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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 814/2008

DATE HEARD: 24/4/08

DATE DELIVERED: 26/5/08

NOT REPORTABLE

IN THE MATTER BETWEEN:

MICHAEL RICHARD JAMES FULLER Applicant

and

KENTON ECO ESTATE LTD First Respondent

BLUE HORIZON DEVELOPMENTS (PTY) LTD Second Respondent

GENERAL MANAGER: ENVIRONMENTAL

AFFAIRS IN THE DEPARTMENT OF ECONOMIC

DEVELOPMENT AND ENVIRONMENTAL

AFFAIRS, EASTERN CAPE Third Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR ECONOMIC AFFAIRS, ENVIRONMENT &

TOURISM, EASTERN CAPE Fourth Respondent

CHIEF DIRECTORATE: ENVIRONMENT

AFFAIRS IN THE DEPARTMENT OF ECONOMIC

AFFAIRS, ENVIRONMENT & TOURISM,

EASTERN CAPE Fifth Respondent

________________________________________________________________

The applicant applied as a matter of urgency for an interim interdict to stop construction of a development pending the determination of an administrative appeal concerning the first respondent’s environmental authorisation to proceed with the development. Doubt was expressed about whether the applicant had established a prima facie right. The court preferred not to deal with this issue in detail as it involved the subject matter of the administrative appeal. It was held, however, that the applicant had failed to establish the apprehension of irreversible harm and that the balance of convenience favoured him. It was also held that the applicant had misconceived the urgency of the matter. The application was dismissed with costs.

JUDGMENT

________________________________________________________________

PLASKET J:

[A] INTRODUCTION

[1] This is an application in which the applicant has applied for orders:

‘1. That the applicant’s non-compliance with the Rules of this Court be condoned and that the matter be heard as one of urgency in terms of Rule 6(12) and that the forms and service provided for by the Rules of Court be dispensed with to the extent provided for in the Notice of Motion hereunder;

2. That the First and/or Second Respondents be and are hereby interdicted and restrained from engaging in or continuing with any construction-related activities in respect of the development known as Kenton Eco Estate on Remainder of Grants Valley 396, at Kenton-on-Sea, pending the finalisation of proceedings initiated by the Applicant to set aside (whether by way of administrative appeal or judicial review) the decision of the Third Respondent taken on 18 December 2007:

Provided that the Applicant shall:

1. Prosecute the internal administrative appeal lodged by him on 17 January 2008 against the decision of the Third Respondent taken on 18 December 2007, as expeditiously as is reasonably possible; and

2. In the event that the aforesaid appeal is unsuccessful, institute an application to review and set aside the decision of 18 December 2007 within fourteen (14) days of the date upon which the decision on appeal is rendered and communicated to the Applicant, failing which the restraining order granted herein shall lapse and be of no further force and effect.

IN THE ALTERNATIVE TO PARAGRAPH 2 ABOVE:

2. That the Third and/or Fifth Respondent be and is hereby ordered and directed to take all steps as may be necessary in terms of the provisions of sections 24 and 28 (insofar as the latter may be applicable) of the National Environmental Management Act, Act 107 of 1998 to ensure that unauthorised construction-related activities currently being conducted in respect of the Kenton Eco Estate on Remainder of Grants Valley 396, at Kenton-on-Sea, be forthwith terminated;

3. That the First, Second and Third Respondents, and in the event that the Fourth and/or Fifth Respondents opposes the relief sought herein, be ordered to pay the costs hereof jointly and severally, the one paying the other to be absolved;’

[2] The applicant describes himself as a businessman who owns immovable property at Kasouga, a short distance from Kenton-on-Sea. His standing to bring this application in his personal capacity and in the public interest is not challenged.

