South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government

The second respondent, Capital Property Fund Limited, applied for and received environmental authorisation from the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs to construct a logistics park on the site of the old Clairwood Park Racecourse in the South Durban Industrial Basin. The appellant, the South Durban Community Environmental Alliance (an environmental justice non-governmental organisation), opposed the authorisation and pursued an internal appeal to the MEC in terms of s 43 of the National Environmental Management Act 107 of 1998 (NEMA). The Alliance argued that the logistics park would produce vehicular emissions of disproportionate scale in an area already suffering from serious air pollution from heavy industry. The MEC dismissed the appeal on 25 January 2016. The Alliance then launched a review application in the High Court on 22 July 2016 under s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which was dismissed on 19 December 2018. The Alliance appealed to the SCA. During this entire period, the Alliance never sought an interdict restraining construction, and Capital commenced construction in October 2016, with substantial completion by the time of the appeal.

• Whether the Alliance should have sought review of both the Department's initial decision and the MEC's appellate decision, or whether challenging the appellate decision alone was sufficient
• Whether the MEC's appellate decision was reviewable under PAJA on the grounds that: (a) the MEC failed to take account of the South Durban Health Studies; (b) the environmental reports failed to adequately describe the environment; (c) the air quality impact report was inadequate; (d) the MEC failed to consider the principle of environmental justice
• Whether grounds of appeal can be re-characterized as grounds of review
• The proper distinction between review and appeal in administrative law
• Whether costs should be awarded against an unsuccessful public interest environmental litigant

The appeal was dismissed. On costs, by majority (Petse DP, Nicholls JA and Makgoka JA), the court set aside the costs order made by the High Court and ordered each party to pay its own costs. The minority (Swain and Ponnan JJA) would have ordered the appellant to pay the second respondent's costs.

A review of an administrative decision based on alleged errors of fact requires the applicant to demonstrate that the decision-maker ignored uncontentious, objectively verifiable and material facts that would have resulted in a different decision. Generalized complaints unsupported by evidence are insufficient. Where an applicant suffers an unfavourable administrative decision at first instance which is confirmed on internal appeal, ordinarily both decisions should be challenged on review, though this may not be fatal depending on the nature of the appellate proceedings and the remedy sought. Grounds of appeal to an administrative decision-maker cannot simply be re-characterized as grounds of judicial review without meeting the distinct standards applicable to review proceedings. In reviewing administrative decisions on polycentric policy matters involving the balancing of competing interests (such as environmental protection and economic development), courts must exercise judicial deference and not substitute their own views for those of the decision-maker.

Swain JA observed that judicial officers have an ethical duty to deliver judgments promptly and that delays in delivering judgments damage public confidence in the judiciary, expressing disapproval of the one-year delay in delivering judgment in the High Court despite acknowledging the workload pressures and complexity of the case. On costs, Swain JA (in the minority) suggested that the Biowatch principle, which protects unsuccessful public interest litigants from adverse costs orders against the State, does not extend to litigation between private parties, and that even if it did, a litigant who fails to interdict ongoing construction and pursues unmeritorious litigation should not be shielded from costs. The majority (Nicholls JA and Makgoka JA) expressed the view (forming the ratio on costs) that s 32(2) of NEMA embodies and extends the Biowatch principle to environmental litigation between private parties, and that public interest environmental litigants acting reasonably out of concern for environmental protection should not be mulcted with costs unless their application is frivolous, vexatious or manifestly inappropriate in a manner going beyond mere procedural lapses.

This case is significant in South African environmental and administrative law for several reasons: (1) It clarifies the procedural requirements when challenging administrative decisions that have been subject to internal appeal - ordinarily both the initial decision and the appellate decision should be challenged on review; (2) It reinforces the distinction between appeal and review, emphasizing that review grounds cannot simply be dressed-up appeal grounds, and that courts must not usurp the functions of administrative decision-makers; (3) It sets out the stringent requirements for challenging administrative decisions based on alleged errors of fact - the applicant must demonstrate that the decision-maker ignored uncontentious, objectively verifiable and material facts that would have led to a different outcome; (4) It demonstrates judicial deference to administrative decision-makers on polycentric policy matters involving the balancing of competing rights and interests (such as environmental protection versus economic development); (5) Most significantly, it addresses (albeit with divergent views) the application of costs principles in environmental public interest litigation between private parties, with the majority extending Biowatch-type protection to public interest environmental litigants under s 32(2) of NEMA even when litigating against private respondents; (6) It emphasizes the importance of seeking interim interdicts when challenging development authorisations, to prevent fait accompli situations.