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“ANNEXURE A”

RVM1 HYDRO ELECTRIC POWER (PTY) LTD Appellant

CHIEF DIRECTOR: INTEGRATED ENVIRONMENTAL

AUTHORISATIONS, DEPARTMENT OF

ENVIRONMENTAL AFFAIRS Respondent

APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998 AGAINST THE REFUSAL TO GRANT ENVIRONMENTAL AUTHORISATION TO RVM1 HYDRO ELECTRIC POWER (PTY) LTD ON 19 OCTOBER 2016

1. INTRODUCTION

1.1. This is an appeal to the Minister of Environmental Affairs, directed at

the Director: Appeals and Legal Review of the Department of

Environmental Affairs, against the decision of the Chief Director:

Integrated Environmental Authorisations of the Department of

Environmental Affairs (“DEA”) to refuse to grant an environmental

authorisation to RVM1 Hydro Electric Power (Pty) Ltd for the

establishment of a 40 megawatt (MW) Hydro power station and

associated infrastructure on the Farm Riemvasmaak, the Remainder

of Farm No. 497 and Portion 1 of Farm No. 498, on the Orange River

in the vicinity of the Augrabies Falls National Park, Kai !Garib Local

Municipality, in the Northern Cape Province, under register number

14/12/16/3/3/2/600 (“the Refusal Decision”).

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1.2. This appeal is lodged in terms of section 43(1) of the National

Environmental Management Act, 1998 (NEMA),

2. PARTIES

2.1. The appeal is submitted by RVM1 Hydro Electric Power (Pty) Ltd (“the

Appellant”).

2.2. The respondent is the Chief Director: Integrated Environmental

Authorisations (“the Respondent”), cited herein in his official capacity

as the person who signed the Refusal Decision on 19 October 2016.

3. BACKGROUND

The Project

3.1. Significant expansion of the South African economy during the past

few decades resulted in consequent and (substantial) increased growth

in electricity demand without the necessary growth in the supply side.

Currently, the majority of electricity in South Africa is generated from

burning fossil fuel (there is one nuclear power plant in the Eskom

fleet), the South African Government has determined to source energy

from the broadest spectrum of proven renewable technologies. The

driver of the need for diversification in the energy mix is the

Department of Energy (DoE) being the policy department within

Government for energy. The South African Integrated Resource Plan

(IRP), promulgated in May 2010 by the DoE, calls for an 18GW

renewable energy programme over the next 20 years.

3.2. The Renewable Energy Independent Power Producer Procurement

(REIPPP) Programme, established to achieve the above mandate, has

been an effective vehicle for South Africa to not only expand the

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country’s generation capacity and socio-economic growth, but also to

do it in such a way that environmental harm is minimized and to

provide tangible benefits to communities in the vicinity of the projects

through the requirement to return a percentage of the net profit before

tax to Corporate Social Responsibility Projects. The main focus of

technologies in the REIPPP Programme is Wind Power, Solar

Photovoltaic (PV), Concentrated Solar Power (CSP) and Hydro Electric

Power.

3.3. If one examines Figure 1 (below), it can be seen that Hydro Power has

yet to be utilized effectively.

Figure 1: REIPPPP Capacity Installations (Bid Windows 1-4)(

http://www.ipp-projects.co.za/PressCentre)

3.4. Wind Power would not be a viable renewable energy resource at this

location as there is simply not enough wind for sufficient generation.

Utility scale wind turbines require wind speeds of around 25-30km/h

to achieve their full rated capacity. As one can see in Figure 2, there is

not enough wind of this magnitude to produce any significant energy.

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Figure 1: Kakamas Average Wind Speed.

(https://www.meteoblue.com/en/weather/forecast/modelclimate/kakam

as_south-africa_993014)

3.5. Solar PV would also not be a viable option as it is simply too hot in

this region. At temperatures significantly above 25ºC the photovoltaic

cells experience a decrease in (already low) efficiency.

3.6. At 45°C, the efficiencies of the panels will decrease by approximately

20%. The inverters, transformers, battery banks (if any) and the cells

themselves suffer greatly in temperatures of this magnitude. This

region has been known to reach 50°C, which would more than likely,

cause irreversible damage to the solar cells and/or other equipment.

Optimal PV conditions would be found at approximately 25°C.

3.7. See the Figure below for average temperatures of the nearby town,

Kakamas:

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Figure 3: Kakamas Average Temperatures and Precipitation.(

https://www.meteoblue.com/en/weather/forecast/modelclimate/kakam

as_south-africa_993014)

3.8. Concentrated solar power is the only other viable renewable energy

source available, but has its disadvantages as it is mainly an

intermittent power source, expensive, involves a complex operation,

needs intensive maintenance, requires a very large utilization of space

and has a large visual impact.

3.9. All Energy sources have some impact on our environment. Given South

Africa’s current environmental condition, it is very important to try and

limit these impacts and select the energy sources that have the least

environmental impacts. The only way this objective will be achieved is

to support renewable energy sources, which provide energy at the

lowest cost to the environment.

3.10. Hydro Electricity is one of the cleanest energy resources on the planet

and is almost twice as efficient as any other renewable energy

technology (+90%).

3.11. Hydroelectric power is by far the most viable option for a renewable

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energy source in this location. The Orange River in this location

provides sufficient water and the best elevation differential, in South

Africa, for significant hydroelectric power generation.

