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The Black Eagle Project Roodekrans v MEC for the Department of Agriculture, Conservation and Environment, Gauteng Provincial Government and others

28 February 2019

High Court of the Republic of South Africa, Gauteng Division, Johannesburg

Case number: 6085/07

Date: 28 February 2019

Judge: Vally J

In this matter the Black Eagle Project Roodekrans (Project) challenged the decisions of the MEC for the Department of Agriculture, Environment and Conservation, Gauteng Provincial Government (MEC) to –

  • dismiss its appeal to the MEC against the decision of the Gauteng Department of Agriculture, Conservation and Environment (Department) grant a developer exemption from applying for environmental authorisation for changing land use from “agricultural or undetermined to any other land use” in terms of the Environment Conservation Act, 1989 (ECA); and
  • uphold an appeal to the MEC brought by the developer against the decision of the Department to dismiss the developer’s application for an amendment of the exemption alluded to above.

The proposed development is to take place in the vicinity of the Walter Sisulu National Botanical Garden, which is the nesting site for a pair of black eagles. It is also located in the area between the Walter Sisulu National Botanical Garden and the Cradle of Humankind World Heritage Site and is therefore in a biodiversity corridor.

The Court found for the MEC on first point and for the Project on the second. It was satisfied that the MEC’s to decision to dismiss the Project’s appeal was rational and reasonable under the circumstances. But since the MEC did not give reasons for overturning the Department’s decision to refuse the developer’s amendment application, it found that the MEC’s decision was irrational. In the Court’s view, giving reasons for a decision is a requirement for passing the rationality test. In addition, no public participation was conducted in relation to the amendment application process.

As for costs, on the strength of the Biowatch principle, the Court did not award costs against the Project even though it was partially unsuccessful. The Court awarded the Project half its costs for being partially successful in its application; those costs are to be paid by the MEC.

Download the judgment