The Department of Environmental Affairs (DEA) updated the Committee on progress made in the Thabametsi Judgement including legal costs incurred by DEA if there were any. Total litigation costs paid until 30 September 2017 (18 months) amounted to R11 269 995.19 (this amount included monetary claims). For all intents and purposes, the Minister decided not to appeal the Thabametsi matter, a decision which the Committee met with approval. The Committee will continue to monitor the litigation, understanding that this sector was a contested space.
The Department also outlined the Litigation Report. Among other, the litigation costs associated with the following cases were clarified and discussed: Ex Parte Application for Liquidation: Redisa Case No: 9675/17 WC (Cost R 1 494 664. 56); Kloof Conservancy v the Minister of Water and Environmental Affairs: File 10/2/18 (Cost R1, 991, 060.24); David Mabunda v SANParks & Min of Environmental Affairs (Cost R214, 291.50); Mineral Sands Resources vs The Minister of Environmental Affairs and Others (Cost R384, 407.21); Earthlife (Mabola) and Others v Minister of DEA and Others LS 147697 (Cost R 0); Johan Kruger v Minister of Water and Environmental Affairs (Cost 1, 847, 883.42); Federation for Sustainable Environment and Another v Minster of Environmental Affairs and Others (Cost R 604, 365. 59); The City of CT Vs Sanral (Cost R 876, 712. 50).
The Committee considered and adopted its draft Fourth Term Programme.
The Chairperson noted that apologies were received for the Minister of Environmental Affairs, Ms Edna Molewa – the Minister was attending a meeting of the European Union to make contributions on the joint agenda of climate change. Deputy Minister Barbara Thomson took ill and was consulting the doctor. An apology was also received from Mr M Mabika (NFP) who was feeling unwell.
Briefing by the Department of Environmental Affairs: Progress Regarding the Thabametsi Judgement
Mr Ziyaad Hassam, DEA Director: Appeals, highlighted that the presentation to be made to the Committee was essentially one made previously with a slight update on the latest steps taken.
Mr Ishaam Abader, DEA DDG: Legal, Authorisation, Compliance and Enforcement, outlined the original briefing given to the Committee spoke to legal costs for DEA as well as the Thabametsi legal costs. DEA was prepared in relation to the legal costs, the Thabametsi legal costs and how far the Department had gone in terms of implementation.
The Chairperson found there to be some miscommunication on the programme because it was not revised. He asked the DG to ensure communication between the offices was attended to.
Ms Nosipho Ngcaba, DEA DG, only saw the difference in the programme this morning. She ensured the Committee that communication between the offices would be improved.
The Chairperson emphasised the Committee needed progress on implementation of the Thabametsi judgement. The legal costs can be dealt with in the next presentation.
Mr Hassam began to take Members through ‘Implications of the High Court Judgment in the Matter between Earthlife Africa Johannesburg V Minister of Environmental Affairs and others in respect of the Proposed Thabametsi Coal-Fired Power Station.’ The presentation covered a summary of the Thabametsi case and implications of the judgment on future projects with significant climate change implications.
Mr Hassam highlighted that this case sought to review and set aside the decision by the Department to grant approval for the construction of a 1200MW coal-fired power station and the Minister’s decision to dismiss an appeal by Earthlife. Earthlife maintained that the Department was obliged to consider the climate change impacts of the proposed power station before granting environmental authorisation (EA) and that it failed to do so. In the appeal decision dated 7 March 2016, the Minister recognised climate change impacts of the proposed development were not comprehensively assessed and/or considered prior to the issuing of the EA. The EA was amended by inserting an additional condition for the applicant to undertake a climate change impact assessment prior to construction.
Mr Hassam continued that the Court held that the Minister should have instead adjourned the appeal and directed Thabametsi to undertake a climate change impact assessment for consideration in the appeal process and thereafter to have substituted the Department’s decision with her own. Earthlife sought the setting aside of both the EA, and the appeal decision in its entirety, and requested that the EA and appeal processes commence anew. The Court held that the more proportional remedy was not to set aside the EA, but rather to set aside the Minister’s ruling only in respect of the ground of appeal, which dealt with climate change, and to remit the matter of climate change impacts for reconsideration on the basis of new evidence in the climate change report. The reconstituted appeal process, the court held, can therefore proceed with requisite speed to the advantage of all parties.