3.12. Hydroelectric power plants provide baseload energy, whereas no other

renewable source in the REIPPP Programme can. South Africa currently

relies on its baseload energy to be supplied almost exclusively from

coal-fired power plants, which are massively carbon intensive. One of

the only disadvantages of hydropower involving impoundment is that

river flow is interrupted/altered. This can shift the equilibrium of the

downstream ecosystem. In Run-of-River (ROR) hydroelectric power this

disadvantage is erased as ROR Plants do not consume or store any

water. The difference between a dam and ROR is extensively dealt with

in section 11 of the EIAr. Furthermore the design of the RVM

hydropower project has ensured that a minimum of 30 cubic metres of

water per second are to flow along the natural course of the Orange

River and over the Augrabies Falls, before any diversion for power

generation is commenced. The reason why the 30 cubic metres has

been selected is because that is the figure agreed to by DWS. Attached

marked “RVM1” is a copy of the minutes held between Appellant and

DWS in this regard. It consists of a covering mail in which the DWS

gives permission for the distribution of the minutes of the meeting of

the 8th of August 2013, in which the 30m/sec issue is confirmed. This

then leads into permission by the DWS to submit the Water Use License

Application (which is found at

https://www.dropbox.com/sh/f6zx8il1rpr7p4g/AADQXcEa7o-

POqQKTXv9HOoJa?dl=0. The submission of the WULA is the precursor

to the receipt of the unbinding DWS letter which is also attached

marked “RVM2”.

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3.13. Flowing from the above, an application for environmental

authorisation was made, and authorisation subsequently refused for

the construction of a 40MW Hydro power station and associated

infrastructure, the (“the project”).

3.14. The site of the project (“the project site”) is situated partially in the

Augrabies Falls National Park and in the main on land outside the

Park on land owned by the Riemvasmaak community.

3.15. The project does not involve the extractive use of natural resources,

does not consume water and does not involve the construction of a

dam.

4. THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS

4.1. The Competent Authority confirmed by letter dated 21 September

2016 that the Final Environmental Impact Report (“Amended FEIR”),

as amended, was acceptable in terms of Regulation 34(2)(a).

4.2. The FEIR was amended following the rejection of the EIA Report lodged

on 29 September 2015.

4.3. The Competent Authority issued the Refusal Decision on 19 October

2016.

5. ADMINISTRATIVE ACTION

5.1. The activities that form part of the project will have impacts which are

regulated by specific legislation in addition to NEMA.

5.2. In addition to the environmental authorisation addressed herein, the

Appellant will be required to obtain a water use licence (WUL) in terms

of the National Water Act, 1998 (NWA) in order to undertake some of

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the activities envisaged as part of the project.

5.3. There are therefore two main regulators, the departments of

Environmental Affairs and Water and Sanitation, which will have

oversight over the project.

6. THE NATURE AND SCOPE OF THE APPEAL

6.1. The administrative remedy provided for in section 43, read with the

relevant regulations in the NEMA, constitute an administrative appeal.

The nature of the appeal in terms of section 43 is a “wide-appeal” as

opposed to an “ordinary appeal”.(Baxter L:Administrative Law -1984

Juta & Co, p256/Tikly v Johannes NO 1963 (2) SA 588 (t) at 590F-

591(A))

6.2. A wide appeal allows the Minister a “…complete re-hearing of, and

fresh determination on the merits of the matter with or without

additional evidence or information”. An ordinary appeal on the other

hand is a “re-hearing on the merits but limited to the evidence or

information on which the decision under appeal was given, and in

which the only determination is whether that decision is right or

wrong”.

6.3. Section 43(6) authorises the Minister to “confirm, set aside or vary the

decision” and also to “make any other appropriate decision”. This

endorses the view that this is a wide appeal affording the Minister a

wide discretion.

6.4. Regulation 61(2)(b) of the EIA Regulations determines that an appeal

must be accompanied by, inter alia, supporting documentation which

is referred to in the appeal and which is not in possession of the

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Minister. This confirms that the Minister is not limited to the

documentation on which the Refusal Decision was based, and can

consider additional information not previously considered.

6.5. The Appellant submits this appeal relying on its statutory right to have

the Minister reconsider the Refusal Decision and to make a fresh

determination on the merits having regard to all relevant information

presented as part of this Appeal and the documentation attached

hereto.

7. INTENTION TO APPEAL

7.1. Regulation 60(1) of the EIA Regulations, 2010 states that a notice of

intention to appeal must be submitted to the Minister within 20 days

after the date of the decision.

7.2. Regulation 60(2) of the EIA Regulations, 2010 provides that the

appellant must give notice of its intention to appeal by providing a

copy of its notice of intention to appeal to each person and organ of

state which was registered as an interested and affected party (I&AP)

within 10 days of dispatching this notice to the Minister as

contemplated in regulation 60(1), and indicating where and for what

period the appeal submission will be available for inspection.

7.3. On 4 November 2016, a notice of intention to appeal (“the notice”),

addressed to the Department of Environmental Affairs (“DEA”) was

submitted, by email to Mr Z Hassam, Director: Appeals and Legal

Review of DEA.

7.4. On 4 November 2016, Ms Marcia Davids of the DEA confirmed receipt

of the notice and advised that the appeal submissions were due on 7

December 2015, subsequently clarified to mean 7 December 2016.

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8. CONDONATION

8.1. On 1 December the EIA Process Facilitator caused a notice to be sent

to each person and organ of state which was registered as an I&AP as

required by the regulations. That notice is attached hereto marked

“RVM3”.

8.2. Unfortunately and owing to a genuine honest oversight in the office of

the EAP this notice was not despatched to the I&APs strictly according

to the timeframe set out in the Regulations and was in fact issued 17

days late. As soon as the delay was discovered the EAP wrote to Ms

MN Davids of the Directorate: Appeals and Legal Review, copied to the

Control Environmental Officer, Integrated Environmental

Authorisations (Ref: Mr. D Smit) and the Case Officer (Mr. V Chauke)

to admit to the error. That communication is attached marked

“RVM4”.

8.3. It is Appellant’s humble submission that this delay can cause the

I&APs no prejudice because the said notice was received by them

before the substance of the appeal, namely this document, and

because of the dies non over the December period. In this instance

Regulation 1(3) of the 2010 EIA Regulations excludes the reckoning of

days from the period of 15 December to 2 January so the I&APs

actually have extra time to deal with the substance of the appeal.

