CHIGUMBA
J:
This
is an application to have General Notices 313/2012 and 380/2013
declared a nullity as being ultra
vires
the powers granted to the first respondent in terms of the
Environmental
Management Act
[Chapter
20:27],
(hereinafter referred to as EMA).
The
purpose of EMA is to define environmental rights and to set out the
principles of environmental management, as well as to provide an
enforcement mechanism against recalcitrant offenders. This is a
relatively new piece of legislation in this country, and its ability
to nurture and protect the environment may be dependent upon the
interpretation given to its provisions. Section 4 of EMA declares
that 'every person in Zimbabwe shall have a right to a clean
environment that is not harmful to health, access to environmental
information, protect the environment for the benefit of present and
future generations and to participate in the implementation of
reasonable legislative policy and other measures that prevent
pollution and environmental degradation, and secure ecologically
sustainable management and use of natural resources while promoting
justifiable economic and social development'.
The
issue that falls for determination is whether the first respondent is
empowered to declare that a piece of land is a 'wetland', or
whether, his powers are confined to declaring an existing wetland to
be 'an ecologically sensitive area'.
At
the hearing of the matter, the court pointed out that the first
respondent was barred in terms of Rule
238(2b) of the Rules of the High Court 1971
for failing to file its heads of argument on time.
Counsel
for the applicant
Mr
Girach
advised the court that he had instructions from his client to consent
to condonation of the late filing of the heads of argument, and to
the upliftment of the bar.
In
return, the first respondent acceded to the application, by the
applicant, for an amendment of the papers for the proper citation of
the respondents, in terms of Rule
87 of the Rules of the High Court 1971.
The
court's view was that neither party would be prejudiced by these
concessions, so they were allowed. The first respondent was then
correctly cited as Minister of Environment, Water and Climate, and
the second respondent was correctly cited as the Environmental
Management Agency.
General
Notice 313/2012 provided that:
“Notice
is hereby given, in terms of section 113(1) of the Environmental
Management Act…that the Minister has declared
the land described in the schedule as wetlands, (hereinafter
in this notice referred to as 'Harare scheduled wetlands”.
Section
113 of EMA reads as follows:
“113
Protection of wetlands
(1) The Minister may declare any
wetland to be an ecologically sensitive area and may impose
limitations on development in or around such area.
(2) No person shall, except in
accordance with the express written authorisation of the Agency,
given in consultation with the Board and the Minister responsible for
water resources -
(a)
reclaim or drain any wetland;
(b)
disturb any wetland by drilling or tunneling in a manner that has or
is likely to have an adverse impact on any wetland or adversely
affect any animal or plant life therein;
(c)
introduce any exotic animal or plant species into the wetland.
(3) Any person who contravenes
subsection (2) shall incur a fine not exceeding level eight or
imprisonment not exceeding two years or to both such fine and such
imprisonment.”
'Wetland'
is defined in section 2 of EMA to mean:
“'wetland'
means any area of marsh, fen, peatland or water, whether natural or
artificial, permanent or temporary, with water that is static or
flowing, fresh, brackish or salt, and includes riparian land
adjascent to the wetland.”
It
was submitted on behalf of the applicant that 'wetlands' being
expressly defined by EMA, the question of whether or not a piece of
land was a wetland was a question of fact, of whether the piece of
land fit into the description prescribed in the EMA.
It
was submitted further that no amount of declaration by the Minister,
that a piece of land was a 'wetland' would turn that piece of
land into a 'wetland' unless the piece of land fit squarely
within the description provided in the EMA.
It
was submitted further, that section 113(1) had to read in conjunction
with section 136 of EMA which provides that:
“136
Observation of rules of natural justice
In the exercise of any function
in terms of this Act, the Minister, the Secretary, the Agency, the
Director- General and any other person or authority shall ensure that
the rules commonly known as the rules of natural justice are duly
observed and, in particular, shall take all reasonable steps to
ensure that every person whose interests are likely to be affected by
the exercise of the function is given an adequate opportunity to make
representations in the matter.”
It
is common cause that the Minister did not observe the rules of
natural justice when he issued General Notice 313/2012.
No
reasonable steps were taken to ensure that every person whose
interests were likely to be affected was given adequate opportunity
to make representations in the matter. It was submitted that General
Notice 380/2013 seeks to rely upon General Notice 313/2012 for its
validity, and that, for this reason, both general notices are null
and void ab
anitio. The
court was referred to the celebrated case of Jensen
v
Acavalos
where the court said that:
“In
Hattingh
v Pienaar 1977 (2) SA 182 (O) 182 at 183, KLOPPER JP
held that a fatally defective compliance with the rules regarding the
filing of appeals cannot be condoned or amended. What should actually
be applied for is an extension of time within which to comply with
the relevant rule. With this view I most respectfully agree; for if
the notice of appeal is incurably bad, then, to borrow the words of
LORD
DENNING in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at
1172 I,
"every proceeding which is founded on it is also bad and
incurably bad. You cannot put something on nothing and expect it to
stay there. It will collapse."
If
the court makes a finding that General Notice 313/2012 was null and
void for contravening section 113, as read with section 136 of the
EMA, then it should follow that General Notice 380/2013 be null and
void, being founded on General Notice 313/2012. General Notice
380/2013, would collapse, because it is based on something incurably
bad.
It
was submitted on behalf of the respondents that General Notice
313/2012 amounted to a notice of invitation to the public to object
and that the letter of complaint written by the applicant amounted to
an opportunity to make representations.
I
respectfully disagree with that view.
In
terms of General Notice 313/2012, notice was given, in terms of
section 113(1) of the EMA, that the Minister had declared the land
'described' in the schedule as wetlands. That cannot, in any
language, be interpreted as an invitation to make representations.
