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11 January 2024 Media Statement: Garden Route District Municipality successfully defends Atmospheric Emission Licence Decision in Court

Media Statement: Garden Route District Municipality successfully defends Atmospheric Emission Licence Decision in Court

For immediate release
11 January 2024

During 2021, the Garden Route District Municipality (GRDM) Air Quality unit received an application for an Atmospheric Emission Licence (AEL) from Rooikat Recycling (Pty) Ltd for a proposed waste-to-energy pilot plant in Great Brak River, Mossel Bay district. The granting of the licence was also subjected to Environmental Authorisation (EA), with the competent authority being the Department of Environmental Affairs and Development Planning: Waste Directorate. The Environmental Authorisation and atmospheric emissions licencing processes ran concurrently. Two public participation processes were conducted, one for the EA and one for the AEL process. Sharples was appointed by the Applicant (Rooikat Recycling (Pty) Ltd to facilitate the applications as well as the public participation process, as required by legislation.

The Rooikat (PTY) Ltd Recycling Plant in Great Brak River.

From the onset, the application drew a lot of public attention. Several Great Brak River residents were concerned about the effect of the facility on their health and well-being.

The decision to grant the licence was based on various factors as guided by Section 39 of the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004).  The effect of the facility on the health and well-being of the residents were, amongst others, guided through an air quality impact report done by Lethabo Air Quality Specialists. This study indicated the emissions to be negligible and within the minimum emission limits of the specific licence categories and not exceeding the South African Ambient Air Quality Standards.

The Department granted Environmental Authorisation to Rooikat Recycling (Pty) Ltd after which the GRDM granted the Provisional Atmospheric Emissions Licence. Both these authorisations were, however, suspended due to two appeals lodged, one appeal by the Great Brak River Ratepayers Association.  The appeals were rejected by the Western Cape MEC and the GRDM Municipal Manager (the respective appeal authorities).

The issuing of the Provisional Atmospheric Emission Licence to Rooikat Recycling (Pty) Ltd then took effect.

A resident of Great Brak River, Mr Evert de Lange (refer to Mossel Bay Advertiser article of 29 July 2022 (Munisipaliteite en Wes-Kaap MEC voor hof gedaag oor Rooikat) then lodged a case, case 254/22, on 12 July 2022 at the High Court in George against, amongst others, the Garden Route District Municipality (First Respondent). There were multiple complaints, but in essence his complaint was that the GRDM did not follow due process in terms of Public Participation.

Stadler and Swart was appointed to represent the GRDM with its defence.

The Municipality’s issuing of the AEL to Rooikat was an administrative decision.  Although not articulated as such in the Plaintiffs Particulars of Claim (POC), the Plaintiff’s challenge to the public participation process leading to the AEL is, in substance, a review under the Promotion of Administrative Justice Act, 2000 (PAJA).

Section 7(1) of PAJA requires reviews of administrative action to be instituted within 180 calendar days.  Here the Plaintiff did not exercise internal remedies before instituting PAJA application and the lapse of time between the Municipality’s appeal decision and the date of summons exceeded 180 days.

Section 38(2) makes section 24 of the National Environmental Management Act (NEMA) applicable to applications for atmospheric emissions licenses.  Similarly, section 24(1A)(c) of NEMA places the sole responsibility for the public participation process on the applicant.

The Plaintiff’s averments that the Municipality failed in a duty to conduct the public participation process, is also legally unsustainable.  The Municipality plays no role in the public participation process; it evaluates the process as part of an atmospheric emissions license application.

On 28 November 2023 in the High Court of South Africa, Eastern circuit, local division, George, Honourable Judge Erasmus ordered that:

  1. The Plaintiff withdraws its claim against the Defendants.

  2. That the Plaintiff pays the First Defendant`s (GRDM) cost on a party-to-party scale, either taxed or as agreed.

  3. Third Defendant (MEC) did not seek an order for cost.

This order closes the Rooikat case. The ruling was in essence based on the fact that the Judge had insurmountable problems with Mr De Lange`s locus standi. The case should not have been referred to the court as Mr de Lange did not exhaust the internal remedies to address his concerns. That is: did not partake in the public participation process, did not object or appeal within these processes and, also, did not use the PAJA process within the 180 days.

It is also important to note that the Air Quality unit followed all the correct procedures to deal with the application.

District Manager for Air Quality Control at GRDM, Dr Johann Schoeman, highlighted: “The project is operational –  all start-up tests have been concluded and an official commission date was determined and communicated to the Air Quality unit in terms of its Provisional Atmospheric Emissions Licence”.

Schoeman further stated that “a continuous emissions monitoring system is recording their emissions, and the monitoring reports are submitted to the Air Quality unit. There are no exceedances at this stage. All relevant conditions are being complied with. Complaints in the Great Brak River area are not attributed to the Rooikat Recycling project and the conclusion is that the Rooikat Recycling Project does not have a detrimental impact on the environmental and the health of the receptors”.