PDF CASE NO. 5261/96 - ConCourt

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION) PRETORIA

1997-05-06 P * « —

CASE NO. 5 2 6 1 / 9 6

I

E VVHiCH>YHR iS NOT APPLICABLE

In the matter between:

HEKPQORT ENVIRONMENTAL PRESERVATION SOCIETY

versus

MINISTER OF LAND AFFAIRS

(10) Applicant

Respondent

J U D G M E N T ^{/ # * •}

PREISS J: The application before me is for a certificate in terms of rule 18 of the Constitutional Court Rules. A brief reference to the history of this matter is required.

The first applicant, the Hekpoort Environmental Preser- (20) vation Society, launched an application against a number of

respondents to interdict a threat to the environment. The respondents sought without opposition an order that this applicant furnish security for costs. Security for coats was not furnished and thereafter an order was made in this division that the applicant be barred from proceeding further with this application for an interdict unless and until such security was furnished. It was at that stage that an application was made to join Mr Willem Louw as a second applicant and the matter

came before me. By judgment on 25 November 1996 I came to the (30^

conclusion/

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5261/96 2 JUDGMENT conclusion that Mr Willem Louw had no interest whatsoever in the matter and had been joined solely in order to circumvent the bar which operated against the first applicant. Leave to appeal against that judgment was sought by both applicants and was refused.

The present application for a certificate in terms of rule 18 of the Constitutional Court Rules is another step taken by the applicants in order to get this matter somehow or other before a court.

Mr Bean has referred me to Section 38 of the New Consti- (io) tution, namely the Bill of Rights, in which the rights of

members of the public to intervene and pursue applications on behalf of others is enshrined. Mr van Wyk on behalf of the fourth respondent has indicated that these proceedings were pending at the time that the New Constitution came into effect and that I should have regard to the previous constitution, the Interim Constitution, and in particular to Section 7(4)(b) of that latter constitution.

Whatever the situation, the two Sections 7(4)(b) of the

Interim Constitution and Section 38 of the Bill of Rights are (20) in virtually identical terms. I have to be satisfied that Mr

Willem Louw is entitled to act in his own interest or on behalf of another person who cannot act in his own name or as a member of a group or class of persons interested in the outcome of the matter or that he is acting in the public interest.

The first matter which occurs to me is that what we are here considering is an interlocutory matter. It is not an issue that will eventually determine the outcome of this matter which is for an interdict against the respondents who are alleged to be polluting the environment. -In .terms of

well-known/.

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well-known Constitutional Court judgments a matter can only be referred to the Constitutional Court if it is decisive of the issue between the parties and in my view it is not decisive of the issue. The merits of the application for an interdict have not yet been considered because of the barring of the first a-oplicant and the disqualification of the second applicant.

I held in my judgment of November 199 6 chat the second applicant had merely been joined in order to overcome the bar as against the first applicant and although I did not state so

in express terms it was implicit in my judgment that this would (io) have amounted in an abuse of the process of court.

I must now consider whether the application for a certificate in terms of 18 (e) is part of this deliberate conduct. The first requirement for a certificate is that the constitutional issue is one of substance on which a ruling by the court is desirable. I have already said that it is not decisive of the issue. I do not believe that it is one of substance on which a ruling by the Constitutional Court is desirable. The Consti- tutional Court is not there to give opinions to persons in

respect of applications in this court where finality has not (20) yet been reached. It is not decisive of the issue nor is it

one of substance.

Mr Bean of behalf of the applicant has earnestly argued that the second applicant will in due course be required to furnish security for costs and that is a matter of constitutional significance. The answer in short is that although such an application has been threatened it forms no part of my judgment in November 1996 and is as yet an undetermined issue.

The second requirement for a certificate in terms of rule 18(e) is that the evidence in the proceedings is sufficient

enable/...

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5261/96 4 JUDGMENT enable the court to deal with and dispose of the matter without having to refer the case back to the division concerned for further evidence.

In che light by the finding of this court and in the ab- sence of a replying affidavit on behalf of the second applicant the evidence in the proceedings is insufficient to enable the Constitutional Court to deal with and dispose of this matter.