8.4. Appellant respectfully seeks and request that this administrative

oversight be condoned for the reasons set out above and because it

has caused no prejudice, was not deliberate, was not done on

Appellant’s instruction, was a genuine honest administrative oversight

and can have no effect on the time available for the I&APs to consider

and answer the appeal properly.

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The structure of this appeal is as follows: the Reasons for the Refusal

Decision are considered, the Findings are then responded to and finally the

Grounds of Appeal are addressed. There are various recurring themes in the

Findings which are repeated under different headings which range from

canal construction to water resources. For purposes of responding to the

Findings the themes are grouped together where practical or dealt with

separately.

9. THE REFUSAL DECISION

9.1. Annexure 1: Reasons for Decision.

Page 11 Item 1. Information Considered in making the Decision

9.2. The Competent Authority’s letter dated 9th November (actually

December) 2015 rejecting the EIA Report requested additional

information, in paragraphs a) to h), in order to enable the Competent

Authority to make a decision on the application. The request also

included a reminder to ensure that all information requested in the

earlier acceptance of the Scoping Report was forthcoming.

9.3. All of this information was provided in the Addendum Report. In the

few places where it was necessary the EIAR and EMPr were also

amended.

9.4. It is not clear from the Reasons for Decision whether the Competent

Authority included the Addendum under the heading of the Amended

EIAR, but given the detail provided of the other documents considered

this seems unlikely. There is thus no indication that the information

contained in the Addendum was considered by the Competent

Authority and consequently for that reason alone the Refusal Decision

should be set aside.

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9.5. The Competent Authority in reaching its decision did not list the

comments of any I&APs as being “Information considered in making

the decision” (Annexure 1: Reasons for Decision, page 11 Item 1 b))

but then says that a “Key factor” was the “concerns raised by” I&APs

(Annexure 1: Reasons For Decision, page 12 Item 2 c)). This points to

bias as the Competent Authority chose deliberately not to consider any

I&APs who may have supported the project preferring to only consider

those who expressed “concerns”. To ignore the interests of the

Riemvasmaak Community alone is a fundamental flaw in the

Competent Authority’s process to evaluate the application in light of

its statutory obligation to give equal weighting to the “social, economic

and environmental impacts of activities” as required in Section 2(4)(i)

of NEMA. The Competent Authority thus failed a mandatory procedure

prescribed by the empowering statute.

9.6. The Competent Authority discloses that it also considered the

objectives and requirements of relevant legislation and guidelines. The

Appellant will show that this disclosure is either incorrect or the

Competent Authority ignored certain pertinent information.

9.7. Annexure 1: Reasons for Decision

Page 12 Item 2. Key Factors in making the Decision

9.8. The Refusal Decision acknowledges that the “findings of all the

specialist studies conducted and their recommended mitigation

measures” were considered a most significant key factor considered.

(Annexure 1: Reasons For Decision, page 12 Item 2 a)). Inconceivably

not one specialist finding or mitigation measure has been explicitly

referred to in the Refusal Decision. Clearly the Competent Authority

decided that the specialists have failed to identify the relevant impacts,

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have underestimated their significance, or misstated the Appellants

ability to mitigate them. That said, no evidence of any significance is

presented to dispute or refute the specialists’ findings and so the

Refusal Decision is not rationally connected to the information

presented in the FEIR.

9.9. Despite considering information from the Department of Water and

Sanitation, which found that there was sufficient water in the Orange

River system for the project, the Competent Authority did not consider

the views of the department mandated to manage water resources as

being a key factor. It elected to make findings based on considerations

beyond its statutory mandate since the Competent Authority is not

empowered to deal with water use.

9.10. It is the Appellants submission that the Competent Authority erred in

only looking at the “physical, biological, social, economic and cultural

aspects of the environment” since that is not the measure required in

terms of Chapter 5 of NEMA. Furthermore Section 2(2) NEMA

stipulates that “environmental management must place people and

their needs at the forefront of its concern, and serve their physical,

psychological, developmental, cultural and social interest equitably”.

Rather the Competent Authority chose to concern itself predominantly

with the environment and did not give equal weighting to the “social,

economic and environmental impacts of activities” as required in

Section 2(4)(i) of NEMA. It was therefore not possible for the

Competent Authority to make an “appropriate” decision because a

material requirement for the proper evaluation of the application was

not complied with by the Competent Authority.

9.11. The fundamental flaw in the Competent Authorities decision as to

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what issues were of the most significance is the key factor of “the

cumulative impacts the proposed development will have within the

Orange River as an international river”. The cumulative impacts

should have been evaluated with reference to the entire Orange River

system, the region and the country as a whole and not just the river.

Section Regulation 31(20(I)(i) of the EIA regulations, 2010 requires an

evaluation of the cumulative impacts of the area, not just the river.

This constitutes a ground for appeal in its own right and is dealt with

in detail later under the appeal heading, Respondent Failed to take

into Account the Cumulative Impacts of the Project.

9.12. The Competent Authority did not rely on current legislation and

guidelines considered in the preparation of the Amended EIAr dated

June 2016 or the Addendum so the Competent Authority could not

properly have evaluated the information tabled in the Amended EIAr

dated June 2016. Instead it relied on legislation and guidelines

considered in the preparation of the EIAr dated September 2015

(Annexure 1: Reasons for Decision, page 12 Item 2 e)) and

consequently could not have applied its mind adequately, or at all,

relying on dated information in the circumstances.

9.13. The mention of alternatives in Item 2 f) (Annexure 1: Reasons for

Decision, page 12 Item 2 f)) in all likelihood refers to a previous multi-

station project, which was the subject of a Basic Assessment Report

and subsequently withdrawn by the Appellant. This is an illustration

of the issue raised in paragraph 8.12 above, namely reliance on dated

information. The original Basic Assessment addressed three possible

alternatives for 10MW stations, as 10MW was the maximum size DoE

would allow. Two sites were to be selected from the three. The

specialists were tasked with ranking the alternatives. When DoE

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raised the generation threshold to 40MW the project was rationalised

into a single enlarged station, based on the best alternative. There are

no fundamental alternatives (type of project, or locations and routes)

discussed in the EIAR documents.