[3] The first respondent, Kenton Eco Estate Ltd, is described as a property development company. It is the owner and developer of the Kenton Eco Estate. It is, the applicant states, ‘cited in that capacity and as the applicant for and holder of the statutory approval required for various activities with significant environmental impacts that form part of the development and that require authorisation in terms of the Environmental Conservation Act, Act 73 of 1989’.¹ The second respondent, Blue Horizon Developments (Pty) Ltd, is ‘the founder and shareholder of the first respondent and accordingly has a direct and substantial interest in the subject matter of this application’. For all intents and purposes the second respondent plays no real role in these proceedings. For this reason, I have generally referred throughout this judgment only to the first respondent when referring to the development of the Kenton Eco Estate and the opposition to this application.

[4] The third respondent is the General Manager: Environmental Affairs, in the Eastern Cape Government’s Department of Economic Development and Environmental Affairs.² He took the administrative decision that is at the heart of the application. The fourth respondent is the Member of the Executive Council for Economic Development and Environmental Affairs in the Eastern Cape Government. He is thus the political head of the Department and is also the official to whom an administrative appeal against the third respondent’s decision has been noted. The fourth respondent abides the court’s decision. The fifth respondent is the Chief Directorate: Environmental Affairs in the Department.

[5] As is evident from the provisions of the Notice of Motion which I have quoted, the applicant seeks an interim interdict to prevent further development of the Kenton Eco Estate pending the finalisation of the applicant’s administrative appeal to the fourth respondent or, if the appeal is dismissed, pending the finalisation of an application to review that decision and the decision appealed against.

[B] THE FACTS

[6] The Kenton Eco Estate is a residential development being constructed on land to the east of the Kariega River. On the west bank of the river lies Kenton-on-Sea. It is planned to comprise of four sets of residential units totalling 330 houses.

[7] In order to develop this land as planned the first respondent was required to obtain authorisation in terms of s 22 of the ECA. Such authorisation was granted and confirmed on appeal on 12 April 2007. In that administrative appeal, the fourth respondent issued an amended record of decision³ which included a number of conditions that had to be complied with prior to the commencement of construction-related activities.

[8] In September 2007, the applicant launched an application consisting of two parts, namely a review of the decision to authorise the development and an interdict to prohibit any work on the property pending the finalisation of the review.

[9] The first and second respondents submitted to a final interdict to stop construction until the Department had confirmed in writing that it was satisfied that the conditions included as part of the record of decision had been complied with. The applicant persisted in seeking an interim interdict pending the determination of the review but did not succeed in this regard: Jones J held that the applicant had not only failed to establish urgency but had also failed to establish that he had no other suitable remedy and that the balance of convenience favoured him.⁴

[10] One set of conditions that the fourth respondent made part of the record of decision was contained in paragraphs 8.1.3 and 8.1.4. These conditions are central to this matter. They read as follows:

‘8.1.3. DEAE&T⁵ to be provided with irrefutable proof that the existing capacity of the desalination plant at Bushmans River is adequate to provide in (sic) the future water demand of Kenton Eco Estate. Such proof to address the increase in operational efficiency of the desalination plant as contemplated in the bulk water supply agreement between Kenton Eco Estate Ltd, Ndlambe Municipality and the Albany Coast Water Board in order to determine whether such increase in operational efficiency would have any legal requirements over and above such already authorised. No construction to commence on site until this issue has been addressed to the satisfaction of DEAE&T.

8.1.3.1. The proposed increase in operational efficiency of the desalination plant to be detailed with both costs and time frames clearly set out. The costs must also indicate how and by whom the various processes will be financed, inclusive of the future maintenance to and the monitoring of the plant’s effectiveness.

8.1.3.2. A detailed breakdown of how any existing and additional water production resulting from an increase in the operational efficiency of the desalination plant will address current and future water demands of developments within Bushmans River Mouth and Kenton-on-Sea to be submitted to this department prior to implementation of any operational efficiency measures. This breakdown must also indicate who the primary and other beneficiaries of the increased water supply will be.

8.1.4. In the event that the proposed increase in operational efficiency does not meet the increased water demand, thus necessitating the upgrading of the desalination plant and as such requires further authorisation and/or licences, no upgrading of such desalination plant or associated infrastructure, no construction of any components of Kenton Eco Estate to commence on site prior to such authorisation/licence having been granted. In the event of such authorisation not being granted this authorisation and Record of Decision becomes null and void.

