FOSAF welcomes the Judgement [1] delivered today, refusing the Application for Leave to Appeal by the Minister of Environmental Affairs against the decision [2] to declare invalid the previous notices and consultation process that led up to the latest amendments to the National Environmental Management: Biodiversity Act (“NEMBA”) Alien and Invasive Species (“AIS”) Lists and Regulations.
FOSAF and others have repeatedly drawn attention to the failure of the Minister and the DFFE to properly consult, in many submissions regarding proposed environmental law-making.
It is particularly heartening, therefore, that the Court highlighted this failure as follows:
“What is disconcerting is that the Minister knew, or should at least have been advised, that her conduct bordered on contempt of the full court's judgment in the Kruger matter. It is inconceivable why the Minister would act in a manner which was previously reprobated by the full court. Although the Kruger matter did not embed a legal principle which should be regarded as authoritative, the Minister should have appreciated that the singularity was persuasive, and to ignore the import of that judgment violated the dignity, repute, and authority of the court.”
Over and above the aspects FOSAF highlighted in relation to the original decision [3], this refusal adds two important elements to the existing jurisprudence on the subject of consultation:
Firstly, that the right to seek legal redress in such cases is a broad right that everyone enjoys. Secondly, that one can seek legal redress in respect of a flawed consultation process in terms of NEMBA before the “consulted on” measure becomes law.
Ideally, this judgment should prompt the long-requested review of the plethora of law-making under NEMBA, as much of what has been done in the last decade and a half was not properly notified and/or consulted on. FOSAF has repeatedly drawn attention to this problem to no avail.
As we emphasized last year when the judgement was delivered, it is important to note that the judgement does not declare the 2020 AIS lists and regulations invalid. While these notices list trout as invasive, the implementation of this specific listing was suspended by the Minister pending discussions in a task team comprising the Department and Aquaculture stakeholders, including the trout value chain. This is ongoing.
This decision has a much wider implication than just “the trout fight”. It goes to heart of “informed consultation” and the public’s right to challenge laws and to be taken seriously by government during consultation processes.
The Constitution, the NEMA principles and NEMBA set out a simple set of requirements that must be complied with when e.g., the Minister intends exercising a power. These include that the public must receive sufficient information about why what is being proposed, is required and what the expected implications of this will be. This case reinforces these values, principles and requirements.
FOSAF is again sincerely grateful for the kind assistance and commitment of our legal team, all of whom acted on a pro bono basis: Julian Bartlett of Bartletts Inc., Adrian van Niekerk of MacRobert Attorneys, Advocates Alistair Franklin SC and Julian Joyner. Special mention must also be made of the contributions of Ian Cox and the late Gerrie van der Merwe to the campaign. We could not have achieved this without them and without the support of our many donors, contributors, our membership and other stakeholders.
1 See the 2022 judgement: http://www.fosaf.org.za/documents/Judgment%20leave%20to%20appeal.%20FOSAF%20v%20Minister%20of%20Environmental%20Affairs.pdf
2 See the 2021 Judgement: http://www.fosaf.org.za/documents/Judgment.%20The%20Federation%20Of%20Southern%20African%20Fly%20Fishers%20vs%20The%20Minister%20of%20Environmental%20Affairs.pdf.
3 See the 2021 media release: https://www.fosaf.org.za/read-Current-380.php.
