Hanneré Cecile Jooste and Jan Louis Jordaan v Member of the Executive Council for Local Government Environmental Affairs & Development Planning: Western Cape and Others

The fourth respondent (SAFAM) operated a composting facility on a farm in Robertson, adjacent to properties owned by the appellants which formed part of the Doornkloof Private Nature Reserve. The appellants complained of foul odours and flies emanating from the facility. SAFAM applied for environmental authorisation under NEMA to conduct Listed Activities 4, 8 and 28, and a waste management licence under NEM:WA. The appellants opposed these applications as interested and affected parties, contending that SAFAM had unlawfully commenced Listed Activities in breach of s 24F(1)(a) of NEMA. The State respondents initially rejected SAFAM's applications on this basis. SAFAM launched a review application, which was settled with the State respondents on 18 October 2019, resulting in a settlement order setting aside the previous decisions and remitting the applications for reconsideration. Environmental authorisation and a waste management licence were subsequently granted to SAFAM on 29 November 2019. The appellants then appealed internally under s 43(2) of NEMA, which was dismissed. They then launched review proceedings in the high court, which were dismissed. The appellants appealed to the Supreme Court of Appeal, abandoning the appeal relating to the waste management licence prior to the hearing.

• Whether the settlement order of 18 October 2019 between SAFAM and the State respondents rendered the issues raised by the appellants res judicata
• Whether the appellants were bound by the settlement order despite not being parties to it and could collaterally challenge it through review proceedings
• Whether the Minister's condonation decision under s 47C of NEMA was procedurally unfair for lack of prior notice to interested and affected parties
• Whether SAFAM unlawfully commenced with Listed Activities 28 and 8 in breach of s 24F of NEMA
• The appropriate costs order in environmental litigation

The appeal was dismissed with costs. The appellants were directed to pay the costs of appeal of the fourth to seventh respondents, including the costs of two counsel where employed.

A court order arising from a settlement agreement has the same binding effect as any other court order and brings finality to the issues resolved thereby through the doctrine of res judicata. Parties who had knowledge of proceedings leading to such an order but elected not to intervene, and who subsequently failed to seek rescission or setting aside of that order, cannot collaterally challenge its validity through separate review proceedings that seek to relitigate the same issues already determined by the order. The settlement order in this case resolved all factual and legal issues between SAFAM and the State respondents regarding whether SAFAM had unlawfully commenced Listed Activities in breach of s 24F of NEMA, and the appellants' subsequent attempt to revive these issues through review proceedings was untenable as they were bound by the unchallenged settlement order.

The Court made several obiter observations: (1) It noted that the appellants' allegations of connivance and irregularities against SAFAM and the State respondents were intemperate, lacked merit, and were worthy of censure; (2) The Court observed that considering the history of the matter, the spurious allegations, and the abandonment of a substantial portion of the appeal, the conclusion could well be reached that the appeal was frivolous and that the appellants acted unreasonably and not in the public interest; (3) The Court commented that one of the core objectives of court orders is bringing finality to litigation; (4) The Court noted that it was of no consequence that the source of the order was a settlement between parties - such an order is an order like all others and will be interpreted as such; (5) The Court observed that a settlement order is not a nullity but exists in fact and has legal consequences, and is binding and must be complied with, obeyed and respected, irrespective of whether it has been correctly or incorrectly granted, until it is set aside.

This case is significant in South African environmental and administrative law for several reasons: (1) It clarifies the binding effect of consent orders arising from settlement agreements in environmental litigation and their res judicata effect on issues resolved thereby; (2) It emphasizes that court orders, whether arising from contested proceedings or settlements, must be respected and obeyed until set aside through proper legal channels; (3) It confirms that parties cannot collaterally challenge the validity of court orders through subsequent review proceedings without first seeking to set aside or rescind the original order; (4) It demonstrates the consequences for parties who, despite having knowledge of proceedings that may affect their interests, elect not to intervene and subsequently attempt to relitigate the same issues; (5) It provides guidance on when the Biowatch principles and s 32(2) of NEMA cost protections will not apply in environmental litigation, particularly where litigants make spurious allegations and act unreasonably; (6) It underscores the importance of finality in litigation and the doctrine of res judicata in the context of environmental authorizations and administrative decision-making.