9.14. In Annexure 1: Reasons for Decision, page 13 Item 2 Key Factor 2 I

the Competent Authority acknowledges that the specialists got the

methodology for determining the impacts right, but then got the

results so hopelessly wrong that it was necessary to refuse the

authorisation. It is entirely unreasonable to agree that the

methodology used in assessing potential impacts is correct but that all

the results are unacceptable as there is no other indication as to

which results were found wanting and no reasonable person could

have come to that conclusion.

10. Annexure 1: Reasons for Decision

Page 13 Item 3. The Findings

First we deal with procedural issues in the Findings and then move

onto the main themes. Thereafter we address certain specific findings.

10.1. Finding 3a) reads: “A sufficient public participation process was

undertaken and the applicant has satisfied the minimum

requirements as prescribed in the EIA Regulations, 2010 for public

involvement.”

10.2. This finding is incorrect. Appellant has never seen the comments of

the Department: Environment & Nature Conservation which is

registered as an I&AP and Regulation 56(1) (b) requires that those

comments ought to have been served on the EAP. Applicant has

therefore been denied the opportunity to answer these comments and

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accordingly the Refusal Decision is procedurally unfair. So, despite the

principle of audi altrem partem Appellant has never had sight of the

reasons advanced by Department: Environment & Nature

Conservation (Finding 3d)) or the SANParks letter as part of the EIA

process. It was private correspondence between Appellant and

SANParks in the context of Appellant seeking a meeting with

SANParks to further explain the project.

10.3. To the extent the SANParks letter (referred to in Finding 3 c) and 3 f))

was sent directly to DEA, it was only copied to two officials, and was

not served on the EAP as required in terms of Regulation 56(1) (b). The

letter was not written in response to the RVM Addendum Notification

letter to I&APs as that was only issued on 7 July 2016, after the

SANParks letter. This means SANParks prejudged the Addendum and

the Amended EIAr or didn’t read it as no comments were received.

The Competent Authority cannot therefore rely on unanswered

objections as that amounts to unfair administrative action and is

procedurally unfair. The SANParks letter contains a number of factual

inaccuracies (canal) generalised and un-attributed deductions

(concerning visitors experience and sense of place) and shows bias

against sustainable development by a rigid adherence to the AFNP

Management Plan and reliance on an incorrect interpretation of

section 42 of NEM:PAA. Its approach appears to be made on the basis

preserving the status quo at all costs, contrary to the vision and

mission of SANParks, or in terms of its statutory obligation in terms of

section 53 NEM:PAA specifically and its Constitutional duty to protect

the environment generally. This response is indicative of a “fortress”

conservation approach and indicates a bias towards retaining the

AFNP as an island. The approach is contradicted by the AFNP mission

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recorded in the AFNP Management Plan to be: “Augrabies Falls

National Park will manage [sic] and conserve the biodiversity, geology

and cultural heritage as part of the functional and sustainable

patchwork of different land uses within the Benede-Orange region,

through collaboration and education, to promote better livelihoods as

well as benefits and enjoyment to all”.

10.4. Appellant has also never seen the comments of the Department:

PAPLCM dated 22 August (Annexure 1: Reasons for Decision, page 14

Finding 3 f)) and was never given an opportunity to address any

objections. Department: PAPLCM is also registered as an I&AP so the

Competent Authority should have acted in terms of Regulation 56(1)

(b). Its failure to do so denied Appellant the right to answer the

comments and is administratively and procedurally unfair.

10.5. The same unfairness is true for the DEA:BC and its comments referred

to in Finding 3 g).

10.6. It is not clear in what capacity these Department: PAPLCM and DA:BC

offered comments but as registered I&APs the Competent Authority

was obliged by the empowering statute to comply with Regulation

56(1) (b).

10.7. It is not clear when any of Department: PAPLCM, DEA:BC or the

Department: Environment & Nature Conservation received

instructions from the Competent Authority to comment on the

Amended Final EIA Report as the dates are confusing. One of a

number of scenarios is possible. Either the three departments received

Regulation 56(7) requests at different times hence the response dates

of 22 August compared to 22 April or they all got similar requests. If so

the comments from Department: PAPLCM are out of time and it must

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be regarded in terms of Regulation 56(9)(b) as having no comments.

Another scenario is that both DEA:BC or the Department:

Environment & Nature Conservation issued their comments before the

RVM Addendum Notification letter to I&APs as that was only issued on

7 July 2016.

10.8. The timing is uncertain but should the Competent Authority have

accepted comments outside of the time limit it cannot rely on them

without giving the Appellant an opportunity to be heard, first about

any condonation, and secondly about the comments themselves.

10.9. The process by which the Competent Authority receives comments and

does not share those comments with the Appellant is unfair

administrative action and denies Appellant an opportunity to be

heard. As can be seen from this appeal many of the inaccuracies and

the reliance on incorrect facts could have been corrected and another

decision arrived at.

11. Finding 3b) determines: “The procedures followed for impact

assessment is deemed adequate for the decision-making process.”

11.1. This finding contradicts any reliance on the development being

inconsistent with section 50(5) of NEM:PAA and Finding 3f). The EIAr

was initially rejected, inter alia, because it did not have SANParks

section 50(5) approval so on that version the Competent Authority

ought not to have accepted the report later in terms of Regulation

34(2)(a) but still without such section 50(5) approval. In the interim

the Competent Authority had issued a clarification to the effect that no

such prior approval was required only to retract that interpretation

later. The exchange of emails is attached marked “RVM5”. The

Regulation 34(2)(a) acceptance without section 50(5) approval is, it is

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submitted, the correct approach. It is manifestly unfair to refuse an

EIA for lack of section 50(5) compliance, then to grant the Appellant

an audience to discuss the issue, then invite the Appellant to submit

legal argument concerning the issue which the Appellant does in the

form of an attorney’s opinion fortified by an opinion from a Senior

Counsel, to then accept the EIAr as amended, without section 50(5)

approval, but then use the fact that there is no section 50(5) prior

approval from SANParks as a reason to support the Refusal Decision.

