, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Green Horizon Developments (Pty) Ltd plans to build a large shopping centre and fuel station
near a wetland area outside Polokwane in Limpopo Province. The proposed development will
include parking areas, new access roads and a waste disposal site. The company appoints Ms
Dube as the environmental assessment practitioner (EAP) to manage the application process.
Local community members complain that the development may pollute the wetland and destroy
natural habitats. Ms Dube prepares reports for the development but fails to include objections
raised by interested and affected parties. After receiving the reports, the competent authority
grants the application for environmental authorisation.
Effect of Lack of Public Participation on the Application
Public participation is a mandatory, non-negotiable component of the environmental authorisation
process in South Africa. The failure by the EAP, Ms Dube, to include objections raised by interested
and affected parties has severe consequences for the validity of the application.
1. Violation of a Core Principle of Environmental Law
The lack of public participation directly contravenes the principles of environmental management
enshrined in NEMA and the Constitution. Section 24 of the Constitution guarantees everyone the
right to an environment that is not harmful to their health or well-being and mandates the state to
protect the environment through reasonable legislative measures.¹ NEMA gives effect to this by
prioritizing the principle of public participation, recognizing its crucial role in ensuring integration of
socio-economic impacts into environmental decision-making.² Forcing a project on an unwilling
community that had legitimate environmental concerns undermines the very fabric of sustainable and
equitable development and contradicts the NEMA's requirement that "environmental management
must place people and their needs at the forefront of its concern."³
2. Unlawful Administrative Action and Procedural Unfairness
The competent authority's decision, based on an incomplete report, is procedurally unfair and,
therefore, unlawful. Section 33 of the Constitution guarantees the right to just administrative action,
which must be "lawful, reasonable and procedurally fair."⁴ The Promotion of Administrative Justice
Act (PAJA) gives effect to this right and specifically requires that administrators provide a
reasonable opportunity for those affected to make representations.⁵ Ms Dube's failure to include the
community's objections means the competent authority made its decision without considering all
relevant and material facts, violating the community's right to a fair process. The decision is tainted
and constitutes "unlawful, unfair or unreasonable" administrative action.⁶
Furthermore, section 24(4)(a)(v) of NEMA explicitly requires that "public information and
participation procedures which provide all interested and affected parties...with a reasonable
opportunity to participate in those information and participation procedures" must be undertaken.⁷
The failure to include objections means this statutory requirement was not satisfied.
¹ LEG2601 Study Guide, p.45.
² LEG2601 Study Guide, p.55.
³ LEG2601 Study Guide, p.57.
⁴ LEG2601 Study Guide, p.48.
⁵ LEG2601 Study Guide, p.49.
⁶ LEG2601 Study Guide, p.49.
1. Green Horizon Developments (Pty) Ltd plans to build a large shopping centre and fuel station
near a wetland area outside Polokwane in Limpopo Province. The proposed development will
include parking areas, new access roads and a waste disposal site. The company appoints Ms
Dube as the environmental assessment practitioner (EAP) to manage the application process.
Local community members complain that the development may pollute the wetland and destroy
natural habitats. Ms Dube prepares reports for the development but fails to include objections
raised by interested and affected parties. After receiving the reports, the competent authority
grants the application for environmental authorisation.
Effect of Lack of Public Participation on the Application
Public participation is a mandatory, non-negotiable component of the environmental authorisation
process in South Africa. The failure by the EAP, Ms Dube, to include objections raised by interested
and affected parties has severe consequences for the validity of the application.
1. Violation of a Core Principle of Environmental Law
The lack of public participation directly contravenes the principles of environmental management
enshrined in NEMA and the Constitution. Section 24 of the Constitution guarantees everyone the
right to an environment that is not harmful to their health or well-being and mandates the state to
protect the environment through reasonable legislative measures.¹ NEMA gives effect to this by
prioritizing the principle of public participation, recognizing its crucial role in ensuring integration of
socio-economic impacts into environmental decision-making.² Forcing a project on an unwilling
community that had legitimate environmental concerns undermines the very fabric of sustainable and
equitable development and contradicts the NEMA's requirement that "environmental management
must place people and their needs at the forefront of its concern."³
2. Unlawful Administrative Action and Procedural Unfairness
The competent authority's decision, based on an incomplete report, is procedurally unfair and,
therefore, unlawful. Section 33 of the Constitution guarantees the right to just administrative action,
which must be "lawful, reasonable and procedurally fair."⁴ The Promotion of Administrative Justice
Act (PAJA) gives effect to this right and specifically requires that administrators provide a
reasonable opportunity for those affected to make representations.⁵ Ms Dube's failure to include the
community's objections means the competent authority made its decision without considering all
relevant and material facts, violating the community's right to a fair process. The decision is tainted
and constitutes "unlawful, unfair or unreasonable" administrative action.⁶
Furthermore, section 24(4)(a)(v) of NEMA explicitly requires that "public information and
participation procedures which provide all interested and affected parties...with a reasonable
opportunity to participate in those information and participation procedures" must be undertaken.⁷
The failure to include objections means this statutory requirement was not satisfied.
¹ LEG2601 Study Guide, p.45.
² LEG2601 Study Guide, p.55.
³ LEG2601 Study Guide, p.57.
⁴ LEG2601 Study Guide, p.48.
⁵ LEG2601 Study Guide, p.49.
⁶ LEG2601 Study Guide, p.49.