[11] The first respondent provided the third respondent with information and, on 18 December 2007, he expressed his satisfaction that conditions 8.1.3 and 8.1.4 had been met. In his letter of that date, having referred to the review of documents ‘submitted by Kenton Eco Estate Ltd in fulfilment of conditions contained in the amended Record of Decision’, he stated:

‘The Department has reviewed the documents submitted in light of the confirmation received from the Albany Coast Water Board and the Ndlambe Municipality that the water demand of the Kenton Eco Estate development will be adequately provided. On the basis of the information made available to the Department by the developer we are satisfied that the water supply will meet the requirements of the development.’

On 17 January 2008, the applicant noted an appeal, in terms of s 35 of the ECA, against the third respondent’s decision. That appeal lies to the fourth respondent. That appeal is pending and none of the counsel who appeared in this matter were able to hazard a guess as to when it would be decided.

[12] As far as the first respondent was concerned, it believed it was entitled to continue construction as soon as the third respondent said that he was satisfied that condition 8.1.3 was complied with. It placed an advertisement in the Talk of the Town, a newspaper that circulates in the Port Alfred area, including Kenton-on-Sea, that it would recommence work on 9 January 2008. The applicant’s attorneys were notified by the third respondents’ attorneys on 7 January 2008 that the go-ahead had been given.

[13] When the applicant noted the administrative appeal, it relied on a report compiled by an engineer, Mr Stephanus Victor. It had been in possession of this report for some time. On 6 March 2008, however, the applicant’s attorney received from the Department a copy of what appears to be a draft report compiled by Ninham Shand (Pty) Ltd, a report that had been commissioned by the Department itself. This report is limited to one issue namely the capacity of the desalination plant that supplies some of the water for Kenton-on-Sea and its surrounds. It did not deal at all with the other sources of water that are drawn on.

[14] When the applicant received the Ninham Shand report, drafting of the papers for this application commenced. The papers were signed on 20 March 2008 but the application was not launched then because the Department gave notice of its intention to issue a compliance notice against the first respondent in terms of s31L of the National Environmental Management Act 107 of 1998⁶ on the basis of alleged non-compliance with three of the conditions of the record of decision. None of these conditions was condition 8.1.3.

[15] When the Department decided a while later not to issue the compliance notice, the application was launched on 2 April 2008. A week later the Department issued a compliance notice in which it instructed the first respondent to cease construction-related activities on the waste water treatment plant pending its approval in terms of condition 8.2.11. That is not relevant to these proceedings.

[16] As stated above, the application – which is of considerable size, the founding papers running to 409 pages – was issued and served on 2 April 2008. The respondents were given until 8 April 2008 to file their answering papers and the matter was to be heard on 10 April 2008, during the April recess.

[C] THE ISSUES TO BE DECIDED

[17] As indicated above, the applicant has applied for an interim interdict pending the finalisation of the administrative appeal to the fourth respondent or, if necessary thereafter, of a review of that decision. The requirements for the granting of an interim interdict are well-known. In LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd⁷ Corbett J set these out as follows:

‘Briefly these requisites are that the applicant for such temporary relief must show -

(a) that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

(b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) that the balance of convenience favours the granting of interim relief; and

(d) that the applicant has no other satisfactory remedy.

Where the applicant cannot show a clear right, and more particularly where there are disputes of fact, the Court's approach in determining whether the applicant's right is prima facie established, though open to some doubt, is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial of the main action.’

[18] In Spur Steak Ranches Ltd and others v Saddles Steak Ranch, Claremont and another⁸ Selikowitz J held that ‘[s]ave that the requirement of a prima facie right established though open to some doubt, is the threshold test, the factors are not considered separately or in isolation, but in conjunction with one another in the determination of whether the Court should exercise its overriding discretion in favour of the grant of interim relief’.