This is precisely what the Competent Authority has done which is

procedurally unfair and has resulted in a decision materially

influenced by an error in law.

11.2. The plain meaning of section 50(5) in any event says no development

can take place in a national park “prior” to written approval from the

management authority. It does not say approval is required prior to

the granting of an environmental authorisation. This is logical since

not all developments inside national parks require environmental

authorisation.

11.3. The section 50(3) issue has no place in the EIA process and even less

in a proper and fair evaluation of an application for an environmental

authorisation.

12. The proposed construction of a weir, canal and a portion of the power

line

12.1. A canal is mentioned in Finding 3 c), 3 f)i), 3 f)iii), 3 g)ii), and 3 i).

12.2. The Applicant applied for environmental authorisation in respect of

Activity R.544 Activity. Page 3 of the Refusal Decision expressly

records that “the proposed project requires water conveyance

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infrastructure which will comprise an underground conduit to convey

water from the diversion weir to the headpond…”.

12.3. SANParks (Finding 3 c)) DEA:PAPLCM (Finding 3 f)), and DEA:BC

(Finding 3 g)) object to the construction of a canal, not an

underground conduit. The objections lack credibility and indicate a

complete misunderstanding of the proposed development and the

nature of the activity actually applied for. There is no canal. There is

no subdivision of the Park into semi-isolated remnants. "Canal" means

an open structure that is lined or reinforced, for the conveying of a

liquid or that serves as an artificial watercourse. An underground

conduit is not a canal. This position of SANParks in respect of its

objection to the construction of a canal is even more confusing given,

for example, the public article it contributed to in August 2015 which

specifically mentions an “underground culvert” attached marked

“RVM6”.

12.4. The Competent Authority relies on this factual error and makes the

finding at Finding 3 i) based on the objections to the development of a

canal. The finding of the Competent Authority is therefore based on an

error of fact and cannot hold true.

12.5. SANParks compounds its misunderstanding of the proposed

development by objecting to a “portion of the power line” being inside

the Park. There is no power line inside the Park. A subterranean

evacuation powerline is contemplated as opposed to the overland

power lines crossing the Kruger National Park from Cahora Bassa as

depicted in the photograph attached “RVM7”. It is unreasonable for

the Competent Authority to rely on an error of fact to support the

Refusal Decision.

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13. The area of the park through which the canal is planned is currently

zoned remote and falls in a special management category

13.1. SANParks (Finding 3 c)i)) and the Competent Authority (Finding 3 h))

relies on zonation as a reason against the proposed development. They

impermissibly elevate zonation to some form of unalterable restriction

in title. It is not, it is a guide to management, set out in a

management plan that is entirely alterable.

13.2. The proposed development is not an activity one would typically find in

a management plan as it is not a park specific or park centric activity.

The AFNP Management Plan has the following to say about zonation:

“The zoning of AFNP was based on an analysis and mapping of the

sensitivity and value of a park’s [sic] biophysical, heritage and scenic

resources; an assessment of the regional context; and an assessment

of the park’s current and planned infrastructure and tourist routes

/products; all interpreted in the context of park objectives”. It deals

exclusively with the park’s current and planned infrastructure.

13.3. In any event management plans do not specify services infrastructure

in the park or any future services infrastructure required by, for

example, Eskom. Under the heading Access and Facilities: Section 7

AFNP Management Plan says the following at page 18:

“7.8 Servitudes

There are servitudes registered against title deed [sic] for secondery

[sic] roads and Escom [sic] transition [sic] lines traversing the park.

The park has initiated a process to deregister the servitudes

applicable to the secondery [sic] roads.”

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13.4. This is no different to the Management Plan for the West Coast

National Park (WCNP) which is traversed in part by a subterranean oil

pipeline, In respect of the WCNP the subterranean oil pipeline

traverses areas zoned “Remote”. That has not caused the management

plan to become invalid or require changes. That plan says at page 25

item

“7.10 Servitudes

The only servitudes registered on title deeds are on eight properties

included in the park for a buried crude oil pipeline running from

Saldanha Bay to the refinery in Cape Town.”

13.5. Clearly the buried crude oil pipeline in the WCNP has nothing to do

with the park or its management. SANParks has nothing to do with its

management until there is an oil spill in the park.

13.6. That zonation can be amended is clear from section 40 (2) of NEM:PAA

which allows a management authority to amend such a plan by

agreement with the Minister. This principle was aptly demonstrated

when it suited SANParks to amend the KNP Management plan to

accommodate the proposed Malelane Hotel development. The draft

scoping report records at page 93 which is attached marked “RVM8”:

“The preferred site is located in the Peripheral Development Zone of

the Park. This zonation was provided to V&L in December 2011 to

be utilized as the latest zonation plan for the Kruger National Park.

According to the Zoning included in the current Management Plan

for the Kruger National Park, the site was initially zoned primitive in

the beginning stages of the EIA process for the proposed safari

resort. SANParks have however informed V&L that the PDZ zone

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should now be utilised as this is the latest proposed zoning for the

park which still needs to be approved by the Minister of

Environmental Affairs. V&L confirmed with the DEA that this

zonation may be used on condition that it will be approved by the

minister [sic] before the development of the safari resort may

proceed.”

13.7. For this proposed development, which is not park dependent or

specific, no reasons have been advanced why the zonation needs to be

changed. It is submitted that there is precedent for subterranean

services infrastructure in protected areas and in areas zoned remote.

Consistency in decision making is one of the cornerstones of

administrative action and is an imperative requirement for fairness.

13.8. The enabling legislation permits precisely the kind of situation

SANParks and the Competent Authority say is impermissible, namely

the conduct of an activity not contained in a management plan.

