PAJA AND SEISMIC SURVEY
Administrative law – Review – Decision to grant exploration right – Seismic survey off West Coast – Bias and exhaustion of internal remedies – Decision reviewed and set aside – Promotion of Administrative Justice Act 3 of 2000.
Sustaining the Wild Coast v Minister of Mineral Resources [2022] ZAECMKHC 55 at [75]-[139]
Facts: In October 2021 SLR Consulting at the instance of Shell, as operator of an exploration right, gave notice of Shell’s intention to commence with a sesmic survey along the Wild Coast. The survey is conducted by a seismic vessel sailing off the coastline, towing a 6-kilometres-long array of airguns behind it. It was common cause that Impact and Shell have secured no environmental authorisation to undertake the impugned survey and exploration.
Application: Applicants obtained an interim interdict preventing the respondents from undertaking the survey and Part B is now before the court. Applicants seek orders reviewing the decision granting the exploration right, including the renewals thereof.
Discussion: The contention by the applicants that environmental authorisation in terms of the National Environmental Management Act 107 of 1998 is necessary for exploration activities; the intervention; whether there has been an unreasonable delay; the Promotion of Administrative Justice Act 3 of 2000; the exhaustion of internal remedies; the Mineral and Petroleum Resources Development Act 28 of 2002; procedural unfairness; failure to take into account relevant considerations; and failure to comply with applicable legal prescripts.
Findings: The Minister has tendered a bald denial to the allegations of bias, offered no explanation for his change of mind, and sudden opposition to Part A of the application, for having publicly criticised interest groups who challenged the survey and maintaining his refusal to review Shell’s exploration rights. The public statements made by the Minister give rise to a reasonable apprehension of bias against the applicants and relieve the applicants and the intervening parties of the duty to exhaust their internal remedies as such appeal would have been an exercise in futility.
It was demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts.
Order: The decision taken by the Minister granting the exploration right is reviewed and set aside, as well as the decision to grant the renewal and further renewal.
MBENENGE JP (NHLANGULELA DJP and NORMAN J concurring.)
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CANNABIS GROW CLUB MODEL
Criminal law – Drugs – Cannabis – Grow club model – Customers grow own cannabis on rented space – Drugs and Drug Trafficking Act 140 of 1992, ss 4(b) and 5(b).
The Haze Club v Minister of Police [2022] 2101-2021 (WCC) at [43]-[85]
Facts: Following the Prince Constitutional Court judgment, an adult may lawfully cultivate and possess cannabis for his or her personal consumption in a private space. Mr Liddell is the director of The Haze Club and Mr Van Houten an employee. They were arrested at the business, where they grow cannabis on behalf of customers, and their plants and dried cannabis were seized.
Application: A declaratory order is sought that the grow club model, a socialised system of cannabis cultivation in terms of which the applicants rent out private space to the members by means of a sublease, wherein the members grow their own cannabis for personal consumption, is lawful and consistent with the Prince judgment. Alternatively, the applicants seek to declare certain provisions of the Drugs and Drug Trafficking Act 140 of 1992 as inconsistent with the Constitution and therefore invalid, to the extent that they criminalize the use or possession of cannabis through the grow club model.
Discussion: The applicants’ contention that they use their horticultural skills at the business and the cannabis remains in the possession of their members; the terms and conditions of their contract with their members; the contention by the police that the grow club model falls foul of the Drugs Act and that the Prince judgment does not allow the cultivation of cannabis belonging to another; the Prince judgment and the right to privacy; that this judgment was in the context of use in a private space, while the grow club model is a socialised system of cannabis cultivation; the common areas in the business; the definition of “deal”; and the contentions on the right to freedom of trade in section 22 of the Constitution.
Findings: The applicants seek to transpose the Prince decision, which was determined within the context of personal privacy, as protected by section 14 of the Constitution, to a commercial context. The grow club model has the potential to cultivate cannabis on a large-scale and to generate huge amounts of money. In light of the shared characteristics between a dealer of cannabis and the grow club model, the limitation on the applicants right to choose a trade as a cannabis grow club or cannabis horticulturist was reasonable.
Order: The application is dismissed.
SLINGERS J
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NCA AND REGISTRAR GRANTING DEFAULT JUDGMENT
Civil procedure – Default judgment – Registrar of High Court – Not competent for Registrar to grant default judgments in matters to which the National Credit Act applies – National Credit Act 34 of 2005, s 130(3).
Gcasamba v Mercedez-Benz Financial Services [2022] 4526-2021 (FB) at [28]-[73]
Facts: Mr Gcasamba and Mercedez-Benz Financial Services, a credit provider duly registered as such in terms of the National Credit Act 34 of 2005 (NCA), concluded an instalment sale agreement for a 2014 used Mercedes-Benz. Mr Gcasamba fell into arrears with payments and a section 129(1) notice and a summons was sent to his chosen address. The Registrar granted default judgment and the sheriff repossessed the vehicle.
Application: For rescission of the default judgment granted by the Registrar where a credit provider enforced a credit agreement under the auspices of the NCA.
Discussion: Mr Gcasamba’s statement that he neglected to inform Mercedes of his new address and his complaint that he was denied his constitutionally entrenched right to defend the action and to have his day in court; that the Registrar is empowered to grant default judgments in terms of section 23 of the Superior Courts Act 10 of 2013 read with Uniform Rule 31(5); that the views of the different courts are not in harmony regarding the Registrar’s power to grant default judgments in matters to which the NCA applies; the case of Nkata v FirstRand Bank (CC) and the reliance on Jafta J’s concurring judgment; the full court judgment in Nedbank Limited v Mollentze; and ascertaining the legislative intention with section 130(3) of the NCA and the meaning to be given to “court’ as used in the section.
Findings: The reasoning in Mollentze, to the effect that the consumer’s rights would be protected should the Registrar grant a default judgment because the consumer is entitled to apply for rescission of that judgment at which juncture the court will consider the matter, is not consistent with the legislative intention of s130(3). It is not competent for the Registrar of the High Court to grant default judgments in matters to which the National Credit Act 34 of 2005 applies.
Order: The default judgment granted by the Registrar of the court against Mr Gcasamba is rescinded. The 2014 Mercedes Benz E200 shall immediately he returned to him.
SNELLENBURG AJ
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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