The Department’s Argument
Mr Hassam highlights that DEA argued climate change was adequately assessed during the EIA process but was not comprehensively assessed. Climate change assessment was not necessarily a prerequisite for EA purposes but would be important for continued monitoring of the project and for data collection. In the absence of emission thresholds, it would be premature to include a requirement in the EIA process making it mandatory for companies to consider climate change impacts. It was also considered inappropriate to assess climate change implications on a project-specific level. These considerations were comprehensively assessed during the development of the Integrated Resource Plan for Electricity 2010-2030. The climate change impact assessment would allow the Department to gather detailed information on current and anticipated future greenhouse gas emission rates, which was necessary to meet its current obligations under international law. A climate change impact assessment would also enable the Department to monitor and assess the climate change impacts of the Thabametsi power station and to determine whether it was necessary to amend or supplement conditions in its environmental authorisation.
DEA decided to implement the court judgement. In accordance with the court’s instructions, a draft climate change impact assessment was carried out and which was already made available at the time of the court proceedings. The final version was made available to Minister Molewa in August 2017. That report was sent out for peer review. DEA expected the peer review on the climate change impact assessment by the end of the month. Following receipt of the peer review, as well as the original climate change assessment, the Minister had 30 days to reconsider her initial appeal decision and to remake the decision on the Thabametsi appeal in accordance with the court’s instructions.
Subsequent Steps Taken and Implications of the Judgment on Future Projects with Significant Climate Change Implications
The Department recently published National Greenhouse Gas Emission Reporting Regulations to introduce a single national reporting system for transparent reporting of greenhouse gas emissions (GHG’s). Companies that conducted certain activities must register and report GHG emissions. The Declaration of Greenhouse Gasses, as priority pollutants, and the National Pollution Prevention Plans Regulations were published on 21 July 2017. The Climate Change Bill was also on the legislative programme for 2018. A task team was established to develop a climate change protocol that will be used as a yardstick to measure adequacy of all climate change impact reports during the EA process. The protocol will be consulted on and adopted by all 11 competent authorities.
In reference to the protocol that will be consulted on, the Chairperson asked for details about the climate change protocol, particularly, what it was all about and if it would be part of the Climate Change Bill that was part of the legislative programme. Moreover, regarding the climate change assessment, where was DEA in terms of the climate change assessment?
Mr Abader responded that the implications of the Thabametsi judgement was that DEA had to consider climate change impact in all its EIA decisions. Through the consultation process with the provinces, DEA was developing the protocol. In any decision that had a climate change impact, the protocol will have to be developed and used in the assessment of the EIA. The protocol will then guide each of the competent authorities in its assessment of a particular environmental impact assessment project that had climate change impact. The protocol will be used to inform some of the aspects of the legislation (e.g. issues surrounding GHG).
Ms Ngcaba added that when considering the judgement, the question which this sector had to answer was: how does DEA assess climate change impacts? How to ensure consistency across the authorities? In terms of the EIA instrument, there were already working practises. However, the purpose of the protocol was to standardise the legal regime by which authorities were assessed. It was not possible to prejudge elements that will be taken into account in respect of the protocol in the process of developing the climate change legislation, although they were related. Since the protocol preceded the legislation, there will still be a need for harmonisation after the legislation was produced. The Minister, or the Department, received, through the Appeals Office, the submission in respect of the special studies report on climate change implications, which has to be assessed by the Minister (with the help of experts).
Referring to DEA’s argument regarding absence of emission thresholds, making it premature to include this requirement in the EIA process, the Chairperson asked whether the emissions trajectory was outlined in the peak plateau decline. Moreover, considering the absence of emissions thresholds, what would come first, the protocol or the legislation? DEA had to consider that it was likely that these emission thresholds will be determined in the process of the legislation and that the Thabametsi judgement may actually help fast-track climate-change legislation so that things were not done in a piecemeal manner. The protocols can then be embedded in the actual legislation itself.