[19] That the test is a nuanced one appears from the judgment of Holmes, J in Olympic Passenger Service (Pty) Ltd v Ramlagan⁹ in which he held:

‘It thus appears that where the applicant's right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously the Court will refuse an interdict. Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicants' prospects of ultimate success may range all the way from strong to weak. The expression “prima facie established though open to some doubt” seems to me a brilliantly apt classification of these cases. In such cases, upon proof of a well grounded apprehension of irreparable harm, and there being no adequate ordinary remedy, the Court may grant an interdict -- it has a discretion, to be exercised judicially upon a consideration of all the facts. Usually this will resolve itself into a nice consideration of the prospects of success and the balance of convenience -- the stronger the prospects of success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.’

[20] In the present case, of course, the applicant must establish in addition to the requirements for an interim interdict that the matter was sufficiently urgent to justify a departure from the normal rules. As Jones J pointed out in the first Fuller case, the issue of urgency – particularly in the context of whether the applicant delayed in bringing the application – is linked to one of the requirements for an interim interdict – the balance of convenience.¹⁰

(a) A Prima Facie Right

[21] The right that the applicant must establish on a prima facie basis (even if open to some doubt) at this stage is ‘the right that is the subject matter of the main action’ and which needs to be protected in the interim.¹¹ In this case, the right that the applicant seeks to protect in the administrative appeal that is pending is the right to an environment that is not harmful to health and wellbeing and is protected for the benefit of present and future generations.¹²

[22] As a decision has been taken that gives the development a clean bill of health, as it were, in relation to condition 8.1.3, the applicant’s prospects of success in the administrative appeal (and possible review thereafter) are bound up in the enquiry as to whether it has established a prima facie right. In this case, for reasons that will become clear in due course, it is my view that it is neither necessary nor desirable for me to venture a detailed opinion on the facts and arguments in support of and in opposition to this requirement. The detailed contentions of the parties on the water supply to Kenton-on-Sea and its surrounding area, including to the Kenton Eco Estate, were debated at length before me. They are the very crux of the appeal currently pending before the fourth respondent. I am loath to make statements in these proceedings that may influence the administrative appeal one way or the other. In the previous Fuller matter, Jones J adopted this approach too and justified it in the following passage with which I respectfully agree and adopt:¹³

‘I can conclude that some of the points made by him on the merits are sufficient to establish a prima facie case which is open to some doubt. But when I have regard to the facts and counter-arguments set up by the first and second respondents I am left, at this juncture and on the facts presently before me, with more than just some doubt. I have significant doubt. I do not wish to go into the matter further in any detail at this preliminary stage because it would not be proper to second-guess a finding on issues that must still be canvassed in depth.’

I too, having considered the arguments advanced on behalf of the applicant, and on behalf of the respondents, have significant doubt as to the applicant’s prospects of success in the administrative appeal and, consequently that he has passed the threshold test of establishing a prima facie right open to some doubt.

(b) An Alternative, Satisfactory Remedy

[23] It is convenient to deal with what is usually dealt with as the final requirement for an interim interdict, namely the absence of an alternative, satisfactory remedy, at this stage. It is evident on the papers that no such remedy is available to the applicant. Indeed, he tried to persuade the third respondent to invoke certain statutory compliance powers but this was to no avail. It is suggested by the first and second respondents that the alternative remedy lies in a further such power, that contained in s 28 of the NEMA. Section 28(12) grants standing to a person such as the applicant to compel the Director-General or a provincial head of department to take any of the steps mentioned in s 28(4) for the purposes of preventing or minimising ‘significant pollution or degradation of the environment’. As I understand the applicant’s case, it is that the environmental right is being infringed because the Kenton Eco Estate is not an ecologically sustainable development, rather than because of any environmental degradation that it may cause. Understood thus, it is my view that the remedy created by s 28(12) has no bearing on the present matter. As it does not apply, it is by definition neither an alternative to the remedy sought, nor a satisfactory remedy.

