FORBES & THOMPSON (BULAWAYO) (PVT) LTD v MUSASIWA NO & ANOR 2014 (1) ZLR 467 (H)
Citation | 2014 (1) ZLR 467 (H) |
Case No | Judgment No. HH-54-14 |
Court | High Court, Bulawayo |
Judge | Moyo J |
Heard | 10 April 2014 |
Judgment | 10 April 2014 |
Counsel | P Ncube for the applicant |
Case Type | Civil application |
Annotations | No case annotations to date |
Flynote
Environment – prevention of activities which pollute the environment – closure of premises where activities which pollute the environment are carried out – need for such activities to be occurring before closure may be ordered – closure to have preventive measure taken not permissible
Statutes – Environmental Management Act [Chapter 20:27] – s 37(4) – power of inspector of Environmental Management Agency to close premises – need for activity which is actually polluting the environment to be occurring – no power to close premises to have preventive measures taken
Headnote
An officer of the Environmental Management Agency inspected the applicant's mine and subsequently issued an order, purportedly in terms of s 37(4) of the Environmental Management Act [Chapter 20:27], closing the mine indefinitely and directing that certain measures be taken to prevent several possible causes of pollution. The applicant sought an urgent order declaring the order to close the mine to be invalid.
Held, that the section provides that the Agency may order the closure of premises for a period not exceeding three weeks where an activity which pollutes the environment is carried out; or it can serve an order requiring that the owner or occupier takes such measures as may be specified for the prevention of harm to the environment; or it can take both such steps. However, it is not entitled to close premises so as to protect the environment and have preventive measures taken unless some activity is taking place that is actually polluting the environment. Further, any closure in terms of the section may only be for up to three weeks.
Legislation considered
Environmental Management Act [Chapter 20:27], s 37(4)
Moyo J
Case information
P Ncube for the applicant
V Majoko for the respondents
Judgment
Moyo J: This is an urgent application wherein the applicant seeks an order in the following terms:
"Pending the determination of this matter, it is ordered:
1. That the applicant's Vumbachikwe Mine, be and is hereby allowed and permitted to resume operations in the normal manner pending the determination of this honourable court of the propriety of the order to close it issued by the first respondent dated 6 March 2014.
2. That the applicant be and is hereby directed to observe the provisions of the Environmental Management Act [Chapter 20:27] in carrying out and executing the provisional order number 1 above.
The terms of the final order sought are as follows:
That you show cause to this honourable court why a final order should not be made in the following terms:
Or alternatively
Or alternatively
General
The background of this matter is that the applicant owns Vumbachikwe Mine. On 28 February 2014 the second respondent's officers visited the mine in the company of the first respondent. This visit was in terms of the Environmental Management Act [Chapter 20:27]. At the mine the second
Moyo J
respondent's representatives made findings that were documented in a report marked "AA" as part of the opposing papers. A number of findings and recommendations were recorded in the said report.
On 6 March 2014, a document was then prepared by the first respondent. The document states in the caption "Circumstances Giving Rise To The Order".
"Now therefore under and by virtue of the powers conferred upon me under section 37(4) of the Environmental Management Act [Chapter 20:27], I hereby order that:
1. You cease all operations within 7 days of receipt of this environmental protection order.
2. Install dust abatement measures around the crushing area.
3. Complete the paving of the CIL floor to prevent erosion and reduce surface and ground water pollution in the event of spillages (emphasis mine)
4. Decommission the return water pad close to the tailings dam which is not adequately protected. (emphasis mine)
5. Put neutralizing chemicals on the culverts of the road for neutralizing accidental spillages (emphasis mine), from CIL and tailings dam. You are required to collect water samples for analysis from the discharge point 3 times daily each time there is flow also conduct test for PH and free cyanide. ALL records of results should be kept and produced upon demand.
6. Clean up all tailings spillages from the tailings dam and the CIL plant, and ensure regular maintenance of the tailings management system to prevent blockages, overflows and accidental spillages.
7. Make full payments of all outstanding statutory environmental fees to the Agency by 30 March 2014."
It goes on to say:
"Conditions of the order"
1. This order will be withdrawn on your compliance with the conditions contained above to the satisfaction of the Agency but otherwise shall remain in full force and effective until it is withdrawn or set aside or suspended by an order of the Minister in terms of section 37 (7) of the Environmental Management Act [Chapter 20:2].
2. An inspection to monitor progress of compliance with this order may be done at all measurable times without prior notice."
The applicant noted an appeal to the Director General in terms of section 129(1)(2) of the Act. The applicant's case is that the appeal lodged with the Director General in terms of s 129 of the Act suspends the order of the closure of the mine as s 130 provides that only an appeal of the authority does not suspend the decision of the authority, but there is no mention of the suspension or otherwise of the decision of the inspector, meaning that the specific mention in s 130 of the non-suspension of the appeal to the
Moyo J
Minister of the decision of the (authority) would mean that the decision of the inspector is suspended by an appeal.
The respondents on their part contend that only the decisions of the superior court are the ones suspended by appeals and nothing else.