Mr R Purdon (DA) asked for clarity because the document before the Committee differed from what was seen on the screen. The document said the National Pollution Prevention Plan regulations were published on 21 July 2017 but the presentation said the regulations ‘will soon be published for implementation.’ Moreover, also missing from the document was, namely, that ‘[a]ll projects that may have significant climate change impacts will have to be subjected to a climate change impact assessment in future.’ Bearing this in mind, clarity was needed as to how it came about that the proposed KiPower and Khanyisa Coal Power Stations received the go-ahead from Minister Molewa despite not completing the climate change impact assessments. These were knew authorisations that required clarity.
Mr Hassam pointed out that the PowerPoint presentation was slightly out-dated - the updated version was that the National Pollution Prevention Plan regulations were published on 21 July 2017. Secondly, regarding the KiPower and Khanyisa Coal Power Stations authorisations, these authorisations were granted and the appeal decisions were made prior to the Thabametsi matter being taken on review and prior to the judgement. At the time that the Minister made the decisions, she did not have the court’s judgement in respect of Thabametsi. The Khanyisa decision was taken three or four years ago. KiPower was taken on review however KiPower withdrew its opposition to the matter and had requested to restart the environment authorisation process.
Ms Ngcaba added that while the Chairperson was correct in highlighting that the emissions trajectory was outlined in the peak plateau decline, the peak plateau decline trajectory was more aspirational. DEA undertook further technical work which helped the Department to arrive at the Emissions Objectives, which currently appeared in the DEA’s Annual Performance Plan. The technical work gave rise to the understanding that certain sectors contributed more than others to the emissions profile of SA. This required focused attention on, and prioritisation of, certain sectors (transport, mining, energy). The technical study provided a basis for DEA to get to a point where it can set emissions thresholds. It was still in negotiations with the various sectors and private companies. Based on the existence of the Thabametsi judgement, and in the interest of consistency across the decision-makers or the various environmental authorisers (for example, the provinces, including the Department of Mineral Resources as the 11th authority), the protocol will definitely have to be concluded before legislation was finalised. It was important to expedite the legislation but, since legislation took longer, an instrument was needed to help the authorities make decisions on a consistent basis. This was what DEA envisaged the protocol doing.
Mr T Hadebe (DA) highlighted that if one considered that the area where mining was intended was one of the priority areas, it was really worrying that Minister Molewa would give authorisation without the requisite information in respect to climate-change impacts. The protocol will be able to assist in ensuring authorisation was not granted without taking into consideration the required information. Waterberg was a hotspot when it came to pollution. Therefore DEA should have requested all the relevant information before granting the authorisation.
Mr Purdon did not understand Mr Hassam’s response that KiPower had withdrawn its opposition - the document before the Committee said that the Centre for Environmental Rights (CER) and Groundwork approached the court to set aside Minister Molewa’s authorisations for the two new coal KiPower stations. What was the status of this process? Was legal action pending?
Mr Hassam clarified the decision on KiPower was taken on review by the CER and Groundwork. They sought the same order as in the Thabametsi matter i.e. that both the authorisation an appeal decision be set aside. KiPower themselves initially opposed the relief that the CER was asking for. They have very recently withdrawn their opposition stating in writing to both the Minister as well as the CER that the matter can continue on the unopposed role, that the authorisation will be set aside and that they will then undertake to start the EIA process afresh. KiPower will no longer have an authorisation and if they were in future to build a power station, they would have to go through the entire process including a climate-change assessment as per the Thabametsi judgement. Regarding the Khanyisa matter, the CER and Groundwork brought their review application three and a half years after the decision was made to grant authorisation. The Minister’s decision on Khanyisa was simply to refuse condonation to bring an appeal three and a half years after the authorisation was granted. Minister Molewa did not delve into the merits of the appeal simply because the organisations were that long out of time in bringing the application for condonation.
Ms Ngcaba, responding to Mr Hadebe, remarked that in the long-term litigation scenarios conducted, there was modelling of further coal power stations and other polluting technologies. In the current scenario, when it was not a pure disregard of the precautionary principles, it was within the considerations for there to be certain investments in either existing or new power stations to then enable that phase-out, including the studies on how to clean coal. The challenge was then how to get to absolute-decline whilst DEA ensured industries that made investments in some of these polluting businesses took some of the precautionary measures, especially in terms of cleaning and implementing desalination projects to limit the amount of pollution. The Department had this challenge because these were the approvals that already existed from a policy perspective.
