Wings Park Port Elizabeth (Pty) Ltd v Member of the Executive Council for Environmental Affairs and Tourism, Eastern Cape Provincial Government and Others

Wings Park Port Elizabeth (Pty) Ltd (Wings Park) sought to develop and operate a members-only recreational airfield in the Kragga Kamma area of Port Elizabeth. The proposed development consisted of a 720-metre grass runway, 25 hangars (with 7 more planned), a clubhouse, and necessary infrastructure. Wings Park's shareholders, all recreational pilots, found existing facilities congested and sought security of tenure and unrestricted access. Wings Park applied for environmental authorisation under NEMA, as the development involved listed activities. After appointing environmental assessment practitioners, Wings Park submitted a Final Basic Assessment Report (FBAR) in October 2015. The Department refused authorisation on 12 May 2016. Wings Park appealed to the MEC, who dismissed the appeal on 22 November 2016. Wings Park then brought review proceedings challenging the initial departmental decision (not the MEC's appellate decision), but did so approximately three months after the 180-day period prescribed by PAJA had expired.

• Whether the court should condone the delay in instituting review proceedings beyond the 180-day period prescribed by section 7(1) of PAJA
• Whether a review application challenging only the decision at first instance (and not the appellate decision under section 43 of NEMA) is academic and moot where the internal appeal was unsuccessful
• Whether both the initial decision and the appellate decision must be challenged in review proceedings involving internal appeals under NEMA
• The nature and scope of internal appeals under section 43 of NEMA

The application was dismissed with costs, including the costs of two counsel where two counsel were employed. The delay in instituting proceedings was condoned, but the application was dismissed on the basis that it was academic.

Where an administrative decision subject to an internal appeal has been confirmed on appeal, review proceedings must be directed at least at the appellate decision, and in most instances both the initial decision and the appellate decision must be challenged. An application for review that challenges only the decision at first instance, without challenging the appellate decision that dismissed the internal appeal, is moot and academic because setting aside the first decision would have no practical effect—the appellate decision would remain in place and continue to bind the parties. This principle flows from the Oudekraal doctrine that administrative actions, even if unlawful, are presumed valid and have legal consequences until set aside by a court. Internal appeals under section 43 of NEMA constitute 'wide appeals' involving a complete rehearing de novo, with power to consider fresh evidence and substitute a new decision.

Plasket J made several obiter observations: (1) He noted that whether only the appellate decision or both decisions must be challenged may depend on the nature of the first instance decision and the remedy sought, though in most instances both should be challenged. (2) He expressed doubt about whether, even in cases of uncured procedural unfairness at first instance, only the first decision need be set aside, suggesting the appellate decision may still need to be set aside to terminate its factual effect despite being tainted by illegality. (3) He distinguished Turner v Jockey Club of South Africa and the 'general rule' from Leary v National Union of Vehicle Builders that failures of natural justice cannot be cured on appeal, noting this principle has been subject to a more nuanced approach in subsequent cases like Calvin v Carr and Slagment. (4) He observed that section 43 of NEMA creates different types of appeal powers for the Minister or MEC, including confirmation, variation, or setting aside of decisions. (5) He noted that given his conclusion on the mootness issue, there was no purpose in addressing the non-joinder issue or the merits of the review application itself.

This case establishes an important principle in South African administrative law regarding the review of administrative decisions subject to internal appeals. It clarifies that where an internal appeal has been unsuccessful, an applicant seeking judicial review must challenge at least the appellate decision, and usually both the first instance and appellate decisions. The judgment provides comprehensive analysis of the nature of internal appeals under section 43 of NEMA, confirming they constitute 'wide appeals' involving full rehearing de novo. The case reinforces the Oudekraal principle that administrative actions have legal effect until set aside by a court, meaning that an unchallenged appellate decision will remain valid even if the initial decision is set aside. This has significant practical implications for environmental law litigation and the proper formulation of review applications in cases involving internal administrative appeals. The judgment provides guidance on strategic considerations in challenging administrative decisions and clarifies the hierarchy and interaction between initial and appellate administrative decisions.