South Africa
Land Use, Constitutional, Environmental Impact Assessments, Licences, Criminal, Property, Remedies, Evidence, Jurisdiction, Permits
In January 2006, the Director of Integrated Environmental Management,acting under Section 22(1) of the Environment Conservation Act 73, 1989 (‘ECA’) refused Arabella South Africa Holding (Pty) Ltd (‘the Developer’) approval for their proposed development. The developper appealed to the Minister of Environmental Affairs of the Western Cape. The Minister allowed the appeal and granted the Developer development rights subject to a detailed list of some 76 conditions. The Minister noted “that the socio-economic benefits of the development cannot be ignored as it will contribute to the upliftment of the disadvantaged local communities.”

The Hangklip/Kleinmond Federation of Ratepayers thereafter applied for a review of the Minister’s decision, inter alia on the basis that certain conditions imposed by the Minister were ultra vires her powers, specifically condition 14 , under which , the applicant must ensure that they contribute R5 million to inclusionary housing for previously disadvantaged communities within a timeframe as agreed between the parties. The Court confirmed that Section 24 of the Constitution as read with various other bits of environmental legislation, introduces the need for a development to be assessed with reference to the impact on the environment, sustainable development and socio-economic interest. The undertaking by the Developer (in condition 14) to contribute housing was not in respect of housing created in the development itself. The legislation, the ECA read with NEMA, does not “allow environmental harm to be counterbalanced by a contribution to a worthy social cause” where such cause is not related to the impacts of the activity sought to be authorized". The Court accordingly found the Minister to have acted beyond her powers under Section 22(3) of the ECA. It accordingly set aside her appeal ruling but also considered the alternative ground of reasonable apprehension of bias. In this regard, although it was accepted that the Premier and the Minister never discussed the matter, in the mind of an informed observer the accumulation of various factors would result in the impression that the Minister’s decision may have been improperly influenced by factors such as the role played by the Premier, his position as the Minister’s superior and the fact that his office acted as a conduit for the renegotiated BBBEE agreement.