TREAT SECTION 24G WITH EXTREME CAUTION
MEC for Local Government, Environmental Affairs and Development Planning, Western Cape & another v Hans Ulrich Plotz NO & another (495/2017) [2017] ZASCA 175 (1 December 2017)
The McGregor Trust, the owner of a guesthouse in the Bakoven area of Cape Town, undertook unauthorized construction activities in a watercourse, leading to a substantial fine from environmental authorities.
Yet, this was not their most expensive mistake. Their costliest error was a procedural one, made in the aftermath.
The Trust’s story reveals how a failure to follow the correct procedural steps can lock the courthouse doors, leaving you with no legal recourse, no matter how strong you believe your case to be.
The Section 24G Quagmire
When a person or entity has already commenced an activity that required, but did not receive, prior environmental authorization, Section 24G of NEMA offers a path to rectify the situation.
However, this is a perilous process. It is not a simple “get out of jail free” card; it is a formal admission of liability that requires the applicant to pay an administrative fine before the authorities will even consider authorizing the unlawful activity.
The sequence of events that led the McGregor Trust into this quagmire is a textbook example:
To address erosion and enhance the guest experience, the Trust undertook significant work within and adjacent to the Kasteelspoort River. This included building four concrete weirs, lining stream banks, and constructing wooden boardwalks and paving along the watercourse.
Critically, even though the Trust’s stated goal was to address erosion and improve the property, these intentions were legally irrelevant in the face of unauthorized activities that caused, as the parties agreed, “extensive degradation of the riverine environment.”
Recognizing its error, the Trust applied for rectification under Section 24G of NEMA, formally admitting that the activities were unlawful.
Following a site visit and a committee meeting, the Director of the Provincial Environmental Department determined that an administrative fine of R475,000 was appropriate.
This decision marked the end of the first chapter of the Trust’s troubles. But it was their next move—the attempt to challenge this fine—that sealed their fate and provides the most critical lesson.
Ignoring the Internal Appeal Pathway
Receiving a significant administrative fine is not necessarily the end of the story. The law provides an appeal mechanism for challenging such a decision. Under Section 43(2) of NEMA, an affected party has the right to an internal appeal to the Member of the Executive Council (MEC).
This is a mandatory first step, not an optional detour on the way to court. The McGregor Trust’s attempt to use this pathway was a case study in procedural failure.
MISSED DEADLINES:
The Director’s decision explicitly advised the Trust of its right to appeal. It clearly stated that a “notice of intention to appeal” had to be submitted to the MEC within 20 calendar days.
DEFECTIVE SUBMISSION:
The Trust eventually submitted its appeal 44 days late based on the final extended deadline, and it also failed to comply with the procedural requirements laid out in the Environmental Impact Assessment (EIA) Regulations.
NO REQUEST FOR CONDONATION:
The Trust never sought condonation from the MEC. Condonation is a formal request for an official extension or forgiveness for failing to meet a deadline. By not asking for it, the Trust gave the MEC no legal basis to overlook the lateness of its appeal.
The MEC refused to consider the appeal, stating in a letter that the requirement to submit a notice of intention to appeal within 20 days is “peremptory” (meaning mandatory and not open to interpretation) and that the Trust had “failed to comply” with the regulations.
With the internal appeal process closed to them due to their own procedural errors, the Trust was left with one remaining option: the courts.
The Supreme Court of Appeal Judgment
At the heart of this case lies a fundamental principle of administrative law: the duty to exhaust internal remedies. This rule, mandated by Section 7(2) of the Promotion of Administrative Justice Act (PAJA), is not a mere suggestion.
The Supreme Court of Appeal (SCA) affirmed that it is a “compulsory” requirement that acts as a gateway to the courts. Before a judge will even listen to your case, you must first prove that you have used all available appeal mechanisms provided within the administrative system itself.
The court rejected the idea that an aggrieved party can simply miss the deadline for an internal appeal and then claim the remedy is no longer available.
The failure to take “reasonable steps” to use the remedy, such as submitting a late and defective appeal without asking for condonation, is a self-inflicted wound, not an exceptional circumstance.
The High Court had granted the Trust an exemption partly because it believed the Trust had a strong case on the merits (i.e., that the R475,000 fine was unreasonably high).
The SCA overturned this logic completely, describing it as putting “the cart before the horse.” The strength of your case is irrelevant to the procedural requirement. You must follow the process before a court will agree to consider the substance of your complaint.
The Final Judgment
The final outcome was as follows:
• The appeal from the environmental authorities succeeded.
• The lower court’s order, which had reduced the fine, was set aside.
• The original administrative fine of R475,000 was effectively reinstated.
Lessons to be Learnt
Treat Section 24G with Extreme Caution.
Applying for rectification of an unlawful activity is a formal admission of guilt. It is not a simple administrative process. The potential fines are severe and are calculated based on environmental impact, the nature of the activity, and other factors.
Proceed with the utmost care and professional advice.
Internal Appeals are Mandatory, Not Optional
The internal appeal process is your primary, and initially only, avenue for redress against an administrative decision like a fine. Do not view it as a bureaucratic hurdle to be cleared on the way to court. It must be treated with the same seriousness, diligence, and attention to detail as a formal court case.
Deadlines are Not Suggestions
As this judgment powerfully demonstrates, procedural deadlines in environmental regulations are strict. Missing them without formally and successfully applying for condonation can be fatal to your case, as demonstrated by the judgment. Simply ignoring a deadline and hoping for the best is a recipe for disaster.
The Courts Are Not a Shortcut
You cannot bypass internal remedies simply because you believe you have a strong case, because the process seems inconvenient, or because you made a mistake and missed the deadline.
The courts will strictly enforce the “exhaustion of internal remedies” doctrine, and a failure to comply will likely result in your case being dismissed without any consideration of its merits.
The McGregor Trust’s costly journey to the Supreme Court of Appeal provides a perfect lesson in risk management.
