Minister of Forestry, Fisheries and the Environment and Others v Badenhorst N.O. and Others

The case concerned the granting of Environmental Authorisations (EAs) by the Chief Director: Integrated Environmental Authorisations under the National Environmental Management Act 107 of 1998 (NEMA) to three wind energy companies (the Highlands South, Central and North Wind Energy Facilities) for large-scale wind energy projects in the Cookhouse Renewable Energy Development Zone in the Eastern Cape. The respondents, trustees of two land-owning trusts and registered interested and affected parties, participated in the public participation process and objected to the authorisations. After the Chief Director approved the EAs subject to conditions, the respondents lodged an internal appeal to the Minister under s 43 of NEMA on a single ground relating to the absence of an approved Environmental Management Programme (EMPr) at the time of approval. The Minister dismissed the appeal. The respondents then instituted review proceedings in the High Court under PAJA, raising three grounds of review, two of which had not been raised in the internal appeal. The High Court set aside the EAs and the Minister’s appeal decision. The Minister, Chief Director and wind energy companies appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and substituted with an order dismissing the review application. No order as to costs was made.

The judgment reaffirms the strict application of the duty to exhaust internal remedies under s 7(2) of PAJA and clarifies that each ground of review must first be raised internally unless an exemption is granted. It also provides important guidance on the interpretation of the EIA Regulations and NEMA, confirming that Environmental Authorisations can validly be granted subject to conditions and that substantial, purposive compliance with regulatory requirements is sufficient in complex environmental approval processes.