons for his decision. More importantly the MPA failed to present evidence to justify the remedy sought by it.
The court had also found that MPA has failed to show, at the most basic level, that it was entitled to the relief sought. Equally importantly, in considering the remedy of demolition, the image of working equipment, bulldozers, earth moving machines and the like, with concomitant pollution and the potential further harm on the environment cannot be ignored. Without further devastating effects of acceding to such remedy may be, it becomes even more problematic. This was an issue not addressed at all by the MPA.614
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suggested that ‘preferable would have been evidence that the decision-maker had indeed given consideration to all relevant NEMA principles and applied them to the particular matter; before concluding on reasonable grounds that the principles could be upheld’.616 The same reasoning could be applied in this matter. The principles of NEMA are intended to be applied where there is an apprehension that the action of an organ of the state “may”
significantly affect the environment. “May”, in this case, connotes that the action of the organ of the state precedes the authorisation to undertake the activity that may affect the environment.617
One of the principles of NEMA which was ignored in the present case was the one which requires that ‘the participation of all interested and affected parties in environmental governance must be promoted…’.618 The MPA, as an interested party in the matter, was not given the chance to present its view by the MEC. This is a contravention of the above principle. The other principles of NEMA also require ‘decisions to take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge including traditional and ordinary knowledge’.619
The ideal of sustainable development (which the MEC believed was adequately addressed) requires, amongst other things, that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied’.620 In the present matter it would have been appropriate for the decision-maker to have considered the option of preserving the MPE as a protected area with a view of preserving it to become a biosphere, untainted by unauthorised developments. NEMA also requires that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions’.621 Couzens and Dent write that ‘application of a risk-averse and cautious approach echoes the precautionary principle of international law … that where the scientific consequences of a development are
616 E Couzens and M Dent n 539 above at 16.
617 S 2(1).
618 S 2(4)(f).
619 S 2(4)(g).
620 S 2(4)(a)(ii).
621 S 2(4)(a)(vii).
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uncertain, the development ought not to proceed’.622 This principle cannot be observed where an activity proceeds before the magnitude of its impact on the environment is unknown.
7.7.2. Apprehension of bias
Despite the record of allegations contained in the minutes of the meeting between Ntemane and MEC, Navsa JA held that:
In my view, the minutes by themselves do not prove actual, or reasonably perceived, bias.
The words are at worst, unfortunate. The observation that Mr Ntemane would be destroyed by a demolition order is not irrelevant nor is it likely that the majority of hotel or guesthouse owners in the area, who would be his competitors, are from advantaged backgrounds. As stated above, the MEC provided substantiated reasons for his decisions. More importantly, the MPA failed to present evidence to justify the remedy sought by it.623
Instead of attacking the appellant association for being a ‘racist association’ because its members happened to be white, the MEC ought to have weighed the grounds for demolition of the lodge against the reasons for letting it remain. The reason for reaching either decision ought to have been premised in law, not on the background of the third respondent. He could have achieved this by paying due regard to the environmental concerns raised by MPA on one hand; and, on the other, the mitigatory measures and recommendations made on behalf of the third respondent, taking into account the provisions of NEMA to substantiate each view, this time referring directly to the relevant provisions of NEMA.
As a measure to deter prospective developers from proceeding with projects before authorisation from the competent authority as argued by the MPA, both the MEC and Courts ought to have sought a more justifiable and valid reason instead of condoning the respondent’s actions because the latter had pleaded ignorance. The third respondent ought to have given reasons why the lodge should not be demolished as opposed to the MPA’s call that the environment be preserved for its intrinsic value.
622 E Couzens and M Dent n 539 above at 18.
623 At para [60].
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7.8. National Environmental Management Amendment (NEMA) Laws Bill [B13-