CONFUSING PAPERWORK LEADS TO R1 MILLION FINE
THE PERILS OF S24G OF NEMA
Jacobus Nicolaas van Coller t/a JN van Coller Boerdery v The Member of the Executive Council for Economic, Small Business Development, Tourism and Environmental Affairs, Free State and Another (5750/2024) [2025] ZAFSHC 191 (26 June 2025)
For one farmer, a mistake on an application form for the rectification of the unlawful commencement of an activity requiring an EIA, led to a staggering R1 million fine.
This case is less about rectifying an environmental wrong and more about the right to just administrative action.
A Simple Ambiguity Can Have Million-Dollar Consequences
Mr. Jacobus Nicolaas van Coller, a farmer trading under the name Van Coller Boerdery, established a cattle feedlot on property owned by the Van Coller Family Trust.
He did so without first getting the required environmental authorization under the National Environmental Management Act (NEMA). Realizing his error, he took steps to correct it.
To rectify the non-compliance, he submitted a “section 24G” application, a formal process for legalizing an unauthorized activity. However, the application form itself contained conflicting information that became the heart of the dispute.
In one section, a box next to the question “Is the applicant an individual?” was shaded ‘yes’, and the form listed Mr. Van Coller’s personal name and identity number as the “project applicant.”
Yet in other sections, the form also mentioned “Vancol BK” (a close corporation) and listed Mr. Van Coller’s position as “Director/Owner.”
This created a crucial ambiguity: was the application from Mr. Van Coller the person, or Vancol the company?
The authorities interpreted this ambiguity in the harshest possible way. They decided the application was from the corporation (”a firm”), not the individual.
Based on this interpretation, and on the recommendation of its “Fines Committee,” the department imposed an administrative fine of R1,000,000.
His appeal to the MEC for determination of an appropriate fine, was dismissed.
Determining the quantum of the fine under the s24G Fine Regulations
The determination of the quantum of an administrative fine, specifically in the context of Section 24G applications under the National Environmental Management Act (NEMA), involves a comprehensive assessment based on several factors that the Fine Committee and the competent authority are mandated to take into account, namely:
Impacts of the Activity
Previous administrative enforcement notices
Previous convictions
Previous Section 24G applications
Whether the applicant is a firm or a natural person
Procedural Fairness Is Non-Negotiable—Even When You’re in the Wrong
While the farmer admitted to the initial transgression of starting the feedlot without a permit, the court’s final decision did not hinge on this fact.
Instead, the case turned on a more fundamental legal principle: the right to procedurally fair administrative action, a right guaranteed by the South African Constitution and embodied in the ancient legal maxim audi alteram partem—”hear the other side.”
The court found that the government department had acted unreasonably. Faced with a form containing contradictory information about the applicant’s identity, the department had a clear duty to seek clarification before making a decision that would financially prejudice the applicant.
They had the power to request more information but failed to do so. This failure to perform a basic act of due diligence was a critical legal error.
The judgment’s finding on this point :
The respondents missed an opportunity to acquire information which was pertinent to the just and proper exercise of their power. The failure by the respondents to afford the applicant opportunity to make representations is irrational and unreasonable.
This principle is vital because it establishes that government bodies cannot act arbitrarily. They must follow a fair and rational process, ensuring that individuals have a chance to be heard and to clarify information, especially when the stakes are as high as a R1 million fine.
Courts Are Referees of the Process, Not Substitute Players
In their appeal to the court, the farmer’s legal team asked for more than just the cancellation of the R1 million fine. They requested that the court step in and replace the penalty with a much smaller fine of R40,000, which they argued would have been appropriate for an individual.
The court refused this request, citing a core principle of the legal system: the “doctrine of separation of powers.” The judgment noted that the court does not possess the “competent expertise” to determine the correct fine; that is the specialized function of the administrative department.
The proper remedy was not for the court to substitute its own judgment, but to send the matter back to the department with a clear instruction: make the decision again, but this time, do it fairly.
The Court reviewed and set aside the MEC’s dismissal of the Farmer’s appeal against the fine, and ordered a reconsideration of the appeal.
One blind person wants to lead the other blind!