The Chairperson stressed the importance of the Thabametsi judgement in terms of redirecting attention to focussing on climate change and making sure SA lived up to its commitments in terms of the Paris Agreement. As long as voluntary reductions of emissions were relied upon, progress will be minimal. While there was a need to develop the protocol, it must not be a permanent protocol. It must be an interim solution whilst climate change legislation was being finalised. It was good that there was a commitment to introduce it in 2018, a commitment to which DEA will be held. By 2020, it was important to start implementing. The commitment to move away from coal to possibly renewables must start now. There was commitment from the Minister of Energy, Ms Mmamoloko Kubayi, that sometime next year (January or February) the Integrated Resource Plans (IRPs) will be finalised and released – this process needed to start. In order to adequately respond to the matters the Thabametsi judgement gave rise to, climate change legislation was needed.
Ms Ngcaba stated climate change legislation was already included in the legislative programme. Processes were underway to present it to Parliament, possibly by the end of the year.
The Chairperson said this was very encouraging because there was perception that DEA was resistant to climate legislation. The Committee will certainly interact with the process when it arrived in Parliament.
Ms Ngcaba noted that before the legislation arrived in Parliament, there was an engagement process with the provinces to address issues of capacity and financing. A mechanism to assist provinces must be found as the provinces could barely handle what they had to face in respect of the other EIA processes. Environment was a concurrent function. There was a need to balance whether the provinces had enough budgets to undertake the functions and, if not, how one augmented that as a National Department.
Briefing on the detailed report on all legal costs of each litigation
Mr Abader, broaching on the Director-General’s comments, highlighted that on 3 September Minister , Molewa signed the letter to the Leader of Government Business in relation to submitting the climate change response legislation to Parliament.
Turning to the litigation report, Mr Abader highlighted the nature of the Department’s work was that when parties were dissatisfied with an outcome of a particular process (authorisation/ permit application/ legislative provision, and so forth) it gave rise to litigation (developers, NGO’s, interested parties were the usual litigants). The attached 68 page litigation report, submitted to the Committee, contained a brief description of litigation matters and costs attached thereto (parties, brief description of the issues, etc). The Department had additionally submitted a break-down of costs per branch. The number of cases that were dealt with during the period 1 April 2016 to 30 September 2017 was 167 (inclusive of historical matters). The report spoke to 106 applications. Only three matters were initiated by the Department. The other 103 were applications instituted against the Department (Department = Respondent).
The second part of the report deals with monetary claims (contractual disputes, employees involved in accidents, salary over-payments and so forth). The Litigation Report further reflected payments processed for the period 1 April 2016 to 30 September 2017. Total Litigation costs paid until 30 September 2017 (18 months) amounted to R11 269 995.19 (this amount included monetary claims). Payments were made in accordance with invoices received from the State Attorneys’ offices. A nil balance on the attached report was due to the fact that DEA had not yet received an invoice. These costs were accordingly still to be paid.
Litigation Costs for the previous financial years
Historical legal costs amounted to R6 489 328.33 in the 2013/2014 financial year; R3 528 234.13 in the 2014/2015 financial year; R4 092 942.66 in the 2015/2016 financial year and R7 970 862.66 in the 2016/2017 financial year.
Earthlife Africa Jhb vs Min of DEA and 6 Others (Thabametsi) costs
In terms of the Thabametsi legal costs, the current litigation cost that the Department hds paid for this matter to date was R407 575.00. The Department of Justice advised DEA that it had paid an amount of R1 004 918.00 to date as fees for Counsel employed by the Department. DEA had not received the bill of costs from the Applicant as yet. DEA estimates its costs to be in the region of R2 009 836.00.
Mr Hadebe raised concern about the fact that NGOs, the stakeholders with whom DEA was meant to be fighting the same cause, were the very stakeholders with which DEA was having legal disputes. It may be advisable to have a dispute resolution mechanism where all the relevant information can be assessed so as to come to an amicable solution. This was so as to prevent DEA from being taken to court and being found wanting for overlooking facts. The Thabametsi matter was a classic example. The protocol may assist in the matter.
Mr S Makhubele (ANC) highlighted that while it was fine to proceed on the premise that NGOs supposedly represent communities, it was necessary to acknowledge that some did have their own agendas. He asked DEA if, when the challenge was at national level and the Department was found wanting and had to pay costs, there was a mechanism or a system which came into play when DEA’s appeal or case was dismissed or was not so strong that it could ensure provinces and other authorities were safe and that these authorities were not left in the lurch.
