The Federation of South African Fly Fishers v The Minister of Environmental Affairs

On 16 February 2018, the Minister of Environmental Affairs published Government Notices GN 112 and GN 115 in Government Gazette No. 41445, proposing amendments to the existing Alien and Invasive Species (AIS) regulations and lists under the National Environmental Management: Biodiversity Act (NEMBA). The proposed amendments included listing brown trout and rainbow trout as alien and invasive species. The notices called for public comments within 30 days. Notices were also published in various newspapers including the Star (21 February 2018), City Press and Sunday Times (25 February 2018). On 12 March 2018, Mr. Ian Cox, a member of the Federation of Southern African Flyfishers (FOSAF), submitted a detailed objection. The Consortium of Interested and Affected Parties also demanded withdrawal of the notices on 13 March 2018. FOSAF associated itself with these objections on 18 March 2018. The Minister extended the comment period twice (30 April and 22 June 2018) and published the amended AIS lists and regulations in September 2020. On 16 January 2019, FOSAF launched an application challenging the validity of the original notices. The commencement of the amended lists and regulations was subsequently extended to 1 March 2021, and the listing of trout species was suspended until further notice.

• Whether the matter had become moot given the publication of the amended AIS lists and regulations
• Whether FOSAF had standing to bring the application under section 32 of NEMA
• Whether the affidavits deposed to on behalf of the Minister were admissible despite alleged lack of authorization
• Whether the notices published in the Government Gazette and newspapers complied with the content requirements of sections 99 and 100 of NEMBA
• Whether the notices contained sufficient information to enable meaningful public participation
• Whether declaratory orders should be granted declaring the notices invalid

1. Government Notice GN 112 (draft alien and invasive species regulations), published by the Minister of Environmental Affairs & Tourism on 16 February 2018 in Government Gazette No. 41445 is declared invalid and of no force or effect. 2. Government Notice GN 115 (draft amendments to the alien and invasive species list), published by the Minister of Environmental Affairs & Tourism on 16 February 2018 in Government Gazette No. 41445 is declared invalid and of no force or effect. 3. The respondent is ordered to pay the costs of the application, including the costs of two Counsel.

The binding legal principles established are: (1) The obligations imposed on the Minister by sections 99 and 100 of NEMBA are peremptory and all jurisdictional factors must be complied with before the power can be exercised. (2) Section 100(2)(b) of NEMBA requires notices to contain sufficient information (not merely references to sources of information) to enable members of the public to submit meaningful representations or objections. (3) A notice without background information and reasons for the exercise of the power will not enable meaningful public participation. (4) Notices must explain the rationale behind proposed amendments, the extent to which existing lists/regulations will be amended, and how existing rights and interests may be affected. (5) Non-compliance with section 100 renders notices published under section 99 invalid and of no force or effect. (6) Section 100 must be interpreted in a manner consistent with participative democracy as a foundational constitutional value, enabling participation by all members of society, not just the educated or privileged. (7) Notices must at minimum inform the public of the Minister's discretion to allow oral representations under section 100(3).

The court made several important observations: (1) The judgment should not be understood to mean that the amended AIS lists and regulations themselves are invalid or unenforceable - the effect of the Minister's unlawful conduct on those amendments was not before the court and no finding was made in that regard. The court noted that consequences would be assessed with reference to principles in cases like Oudekraal, Kirland, Merafong, Aquila Steel, and Tasima. (2) The court observed that it might have been impractical to publish all information due to its volume (over 300 pages), but the Minister could have published a synopsis with references to source documents - a 'record of decision' rather than the entire record of proceedings. (3) The court commented on the outdated ultra vires doctrine regarding legal capacity of corporate bodies, suggesting that the modern approach in the Companies Act (sections 19 and 20) should apply to all bodies corporate - they should have the legal capacity of individuals unless founding documents expressly restrict activities. (4) The court remarked that seventeen years after Ganes v Telecom Namibia, it is bewildering that practitioners still erroneously include 'authorization to depose' paragraphs in affidavits and take points on lack of such authorization.

This case is significant for establishing the stringent requirements for public participation in environmental decision-making under NEMBA. It affirms that section 100's content requirements are peremptory and must be substantively complied with - mere formalistic notice is insufficient. The judgment emphasizes that participative democracy is a foundational constitutional value and environmental notices must contain sufficient information (not merely references to information sources) to enable meaningful public participation by all members of society. The case also provides important guidance on mootness in administrative law, confirming that courts may hear matters even after the impugned administrative action has been completed if important constitutional issues are raised. It clarifies the modern approach to standing for public interest environmental litigation under section 32 of NEMA, and confirms that deponents to affidavits need not be 'authorized' - a persistent misconception in South African practice. The judgment serves as a rebuke to government departments that pay mere lip service to public participation requirements.