Regulations 21 and 23 of the Regulations promulgated under

NEM:PAA specifically legislate for temporary deviations from a

zonation under an internal rule or a protected area notice.

13.9. Finding 3 h) is wrong as the Competent Authority has taken irrelevant

considerations into account based on a misunderstanding about the

legal status and purpose of a park management plan. The AFNP

Management Plan has no application outside the AFNP and so in

respect of that aspect of the proposed development it is not relevant.

14. The proposal to divert sizable portion of the river’s flow from the

Augrabies waterfall would have a negative impact on the river

experience to the falls

Page 24 of 80

14.1. The effect of the diversion on the Orange River has been addressed in

detail in section 3.3 of the Amended Final EIAR and in much greater

detail, in response to DEA’s enquiries, in Chapter 2 of the Addendum

Report. It is Appellant’s submission that SANParks and the Competent

Authority have reached a conclusion about the diversion and its

impact on tourism without the relevant facts at their disposal and

have made up their minds to the effect that that the diversion of flow

would:

14.1.1. be a sizable portion of the river’s flow; and

14.1.2. have a negative effect on the visitor experience of the falls; and;

14.1.3. especially during the low flow periods.

14.2. With regard to paragraph 13.1.1, the statement is untrue. The actual

situation is described in section 3.3 of the Final EIA Report

(Considerations for the Diversion Weir), and repeated in section 2.2 of

the Addendum Report (Flow Rate of 30 cubic metres per second), as

follows:

Diversion of water into the headrace will commence when the flow

rate in the river exceeds 30m³/sec, and the rate of diversion will

increase progressively until the flow rate approaching the weir

reaches 90m³/sec, at which time the diverted flow rate will be at its

maximum of 38m³/sec, with 52m³/sec flowing over the weir to the

Augrabies Falls. This means that, at a total flow rate of 90m3/sec in

the river, 42% of the flow in the river will be diverted into the project

headrace to generate electricity, and 58% will continue over the weir

to the Augrabies Falls. This is the largest proportion of the total

river flow that will be diverted into the headrace. When the flow

rate in the river exceeds 90m³/sec the radial gates at the upstream

ends of the headrace culverts in the offtake structure will be used

to regulate discharge into the headrace so that it never exceeds the

design discharge of 38m³/sec. The proportion of total river flow

diverted into the headrace decreases progressively as the flow rate

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in the river increases: when the river is flowing at 200m³/sec the

proportion of total flow diverted into the headrace will be 19%, for

instance, which will decrease to 9.5% when the river is flowing at

400m³/sec, and so on. In case of power failure at the offtake

structure or machine shut-down in the power house the radial gates

will be lowered completely to prevent flow entering the headrace.

The flow duration curves1 in Figure 3.17 compare the flow rate over

the falls before and after implementation of the proposed RVM HPP

for an average hydrological year. The curves show that:

For ±20% of the time no flow will be diverted into the tailrace:

For ±15% of the time (55 days) the river flows at or less

than 30m³/sec, so no flow will be diverted into the headrace

and the HPP will not operate.

For ±5% of the time (18 days) the river flows at more than

800m³/secsee Note. At this flow rate it is anticipated that the

sediment loads in the river will begin to increase to such an

extent that sediment could be drawn into the headrace, and

could result in damage to the turbines. No flow will be

diverted into the headrace; power generation will be shut

down to prevent damage to the turbines.

For ±45% of the time (165 days, or 5.4 months) river flows are

between 30m³/sec and 90m³/sec, diverted flow will

progressively increase from zero to 38m³/sec, and the power

station will operate at less than its installed generating

capacity.

For ±35% of the time (128 days, or 4.2 months river flows

exceed 90m³/sec but are less than 800m³/sec, diverted flow

will be at a maximum of 38m³/sec, and the power station will

operate at its full design capacity”

Note: Further studies on the sediment regime of the river may indicate

that it is possible, with minor changes to the design of the offtake

structure, to increase the proposed threshold at which the power

station is shut down, currently conservatively set at a river flow rate of

800m3/sec, to 1 500m3/sec or even 2 000m3/sec. This would have

the advantage of prolonging the generating range of the station by an

additional 10 to 14 days in an average year, with minimal

environmental or tourism impacts. At these elevated flow rates the

1 A flow duration curve (Figure 3.17 in the Amended Final EIAR) is a graphical plot that shows the

percentage of time that the volumetric flow rate in a river or stream is likely to equal or exceed some specified value.

Page 26 of 80

impact on the flow over the falls of diverting 38m3/sec to the power

station would be negligible (a reduction of 2.5% at 1 500m3/sec and

1.9% at 2 000m3/sec), and the visual impact would be undetectable.

14.3. Section 2.2.2 of the Addendum Report also describes the structure of

the diversion weir, which makes it physically impossible to commence

diversion into the power station until the flow rate in the river reaches

30m3/sec or more.

14.4. With regard to paragraph 13.1.2, the statement is subjective and

unsubstantiated.

14.5. Section 2.7 of the Addendum Report presents photographic

information to show that the difference between the range of flows that

will be affected by the diversion is difficult to discern.

14.6. With regard to paragraph 13.1.3, Chapter 3 of the Addendum Report

presents information from the Socio-Economic Impact Assessment

that was conducted by ACER Africa in 2014, which analysed the flow

rate in the river and compared it with the record of the number of

visitors to the Park between March 2009 and August 2013. The study

concluded that:

(i) During periods of very high flow (flood events) there was a noticeable

spike in the number of visitors to the Park. The flow during times of

floods will not be affected by the proposed hydro scheme, because

once the flow in the river exceeds 90m³/sec (a monthly total of 233

million cubic metres if that flow rate is maintained), the hydropower

scheme will reach its maximum possible diversion rate of 38m3/sec.

