IN THE CONSTITUTIO
1997 -07- 2 5
In the matter between
BRAAMFONTE1N2017
HEKPOORT ENVIRON^
LOUW WILLEM and
THE MINISTER OF LAND AFFAIRS
THE MINISTER OF DEVELOPMENT PLANNING, ENVIRONMENT & WORKS FOR THE PROVINCIAL GOVERNMENT OF GAUTENG
THE MINISTER OF WATER AFFAIRS & FORESTRY HEKPOORT FOODS CC
ETY 1st Applicant
2nd Applicant
1st Respondent
2nd Respondent 3rd Respondent 4th Respondent
APPLICATION IN TERMS OF RULE 17 FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT
KINDLY TAKE NOTICE THAT First and Second Applicant hereby apply to the abovenamed Honourable Court for Application for Direct Access in order to hear the substantive issues of Case No. 5261/96 (hereinafter "the TPD action") currently before the Supreme Court of South Africa (Transvaal Provincial Division), Pretoria, between the same parties as are referred to supra.
KINDLY TAKE NOTICE FURTHER that the grounds of the Application for Direct Access are based upon the exceptional circumstances of the current case namely :
1 The matter concerns environmental pollution and is of such urgency that the delay necessitated by the use of the ordinary procedures would prejudice :
230797
HEKR'17\CHRIS Page 2 1.1 the public interests;
1.2 the ends of justice; and
1.3 good government.
TAKE NOTICE FURTHER that it is contended by Applicants that the Respondents have effectively prejudiced the ends of justice by delaying and avoiding a hearing on the substantial issues of the abovenamed case for close on one and a half years and further that the Respondents will continue to do so. Consequently Application for Direct Access to the Constitutional Court is made, inter alia, on the grounds that the TPD action will
• never be concluded if the Applicants are compelled to resume litigation in the TPD. In light of the fact that the above action relates to an environmental rnatter where the primary I allegation is one of irreversible pollution to underground water, it is contended that such
further delays will irrevocably damage the environment and thereby prevent the Constitutional Court from being able to be in a position to exercise justice and equity in the interests of preservation of the environment for the current community and for posterity.
TAKE NOTICE FURTHER that the Constitutional issues with which the abovenamed Honourable Court is required to decide on relate to Sections 24, 32, 33, 34 and 38 of the Constitution of the Republic of South Africa, Act No. 108 of 1996 and the appropriate prior Sections of the Constitution of the Republic of South Africa No. 200 of 1993.
TAKE NOTICE FURTHER that the Affidavit of CHRISTOPHER MARK BEAN will be used in support hereof.
CB/JB 230797
HEKR"I7\CHR!S
DATED at JOHANNESBURG on this the 23rd day of JULY 1997.
Page 3
WEBER ELS INCORPORATED Attorney for Applicants Unit 3 Tulbagh
360 Oak Avenue RANDBURG TEL : 781-0804
REF : MR C M BEAN/JB TO :
THE REGISTRAR OF THE CONSTITUTIONAL COURT JOHANNESBURG
AND TO :
THE STATE ATTORNEY
ATTORNEYS S J A SWANEPOEL 1st, 2nd & 3rd Respondents Attorneys Fedlife Forum
4th Floor South Tower
Cnr Pretorius & Van der Walt Streets PRETORIA
REF : SJAS/39/ZH8000/60/2266/A5) TEL: 012-310-2707
1997 -07- 3 0 STATFATTORNEY
RECEIVED COPY HEREOF THIS DAY OF JULY 1997
VWOO
For : 1ST, 2ND & 3RD
RESPONDENTS' ATTORNEYS
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HEKR'17\CHRIS Page 4
AND TO :
MESSRS VAN RYNEVELD SEFORO & CO 4th Respondent's Attorneys
c/o SAVAGE JOOSTE & ADAMS Savage Jooste & Adams Forum 748 Kerk Street
ARCADIA PRETORIA REF : REV110
<•] €\g 2- RECEIVED COPY HEREOF THIS SI DAY OF JULY 1997
For^4TH RESPONDENT'S ATTORNEYS
SAVAGE. JOP"~~ % ADAMS IMC.