The applicant's case is also that the provisions of s 37(4) of the Act do not allow the first respondent to order the closure of the mine for the reasons given in his order. Section 37(4) provides that:
"An officer or inspector may, if he or she considers it is necessary to act for the immediate protection of the environment, do either or both of the following:
(a) close any premises for a period not exceeding thre3 weeks where an activity which pollutes the environment contrary to the provisions of this Act or any standard issued under it is carried out;
(b) serve an order in writing on the owner, user or occupier of any land or premises requiring that owner, user or occupier to take such measures as may be specifies in the order for the prevention of harm to the environment and natural resources."
Subsection (5) of the same section provides that an order issued in terms of subs 4(b) shall be of full force or effect until it is withdrawn, set aside or superseded by an environmental protection order.
The first respondent invoked his powers in terms of section 37(4) as per his reference to this section in the order.
The applicant's contention is that the first respondent failed to observe the provisions of s 37(4), the section he purported to be acting upon, as the applicant is not informed by the first respondent as to the reasons for closure. The applicant's contention is that the Act is clear as to what can lead to closure, that being an activity that pollutes the environment. The applicant's contention is that the first respondent's order for closure and the report that was prepared on 28 February 2014 do not identify or specify any activity that the applicant is doing that pollutes the environment, but they have made recommendations and preventive measures, to take care of accidental occurrences which are expected in the normal course of business. The applicant's contention is that for the respondents to invove s 37(4)(a) there must be a specific identified activity that is polluting the environment warranting closure of the mine.
The respondents, on the other hand, contend that it is the statutory duty of the environment agency to take preventing and corrective steps to protect the environment generally. The first respondent goes further in his affidavit to state that s 37(4) empowers him if he considers it necessary to act immediately for the protection of the environment by either closing the premises or ordering
Moyo J
compliance with measures to protect the environment or both. He says it is in this context that he acted. In his affidavit he also alludes to the history of problems they have had with the applicant mine, for instance that six such orders had been granted in the past and that therefore this was not the first time that such an order was issued.
The respondents contended that this application is not urgent and that it should therefore be dismissed. I hold a different view. Of course it does not matter where and how a certificate of urgency was typed, but what is essential is that a legal practitioner has given his reasons for the urgency in such certificate and he has appended his signature and affixed his stamp. I hold the view that the closure of the mine obviously is affecting productivity and consequently impacting negatively on the production at the mine, thus qualifyins this matter for urgency. I further hold the view that the applicant's reason for filing an urgent application on 18 March as opposed to 13 March when they were served with the order is a valid reason, in that the applicant explains that after noting an appeal on 11 March, they were then of the view that the first respondent's order had been suspended.
My reading of s 37(4)(a) and (b) creates a picture wherein the legislature provided for the closure of premises for a period not exceeding three weeks where an activity which pollutes the environment ... is carried out (my emphasis) or he can also serve an order requiring that the owner or occupier takes such measures as may be specified for the prevention of harm to the environment. An inspector can order either the clause (a) or clause (b) or both, meaning that clause (a) is independent of clause (b).
Clause (as specifiec that premises can only be closed where an activity which pollutes the environment is carried out. In his opposing affidavit, the first respondent does not clearly state that he had to order closure in terms of clause (a) because a specific activity has been carried out resulting in harm to the environment, he in fact states in para 31 that " I do not argue that an inspector should act only when an activity pollutes the environment". He in fact interprets s 37(4)(a) to empower him to act if it is necessary to protect the environment. Section 37(4)(a) is clear and unequivocal in so far as the order of closure is concerned. If the legislature wanted to give the inspector powers to close premises so as to protect the environment and have preventive measures taken it would not have specifically tied closure with an activity that is being carried out. I therefore disagree with the first respondent's contentions on the interpretation of that clause.
It follows, therefore, that the powers that the first respondent invoked in s 37(4) were in fact misunderstood by him and he thus could not have exercised
Moyo J
them lawfully. One cannot exercise powers that he does not understand in a lawful manner, hence his closure of premises to protect the environment rather than to stop an activity that is polluting the environment. A reading of the record dating made on 28 February report also creates the same picture. The gist of the recommendations sounds like suggestions made to improve the situation at the mine rather than to address a specific activity that warrants the closure of the mine.
Again, the fact that the first respondent's counsel concedes that the first respondent did not have the powers to close the mine indefinitely, as s 37(4)(a) is clear that the period should not exceed three weeks, and the fact that one of the conditions that should be fulfilled prior to the re-opening of the mine is that all outstanding fees should be paid by 30 March, buttresses the finding I have made that the first respondent did not appreciate the powers given to him by s 37(4) and under what circumstances and for what measures he could exercise them.
I accordingly find that the first respondent's actions do not conform with the provisions of s 37(4). The first respondent could not exercise powers that he did not have, neither could he invoke the powers in circumstances that were not covered as warranting closure by s 37(4)(a). His order is both unlawful and ultra vires. I accordingly grant the provisional order in terms of the draft for the aforestated reasons.
Coghlan & Welsh, applicant's legal practitioners
Majoko & Majoko, respondents' legal practitioners
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