For comparison:

o The monthly flow volume recorded at DWS’s gauging station at

Neusberg in February 2010 (a flood event that saw a significant

spike in tourist numbers) was 2 820 million cubic metres.

o The monthly flow volume during the period January to June

2011, the most-recent major flood in the river, ranged from

1 853 to 5 995 million cubic metres. The highest daily flow rate

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in January, when the flood was at its peak, was a little less

than 4 000m3/sec (average flow rate during the month was

2 240m3/sec. An average total of 3 300 million cubic metres

flowed in the river for a period of six months.

(ii) Over the period analysed, there are consistent spikes in visitor

numbers during the August/September period, December/January

period and to a lesser degree March/April period, regardless of the

flow over the falls. This is most noticeable between September 2011

and August 2013 where the flow has remained consistently low but

there are clear spikes in visitor numbers during these periods (refer

to Figure 4.1). A spike in visitors during the August/September

period can be attributed to an increased number of tourists passing

through the area en route to view the flowers in Namaqualand, while

the spike in visitors during December/January and March/April can

be attributed to the Christmas and Easter holiday periods

respectively.

14.7. There is therefore no historical data to support the contention that

visitor numbers will be adversely affected by low flow rates over the

falls. There is no foundation for the conclusion drawn by the

Competent Authority in Finding 3 i).

15. The proposed hydro power station at the specific location will impact

the flow of water over the falls which will negatively impact visitors

experience

15.1. This is essentially the same as the previous reason for refusal, except

that it adds the essentially indefinable concept of sense of place.

Appellant deals with this in more detail later in paragraph 20.

15.2. It must be acknowledged that the flow regime of the Orange River is by

no means natural, and has not been natural since the waters of the

river were first abstracted to irrigate, among others, vineyards

alongside the river. Section 2.1 of the Addendum Report concludes

with this statement (which is followed by a schematic diagram that

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shows how the Lower Orange system is modelled and managed):

The purpose of this brief description of the Orange River Basin and its

management in South Africa is to emphasise that any discussion of the

river’s flow regime and its impacts must be founded on a clear

understanding that the flow in the river is managed almost entirely by

releases from the country’s two largest impounding dams, Gariep and

Vanderkloof, and that no part of the riverine system can be regarded as

natural or unmodified.

15.3. This information is within the knowledge of the Competent Authority

but has seemingly not been considered or incorrectly considered

irrelevant. Page 17 of the Draft ORM Estuarine Management Plan on

the DEA webpage at

https://www.environment.gov.za/.../orm_sitestrategic_eustuarineman

agemntplan.pdf reads:

“The Orange River has become highly regulated by virtue of more

than 20 major dams and numerous weirs within its catchment. As a

consequence, river inflows to the Orange River Estuary have been

markedly reduced from reference, with only an estimated 44% of

natural flows still reaching the system (DWAF, 2003). Abstraction

and regulation has also resulted in a marked reduction in the

variability in river inflows from a pronounced seasonal flow to a

nearly even flow distribution throughout the year. Surplus water

releases for the generation of hydropower has resulted in the

elimination of water deficits in the lower reaches of the river and the

mouth now remains open almost permanently. The lack of mouth

closure and associated back-flooding is regarded as particularly

problematic as it is during such occurrences that flows into the

saltmarsh area typically occur (CSIR, 2011a)”.

15.4. This competing environmental management requirement, if achieved,

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is what will cause the flow to diminish almost entirely and totally

remove any visitor experience to the falls, not the project. Hydropower

along the Orange River has actually enhanced the visitor experience at

the falls making sure the experience is not only during floods but

throughout the year.

16. The proposed development will have impact on biodiversity around

and on the national park (e.g. birds, fish, mammals, reptiles and

vegetation) and its scenic value of the waterfall

16.1. Findings 3 d) i); 3 e) i); 3 f) iii); 3 g) i) and 3 i) all allege some form of

biological impact.

16.2. The Findings in this regard as very broad statements, and no

supporting data or information has been provided by the Competent

Authority in support of the contention.

16.3. In particular, there is no indication that the Competent Authority has

considered the Amended Final EIAR and the supporting

documentation, including the specialist reports, in which the potential

impacts of the project are identified, discussed and assessed.

16.4. Appellant is well aware of the diversity of species in the general area of

the park and in the park itself, which is why one of the objectives set

for the faunal specialist, Dr Bill Branch, was to describe the faunal

diversity of the area. In his report Dr Branch pays particular attention

to this issue, and makes, as far as possible, quantitative estimates of

the numbers of species of terrestrial vertebrate fauna (amphibians,

reptiles, mammals and birds) that can be expected to be found in the

area.

16.5. Dr Branch assessed the potential impacts of the project on the on the

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diversity of these species, before and after implementing mitigation

measures. The impacts are summarised on pages vii to xi of the

Executive Summary of the specialist report, and in detail in Chapter 8

of the body of the text, as well as in the Amended Final EIAR. Most of

the potential impacts on the fauna can, Dr Branch believes, be

mitigated to Low significance, while three remain at Moderate

significance after mitigation.

16.6. Nothing in Dr Branch’s study indicated that any of the impacts on the

fauna of the area will be so severe as to constitute a fatal flaw for the

project that will prevent it from being implemented; consequently the

Competent Authority simply relies on unsubstantiated concerns to

reach the Refusal Decision which is unfair.

16.7. Finding 3 e) i) is entirely vague. It is not certain that the proposed

development “can cause” the loss of habitat for and displacement of

bird species. To simple say it “can cause” without reference to the

specialist reports and the proposed mitigation measures renders the

concern an unsubstantiated generalisation unconnected to the facts

presented.

16.8. The arbitrary nature of the concerns expressed is further

demonstrated by DEA: BC, charged with biodiversity management,

expressing the view that there are implications for the direct and

indirect negative biodiversity impacts “through to the probable

negative impact on tourism that will impact on the funding available to

protect critical species, from listed plant, invertebrate and reptile

species through to the White Rhinoceros resident in the Augrabies

Falls National Park”.(Finding 3 g)iii)).

