Hekpoort Environmental Preservation Society and Another v The Minister of Land Affairs and Others

The first applicant was an environmental society whose members resided in Hekpoort, an agricultural district at the foot of the Magaliesburg. The second applicant was an agricultural worker on a farm owned by the Society's chairman. The fourth respondent, Hekpoort Foods CC, owned and operated a factory manufacturing sorghum beer in Hekpoort. In March 1996, the Society launched an application in the Transvaal Provincial Division seeking relief to prevent Hekpoort Foods from continuing its activities, alleging environmental pollution including irreversible pollution to underground water. The application was irregularly set down for July 1996 and struck off the roll. The Society was ordered to pay wasted costs on an attorney-and-client scale and was barred from proceeding until it furnished security for Hekpoort Foods' costs. An attempt to join the second applicant (Louw) was dismissed, as was an application for leave to appeal. After failing to obtain a certificate under Constitutional Court Rule 18(e) and being refused leave to appeal, the applicants applied for direct access to the Constitutional Court under Rule 17. The founding and answering affidavits in the High Court application each exceeded 400 pages and included expert reports. There were sharp disputes of fact on all major issues that could not be resolved without oral evidence.

• Whether exceptional circumstances existed to justify direct access to the Constitutional Court under Rule 17
• Whether the order for security for costs effectively denied the applicants access to courts in violation of section 34 of the Constitution
• Whether the Constitutional Court could assume jurisdiction over a matter still pending in the High Court where there were material disputes of fact requiring oral evidence
• Whether environmental matters automatically warrant exceptional treatment in direct access applications

The application for direct access to the Constitutional Court was refused.

Direct access to the Constitutional Court under Rule 17 requires exceptional circumstances and will not be granted: (1) merely because the matter involves environmental issues or matters of public importance; (2) where the applicant's predicament results from its own failure to comply with procedural rules and utilize available remedies; (3) where there are material disputes of fact that cannot be resolved without hearing oral evidence, unless circumstances are so exceptional and the public interest of such overriding importance that this constraint should be overlooked (which standard is very rarely met); (4) where a lower court is properly seized of the matter and the effect would be for the Constitutional Court to assume jurisdiction as a court of first instance rather than as an appellate court. Applicants seeking to raise constitutional issues should follow the proper procedures by applying to the Supreme Court for referral of disputed issues to the Constitutional Court under section 102(1) of the interim Constitution.

The Court accepted for present purposes that the Society was genuinely concerned with environmental preservation, that its belief that the environment was in danger was held in good faith, and that it was motivated solely by the public interest in bringing the proceedings. The Court expressed no opinion on whether the complaint that an order for security for costs effectively denies access to courts constitutes a viable constitutional issue, but noted that if the Society regarded this as viable, it should have raised the issue in the court of first instance when the application for security for costs was brought. The Court acknowledged that there may theoretically be cases where circumstances are so exceptional and the public interest, ends of justice, or good government are of such overriding importance that the Court might be disposed to grant direct access notwithstanding material disputes of fact requiring oral evidence, but emphasized that the present case was manifestly not such a case.

This case is significant in South African constitutional jurisprudence for establishing strict limits on direct access to the Constitutional Court under Rule 17. It clarifies that: (1) direct access requires exceptional circumstances and is not available merely because a matter involves environmental issues or statutory invalidity; (2) applicants must generally follow proper procedural channels, including applying to the Supreme Court for referral under section 102(1) of the interim Constitution; (3) even public interest litigants must comply with procedural rules and cannot rely on their own failures to invoke available remedies; (4) material disputes of fact requiring oral evidence will generally preclude direct access; (5) the Constitutional Court will not bypass lower courts that are properly seized of a matter and assume jurisdiction as a court of first instance. The judgment reinforces the importance of procedural propriety and the proper functioning of the court hierarchy, even in matters involving important public interests such as environmental protection. It serves as an important precedent for understanding the stringent requirements for direct access to the apex court.