(c) A Well-Grounded Apprehension of Irreparable Harm

[24] I turn now to whether the applicant has established a well-grounded apprehension of irreparable harm if the interim relief is not granted and he ultimately succeeds in establishing his right. The applicant’s starting point is that construction is proceeding unlawfully ‘inasmuch as the so-called approval of construction by reason of compliance with conditions 8.1.3 and 8.1.4 of the amended ROD is tainted by illegality and irregularity and will, it is submitted, be set aside in due course’. The applicant states further that the ‘continued development’ is ‘in breach of a range of conditions stipulated in the amended ROD’, and that this has and will continue to cause the environment harm. All of this, he says, constitutes a violation of the right enshrined in s 24 of the Constitution and the failure on the part of the Department to do anything to stop the construction is a further violation.

[25] The first respondent’s answer to this is simply that its activities are lawful and it does not know what the ‘range of conditions’ are that it had supposedly breached. It invites the applicant to inform it. It states that there is ‘no evidence to indicate that the construction activities … constitute a violation of the applicant’s rights in terms of section [24] of the Constitution’ and that the rights that the applicant claims have been violated by the Department are not identified. It points out that the applicant has exercised his rights in terms of the NEMA and has appealed against the decision of the third respondent that it considers to be unfair.

[26] The applicant continues to say in conclusion:

‘It is submitted that in the light of the deleterious impact that the construction activities will have on the environment of the development area, together with the fact that the first respondent has not complied with a number of conditions set out in the amended ROD issued by the fourth respondent, that this Honourable Court will intervene to protect the interests sought to be protected by section 24 of the Constitution as read with the provisions of both ECA and NEMA.’

[27] To this, the first respondent answers as follows:

’59.5. No evidence has been produced by the applicant of the “deleterious impact that the construction activities will have on the environment of the development area”. Consequently, the applicant has not discharged the onus in respect of the reasonable apprehension of harm as is required by him for the purposes of bringing an urgent application. In this regard, should the above Honourable Court accept the correctness of the applicant’s allegations in these paragraphs, then the harm or apprehension of harm about which the applicant currently complains existed already as at 9 January 2008, when construction commenced and the application to prevent such harm should have been brought at that stage.

59.6. The first and second respondents have already in the previous interim application, shown that any harm to the environment that may be caused by the construction process, has already occurred. Since 9 January 2008 the construction has continued far beyond the point of no return. In this regard I refer the Honourable Court to the photos and details regarding construction referred to above.’

[28] In the light of the applicant’s failure to identify the ‘deleterious impact’ that he alleges and the first respondent’s averment that no further harm to the environment will be occasioned by the construction process, there appears to me to be merit in its contention that the applicant has failed to establish this requirement of an interim interdict. In any event, the case for the applicant appears to be that the first respondent is acting unlawfully in proceeding with construction and, as a result, the applicant’s environmental rights have been violated, including ‘the right to have the environment protected for the benefit of present and future generations through the enforcement of legislative measures enacted for the purpose of protecting the environment’. Apart from the fact that the first respondent has a point when it complains that there is no evidence to support this assertion, there is also no merit in the averment that the first respondent is acting unlawfully in relation to condition 8.1.3. The third respondent has expressed his satisfaction that the condition has been complied with and this, together with compliance with other conditions that are not germane to this matter, allows it to proceed with the development.¹⁴

(d) The Balance of Convenience

[29] I turn now to the balance of convenience. The applicant states that the activities that the first respondent was engaged in required authorisation and to engage in those activities without authorisation was not only unlawful but also criminal. The first respondent does not dispute this. The applicant then states:

‘I respectfully submit that the facts set out hereinabove clearly establish that the first respondent has failed to comply with the terms of the environmental authorisation issued in respect of the listed activities as set out in the amended ROD. In the circumstances, I further submit that the first respondent is engaged in proscribed conduct which carries a criminal law sanction and that in these circumstances, this Honourable Court will find that the balance of convenience clearly favours the granting of the interim order sought herein.’

[30] The first respondent denies the allegations made in this paragraph, describing it as ‘fanciful speculation’. It states that it procured the Department’s ‘satisfaction in terms of conditions 8.1.3 and 8.1.4 and its actions are therefore perfectly lawful’. It proceeds to say that even if the Department’s decision was ‘capable of being reversed on appeal or review … it remains valid until set aside or reversed’. These submissions appear to me to be correct and to be a complete answer to the applicant’s contention that the first respondent is acting unlawfully. The position is authoritatively set out by Howie P and Nugent JA in Oudekraal Estates (Pty) Ltd v City of Cape Town and others¹⁵ in which they held:

‘The proper functioning of the modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.’