Accepted Without Prejudice Ontvang Sonder Benadeiing Van
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between :
HEKPOORT ENVIRONMENTAL PRESERVATION SOCIETY LOUW WILLEM
and
THE MINISTER OF LAND AFFAIRS
THE MINISTER OF DEVELOPMENT PLANNING, ENVIRONMENT & WORKS FOR THE PROVINCIAL GOVERNMENT OF GAUTENG
THE MINISTER OF WATER AFFAIRS & FORESTRY HEKPOORT FOODS CC
CCT NO.
1 st Applicant 2nd Applicant
1st Respondent
2nd Respondent 3rd Respondent 4th Respondent
AFFIDAVIT
I, the undersigned,
CHRISTOPHER MARK BEAN
do hereby make oath and say as follows :
1 I am an Attorney practising as a partner of Weber Els Incorporated and the facts alleged in this Affidavit are, unless otherwise stated, within my own personal knowledge and belief and are true and correct.
2 I am the Attorney representing the First and Second Applicants herein.
3 The members of the First Applicant and the Second Applicant are all resident within
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HEKCBAFVCHRIS P a9e 2
the area of Hekpoort, a small agricultural district at the base of the Magaliesburg.
4 Fourth Respondent runs a factory manufacturing sorghum beer in the same area where the Applicants reside,
5 I am also resident in the area and can therefore testify personally to many of the issues in this matter.
Background
6 Fourth Respondent's factory is located at the base of the Magaliesburg, adjacent to a nature reserve and within an area which is regarded as a national heritage - particularly from an environmental tourist and a historic point of view. The Fourth Respondent's activities pollute the water, ground and air and are completely at odds with the environmental character of the entire area.
7 One of the major causes for urgency is the fact that the effluent emanating from the Fourth Respondent's factory contains substantial quantities of formalin. This effluent is pumped into an unsealed dam which then sinks into the underground water system.
8 Formalin is highly toxic and has known carcinogenic qualities.
9 The entire community relies on the underground system which they fear is being gradually polluted by the Fourth Respondent. Tests from the CSIR (see page 82.'of
CB/JB
230797
HEKCBAF\CHRIS Page 3 the Supreme Court pleadings a copy of which is also filed herein under Case No.
5261/96 in the TPD and referred to hereinafter as "the TPD action") indicate that signs of formalin have been detected in an adjacent borehole. The Respondents contend that subsequent tests have shown no signs of pollution in the adjacent borehole; however evidence demonstrating that there is even the vaguest control over potential water pollution from Fourth Respondent's factory is hardly encouraging. The Respondents will contend that adequate anti-pollution measures are in place; yet there is no physical evidence whatsoever to substantiate this allegation.
10 For example : as recently as April 1997 after the Third Respondent had maintained that the Fourth Respondent had "sealed" the effluent dam, it is apparent that the effluent had not been sealed at all and was exactly the same as it had always been.
Hence, even now, the effluent water containing formalin continues to seep into the underground water system and the Third Respondent is impotent.
11 The Applicants' concern is that the pollution to the underground water system is an irreversible trend. Once the water becomes unfit for human consumption it will remain so permanently.
12 The Applicants are seeking to restrain the Fourth Respondent from continuing its activities at the expense and potential risk of the entire community in that area.
Justice Delayed is Justice Denied
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HEKCBAF\CHRIS P a g e4
13 The last time that the substantive issues on this matter were heard was during 1994 before the Transvaal Townships Board (see page 37 of the TPD pleadings).
