5. The extent to which the Courts may control the exercise of discretion
5.1. Introduction
5.1.2. Section 24, PAJA and the judgment in Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others458 It is fitting that this Chapter follows a discussion and analyses of the Fuel Retailers case, given that the case came before the courts as a result of an administrative decision to issue environmental authorisation made in terms of s 24(1) NEMA and ss 21, 22 and 26 of the ECA. Secondly, the Court in Fuel Retailers held that environmental authorities are under an obligation to consider the impact of activities on the socio-economic conditions.
Ngcobo J in the Fuel Retailers case noted ‘to underscore the importance of this of this requirement (that environmental authorities are under an obligation to consider the impact on socio-economic conditions), subsection 24(7) requires that any investigation must as a minimum investigate the potential impact, including the potential impact, cumulative effects of activity and its alternative to the environment, socio-economic conditions and cultural heritage, and the assessment of the significance of that potential impact. That was the law as it stood when the matter was heard.
5.2. Minimum procedures for the investigation, assessment and communication of potential impacts under NEMA and NEMA EIA Regulations
Mandatory minimum requirements under NEMA
The National Environmental Management Amendment Act(s)459 altered the minimum requirement for EIAs. The change removed the investigation of the potential impact, including cumulative effects of the activity on the socio-economic conditions and cultural heritage and assessment of the significance of that potential impact on the socio-economic conditions and cultural heritage. It is no longer a requirement under the Act that procedures
458 2007 (6) SA 4 (CC).
459 See s 24(3) of the National Environmental Management Amendment Act 8 of 2004 and the National Environmental Management Act 62 of 2008.
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for the investigation, assessment and communication of impacts include an investigation of the impact of activities on socio-economic conditions.
However, the following are the minimum requirements: investigation of the potential impacts of the activity and its alternatives on the environment, including the option of not implementing the activity; investigation of mitigation measures to keep adverse impacts to a minimum; assessment and investigation of the impact on any national estate; reporting on gaps in knowledge; monitoring and management of impacts; consideration of environmental attributes identified and adherence to the requirements of a specific environmental management Act relevant to the activity.460
The Promotion of Administrative Justice Act461 (PAJA) sets out grounds under which any person may institute proceedings in a court or Tribunal for the judicial review of an administrative action.462 A court or tribunal has the power judicially to review an administrative action if a mandatory and material procedure or condition prescribed by an empowering provision was not complied with.463 It is safe to deduce that if an environmental authority fails to ensure that an application supported by an environmental impact assessment report has complied with one or all of the mandatory requirements in s 24(4) of NEMA a court or tribunal has the power to review the action judicially.
The court or tribunal may grant any order that is justifiable, including an order directing the administrator to give reasons or to act in the manner the court or tribunal requires. It was pointed out by the court in Fuel Retailers that a decision by environmental authorities to grant authorisation under s 22 of the ECA and s 24 NEMA is administrative action within the meaning of PAJA.464 And the court found that the environmental authorities failed to comply with a mandatory material procedure and a material condition prescribed by the ECA and NEMA.465
A decision could also be reviewed if the decision-maker took into account irrelevant considerations or relevant considerations were not taken into account.466 It was contended in
460 S 24(4) of NEMAA 62 of 2008. However, I have raised concerns regarding the inserted subsection 24(4A) and the split of subsection 24(4) into two subsection 24(4)(a) and 24(4)(b).
461 Act 3 of 2000.
462 S 6(1) of PAJA.
463 S 6(2)(b)
464 See President of the Republic of South Africa v SARFU 1999 (10) BCLR 1059 (CC); 2001 (1) SA 1 (CC) para 141.
465 At 28; para [38].
466 S 6(2)(e)(iii).
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the Fuel Retailers case that in granting the environmental authorisation, the environmental authorities took into account irrelevant considerations and failed to consider relevant considerations.467
The court found that there was an overlap between the grounds and concluded that the main ground of attack was that the environmental authorities failed to consider the impact of the proposed filling station on socio-economic conditions, a matter which they were required to consider.468 The central question was therefore whether the environmental authorities failed to take into consideration matters that they were required to consider prior to granting the authorisation under s 22(1) of the ECA.
Another ground for review would arise if the action taken contravenes a law or is not authorised by the empowering provision or it is not rationally connected to the purpose for which it was taken; it does not connect to the purpose of the empowering provision; it does not connect to the information before the administrator; or the reasons given for it by the administrator.
After the consideration of all the relevant facts in the matter, Ngcobo J reached the following conclusion:
It is clear that the decision of environmental authorities is flawed and falls to be set aside as they misconstrued the obligations imposed on them by NEMA. In all circumstances, the decision by the environmental authorities to grant authorisation for the construction of the filling station under s 22(1) of the ECA cannot stand and falls to be reviewed and set aside.
It follows that the Supreme Court of Appeal erred, the High Court in dismissing the application for review and the Supreme Court of Appeal in upholding the decision of the High Court.
Reference to the Fuel Retailers case illustrates the point that any action that does not take into account the mandatory requirements under s 24(4) of NEMA could be reviewed under PAJA.
467 At 20; para [38].
468 At 20; para [39].
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