Mr Adader replied that, in terms of DEA’s processes, usually there was an attempt to bring in as many inputs into the Department’s processes as possible. In strategic issues, like the IRP, DEA engaged extensively with the NGOs. While there was an on-going attempt by DEA to get in as many inputs, it was also important to bear in mind that DEA sat in the middle in many instances, having to balance industry and NGO. This put the Department in a very difficult position. A balance in the precautionary principle had to be found. Reaffirming Mr Makhubele’s point, some NGOs did have their own agendas. The point was well taken and DEA did engage with them. In terms of the mechanism, DEA engaged at a MinTech and a MINMEC level. The protocol was precisely what Mr Makhubele was talking about. The rationale for the protocol was to say: if DEA was going to use climate impact assessments, there should be a standardised approach across all 11 competent authorities.
Ms Ngcaba added that the NGOs knew they had an ally in DEA. Even though, at times, the two spheres did not see eye to eye, by the same token, the Thabametsi matter did advance both what DEA and NGOs wanted in terms of climate change legislation. The matter that was battled between the NGOs and DEA was timing. Intervention by DEA in the process was extremely important so as to ensure the matter was not watered down when considered by the provincial authorities. The question was: what was one looking for when looking at climate change impacts? In terms of timing, it was not good for DEA as it was still working on the building blocks to make the Department effective when it implemented such measures. The NGOs were needed to assist DEA in difficult situations. When DEA dealt with its principles at Cabinet level, there was disagreement because the Department was not only looking after environmental functions but had other responsibilities - this was where tension arose. In this case, because the Minister had not taken on board and consulted even at Cabinet level, she felt she did not want to appeal the basis of the decision. After a long discussion, the Minister decided against appealing against the decision. DEA found itself in a ‘lose-lose’ situation. The industry, in the absence of legislation, could have appealed the decision to utilise the E.I.M.G. Code of Conduct in decision-making as a condition but it would still lead to a court process. In some instances, when DEA experimented with matters that were not yet legislated, the Department encountered difficulties. The NGOs were important to help DEA to convince industry.
The Chairperson said it was a good thing the Minister was not appealing the Thabametsi judgement. It helped both offices is in terms of pursuing and expediting the agenda of climate change. It was imperative to have climate change legislation – it strengthened the hand of DEA in negotiating with other departments as there were competing interests. A balance must be found to achieve economic development that was environmentally sustainable. There were a couple of cases which DEA must elaborate on regarding the Litigation Cost Spreadsheet.
Nr 17: Ex Parte Application for Liquidation: Redisa Case No: 9675/17 WC (Cost R 1 494 664. 56)
The Chairperson had not received documentation regarding this matter and it was decided that deliberation on it would be postponed until the Committee meeting tomorrow.
Nr 49: Kloof Conservancy v the Minister of Water and Environmental Affairs: File 10/2/18 (Cost R1, 991, 060.24)
Mr Abader reads from the Litigation Report (Ref. 7).
Ms Ngcaba stated the challenge was the fact that DEA was trying to align elements of previous legislation under the Natural Resources Conservation Authority Act, wherein invasive species were declared ‘weeds.’ A process was needed in which one satisfied the agricultural list that was not necessarily an environmental concern. There were invasive species that were not threatening biodiversity (e.g. Jacaranda in Pretoria). There was the need to agree where introduction would and would not take place. For example, there were critical challenges in the use of trout, which was an invasive species. Special care was taken not to introduce the fish into sensitive areas where it was not already present. However, delays arose in implementation of the regulations precisely because the Department of Agriculture, Forestry and Fisheries supported the trout industry. Ultimately, Minister Molewa passed legislation without this category being clearly controlled. Only recently had an amendment been made to the Alien and Invasive Species Regulations (AIS) to actually control trout introductions, among others. Another factor was that this was legislation that will be implemented by provinces. Capacity on the appointment of the Environmental Management Inspectorate (EMI) could not just be dictated by the courts. DEA prioritised where EMIs were to be appointed. Provinces were also still struggling with financing the capacity that was required for controlling invasive species. DEA’s efforts were also focused on other enforcement agencies, like the SA Police Service. It was not enough to have a list. DEA had to ensure it was effective.
