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 the
Environmental Management Act
[Chapter
20:27]
(EMA)
is to define environmental rights and to set out the principles of
environmental management, as well as ...
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 the
Environmental Management Act
[Chapter
20:27]
(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 the
Environmental Management Act
[Chapter
20:27]
(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'….,.
General
Notice 313 of 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
the
Environmental Management Act
[Chapter
20:27]
(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
the
Environmental Management Act
[Chapter
20:27]
(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 adjacent
to the wetland.”
It
was submitted, on behalf of the applicant, that 'wetlands' being
expressly defined by the Environmental
Management Act,
the question of whether or not a piece of land was a wetland was a
question of fact of whether the piece of land fits into the
description prescribed in the Environmental
Management Act.
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 fits
squarely within the description provided in the Environmental
Management Act.
It
was submitted, further, that section 113(1) had to read in
conjunction with section 136 of the
Environmental Management Act
[Chapter
20:27]
(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 of 2013 seeks to rely upon
General Notice 313 of 2012 for its validity, and that, for this
reason, both General Notices are null and void ab
initio.
The
court was referred to the celebrated case of Jensen
v Acavalos
1993
(1) ZLR 216 (SC)…,
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
Environmental Management Act
[Chapter
20:27]
(EMA) then it should follow that General Notice 380/2013 be null and
void, being founded on General Notice 313/2012.
General
Notice 380 of 2013 would collapse because it is based on something
incurably bad.
