The notes on this page provide all the information on Kloof Conservancy’s attempts to ensure that the environmental rights of all South Africans under s24 of the Constitution are upheld particularly in regard to the application of legislation on Invasive Alien Species.
Why the legal route? Engaging the Authorities
Kloof Conservancy has since its inception in 1993, been engaged in various eradication projects in the Kloof Area. The efforts of the conservancy are frustrated as areas cleared by the conservancy are soon re-infested by IAPs spreading from nearby properties. The situation is further aggravated by the presence of many IAPs on state owned land and the non-enforcement of legislation.
The Kloof Conservancy has tried to engage the State authorities in discussions regarding progressive enforcement of legislation on Invasive Alien Plants whether on public or private land, and seeking to end the long delay in giving practical effect to new legislation designed to protect constitutional environmental rights. The Kloof Conservancy, assisted by Advocate Michael DC Smithers SC of the Durban Bar submitted a number of letters to the relevant authorities seeking to engage constructively on these topics
A letter was sent to the relevant Government Authorities including the Minister of Water and Environmental Affairs in February 2012.
No substantive response was received other than an acknowledgement of receipt from some recipients. As such Kloof Conservancy sent a second letter to the same recipients in July 2012.
A reply to the letters sent by Kloof Conservancy was received from the Minister of Water and Environmental Affairs on 30 October 2012. Download the Letter from the Minister of Water and Environmental Affairs
Kloof Conservancy considered the reply from the Minister and concluded that it did not in anyway dispel the concerns held by the conservancy that the problem of IAPs was not being adequately addressed.
A third letter was sent to the Minister of Water and Environmental Affairs on 29 November 2012 expressing the conservancy’s continued concerns. You can download the third letter to the Minister of Water and Environmental Affairs here: Download Kloof Conservancy’s Third Letter to the Minister of Water and Environmental Affairs – November 2012
After much deliberation and considering the responses from the Authorities Kloof Conservancy decided to embark on a legal process and the following press release was issued on the 5th December 2012.
Kloof Conservancy initiates High Court proceedings to compel the Government to implement Invasive Alien Species (IAS) legislation.
“On 3 December 2012, Kloof Conservancy launched a court application aimed at compelling the Government to:
– publish and apply nationally the national list of invasive species that the Government was required to publish under section 70(1)(a) of the National Environmental Management: Biodiversity Act, 10 of 2004 (NEMBA) by, at the latest, 31st August 2006, but which has never been done,
– publish the regulations requisite to give full and proper effect to the provisions of chapter 5 of NEMBA which is devoted to Invasive Alien Species, including Invasive Alien Plants (IAPs);
– ensure that all organs of state in the national, provincial and local spheres of Government comply with their duties and the law in relation to Invasive Alien Species, in particular IAPs, on public land;
– ensure that the Government devise and implement a comprehensive and co-ordinated programme to realise progressively the rights of all South Africans to an environment free, as far as reasonably possible, from IAS on public and private land in KwaZulu-Natal by the year 2025, including the appointment of sufficient numbers of Environmental Management Inspectors to investigate the occurrence of IAS, issue directives for compliance with IAS legislation, and cause offenders to be prosecuted in the event of non-compliance with directives or the law.
This initiative undertaken by the Conservancy has come about due to the frustrations we encounter on a day to day basis in trying to fight IAPs. Whilst various organs of state have clearly and unequivocally highlighted the damage that IAPs have caused and continue to cause to our environment, the government itself has failed to carry out its basic responsibilities in this regard. We feel that the State’s failure of duty infringes our and all South Africans’ environmental rights under s24 of the Constitution.
More details – including copies of the Notice of Application and the Founding Affidavit – are available on our web-site: www.kloofconservancy.org.za.”
Other Court Documents
1st Court Date
The High Court action initiated by Kloof Conservancy aimed at compelling the Government of South Africa to implement the laws on Invasive Alien Plants was set for hearing on 26 June 2013 in the Durban High Court.
Note: The documents referred to in the text below are all listed in the downloadable links above.
The case was set down for hearing on 26 June 2013.
The Conservancy delivered its practice note, heads of argument and chronology of material events on 10 May 2013
The respondents delivered their heads of argument on 24 May 2013
On 13 June 2013 the Conservancy delivered its detailed supplementary heads of argument.
On 14 June 2013 the Conservancy’s attorneys received a letter (dated 26 June) from the State Attorney recording that the respondents sought a postponement of the case on the grounds that the respondents’ affidavits are “inadequate and do not do justice” to the respondents’ case. The respondents’ attorneys also recorded in this letter that the Minister of Environmental Affairs intends imminently to publish “interim regulations” dealing with IAS (please note that the legislation affects all Invasive Alien Species and not just our focus which is Invasive Alien Plants). The respondents tendered the wasted costs of the postponement up to the date of the letter.