Section
136 of the EMA enjoins the Minister to observe the rules of natural
justice for every action that he takes, or decision that he makes. It
is my view that, the rules of natural justice were flagrantly
flouted, by the gazetting of General Notice 313/2012.
The
court is fortified in this view by the persuasive submission made on
behalf of the applicant, that the promulgation of General Notice
313/12 was in breach of section 3 of the Administrative
Justice Act [Chapter 10:28],
which
provides that:
“3
Duty of administrative authority
(1)
An administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests
or legitimate expectations of any person shall -
(a)
act lawfully, reasonably and in a fair manner; and
(b)
act within the relevant period specified by law or, if there is no
such specified period, within a reasonable period after being
requested to take the action by the person concerned; and
(c)
where it has taken the action, supply written reasons therefor within
the relevant period specified by law or, if there is no such
specified period, within a reasonable period after being requested to
supply reasons by the person concerned.
(2)
In order for an administrative action to be taken in a fair manner as
required by paragraph (a)
of subsection (1), an administrative authority shall give a person
referred to in subsection (1) -
(a)
adequate notice of the nature and purpose of the proposed action; and
(b)
a reasonable opportunity to make adequate representations; and
(c)
adequate notice of any right of review or appeal where applicable.”
It
is settled in our law that the Minister is an 'administrative
authority' for purposes of the Administrative Justice Act, (See
Marufu
v
Minister of Transport)
and that, he is enjoined to act as fairly as possible, by giving
adequate notice of his intention, by allowing a reasonable time
period within which affected parties can make representations, and by
providing reasons for his decision within a reasonable period of
adverse representations being made. The Minister did not do so
before, or after he caused General Notice 313/2012 to be promulgated.
Section
130 of EMA provides for appeals against any decision of any authority
in terms of the EMA as follows:
“130
Appeal against decision of authority
(1)
Subject to this section, any person who is aggrieved by any decision
of any authority in terms of this Act, may within twenty-eight days
after being notified of the decision or action of the authority
concerned, appeal in writing to the Minister, submitting with his
appeal such fee as may be prescribed:
(2)
For the purpose of determining an appeal noted in terms of subsection
(1), the Minister (if he is not the authority concerned in the
appeal) may require the authority to furnish him with the reasons for
the decision or action that is the subject of the appeal and a copy
of any evidence upon which the reasons are based.
(3)
The Minister, after due and expeditious inquiry, may make such order
on any appeal noted in terms of subsection (1) as he considers just.
(4)
An appeal shall lie to the Administrative Court against any order of
the Minister in terms of subsection (3).
(5)
An appeal in terms of subsection (4), shall be made in the form and
manner and within the period prescribed in the rules of court.
(6)
On appeal in terms of subsection (4), the Administrative Court may
confirm, vary or set aside the decision or action appealed against
and may make such order, whether as to costs or otherwise, as the
court thinks just.”
It
is hoped that the citizens of Zimbabwe will vigorously pursue and
enforce their rights as provided in terms of the Environmental
Management Act, lest we be judged and found wanting, by future
generations, for failing to play our part in preserving and
protecting the environment. However, it is my considered view that
even if the High Court were to issue the decalaratur
that
is sought by the applicant, no consequential relief will flow from
such a course of action.
It
is only pursuant to the noting of an appeal against the action of the
Minister, in terms of section 130 of EMA, to the Administrative
Court, that the decision of the Minister may be confirmed, varied, or
set aside.
The
land that was declared to be 'wetland' remains so declared until
the Administrative Court makes a finding in regards to the propriety
of the action of the Minister in making the declaration. Section
136(6) empowers the Administrative Court to confirm, vary or set
aside the decision or action appealed against. This court, in terms
of section 14 of the High
Court Act [Chapter 7:06]
is empowered to:
“14
High Court may determine future or contingent rights
The
High Court may, in its discretion, at the instance of any interested
person, inquire into and determine any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
This
court therefore declares that it was not open to the second
respondent to make decisions based on the apparent validity of
General Notices 313/12 and 380/2013, which were null and void for
contravening the provisions of section 113, as read with section 136
of EMA.
The
Minister was required to give all parties likely to be affected by
his decision, a reasonable opportunity within which to make
representations, and observe each person's right to be heard in
deference to the time honoured rule of audi
alterem partem. It
is this court's view, that the general notices were indeed ultra
vires
the EMA, which in section 113 only provided for a declaration that a
wetland was an ecologically sensitive area.
Section
113(1) presupposes the existence of a wetland. The definition of
wetland is clear. It is a question of fact, not law, whether a piece
of land is a wetland. Not all wetlands are ecologically sensitive,
and declaring a wetland to be ecologically sensitive must surely be
based on scientific study and determination of such ecological
sensitivity. A wetland will not become ecologically sensitive just
because it has been declared to be so.
The
court was constrained, despite its findings, and unable to accede to
the second part of the order sought by the applicant. This is so
because no evidence was placed before the court, which it could rely
on that the applicant's denial of permission to develop its land,
was based on the provisions or implementation of the General Notices
in question. For these reasons, the relief sought by the applicants
is granted, as follows: IT IS HEREBY ORDERED THAT:
1.
General Notices 313/2012 and 380/2013 be and are hereby declared a
nullity and are of no force or effect.
2.
The first and second respondents pay the costs of this application,
jointly and severally, the one paying and the other to be absolved.
Messrs
Coghlan Welsh & Guest,
applicant's legal practitioners
Civil
Division of the Attorney general's office,
respondent's legal practitioners
1.
1993 (1) ZLR 216 (SC) @ 220
2.
2009 (2) ZLR 458 @ 464D
