Minister of Water and Environmental Affairs v Kloof Conservancy

The National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) required the Minister of Water and Environmental Affairs to publish, by 31 August 2006, a national list of alien and invasive species (AIS) and accompanying regulations. The Minister failed to do so within the prescribed period, although draft lists were published over time. The Kloof Conservancy, a non-profit environmental organisation, brought proceedings in the KwaZulu-Natal High Court seeking declaratory and mandatory relief, including an order compelling publication of the AIS list and regulations and broader supervisory orders requiring the Minister and other organs of state to ensure compliance with NEMBA by all spheres of government. While the litigation was pending, the Minister published the final AIS list and regulations in August 2014. Despite this, the High Court issued declaratory orders regarding the Minister’s past failures and further orders (paragraphs c and d) obliging the Minister to ensure compliance by all organs of state and to appoint sufficient environmental management inspectors. The Minister appealed only against those supervisory and enforcement orders.

The appeal succeeded. Paragraphs c and d of the High Court’s order were set aside.

This case is significant for reaffirming the constitutional principles of co-operative government, legality and separation of powers in the environmental law context. It clarifies the limits of judicial intervention and structural-type relief against members of the executive, particularly where such relief would impose a general supervisory role over other spheres of government. The judgment also emphasises that court orders must be clear, precise and consistent with existing statutory schemes.