The Conservancy’s attorneys replied by letter dated 18 June 2013, recording the Conservancy’s views and that the Conservancy did not agree to postponement of the case.
In the interim, Judge Gorven was allocated to hear the case set down for 26 June. Judge Gorven convened a meeting in his chambers on 18 June 2013 in which he informed the parties that Judge Gorven is involved in the Duzi Umgeni Conservation Trust (DUCT) and that, in that light, if either party had any objection to Judge Gorven hearing the case, he would decline to hear the case.
On 20 June 2013 the respondents notified the Judge President at a meeting in the Judge-President’s chambers that the respondents objected to Judge Gorven hearing the case. Following discussions between the parties’ legal representatives and the Judge-President, it was agreed between the parties:
1. That the matter be adjourned to a day allocated by the Judge President between 16 – 25 October 2013;
2. That the Respondents will deliver their supplementary affidavits on or before 31 July 2013;
3. That the Applicant will deliver its replying affidavit, if any, by 30 August 2013;
4. That the Respondents will pay the wasted costs occasioned by the adjournment up to and including 14 June 2013.
5. That the Judge President issue such directions to the parties for the delivery of heads as he deems necessary.
The case was therefore postponed on 20 June 2013.
Interim Regulations Published
On Friday 19 July 2013 the Minister of Environmental Affairs published new regulations (no reference to them being interim). The date of commencement of the Regulations is to be determined by the Minister by notice in the Gazette.
Below are the links to enable you to read the relevant documents.
Amendment to NEMBA Published
On Wednesday 24 July 2013 the Minister of Environmental Affairs published in the Government Gazette an amendment to NEMBA
The respondents filed their supplementary affidavits on 31 July 2013:
Kloof Conservancy is proceeding with the case and is demanding the setting aside of the “shortened, interim” regulations and the publishing of proper and effective regulations by 30 April 2014.
We currently therefore have two applications – the first is the main application we launched in December 2012 to compel the publication of proper regulations under NEMBA; while the second is to set aside the “interim, shortened” regulations subsequently published on 19 July 2013. The second application is necessary to allow us to obtain the relief we seek in the main application. The two applications are intended to be heard together.
The following documents are relevant with regard to the Main Application and the Review Application. Not all the appendices are included – any excluded appendix can be obtained by contacting firstname.lastname@example.org
On 12 February 2014 the Minister of Water and Environmental Affairs published for public comment the Invasive Alien Species Lists and Regulations
Kloof Conservancy is disappointed with the draft regulations and has commented to the Minister.
Kloof Conservancy has submitted a Supplementary Affidavit on the Draft Regulations and Species Lists
A Court date has been set for 25 April 2014 to hear both the Main Application and the Review Application.
Kloof Conservancy has submitted the necessary documents ahead of the court date on 25th April
The Kloof Conservancy legal team presented Supplementary Heads of Argument in Court ahead of the hearing on 25 April 2014
The Court hearing took place on 25 April in the Durban High Court. Judge Vahed heard the case and Kloof Conservancy was represented by Senior Advocate Michael Smithers, Advocate Andreas Coutsoudis and Shepstone. Wylie the instructing attorneys were represented by attorneys Janice Tooley and Matthew Thornton-Dibb.
On Friday 1 August 2014 the Minister of Environmental Affairs issued a set of Regulations (GG37885) and a list of Invasive Alien Species (GG37886)
Unlike previous versions which had no implementation date, these will automatically came into effect on 1 October 2014 (60 days from 1 August 2014)
Judgment was delivered on 22 October 2014.
The judgment is a complete vindication of all our efforts. The Court in fact held that were it not for the publication of IAS lists and regulations in August 2014 – after the matter was argued on 25 April 2014, but before judgment on 22 October 2014 – the Court would have granted an Order in the precise terms requested by the Conservancy when the matter was argued, without amendment. As it is, the only amendment to the terms of the order sought by the Conservancy, flows from the intervening publication of the lists and regulations. We believe the judgment holds all spheres of government fully and appropriately accountable to the Constitution and the law for the discharge of their environmental duties. A full copy of the 48 page judgment may be downloaded by clicking on the link below.
5 December 2014
We have been assessing the IAS Regulations which were issued on 1 August 2014 and have considered them in the light of Judge Vahed’s judgment which was delivered on 22 October 2014.
We are concerned that there are certain aspects of the lists and regulations that may be flawed, contradictory and irrational and that may have the effect of neutering NEMBA. In addition the regulations are inconsistent with the Court Order.
In the light of this we have written to the Minister of Environmental Affairs to request clarity on a number of issues and have requested that the regulations be modified so as to give full effect to NEMBA and comply with the court order.