[31] In Smith v East Elloe Rural District Council,¹⁶ cited with approval in Oudekraal Estates,¹⁷ Radcliffe LJ made the point that an administrative action ‘bears no brand of invalidity upon its forehead’ and that ‘[u]nless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders’. The position is stated with characteristic clarity by Woolf, Jowell and Le Sueur: ‘All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.’¹⁸ Indeed, this is the very reason why applications for interim interdicts are often made pending the review of administrative decisions or, perhaps less commonly, pending the determination of an administrative appeal, as in this case.

[32] The applicant then deals with those factors that appear to be in favour of the first respondent. He states:

’80. Whilst it may be so that the first respondent may suffer some prejudice if the current construction activities are halted, such prejudice is, in the absence of compliance with the terms of the amended ROD, clearly of the first respondent’s own making and is not a factor which this Honourable Court will properly take into account in assessing whether to grant the relief sought in the circumstances.

81. I would furthermore respectfully submit that such commercial concerns cannot be weighed against the permanent destruction of undisturbed land in a sensitive environmental area. Furthermore, this Honourable Court cannot, with respect, condone criminal activity.

82. I would also wish to point out that the right to have the environment protected through legislative and other means is a right enshrined in the Constitution and that in the absence of an appropriate and proper limitation of such right, this Honourable Court will give precedence to the protection of the constitutional rights of both myself and members of the public in the circumstances.’

[33] The first respondent answers these paragraphs as follows:

’60.3. The nature of the construction activities and the value of the infrastructure that has already been installed has been dealt with hereinabove; the expense incurred by the first and second respondents and the prejudice that will be suffered should the construction activities be halted by an interdict is also dealt with.

60.4. It is submitted that the findings of His Lordship, Mr Justice Jones, to the effect that the balance of convenience favours the first and second respondents has not been disturbed on these application papers; in fact, the substantial further work and expenses incurred after 9 January 2008 clearly tips the scales even further in the favour of the first and second respondents.’

[34] It is necessary to turn to the detailed averments made by the first respondent concerning the effect of halting construction at this stage, effects which are described as ‘devastating for both the first respondent and the surrounding community’. The first respondent’s figures concerning expenditure on the development are not placed in dispute by the applicant: the total cost incurred, excluding the R25 000 000.00 for the acquisition of the land, was, as at 7 April 2008, an amount of R49 280 000.00. When the first Fuller case was heard, that total stood at R27 200 000.00. In addition, the first respondent has expended various other amounts, entered into a number of contracts, such as a contract for the civil services to the value of R67 800 000.00, and incurred various other obligations, such as an undertaking to contribute R2 600 000.00 towards a new reservoir as part of a bulk water supply agreement between it, the Ndlambe Municipality and the Albany Coastal Water Board. In a paragraph that the applicant chose not to reply to, the effect on the first respondent and on others of an interim interdict being granted are set out as follows:

‘In summary, the financial effect of the relief now sought by the applicant is of such a nature that the first respondent may not be in a position to pay the claims that will flow from the termination of the construction activities and it may not be able to service the loans already advanced to it until the transfer of erven can take place which will provide the first respondent with income. This may very well result in the winding up of the first respondent. In addition, a great number of skilled and unskilled labour opportunities would be lost for the people living within close proximity of the development, not only in the short term but also in the long term. The employment opportunities created by the development are substantial. It was calculated by the consulting engineers early in the development and based on man hours to be approximately 2 000 jobs.’