Nr 34: David Mabunda v SANParks & Min of Environmental Affairs (Cost R214, 291.50)
Ms Ngcaba refered to Ref. 22 in the Litigation Report, explaining that the matter was postponed indefinitely.
Mr Abader added that for a matter to be ‘postponed indefinitely’, unless either party decided that either they would like to proceed with the case or they wanted to remove it from the roll, it will stay postponed until one or the other party decided to proceed with the matter or to withdraw from the matter.
The Chairperson confirmed the matter was basically closed, unless somebody else decided to proceed with the matter.
Nr 52: Mineral Sands Resources vs The Minister of Environmental Affairs and Others (Cost R384, 407.21)
Mr Abader read Ref. 64 in the Litigation Report.
Ms Ngcaba said this matter was providing a case basis for DEA in terms of the one environmental system. It gave DEA an indication of the gaps that still existed with regards to the environmental transgressions in mining areas and where there were mining activities undertaken. The Mineral and Petroleum Resources Development Amendment Bill (MPRDA) enabled the one environmental system in which any of the authorities can exercise compliance and enforcement action in respect to environmental transgressions. However with the MPRDA, these provisions were not yet been passed by Parliament. This was a grey area in terms of roles in advancing environmental compliance. The sooner Parliament finalised this legislation, the better for DEA because the Department undertook joint operations. When there was not good cooperation it was important for Minister Molewa and DEA to have jurisdiction in these areas.
The Chairperson asked if the Specific Environmental Management Act (SEMA) was under DEA.
Mr Abader confirmed this.
Mr Purdon, affirming that this is a grey area, referred to illegal sand mining in the Eastern Cape where DEA did not response as it argued it was not the competent authority. Yet, illegal sand-mining went ahead unabated. Urgency was definitely needed for this. How did the term ‘illegal sand-mining’ apply to Ref. 64?
Mr Abader responded that, in terms of the one environmental system, the court confirmed that the Department of Mineral Resources (DMR) was the competent authority in certain instances. That said, DEA did not sit back and this case was an example of where the Department had received a complaint and actually attempted to gain access to the premises. Because DEA was refused access it asked for a search and seizure warrant which was then granted. The applicant then appealed the search and seizure warrant. DEA, together with DMR, tried to gain access to the property. The court found that DEA did not have that authority on a ‘mining area’ and that DMR was in fact the competent authority. The DMR Environmental Management Inspectorate should be taking action in relation to specifically mining-related activity which included sand-mining. DEA did have competence in terms of contraventions of the Integrated Coastal Managements Act. In terms of the one environmental system, if there was a problem and the DMR was not taking sufficient action, there were provisions in the one environmental system that allowed complainants to approach DEA. The Minister would have to address the matter with her counterpart in DMR. If there was still no action then DEA’s EMI can get involved and take action in relation to that specific site.
Nr 54: Earthlife (Mabola) and Others v Minister of DEA and Others LS 147697
Mr Abader referred to Ref. 33 in the Litigation Report.
The Chairperson asked whether it was only the DMR Minister cited as an ‘interested party’. In terms of the National Environmental Management Biodiversity Act (NEMBA), the Minister of DEA must authorise in a ‘protected environment’ – was this the authorisation now under review?
Mr Abader said he would have to check whether they were seeking to review the Minister’s decision in terms of Section 48. However, by all indications, they were only challenging the actual mining decision. A point which Mr Abader said he would follow-up on, if DEA was cited as an interested party and were unsuccessful in terms of the mining application, they may challenge the Minister’s decision in terms of Section 48 of NEMBA.
The Chairperson reminded everyone this item had to be postponed as per the Minister’s request on the basis that the matter was in court and DEA was defending the matter because the decision to approve in terms of NEMBA was being challenged. DEA must follow up and give feedback on the exact status of the matter.
Nr 63: Johan Kruger v Minister of Water and Environmental Affairs (Cost 1, 847, 883.42)
Mr Abader referred to Ref. 6 in the Litigation Report. DEA disagreed with the finding in this instance and that was why it appealed right up to the Supreme Court of Appeal. The DEA felt it had substantially complied with the legislation. However, ultimately, the Constitutional Court decided against DEA in this instance. The other reason why DEA challenged the finding was that, in terms of the moratorium, there was quite a bit of litigation going on in the criminal courts and DEA had concerns about the impact this judgement would have on that criminal litigation. That was why DEA pursued it right up to the Constitutional Court.
