Lionswatch Action Group v MEC: Local Government, Environmental Affairs & Development Planning and Others

The applicant, Lionswatch Action Group, applied for the review and setting aside of a decision by the first respondent (MEC) to grant environmental authorisation under the National Environmental Management Act 107 of 1998 (NEMA) to the third respondent, Lion's Hill Development Company (Pty) Ltd, for the development of Erf 1526, Tamboerskloof, Cape Town. The third respondent's application for environmental authorisation had initially been refused by the second respondent, but was granted on appeal to the first respondent. The applicant described itself as an umbrella organisation representing the interests of Tamboerskloof Neighbourhood Watch (TBKWatch), City Bowl Ratepayers and Residents' Association (CIBRA), and Greater Cape Town Civic Alliance (GCTCA). TBKWatch and CIBRA were registered as interested and affected parties (I&APs) in the environmental impact assessment process. The third respondent challenged the applicant's legal standing to bring the review application and also launched a counter-application for a declaratory order that its intended activity did not require environmental authorisation. In December 2014, before the hearing, the relevant regulations were amended, making it clear that the third respondent did require authorisation, which rendered the counter-application moot. The third respondent withdrew its counter-application but did not tender costs.

• Whether the applicant had legal standing to bring the review application
• The proper basis for standing under section 38 of the Constitution and section 32(1) of NEMA
• Whether the third respondent should pay the applicant's costs of the counter-application which was withdrawn due to supervening regulatory amendments
• The scope of section 32(1)(e) of NEMA in conferring standing to litigate in the interest of protecting the environment

1. The decisions of the first respondent upholding the third respondent's appeal and granting environmental authorisation are reviewed and set aside, and the matter is remitted to the first respondent for reconsideration. 2. The third respondent shall pay the applicant's costs of suit in the review application, including the costs of two counsel. 3. No order as to costs in the third respondent's counter-application, which was withdrawn.

Section 32(1)(e) of NEMA confers legal standing on any person or group seeking appropriate relief for breach or threatened breach of environmental legislation "in the interest of protecting the environment." This provision affords a very broad basis for standing in environmental watchdog litigation, beyond that provided by section 38 of the Constitution. To establish standing under section 32(1)(e), a litigant need not demonstrate that: (1) the breach of environmental legislation has a directly adverse effect on the litigant's own interests; (2) acting in protection of the environment falls within the litigant's stated objects (in the case of juristic persons); or (3) the litigant has expressly invoked the provision, provided it is sufficiently evident from the founding papers that the application seeks relief for breaches of environmental legislation and that protecting the environment is among the applicant's objects in the litigation. While it is desirable for litigants to expressly state that they rely on section 32(1)(e), it would inappropriately elevate form over substance to deny standing when it is sufficiently evident from the papers that the application concerns environmental protection. Where a counter-application becomes moot due to unforeseeable supervening legislative amendments in which neither party played a blameworthy role, the court may in the exercise of its discretion decline to award costs to achieve fairness between the parties.

The court made several observations on standing generally: Standing is not a concept that lends itself to finite definition and there is no magical formula for conferring it. It is a tool courts employ to determine whether a litigant is entitled to claim the court's time and put the opposing litigant to trouble. The court noted that section 38 of the Constitution, while to be applied generously, does not afford an unlimited warrant to persons to litigate as their brothers' keepers. On class actions under section 38(c), the court observed that: (1) the provision pertains to "class action" type cases involving large numbers of persons, not just two identifiable parties; (2) where only a small number of identifiable claimants are involved, joinder under rule 10 might be more appropriate; (3) while not strictly required in constitutional litigation, it is generally sound practice to obtain some form of court certification before launching class action litigation. The court also noted that an applicant founding standing on section 38(b) (acting on behalf of another who cannot act in their own name) must allege that the other person would have litigated the issue itself had it been able to do so. On costs, the court distinguished the Wildlife and Environmental Society and Germishuys cases, noting that in both those cases the courts found the institution of proceedings had been ill-advised from the outset, which was not the situation in the present case.

This case is significant for its interpretation of the broad standing provisions in section 32(1)(e) of NEMA, which allows litigation "in the interest of protecting the environment." The judgment clarifies that this provision affords standing to litigants beyond the categories provided in section 38 of the Constitution, and does not require that: (1) the breach directly adversely affect the applicant's interests; (2) environmental protection fall within the applicant's stated objects (in the case of juristic persons); or (3) the applicant expressly invoke the provision if it is sufficiently evident from the papers that the litigation concerns environmental protection. The case recognizes NEMA's creation of a special category of "environmentally concerned watchdog litigation" with generous standing requirements to promote environmental protection. The judgment also provides guidance on the proper approach to costs where a counter-application becomes moot due to unforeseeable supervening legislative amendments, holding that fairness may require no order as to costs where neither party is blameworthy for the change in circumstances.