The evidence before the Constitutional Court is one in which the second applicant has been barred by the reason of the fact

that this court found affirmatively that he had no interest (10) whatsoever in these proceedings and that the joinder was merely

a stratagem in order to give the first applicant the right to be heard despite the bar which was imposed upon it.

The third requirement is that there is a reasonable prospect that the Constitutional Court will reverse or materially alter the decision by the division concerned. In my view there is no such reasonable prospect. If the applicant failed to controvert the clear allegations in the answering affidavit that Mr Willem Louw had no interest in the matter whatsoever

the Constitutional Court in my view cannot manufacture evidence (20) to show that he has an interest.

In all these circumstances I am not prepared to certify that any of the requirements of Rule 18 (e) (1) , (2) and (3) have been satisfied. In this case I accordingly certify that the requirements have not been satisfied.

I have emphasised in a number of judgments that this is an important matter from an environmental point of view but I cannot: override rules of court in order to place this matter in issue. I am comforted by the assurance given to me by Mr Bean that my refusal to certify is not necessarily the end

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the road and that the Constitutional Court may be approached directly in order to grant relief.

Accordingly I am left with my conclusion that the requirements of Rule 18 (e) (1) , (2) and (3) have not been satisfied £or

the purposes of a referral to the Constitutional Court.

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3 3 - J U N - 1 9 9 7 1 1 = 2 8

403 6520

THE CONSTITUTIONAL COURT 403 6520 P.01

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T H E CONSTITUTIONAL COURT

CCT 12/97

FAX NO. 011-781-0809 Weber Els Incorporated 298 Jules Street

Jeppestown

JOHANNESBURG 0002

PAGES: TWO

Dear Mr Bean

HEKPOORT ENVIRONMENTAL PRESERVATION SOCIETY

LOUWWILLEM

and

THE MINISTER OF LAND AFFAIRS

THE MINISTER OF DEVELOPMENT PLANNING, ENVIRONMENT AND WORKS FOR THE PROVIN- CIAL GOVERNMENT OF GAUTENG

THE MINISTER OF WATER AFFAIRS AND FORESTRY HEKPOORT FOODS CC

1st Appellant 2nd Appellant

1st Respondent

2nd Respondent 3rd Respondent 4th Respondent

APPLICATION IN TERMS OF RULE 18<f) OF THE CONSTITUTIONAL COURT RULES

Please find attached the judgment of the Constitutional Court in the above-mentioned matter.

DU FLESSIS

URECTOR: CONSTITUTIONAL COURT

BRAAMPARK FORUM II. 33 HOOFD STREET, BRAAMFONTEIN, JOHANNESBURG 2 0 1 7 PRIVATE BAG X 3Z, BRAAMFONTEIN 2017

TELEPHONE: (Oil) 403 - 8032, FACSIMILE: (Oil) 403 • 6524 E * MAIL: [email protected]

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ro/hekpoort

THE CONSTITUTIONAL COURT

CCT 12/97

HEKPOORT ENVIRONMENTAL PRESERVATION SOCIETY

LOUW WILLEM and

THE MINISTER OF LAND AFFAIRS

THE MINISTER OF DEVELOPMENT PLANNING, ENVIRONMENT AND WORKS FOR THE PROVIN- CIAL GOVERNMENT OF GAUTENG

THE MINISTER OF WATER AFFAIRS AND FORESTRY HEKPOORT FOODS CC

1st Appellant

2nd Appellant

1st Respondent

2nd Respondent 3rd Respondent 4th Respondent

COURT ORDER

The Justices of the Constitutional Court made the following ruling:

I ^ K J L

C~

II

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"Application for leave to appeal refused." / ^ £ (^ \\u \ }&4

M S STANDER

REGISTRAR: CONSTITUTIONAL COURT 3 June 1997

PRtVAATSA»CPRJVATE SAG X32

1997 -06- 0 3

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BRAAMPARK FORUM H, 33 HOOFD STREET, BRAAMFONTEIN. JOHANNESBIURG 2017 PRIVATE BAG X 32, BRAAMFONTEIN 2017

JTJJ9L-R..02.