Ms Ngcaba added the moratorium on rhino horn was a matter in which DEA was in a ‘lose-lose’ scenario. NGOs were against the moratorium. Anytime that DEA appeared as if it was not going to appeal, it was seen as the Department being in support of trade in rhino horn. More recently, beyond the moratorium, the rhino horn industry challenged DEA on whether it had the legal right to disallow trade and auction of horns found. The litigation process enabled the sector to try and clean up as much as possible in terms of setting up the system. Although it was not waterproof yet, efforts between national and the provinces were executed alongside the litigation process.
The Chairperson questioned whether the costs were really warranted, especially after the High Court. This matter was raised initially with DEA. There was a point where DEA finalised the new regulation that was lifting the moratorium on domestic sale of rhino horn. When the matter was initially raised with DEA, the Chairperson asked why, when DEA already finalised and published the regulation, was DEA still taking its appeal to the Constitutional Court. The issue which DEA wanted to clarify, which was to set rules for how domestic trade on rhino horn was going to happen, was resolved. The explanation was unsatisfactory as it did not clarify why DEA would insist on going to the Constitutional Court when it could have obtained clarity from the High Court. What was DEA pursuing here? The development of the regulations could have been fast-tracked which, in effect, was going to lift the moratorium.
Mr Abader highlighted that DEA appealed the decision based on legal advice - DEA received internal legal advice and external legal counsel whether or not it should pursue certain courses of action in relation to litigation. Deciding to appeal was not a decision based on feeling. In this particular instance, there were a few issues. Firstly, DEA argued it had substantially complied with Sections 99 and 100. Secondly, there were several criminal cases brought as a result of the moratorium which prohibited domestic trade in rhino horn. There were substantial charges in relation to these cases. A key concern, DEA reasoned if it did not succeed in the appeal, it would impact on DEA’s criminal cases in which the Department brought charges against people. This was part of the reasoning behind the decision to pursue this matter all the way the Constitutional Court. While in this instance, DEA was unsuccessful, in the Kloof matter, it was successful. It was a matter of what legal advice DEA got, and how it assessed a particular case.
The Chairperson’s reiterated his point that at the time DEA approached the Constitutional Court, the matter was academic because the moratorium was lifted. At what price did one resolve an academic question?
Mr Abader highlights that it was not as simple as that. The other thing was that the decision was granted retrospectively, therefore, anything that happened from the very first day of the moratorium would have been set aside. Any action which DEA took from 2009 to 2017, in terms of its enforcement action, would have been in vain. What the moratorium did was strengthen DEA’s case and, in Mr Abader’s opinion, it made domestic trade more difficult. In terms of helping DEA get all other measures in place, it (i.e. the moratorium) did assist the DEA.
The Chairperson was not questioning the moratorium but the wisdom to take the question to the ConCourt when it was academic to do that since DEA had already published and lifted the moratorium.
Mr Abader pointed out, however, that as soon as the decision was appealed, the decision by the court kicked into effect again.
Ms Ngcaba shared the Chairperson’s wisdom on this matter. That said, it was a question of timing and what message it would be sending to especially DEA’s critics on domestic trade. It was a situation where the Minister was forced to make a decision. It was safer to get the matter to that point so that DEA was not challenged by the NGOs, since they too could bring applications. It was more a legal tactic to buy DEA time to finish but, at the same time, to ‘save face’ because that week when DEA was just about to implement the regulations, it was bombarded with such negativity around the rhino horn as a Department. DEA was being labelled as being pro-trade in essence. The country’s bona fides were being questioned in terms of SA’s commitments. The message needed to be sent that it was very difficult even if trade was allowed - DEA was prepared to continue with the moratorium from a conservation point of view of rhino species because, even today, it was very difficult to explain scientifically where those horns went. It looked like there was leakage into the international community.
The Chairperson said that while the horses have bolted around the issue of domestic trade in rhino horn, what remained an issue to be attended to was the continued killing of rhinos. He expressed his hope that something was being done by DEA to deal with this challenge.
Mr Abader replied that some work was done. DEA was speaking to SAPS and was addressing the matter internally as well.