As can be seen from the decision of the Transvaal Townships Board given after hearing evidence and having an inspection in loco of the site, it was ordered that the Fourth Respondent cease its activities by no later than the 30th September 1995. This instruction was ignored by Fourth Respondent. Subsequently on 17th January 1996 the Fourth Respondent obtained a permit from the First Respondent to carry on business (see page 86 of the TPD pleadings). With regard to this permit the Applicants have made numerous allegations as to why the First Respondent made a decision which essentially was a complete reversal of their posture and flew straight in the face of the previous decision made by the Townships Board.
14 Applicants will show that the substantive conditions of the permit of 17th January 1996 are not being complied with - if the Applicants are allowed their day in Court.
14.1 In terms of the permit issued by the First Respondent, the Fourth Respondent was required to complete an Environmental Impact Assessment Report ("EIA"). As at the date hereof, only a preliminary EIA has been conducted. The preliminary EIA itself expresses the same concerns as the Applicants (see page 666 et seq of the TPA pleadings).
14.2 Even assuming First Respondent's permit of 17th January 1996 to be valid, the Fourth Respondent should have been closed down. Yet Fourth Respondent continues to operate and the First through Third Respondents remain paralysed.
CB/JB 230797
HEKCBAF\CHRIS
15 As a result of the abovementioned permit issued by the First Respondent the First Applicant launched proceedings in the TPD against the abovenamed Respondents under Case No. 5261 /96 (hereinafter "the TPD action"). At the time of signing this Affidavit nearly 1 Vz years after commencement of the TPD action the substantive issues of the action itself have yet to be decided by a Judge - this notwithstanding :
15.1 written and oral statements by at least two TPD Judges to the effect that this was a matter of serious environmental concern; and
15.2 despite the offer by the Judge President of the TPD to intervene and have the matter heard by way of an arbitration with the Judge President sitting as arbitrator.
16 The reason for the delays referred to supra is that the Respondents have effectively utilised costs orders against the Applicants as a sine qua non to proceeding further in this matter - knowing full well that the Applicants are simply not in the financial position to put up the large sums of money required in order to proceed further in this matter. Applicants contend that these requests for security effectively prevent Applicants from exercising their rights on their own behalf as well as on behalf of the general public - in violation of Section 34 of the Constitution of 1996,
17 As a result of the Applicants' inability to raise the necessary funds to put up
security and pay the costs order against it, the substantive issues of this matter
which are of national importance remain unresolved and will continue to do so
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HEKCBAF\CHRIS Page 6
unless the Constitutional Court hears the TPD action or, alternatively, unless the Constitutional Court intervenes and instructs the TPD to hear this Court without requiring the Applicants to put up security for costs.
18 The existing orders against First Applicant and reason for the existence of Second Applicant :
18.1 During August 1996, it was held that the Applicants had set down the Rule 53 Application prematurely and ordered the First Applicant to pay the costs of the Application.
18.2 Subsequently all four Respondents obtained an Order for security for costs against the Applicants.
18.3 The result of the abovenamed costs Orders was to effectively prevent the TPD action from continuing any further.
18.4 During 1996, the Second Applicant - also resident next door to the Fourth Respondent's factory - brought an Application to Intervene under Rule 12 of the Supreme Court Rules and also in terms of Section 29 and 7(4)(b) of the Constitution (No. 200 of 1993). The Second Applicant contended inter alia that he was entitled to intervene as he had an interest in the matter.
Additionally, in terms of Section 7 (4Kb) supra. Second Applicant alleged that he was acting on behalf of the public, posterity and another party who was unable to act i.e. the First Applicant. The decision of Preiss J (attached
CB/JB 230797
HEKCBAFVCHRIS Page 7 hereto as Exhibit "A") effectively held that the Second Applicant was trying to "get around" an Order for costs against the First Applicant and the Application for Leave to Intervene was denied. The Second Applicant, contending that the "abuse" was in fact the Respondents excessive use of technicalities to frustrate Applicants, applied for Leave to Appeal and this Application was also refused (see Exhibit "A").
18.5 The Second Applicant thereafter sought to have the matter heard by the Constitutional Court under Rule 18 of the Constitutional Court Rules.
