Mosunkutu Elias Khabisi N.O. and Cornelius, Steven Thomas v Aquarella Investment 83 (Pty) Ltd and Others

The first applicant was the MEC responsible for the Gauteng Department of Agriculture, Conservation and Environment (GDACE). The second applicant was the Head of GDACE and a Grade 1 Environmental Inspector designated under section 31L of the National Environmental Management Act 107 of 1998 (NEMA). The first and third respondents were property owners of Erven 1820 and 1821 in Silverton Extension 13 and 3 respectively. The second respondent was a director and shareholder in both companies. The respondents intended to develop a series of three or four storey cluster units on these adjacent properties situated on Silverton Ridge, an ecologically sensitive ridge ecosystem. On 22 February 2007, the second applicant issued compliance notices under section 31L of NEMA and directives under section 31A of the Environmental Conservation Act 73 of 1989 (ECA), requiring the respondents to cease all construction activities on the ground that the development required prior environmental authorization as it involved listed activities. The respondents, through their attorneys, responded that they regarded the compliance notices and directives as invalid and of no force or effect, and refused to comply. They had obtained approval of building plans from the City of Tswane Metropolitan Municipality but not environmental authorization from GDACE. The respondents continued with their development in defiance of the notices, prompting the applicants to seek an interdict. The respondents launched a conditional counter-application to review and set aside GDACE's decision.

• Whether the applicants were legally entitled to issue compliance notices under section 31L of NEMA and directives under section 31A of ECA
• Whether the respondents were entitled to ignore and disregard the compliance notices and proceed with their development without prior environmental authorization
• Whether the respondents could launch a collateral attack against the validity of the compliance notices without first exhausting internal remedies provided for in NEMA (sections 31L(5) and 31M) or taking the decision on judicial review
• The conflict between the constitutional right to property (section 25) and the constitutional right to a healthy environment (section 24)
• Whether the respondents were required to exhaust internal remedies under NEMA before seeking judicial review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)

The court granted prayers 1, 2 and 3 in Part B of the applicants' Notice of Motion, effectively granting a final interdict restraining the respondents from proceeding with the development without prior environmental authorization. The respondents' conditional counter-application was dismissed with costs. Costs were awarded to the applicants, including costs consequent upon the employment of two counsel.

Administrative decisions and compliance notices issued by competent authorities under NEMA are presumed valid and must be complied with until set aside by a court in proper proceedings. A person who receives a compliance notice under section 31L of NEMA has a peremptory legal obligation to comply with it under section 31L(4), unless they successfully invoke the internal remedies provided for in sections 31L(5) and 31M (lodging an objection with the Minister or MEC) or successfully challenge the decision through judicial review proceedings. A recipient of a compliance notice cannot unilaterally decide to disregard it based on their own assessment of its invalidity, as this would undermine the proper functioning of public administration. Collateral attacks on the validity of administrative decisions will not be permitted where the legislation provides effective internal remedies which have not been exhausted. Under section 7(2)(c) of PAJA, applicants for judicial review must first exhaust internal remedies unless exceptional circumstances justify non-exhaustion. The constitutional right to environmental protection under section 24 requires environmental authorities to ensure that developments which may impact ecologically sensitive areas obtain prior environmental authorization where listed activities under NEMA are involved.

The court made several important observations: (1) The court noted approvingly the constitutional vision in section 24 of promoting sustainable development that integrates social, economic and environmental factors for present and future generations, not merely the economic and commercial needs of property owners or developers. (2) The court emphasized the importance of ridges as sensitive ecological systems crucial to human health, reproduction and survival of endangered plant species (Red Data Species) and wildlife. (3) The court observed that GDACE had adopted a 'no-go' or low impact development policy for ridges in Gauteng. (4) Citing Pretoria City Council v Walker 1998 (2) SA 363 (CC), the court observed that local government and administrative authorities cannot function efficiently if individuals resort to self-help by disregarding administrative decisions, as this carries the potential for chaos and anarchy. (5) The court expressed concern about what might happen if all property owners were allowed to develop their properties as they wished against objections by competent environmental authorities, suggesting this would cause serious environmental damage. (6) The court noted that the facts demonstrated the conflict between two fundamental constitutional rights—the right to property (section 25) and the right to environment (section 24)—but observed that the issue was not which right is paramount but how to interpret them harmoniously. (7) The court characterized the respondents' explanation regarding time constraints as 'disingenuous if not plainly fallacious' and a 'bad after-thought', noting that the respondents had made clear from the outset their intention to disregard the notices based on perceived invalidity.

This case is significant in South African environmental and administrative law for several reasons: (1) It confirms the principle that administrative decisions and compliance notices must be presumed valid and complied with until set aside by a court, even if the recipient believes them to be invalid. (2) It reinforces that individuals cannot take the law into their own hands by disregarding administrative decisions, as this would undermine efficient public administration and lead to chaos. (3) It emphasizes the importance of exhausting internal remedies provided for in legislation (such as the objection procedure in sections 31L(5) and 31M of NEMA) before resorting to judicial review or launching collateral attacks on administrative decisions. (4) It demonstrates the constitutional importance of environmental protection under section 24 of the Constitution and the role of environmental authorities in protecting ecologically sensitive areas for present and future generations. (5) It illustrates how courts will balance competing constitutional rights (the right to property under section 25 versus the right to environment under section 24) in favor of environmental protection where sustainable development is at stake. (6) It confirms the peremptory nature of compliance notices issued under section 31L of NEMA and the criminal consequences for non-compliance under section 31N. (7) It reinforces that municipal approval of building plans does not exempt developers from obtaining separate environmental authorization where required under NEMA.