Minister of Forestry, Fisheries and the Environment & Others v Badenhorst N.O. & Others

Three wind energy companies (Highlands companies) applied to the Chief Director for Environmental Authorisations (EAs) for three Wind Energy Facilities (WEFs) in the Cookhouse area near Somerset East, Eastern Cape. The applications were accompanied by Basic Assessment Reports (BARs) and Environmental Management Programmes (EMPrs). After public participation and amendments, including avifauna assessments and turbine layout changes, the Chief Director approved the EAs in January-February 2020, subject to various conditions. The respondents, who are trustees of properties in the development area and registered interested and affected parties, appealed to the Minister in terms of s 43 of NEMA. They raised one ground: that the Chief Director acted ultra vires by failing to require an approved EMPr prior to or simultaneously with the EA approval. The Minister dismissed the appeal. The respondents then approached the high court for review under PAJA, raising three grounds (only one of which had been raised in the internal appeal): (1) EAs granted without final layout maps as required by regulation 26(c)(iv); (2) EAs granted without approved EMPrs contrary to regulation 26(d)(iv); and (3) failure to evaluate cumulative impact of grid connections. The high court upheld the review and set aside the decisions.

• Whether the respondents were required to exhaust internal remedies under s 7(2) of PAJA before raising new grounds of review not advanced in the internal appeal, and whether exceptional circumstances existed for exemption under s 7(2)(c)
• Whether an EMPr must be approved prior to or simultaneously with the granting of an EA under NEMA and the EIA Regulations
• Whether regulation 26(c)(iv) required final layout maps to be included in the EAs at the time of approval
• Whether the failure to consider grid connection applications together with the WEF applications constituted a breach of regulation 11(3) requiring cumulative impact assessment
• Whether s 47A(1)(a) of NEMA validated any procedural non-compliance as immaterial and non-prejudicial
• Proper interpretation of regulations 26(1)(c)(iv) and 26(1)(d)(iv) of the EIA Regulations read with s 24N and s 47A(1) of NEMA

Appeal upheld with no order as to costs. The order of the high court was set aside and substituted with an order dismissing the application with no order as to costs.

The binding legal principles established are: (1) Section 7(2)(a) of PAJA mandates exhaustion of internal remedies before judicial review, and applicants who fail to raise grounds in an internal appeal cannot raise them in subsequent judicial review proceedings without first obtaining an exemption under s 7(2)(c) based on exceptional circumstances and the interests of justice. (2) NEMA and the EIA Regulations do not require an EMPr to be finally approved prior to or simultaneously with the granting of an EA; s 24N(1A) requires only submission of an EMPr before deciding on an EA application, and ss 24N(5) and (6) expressly contemplate subsequent amendment and approval of EMPrs. (3) Regulation 26 of the EIA Regulations sets out content requirements for EAs but does not prohibit conditional EAs that require further approvals before activities can commence; EAs may properly be granted subject to suspensive conditions requiring subsequent approval of final layout maps and amended EMPrs before commencement of activities. (4) Purposive and contextual interpretation of environmental legislation must give effect to the constitutional imperative in s 24 of the Constitution to protect the environment through reasonable legislative measures; form should not triumph over substance where the protective purpose of the legislation is achieved. (5) Where regulations are subordinate legislation, in cases of ambiguity or lack of express provision, the provisions of the parent Act (NEMA) must prevail over the regulations. (6) Section 47A(1)(a) of NEMA provides a curative mechanism that validates authorisations despite procedural non-compliance where such non-compliance is not material and does not prejudice any person. (7) The requirement in regulation 11(3) for cumulative impact assessment does not invalidate an EA where the competent authority did in fact consider related applications even if formally submitted separately.

The minority judgment by Gorven AJA (with Mbatha and Kathree-Setiloane JJA concurring) expressed the view that it was not necessary to decide the point in limine regarding exhaustion of internal remedies, preferring to dispose of the appeal on the merits alone. This judgment would have assumed, without deciding, that the respondents were entitled to rely on all three grounds. The minority also provided useful obiter observations on the nature of suspensive conditions, drawing an analogy to contractual principles to explain that the EAs did not give rise to immediate rights to commence activities but were conditional on further steps being fulfilled. The Court made observations about the application of the Biowatch principle regarding costs in public interest environmental litigation, noting that the respondents' challenge was neither malicious, frivolous nor vexatious, justifying no order as to costs. There were also observations about the practical workings of the EA approval process, noting that it cannot be expected that the competent authority hold back an EA 'until absolutely all processes are in place' as this 'would be to put form above substance' and amount to 'a value judgment'. The Court noted that even after EA approval, the legislation contemplates ongoing monitoring, auditing, and updating of EMPrs based on findings during implementation, demonstrating the iterative and adaptive nature of environmental management under NEMA.

This judgment is significant for South African environmental and administrative law for several reasons: (1) It clarifies the strict requirements of s 7(2) of PAJA regarding exhaustion of internal remedies, confirming that new grounds cannot be raised on judicial review unless they were raised in the internal appeal, absent an application for exemption based on exceptional circumstances. (2) It provides important guidance on the interpretation of NEMA and the EIA Regulations regarding the timing and sequence of approvals for environmental authorisations, EMPrs, and layout plans, confirming that conditional authorisations subject to further approvals are permissible. (3) It establishes that substantial compliance and a purposive interpretation should be applied to environmental legislation, particularly where the purpose of protecting the environment is still achieved through conditional authorisations that require further steps before implementation. (4) It confirms the saving provision in s 47A(1)(a) of NEMA which validates decisions despite procedural irregularities where non-compliance is not material and causes no prejudice. (5) It reinforces that regulations are subordinate to the Act and cannot override statutory provisions, and that Acts should prevail where regulations are ambiguous. (6) The case demonstrates the balance between environmental protection imperatives and the need for workable administrative processes in the renewable energy sector. The judgment has implications for all future environmental authorisation processes and clarifies when and how EMPrs and final plans must be approved in relation to the granting of EAs.