[35] When Jones J, in the first Fuller case, considered the balance of convenience, he did so within the context of it interlocking with the issues of urgency and the existence of an alternative satisfactory remedy. In dealing with the balance of convenience, Jones J considered a set of facts which, it appears to me, were more advantageous to the applicant than the facts with which I am concerned. He held:¹⁹

‘As it happens, the financial prejudice to the first and second respondents, which might indeed be ruinous and which might have been avoided if the decision to bring review proceedings had been delayed for a lesser period, is now, on the papers, a real consideration. The result is a dilemma. I have, on the one hand, possible permanent damage to the environment if the interim interdict is refused, which makes review in due course an illusory remedy because the damage will already have been done, whatever the outcome. On the other hand, the first respondent will probably be forced into liquidation if the interim interdict is granted. Success in the review would then be cold comfort; indeed, no comfort at all. The argument no longer can be made that prejudice to the first respondent is cancelled out by the first respondent’s persistent and ongoing unlawful conduct. The result is that the outcome of the application for an interim interdict will involve prejudice to one or other of the parties of such severity that it is impossible to conclude that the balance of convenience favours one of them and not the other. The applicant could have avoided some of this prejudice by bringing proceedings earlier. While this consideration may not swing the balance in favour of the first respondent, it certainly does not point it in the applicant’s favour.’

[36] In that case, as in this, the applicant alleged that the first respondent was engaged in construction work without authority and that this amounted to unlawful and criminal conduct. In order to deal with this allegation, the first and second respondent submitted to a final interdict to the effect that they were prohibited from continuing with construction ‘until such time as the Chief Directorate: Environmental Affairs in the Department of Economic Affairs, Environment and Tourism, Eastern Cape … has formally indicated its satisfaction as is contemplated in condition 8.1.3 of the amended record of decision dated the 12^th of April 2007’. In this matter that authorisation has been granted but is the subject of the administrative appeal to the fourth respondent. As I have stated above, the continued construction is lawful until that authorisation is set aside by a competent authority. The applicant’s case on the balance of convenience is still, however, squarely based on the allegation that what the first respondent is doing is unlawful. It can no longer make a case for ongoing environmental damage in the light of the first respondent’s allegation, which the applicant did not deny in reply, that no further harm to the environment will be occasioned by the construction process. In the light of the evidence of greater financial outlay and the risk of greater financial ruin, it appears to me that the balance of convenience now favours the first respondent to a marked degree. The applicant was not able, in the first Fuller case, to discharge the onus of establishing that the balance of convenience favoured the granting of the interim interdict and is still not able to do so.

(e) Urgency

[37] The applicant states that the application was brought on a ‘semi-urgent basis’. The application was issued and served on the respondents on 2 April 2008 and they were required to file their notices of opposition on the following day. They were afforded until 8 April 2008 – four court days – to answer founding papers of 409 pages, and the matter was set down for 10 April 2008. As stated above, this was during the April recess. At that stage, although I do not know if heads of argument had been prepared, no heads had been filed. (The applicant’s heads were dated 16 April 2008 and the first and second respondents’ heads were dated 23 April 2008.) While it is not a requirement that heads are to be filed in urgent applications, in a matter of this size and complexity, the absence of heads would be bound to render the judge’s job much more onerous than would otherwise be the case. The absence of heads prior to 10 April 2008 is, to my mind, an indication that when the matter was to proceed, it was not, in fact, ripe for hearing. When the matter was heard on 24 and 25 April 2008, the applicant’s counsel had filed heads which were 55 pages long. The first and second respondents’ counsels’ heads were 37 pages long. (With commendable brevity, the remaining respondents’ counsel contented himself with heads that were a mere six pages long.)

[38] I was informed by Mr Smuts, counsel for the third, fourth and fifth respondents, in his heads, that when the matter came before Eksteen AJ on 10 April 2008, he postponed the matter by agreement to 24 April 2008, having pointed out the practice that opposed applications are generally speaking not heard during a recess unless grave injustice might result.

[39] In Luna Meubel Vervaardigers (Edms) Bpk) v Makin and another (t/a Makin’s Furniture Manufacturers)²⁰ Coetzee J, having made the point that rule 6(12) was a much abused rule in his Division,²¹ proceeded to set out the duties of practitioners who contemplate launching urgent applications. He held:²²

‘Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of Rule 6(12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.’