Nr 74: Federation for Sustainable Environment and Another v Minster of Environmental Affairs and Others (Cost R 604, 365. 59)
Mr Abader referred to Ref. 5 in the Litigation Report.
Ms Ngcaba said DEA was doing all required to deal with the situation and improve. The application was against DEA’s decision to move the communities. DEA believed it was too dangerous for communities to stay where they were. Communities were still there and the National Nuclear Regulator (NNR) approval was awaited to actually make sure the area was cleaned up. Costs related to DEA’s use of expert witnesses.
Regarding the David Mabunda v SANParks & Min of Environmental Affairs matter, Mr Abader explained DEA had just received feedback from Mr Mabunda who decided not to pursue the matter any further. He stalled the matter. Moreover, in terms of the Earthlife (Mabola) and Others v Minister of DEA and Others LS 147697 matter, the Chairperson was correct regarding section 48. NGOs took the joint decision by the DMR and DEA on review.
The Chairperson asked whether there were any legal costs yet and whether it might be significant.
Mr Abader responds that there were no legal costs yet but it could potentially imply very significant costs for DEA.
Nr 90: The City of CT Vs Sanral (Cost R 876, 712. 50)
Mr Abader referred to Ref. 8 in the Litigation Report.
Ms Ngcaba highlighted the substantive matter in the case was the same as the matter in Johannesburg. The question was whether the EIA was the instrument to authorise the tolling. The problem of the City of Cape Town was the issue of tolling, not the actual development of the highway. The appeal was about whether the EIA was the instrument for authorising the tolling. SANRAL must still run the processes of authorising the tolling but the EIA was only to look at the environmental impacts. DEA was added into this case.
The Chairperson asked why, if DEA was added into the case, did the matter accrue significant costs for the DEA.
Mr Abader reiterated the City was challenging the DEA decision. In this instance, DEA defended the EIA decision as indicated by the Director-General. DEA made the correct decision in this instance.
Mr Makhubele asked if the total litigation costs paid until 30 September 2017 (18 months) amounted to R11 269 995.19, what could the projection be of DEA in terms of total amount expended by the end of this financial year?
Ms Ngcaba said Treasury did not allow DEA to budget for litigation. Even when DEA won the case, money recovered did not go to DEA.
Mr Abader added that it was very difficult to project legal costs. There was great diversity in types of applications. Moreover, the costs were not always immediately payable in some instances. Once the costs were determined, DEA can say it was unhappy with the costs and it could be taxed to determine correctness of the costs. If DEA was satisfied it, only then, asked the State Attorney to pay the costs. It was a very difficult exercise to project costs. It may increase towards the end of the financial year.
Mr Makhubele asked about ‘Indwe Aviation (Pty) Ltd v Minister of Environmental Affairs , Ultimate Heli (Pty) Ltd’ and what the factors could be that accounted for zero spending thus far.
Mr Abader said the explanation for zero-spending could be one of various reasons. In some instances, court papers were issued but the applicant did not proceed further. It could also be that cost were not determined or finalised and had not been taxed.
Responding to Mr Makhubele, Ms Ngcaba highlighted there were a few matters under Legal, Authorisation, Compliance and Enforcement which were not as starkly high. DEA got more litigation in particular seasons, like with matters of pollution at sea. DEA will have more such litigation matters now since the application process started. Other matters were very much more about EIAs in the coastal environment or even inland.
Mr Abader clarified zero-spending at Ref. 85 entitled ‘Beukes Pieter // Theewater Nature Reserve LS162773’ in the Litigation Report.
The Chairperson concluded that the Committee will continue to monitor the litigation, understanding that the sector was a contested space. Good decision-making needed to be exercised. The Chairperson was pleased that, to all intents and purposes, the Minister decided not to appeal the Thabametsi matter. The protocol needs to be an interim solution, as well as well thought-through
Consideration and adoption of the 2017 Fourth Term draft Committee Programme
Members agreed to the draft programme.
The Chairperson outlined it was a working document and the Committee will keep working on it. On 7 November, DEA was hosting an environmental compliance and enforcement report. The Committee will correspond with DEA because it needs a workshop on the minimum emission standards
Mr Makhubele moved for adoption of the draft Committee programme without amendments.
The meeting is adjourned.