South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government and Another

The second respondent, Capital Property Fund Limited, sought to construct a logistics park on the site of the old Clairwood Park Racecourse in the South Durban Industrial Basin. Capital obtained environmental authorisation from the KwaZulu-Natal Department of Economic Development, Tourism and Environmental Affairs in terms of s 24 of the National Environmental Management Act 107 of 1998 (NEMA) on 29 May 2015. The appellant, South Durban Community Environmental Alliance, representing communities residing in the Basin who suffered from historical air pollution from heavy industry, appealed to the MEC in terms of s 43 of NEMA on 17 July 2015, arguing the development would increase pollution and adversely affect community health. The MEC dismissed the appeal on 25 January 2016. The Alliance then launched a review application under PAJA on 22 July 2016 to set aside the MEC's decision. The High Court dismissed the application on 19 December 2018, including on the basis of unreasonable delay. Leave to appeal was granted on 12 February 2019. Importantly, the Alliance never sought an interdict to halt construction, which commenced in October 2016 and had substantially progressed by the time of the appeal.

• Whether the appellant was required to review both the original Department decision and the MEC's appellate decision
• Whether the MEC failed to consider the South Durban Health Studies (ground one)
• Whether the environmental impact assessment adequately described the receiving environment regarding air quality and health (ground two)
• Whether the Occutech Air Quality Impact Report complied with mandatory requirements (ground three)
• Whether the MEC failed to consider the principle of environmental justice (ground four)
• Whether material errors of fact were demonstrated sufficient to vitiate the MEC's decision
• What the appropriate costs order should be, particularly in light of s 32(2) of NEMA and the Biowatch principle

The appeal was dismissed. On costs, the majority (Swain and Ponnan JJA) ordered the appellant to pay the second respondent's costs. The minority (Nicholls JA, with Petse DP and Makgoka JA concurring) would have ordered each party to pay its own costs. The final order stated: 'Save for setting aside the order of costs of the court below, the appeal is dismissed.' This appears to reflect that the first respondent (MEC) abandoned its costs order in line with the Biowatch principle, but the second respondent's costs order stood per the majority.

For a review based on material error of fact to succeed, an applicant must demonstrate that the decision-maker ignored uncontentious, objectively verifiable material facts that would have resulted in a different decision. Generalized complaints without specific evidence of material omissions are insufficient. When an administrative decision involves polycentric matters of fact and policy, particularly in environmental authorizations requiring balancing of competing interests, courts must exercise judicial deference and not substitute their own views. Under NEMA, when both an original authorization and an appellate decision exist, ordinarily both must be challenged, though this may be ameliorated where the relief sought includes reconsideration by the appeal authority and the statutory appeal allows a full rehearing. Regarding costs in environmental litigation, the majority held that the Biowatch principle (no costs against unsuccessful public interest litigants) applies to the state but not necessarily to private respondents, particularly where the applicant's conduct has been unreasonable (such as failing to seek an interdict timeously). The minority held that s 32(2) of NEMA codifies and extends the Biowatch principle to environmental litigation between private parties where the litigant acted reasonably in the public interest.

The court expressed concern about the failure of the Alliance to seek an interdict at the outset to prevent construction of the logistics park, which by the time of the appeal had resulted in substantial construction (24,990 m² completed of 358,000 m² planned, with R475 million in contracts awarded). This failure meant the court was presented with a fait accompli. The court noted this was a relevant factor in assessing both the prospects of meaningful relief and the appropriateness of costs orders. Swain JA commented that the delay by the High Court in delivering judgment (one year between hearing and judgment) was unreasonable despite the workload pressures and complexity of the case, citing the principle that justice delayed is justice denied. The court also noted that the Alliance's grounds of review were essentially the same as its grounds of appeal to the MEC, representing an attempt to dress up appeal grounds as review grounds. On the issue of whether only the appellate decision or both the original and appellate decisions must be reviewed, the court indicated this was a developing area of law and acknowledged the analysis in Wings Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern Cape, suggesting the answer may depend on the nature of the decisions and remedy sought.

This case is significant for establishing principles regarding: (1) the requirement to review both original administrative decisions and appellate decisions under NEMA, though this may be ameliorated where reconsideration is sought and the appeal is a full rehearing; (2) the high threshold for demonstrating material errors of fact sufficient to justify judicial review - requiring uncontentious, objectively verifiable facts that would have changed the decision; (3) the degree of judicial deference owed to administrative decision-makers on polycentric matters of fact and policy; (4) the application of the Biowatch principle regarding costs in environmental litigation, with the majority narrowly confining it to litigation against the state, while the minority held that s 32(2) of NEMA extends the principle to private party environmental litigation; and (5) the relevance of a litigant's failure to seek timely interdict relief in assessing both the merits and costs of environmental review applications. The case highlights tensions between access to environmental justice for marginalized communities and the rights of private developers who have obtained proper administrative approvals.