However this Application was also refused (see Exhibit "B") - notwithstanding the fact that the refusal was made before the Applicants had had time to file all the relevant documents in order for a proper decision to be made, i.e. the grounds for refusal by Preiss J was still being typed by the Court reporters at the time of the refusal by the Constitutional Court under Rule 18 of the Constitutional Court Rules.
Options Available to the Applicants
19 The First and Second Applicants are effectively bringing a class action :
19.1 on behalf of the Hekpoort community;
19.2 the general public; and
19.3 posterity.
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HEKCBAF\CHRIS
20 The Applicants still vehemently believe that the Fourth Respondent's activities constitute a reckless disregard of the environment causing damage to the environment which either is or may soon become irreversible. The Applicants believe that a favourable decision by any Court preventing the Fourth Respondent from carrying on its activities even one year from now could well be a decision of academic interest only because it would be too late and the damage would be done.
21 The Applicants find themselves facing two alternative routes the first of which is meaningless :
21.1 The Applicants will continue with their action in the TPD. This will necessitate the payment of the costs Order and the provision of security for costs in sums which are totally prohibitive. Since the Fourth Respondent's legal advisers have advised the deponent directly that they will insist upon security or guarantees or undertakings in some form, this will effectively stymie the TPD action.
21.2 The other alternative is the present Application which would allow the Constitutional Court to hear this matter - i.e. hear the substantive issues of this matter and decide upon them finally - without putting up obstacles in the path of the Applicant by requesting financial guarantees. In short Applicants are requesting direct access to the Constitutional Court in terms of Section 34 of the 1996 Constitution.
V
CB/JB
230797
HEKCBAF\CHRIS Page 9 Legal Constitutional and Ethical Motivations behind Granting the Present Application
URGENCY
22 As the annexures to the TPD action will show (page 353 et seq), the Fourth Respondent uses approximately 60 litres of formalin per day which is then deposited into the effluent dam and the underground water system. Since the toxic and carcinogenic effects of formalin are hardly in dispute, it is really a question of guessing how long it will take to pollute the underground water system. Although the answer to that question is uncertain, one thing is clear: the longer it takes to have the substantive issues decided upon finally by a Court of Law, the greater are the chances of irreversible pollution. Hence the issue of urgency is so fundamental and simple it requires no further elaboration.
23 Public Importance
23.1 Fourth Respondent operates in the Magaliesburg. This area is a national heritage from a historical and particularly from an environmental point of view.
By way of example : should any one of the Judges of the Constitutional Court require to visit the Magaliesburg, they would first require a permit to climb the mountain, to be issued by the Mountain Club of South Africa. The purpose of such a permit is to restrict damage to the environmental area of the Magaliesburg.
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HEKCBAF\CHRIS Page 10
Notwithstanding such restrictions imposed on the general public Fourth Respondent continues :
(i) to carry on heavy industrial activities in the area, pollute the underground water, pollute the environment further;
(ii) by allowing the erection of a shack land of squatter camps for the Fourth Respondent's employees; and
(iii) by erecting three coal fire chimney stacks belching smoke;
and
(iv) using noisy machinery and heavy trucks day and night.
23.2 The issue of public importance is this :
23.2.1 How is it that the Fourth Respondent was ever allowed to conduct its activities in such a sensive environmental area in the first place;
23.2.2 How is it that the appropriate Governmental Authorities have
permitted Fourth Respondent's activities to continue - despite
their initial affirmations that such activities were not to be
permitted;
CB/JB 230797
HEKCBAF\CHRIS 23.2.3
Page 11 How is it that, notwithstanding written and oral undertakings by the First through Third Respondents that the Fourth Respondent's activities would not be tolerated (see Minister Kader Asmal's letters at page 80 TPD pleadings), that the First through Third Respondents have suddenly done a complete about turn without any rational explanation.