You can download the letter by clicking on the link below
We do not lightly seek redress in the Courts and wish to avoid this if at all possible through engagement with the Minister. Our letter therefore aims to make the Minister aware of our concerns and requests her commitment to ensuring that we have regulations which truly give effect to NEMBA and which will protect our biodiversity.
We keenly await the Ministers response.
The Minister of Environmental Affairs responded to our letter on 30 January 2015:
19 December 2014
Today, 8 weeks after the Court Judgment and 5 weeks after the deadline for appeal in terms of Rules of the Court, the Department of Environmental Affairs released a media statement advising the Ministers intent to appeal two of the five orders made by Judge Vahed.
Kloof Conservancy is concerned that the government’s belated intention to seek leave to appeal is yet a further stratagem of delay. Kloof Conservancy has released a Media Statement expressing these concerns.
Kloof Conservancy has filed an Answering Affidavit to the Ministers Application to Appeal and has written to Judge Vahed explaining our concerns. Appendix A and B to the affidavit are available above (A = DEA’s Media Statement, B = 19 December 2014 Letter to the Minister)
A court date has been set for 10:00, Thursday 22 January for the hearing on the Application for Leave to Appeal.
On 16 January 2015 the State submitted a Responding Affidavit. This includes an affidavit by the Minister.
19 January 2015
Due to the Appeal process, Kloof Conservancy has decided not to take any further legal action for now on the validity and effectiveness of the August 2014 IAS Regulations. We have written to the Minister in this regard.
22 January 2015
The Application for Leave to Appeal on whether to grant the State an Appeal Hearing in our IAS case against the State was heard today by Judge Vahed in the Durban High Court. Whilst the Judge found merit and “force” in the argument presented by our Council he determined that it may be possible that another court may come to a different decision.
Judge Vahed therefore granted the State Leave to Appeal two of the five orders made against them in his October judgement. These were Order ( c ) and ( d ) relating to the time period which the State has to implement IAS plans and appoint Environmental Management Inspectors.
Judge Vahed also expressed great concern on the delays that have already occurred in the implementation of NEMBA and agreed to support our legal team’s request that the Appeal Hearing be heard directly in the Supreme Court of Appeal. All the relevant documents are available on our website at: www.kloofconservancy.org.za/alien-busters/enforcement-project/
We have taken note of Judge Vahed’s decision and we are opposing the appeal. Our focus is to achieve progress on the ground in the fight against Invasive Alien Species (IAS) and that is where we would like to see the action take place. As such we will now focus on the implementation of the regulations albeit that we believe they are confusing and contradictory.
We urge all residents of Kloof (and elsewhere) to familiarise themselves with the IAS regulations and to help us achieve an IAS free Kloof by 2020. Please visit our website for information on IAS, the species list and guidelines on how to address properties which are infested with IAS.
You can find the guidelines on our website at: www.kloofconservancy.org.za/problem-properties/
Supreme court of appeal
The following documents have been submitted in preparation for the hearing in the Supreme Court of Appeals
The Appeal Hearing took place on Friday 20 November 2015 at 9.45 am in Court B at the Supreme Court of Appeal in Bloemfontein. The hearing was heard by a full bench of 5 judges headed by Justice Poonan. Judgement has been reserved and will be delivered in due course.
27 November 2015:
The SCA has released its judgment on the appeal hearing and the full judgment is available on the link below.
The SCA has upheld the Ministers of Environmental Affairs appeal and paragraphs c and d of Judge Vahed’s order are set aside
The summary paragraph from the judgment is as follows:
“Environmental law – National Environmental Management Biodiversity Act 10 o 2004 (NEMBA) – failure on the part of the Minister to publish a national list of alien and invasive species (AIS) and regulations within the time required by s70(1)(a) of (NEMBA) – Minister published the requisite AIS list and regulations even though overdue – high court issuing orders imposing a general obligation upon the Minister to oversee that all organs of Sate comply with the NEMBA – having regard to principles of legality, separation of powers and co-operative government, it was not competent for the high court to make such declaratory orders.”
On 30 September 2015 the Minister of Environmental Affairs published the Invasive Species Control Guidelines as required by the NEMBA Regulations. In terms of the regulations released in August 2014 and effective on 1 October 2014 the Minister was required to publish within 12 months of the regulations becoming effective, guidelines for the development of Invasive Species Monitoring, Control and Eradication Plans for the listed invasive species as contemplated in Section 76 of NEMBA.
Management authorities of protected areas and organs of state in all spheres of government must now submit by 30 September 2016, Invasive Species Monitoring, Control and Eradication Plans contemplated in Section 76 of the Act based on priorities identified through the guidelines now published.
The eThekwini Municipality has complied with the requirement in the NEMBA Regulations to prepare and submit an Invasive Alien Species Management Plan by 30 September 2016. You can download the plan by clicking HERE Please note this is a 14MB file.