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Earthlife Africa (Cape Town) v Director General Department of Environmental Affairs and Tourism and Another

País/Territorio
Sudáfrica
Tipo de la corte
Otros
Fecha
Ene 26, 2005
Fuente
UNEP, InforMEA
Nombre del tribunal
High Court of South Africa
Sede de la corte
Cape Town
Juez
Griesel
Davis
Moosa
Número de referencia
(2005) ZAWCHC 7
Idioma
Inglés
Materia
Cuestiones jurídicas, Energía
Palabra clave
Procedimientos judiciales/procedimientos administrativos Acceso-a-la-justicia Acceso-a-la-información
Resumen
The second respondent (Eskom) wished to construct a demonstration model 110 MegaWatt class pebble bed modular reactor at the site of its Nuclear Power Station near Cape Town. The first respondent, the Director-General of the Department of Environmental Affairs and Tourism, granted Eskom the requisite authorisation. This application was brought by the applicant to set aside that decision by the Director-General. The applicant brought the application on its own behalf, on behalf of the residents of Cape Town who could be exposed to potential risks posed by the reactor and in the public interest. The respondents contended that the application was barred by reason of the applicant’s failure to exhaust its internal appeal remedies. The court emphasized that it had discretion to exempt the applicant from the obligation to exhaust its internal remedy. The present application concerned the very sensitive and controversial issue of nuclear power, which potentially affected the safety and environmental rights of vast numbers of people. Eskom’s application for the construction of the reactor had generated considerable local and national interest. Apart from that, the respondents claimed that the Minister could still set aside the Director-General’s decision at a later stage. This would have the effect that this ‘premature application’ would be rendered academic. Moreover, Eskom could not commence construction of the reactor unless it obtained another authorization, so there was no urgency in bringing this review application. There was no sufficient reason, according to the respondents, why the applicant should not await the outcome of these various processes. The court did not agree with these arguments. The fact that the Director’s approval was but the first step in a multi-stage process, did not mean that an aggrieved party had to await the final step before it could take legal action for review. It was settled law that a mere preliminary decision could have serious consequences in particular cases, inter alia where it laid the necessary foundation for a possible decision which could have grave results. In conclusion, the court was satisfied that the interests of justice required that the applicant be exempted from the obligation of having to exhaust its internal remedies before approaching this court on review. The applicant’s principal ground of review was based on an allegation that its right to procedurally fair administrative action has been infringed. In the case at hand, there was a draft environmental impact report as well as a final environmental impact report. The court was of the view that the draft report was substantially overtaken by the final report, which placed new facts before the decision-maker. In these circumstances the applicant, as an interested party, was entitled, as part of its right to procedural fairness, to a reasonable opportunity to make representations to the Director-General on the new aspects not previously addressed in its submissions in relation to the draft report. Apart from that, the Director did not afford the applicant a necessary hearing. Therefore, the Directors’ decision was flawed and set aside. The matter was remitted to the first respondent with directions to afford the applicant and other interested parties an opportunity of addressing further written submissions to him.
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