Eloff Landgoed (Pty) Ltd v Minister of Forestry, Fisheries and the Environment and Others

Eloff Landgoed operates an extensive commercial farm in Mpumalanga. The Second Respondent (Regional Manager) granted an environmental authorisation to the Third Respondent (Eloff Mining) to operate an open-cast coal mine on land adjacent to part of the farm. Eloff Landgoed appealed to the First Respondent (the Minister), but the appeal was unsuccessful. The environmental impact assessment (EIA) report initially recommended against authorisation based on economic and social impact reports concluding the mine was economically unfeasible, would result in permanent loss of highly productive agricultural land, could not be justified due to irreversible impact on food security, and that the land would never return to pre-mining agricultural productivity. After engagement with Eloff Mining, the environmental practitioner revised their position to state the mine "could be considered for environmental authorisation" if six conditions were adhered to, including conducting an "agronomic assessment" to inform agricultural potential on areas not affected by the mine. The Regional Manager granted the authorisation subject to these conditions, and the Minister dismissed the appeal.

• Whether the environmental authorisation was granted in breach of section 24 of NEMA and the Environmental Impact Assessment Regulations, 2014
• Whether the decisions of the Regional Manager and Minister to grant/uphold the environmental authorisation were rational and lawful
• Whether conditions attached to an environmental authorisation can mandate further assessment of material information that should have been considered before the authorisation was granted
• Whether the decisions complied with section 2(4)(i) of NEMA requiring social, economic and environmental impacts to be considered, assessed and evaluated before decisions are made
• Whether the agronomic assessment condition was a proper condition or rather a study that should have been completed before authorisation

The Minister's decision to dismiss the appeal was reviewed and set aside. The Regional Manager's decision to issue the environmental authorisation dated 25 April 2019 was reviewed and set aside. The matter was referred back to the Regional Manager for further consideration consistent with the judgment. The First and Second Respondents were ordered to pay the Applicant's costs jointly and severally, including costs of two counsel. The period to institute proceedings was extended to 24 April 2020.

Conditions attached to environmental authorisations under NEMA must be conditions in the true sense - requirements with which an applicant must comply in order to proceed with authorised activities. Conditions cannot be used as a mechanism to procure further information that is material to the decision whether to grant or refuse an environmental authorisation itself. Such material information must be gathered, considered and assessed before the authorisation is granted. Where a condition mandates further study of impacts that should have been captured and assessed before authorisation was granted, the condition is inconsistent with the risk-averse and cautious approach required by section 2(4)(a)(vii) of NEMA. An environmental authorisation granted without adequate consideration and assessment of social, economic and environmental impacts as required by section 2(4)(i) of NEMA is both unlawful and irrational. A decision is not rationally connected to the information before the decision-maker, the reasons given, or the purposes of the enabling legislation where a critical condition has no ameliorative purpose but rather serves to assess impacts that should have been determined before the decision was made.

The court observed that the tension between ensuring secure coal supply for power generation and ensuring productivity of agricultural land for food security is a social, economic and political question generally beyond the scope of judicial review, reserved for elected arms of state. Courts have very limited room to order decision-makers to attach specific weight to particular considerations or to set aside decisions simply because a judge would have weighed matters differently or sought more information. The court noted that some grounds of review appeared to pursue an appeal dressed up as a review. The court commented that it was unfortunate an organ of state expended time and resources vigorously pursuing highly technical points in limine in circumstances involving COVID-19 lockdown delays. The court observed that the Minister's approach, while flawed in the identified respect, was in large part a careful, sensitive and good faith evaluation of a complex social, economic and environmental field. The court noted that a deponent to founding papers in a review application does not necessarily give expert evidence even where the review touches on reliability of expert conclusions - they make out a case that grounds of review are established, which is not an expert exercise.

This case establishes important principles regarding the nature and purpose of conditions attached to environmental authorisations under NEMA. It clarifies that conditions must be conditions in the true sense - requiring compliance to proceed with activities - rather than mechanisms to obtain further information that is material to the decision whether to grant authorisation in the first place. The judgment reinforces that decision-makers must have adequate information to properly assess social, economic and environmental impacts before granting environmental authorisations, consistent with the precautionary and risk-averse approach mandated by NEMA. It demonstrates that decision-makers cannot defer assessment of critical impacts to post-authorisation conditions. The case is significant for emphasizing that courts will scrutinize whether environmental authorisations are based on adequate consideration and assessment of impacts as required by section 2(4)(i) of NEMA, particularly regarding food security and agricultural productivity. It also illustrates the limited scope for judicial review of the merits of environmental decisions (which are political questions for elected officials), while confirming courts will intervene where procedural or substantive legal requirements are not met.