[40] In dealing with urgency, the applicant states that the matter is urgent because ‘with the passage of each day, further damage is done to the environment of the development area and that, in the absence of an intervention by this Honourable Court or the Department, the first respondent’s unlawful activity will continue, with potentially devastating consequences’. He states further that in the circumstances, ‘it is appropriate that the ordinary rules relating to service and the time periods applicable to the filing of opposition and answering affidavits be appropriately truncated in order to ensure that the matter can properly be dealt with before this Honourable Court on the date set down for the hearing hereof’.

[41] In my view, the applicant has not given proper consideration to the degree of relaxation of the rules that is commensurate with the exigency of the case. He has overstated the urgency of the matter to such an extent that the respondents were placed under undue pressure to meet the time periods set by the applicant and, in the case of the third respondent, was not able to comply with it: I note that the third respondent’s answering affidavit was only signed on 9 April 2008 (and, presumably filed on 10 April 2008, the date of the notice of opposition) and the applicant’s reply to it was dated 10 April 2008. These are all indications that the time periods set by the applicant were unreasonably short given the nature of the case and extent of the papers. When the overstating of the urgency of the matter is added to these factors, the conclusion is compelling that the matter ought to be dismissed for lack of urgency alone.

[42] I have set out above the chronology from the third respondent expressing his satisfaction that condition 8.1.3 had been complied with until the launching of the proceedings on 2 April 2008. In the light of the conclusion that I have arrived at above, it is not necessary for me to deal with whether the applicant delayed unreasonably in launching the application and that such urgency as there may have been was self-created.

[D] CONCLUSION

[43] In summary, my findings are these. (a) It is not necessary or desirable for me to determine whether the applicant has established a prima facie right, which may be open to some doubt, although, as with the first Fuller case, the applicant’s prospects of success are far weaker than he suggests. I have doubt that he has crossed the threshold and established this requirement. (b) In this case, unlike the previous case, there is no satisfactory alternative remedy available to the applicant. The applicant has thus established this requirement for an interim interdict. (c) The applicant has failed to establish a well-grounded apprehension of irreparable harm. (d) He has also failed to establish that the balance of convenience favours him. Indeed, given the progress that has been made on the development since the first Fuller case and the amount expended, the balance of convenience favours the first respondent markedly. (e) The applicant has not satisfied me that the matter was sufficiently urgent to justify the short time periods that it prescribed for the filing of papers and the setting down of the matter during the recess. Flowing from these findings, it is my conclusion that the application cannot succeed on account of the fact that the requirements for the grant of an interim interdict have not been satisfied and because the applicant misconceived the question of urgency.

[44] I expressed concern during the hearing of the matter about the time that would be taken before the administrative appeal to the fourth respondent is finalised. Neither Mr Goosen who appeared for the applicant, Mr Grobler who, together with Mr Putter, appeared for the first and second respondents, nor Mr Smuts were able to venture a guess as to when the appeal would be decided and I gained the impression that it may take an inordinate length of time. One of the reasons for the creation of administrative appeals is that they ‘are usually cheaper and speedier than courts of law, whose rolls are often overburdened’.²³ If administrative appeals are not disposed of with reasonable haste, public confidence in the administration evaporates, the public interest is compromised, the statutory scheme of which the administrative appeal is part is undermined and administrative injustice will result. Particularly in a case such as this, where a great deal is at stake for all concerned, it is crucial that the administrative appeal be finalised as soon as possible. I would urge the fourth respondent to prioritise this.

[45] I make the following order:

The application is dismissed with costs, such costs to include the costs of 10 April 2008 and of two counsel in respect of the first and second respondents.

_____________________

C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For applicants: Mr G. Goosen SC, instructed by Smith, Ndlovu, Summers, Cape Town and Wheeldon, Rushmere and Cole, Grahamstown.

For the first and second respondents: Mr SJ Grobler SC and Mr LG Putter, instructed by Werksmans, Johannesburg and Netteltons, Grahamstown.

For the third, fourth and fifth respondents: Mr I Smuts SC, instructed by NN Dullabh and Co, Grahamstown.

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