24 The actions of the Fourth Respondent as sanctioned by the First through Third Respondents have sent out a piercing signal to the general public in South Africa -
"A person wishing to start up business may start up any business anywhere he likes without paying the slightest attention to any environmental or other regulations. One simply has to keep one's head down and wait for the dust to settle after which you may carry on business in an environmentally unsuitable area without the fear of any sanction whatsoever. Indeed, after a while your activities will be sanctioned by the law simply by the effluxion of time".
25 This anarchist approach of the Fourth Respondent which now appears to be sanctioned by the First through Third Respondents has been a subject of considerable interest in the media - particularly the newspaper and the television.
26 In the present circumstances the Constitutional Court is the only legal body capable of resolving the current impasse by forcing the matter to be decided finally. At present the substantive issues will never be decided on because the Applicants do
230797
HEKCBAF\CHRIS Page 12 not have the "up front" money necessary to put on the table in order to proceed further in this matter.
27 27.1 It will be argued at the Application that it is fundamentally unconstitutional to require a person to put up money "up front" in order to have "equal access" before the law. In the current circumstances particularly, the provision requiring security for costs effectively allows equal access before the law only to those who are financially able to do so. This simply means that there is no such thing as equal access to the law.
27.2 Furthermore, it is of no use for the Courts to maintain that the Applicants have locus standi if that locus standi is not meaningful. At present the Applicants' position is that they do not have enough money to make their locus standi meaningful. (In this regard I attach hereto the legal argument in this matter which was submitted to Preiss J when Applicants the matter be first referred to the Constitutional Court (Exhibit "A").
28 The reverse side of the "Security for Costs" coin is an abuse of process in that the person/s requiring security can effectively squash the action against them before the matter is ever placed before a Judge. It will be argued that in the present circumstances, - particularly because the issue is of public importance, that Respondents should not be allowed to use money as a means of avoiding justice and finality.
CB/JB
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HEKCBAFVCHRIS Page 13 Documentation submitted to the Constitutional Court
29 The Applicants hereby submit five copies of this Application to the abovenamed Honourable Court. In light of the enormous length of the documentation contained in the TPD action the Applicants hereby submit one copy of the Founding Application and the reply thereto by the Respondents.
Applicants contend that the substantive issues can be heard on the papers only along with an inspection in loco
30 Applicants are confident that there is sufficient documentation before the Courts to make a decision without the need for witnesses; however an inspection in loco would give a much clearer picture to the Court. Although the Applicants have no objection to the introduction of witnesses should the matter be heard by the Constitutional Court, Applicants would also not object if witnesses were not permitted or required by the Court.
WHEREFORE
31 In light of the fact that the above matter is of such urgency and of such public importance that any unnecessary delays necessitated by ordinary procedures - particularly the procedures which permit the Respondents to delay the substantive issues being heard by the use of interlocutory applications and requests for payment of costs in advance - the Applicants believe that a failure to hear this matter will prejudice the public interests as well as the ends of justice and good
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HEKCBAF\CHRIS Page 14 government.
ACCORDINGLY :
31.1 the Applicants hereby request that this Application in terms of Rule 17 of the Constitutional Court Rules be granted; alternatively
31.2 the Applicants request that the Constitutional Court give directions or make provision for the above matter to be determined finally on its substantive merits.
DEPON
SIGNED AND SWORN TO AT BoodloUira ON THIS THE SJUHO DAY OF JULY 1997 THE DEPONENT HAVING ACKNOTVLEDGED THAT HE/SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THAT IT IS TRUE AND CORRECT TO THE BEST OF HIS/HER KNOWLEDGE, THAT HE/SHE HAS NO OBJECTION TO TAKING THE PRESCRIBED OATH AND THAT THE PRESCRIBED OATH WILL BE BINDING ON HIS/HER CONSCIENCE.
BEFORE ME,
COMMISSIONER OF OATHS Sandra Ulllan do Jager
CoramtMtoim of OaHw fvoctwno Attomsy RSA North, 3W Oc* ft
2l94