16.9. There are three issues in this Finding that destroy any credibility of

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the concerns expressed. First. it is premised on an unsubstantiated

probability, secondly it deals with issues outside of DEA:BC’s

mandate, namely tourism and then suggests that the loss of tourism

will impact on the funding available to protect the White Rhinoceros

resident in the AFNP. SANParks has confirmed that there are no white

Rhinoceros in the AFNP. (SANParks email attached marked “RVM9”.)

Furthermore DEA: BC contradicts its reasoning by demonstrating that

the natural range of the white rhinoceros is not remotely near the

AFNP. (Government Gazette dated No. 40398:Notice 727 of 2016

attached marked “RVM10”.)

16.10. It is no coincidence that the Competent Authority does not make any

finding about biodiversity risk from a SANParks perspective, the

protected area manager for the AFNP, rather it relies on concerns

expressed by other commentators not charged with the day to day

biodiversity management of the park. SANParks position is

understandable as the AFNP Management Plan at page 11 says, “Over

the next 20 years it is predicted that the relative biodiversity value of

AFNP will be stable, and the biodiversity risks are low compared to

other parks”. Further at page 19 of the AFNP Management Plan

SANParks concedes that the AFNP does not fall within one of the nine

nationally recognised priority conservation areas.

16.11. The Competent Authority ignores the protected area manager’s

assessment of biodiversity risks as set out in the AFNP Management

Plan but instead relies on “probable” concerns about tourism and

irrelevant considerations concerning the protection of a species not

found in the park. Reliance on such concerns is so unreasonable that

no reasonable person could have made the Refusal Decision relying on

them.

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17. The area also holds substantial importance as a buffer for

conservation of biodiversity against future impacts brought about by

climate change

17.1. It is not clear to Appellant how the park and the surrounding areas

will provide a buffer against the impacts of climate change, and the

comment provides no indication why the Competent Authority relies

on an unfounded concern.

17.2. It is also not clear how the project could influence the alleged buffer

against climate change, and the Competent Authority has not provided

any information to support the assertion.

17.3. The statement is unsubstantiated, and cannot be taken as a legitimate

reason for the Refusal Decision.

18. The proposed development has the potential to have grave impacts on

the well protected and managed Augrabies Falls National Park

18.1. This is a very broad statement, and no supporting data or information

has been provided by the Competent Authority in support of the

contention.

18.2. In particular, there is no indication that the Competent Authority has

considered the Amended Final EIAR and the supporting

documentation, including the specialist reports, in which the potential

impacts of the project are identified, discussed and assessed.

18.3. The statement is unsubstantiated, and cannot be taken as a legitimate

reason for the Refusal Decision.

19. The Augrabies Falls holds significant intrinsic value within the ZF

Mcgawu and broader Northern Cape Province. Any alteration to the

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falls will definitely contribute to the depreciation in its intrinsic value

19.1. The value of the Augrabies Falls at all geographic levels is not disputed

in any of the documentation submitted to the Competent Authority.

19.2. It appears however that word intrinsic is used as a reinforcing adjective

to emphasis the unquantifiable, as intrinsic is a value in and of itself.

Most of the objections to the alterations to the flow regime over the

falls are not about the falls at all, but relate to the appearance of the

falls to tourists (the visitor experience and sense of place), and

ultimately to the numbers of tourists and importantly the perceived

loss of revenue.

19.3. The repeated and uninformed concerns raised in the Refusal Decision

that the project will significantly degrade the visual amenity and value

of the falls is disputed and remains unfounded. Appellant has

demonstrated this in detail in the documents submitted to the

Competent Authority.

19.4. The intrinsic value of the falls is dependent on the Orange River being

one of the most highly regulated rivers in South Africa with the real

threat to the flow regime over the falls being the way in which the DWS

manages releases to the river and abstractions from the river in the

reaches upstream of the falls.

20. The proposed development will impact the flow of water over the falls

which will have a negative impact on visitors experience and sense of

place of the AFNP

20.1. This theme is repeated in Findings 3 c) iii); 3 3 f) iii) and 3 g) ii).

20.2. The point is that, if anything, it is the sense of place of the falls, not

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the AFNP. In a paper commissioned by SANParks entitled “Viewshed

and sense of place as conservation features: A case study and research

agenda for South Africa's national parks” it is concluded that “Both

SoP and viewsheds have the potential to inform conservation action,

and these concepts should form an integral part of objective

hierarchies and management plans for national parks. However, while

legislation and park management plans make provision for the use of

these concepts, associated research in South Africa is virtually non-

existent.” The case study can be located at

http://dx.doi.org/10.4102/koedoe.v58i1.1357.

20.3. The AFNP Management Plan is silent on the sense of place.

20.4. With DWS managing the flow of water over the falls there will be no

discernable change in a visitor’s sense of place, if at all, except during

excess water and flood flow times.

20.5. The legislation relied on in the research paper is the NEM:PAA

(Strategy on Buffer Zones for National Parks, Notice 106 in

Government Gazette No. 35020, 08 February 2012) in the context of

managing activities in buffer zones surrounding national parks. One of

the legal opinions submitted with the Addendum finds that there is no

formal or legally recognised buffer zone for the AFNP. As pointed out

later there is no enabling legislation for the publication of the Strategy

on Buffer Zones for National Parks.

20.6. The two essential requirements of an appreciation of sense of place are

that it be a person that experiences this sensation and that it must be

a place that is being experienced. Sense of place therefore requires an

interaction between the visitor and the place where it happens. A

critical measure of a sense of place is accordingly the value that the

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visitor gives to it. There is nothing in the Refusal Decision to support

such a valuation and the Competent Authority cannot experience a

sense of place so cannot rely on it as a yardstick.

20.7. The measure is an abstract, intangible and subjective one which does

not permit an objective evaluation which is what the Competent

Authority is required to do. It is indeterminable and therefore unfair as

a measurement as Appellant has no reasonable means of dealing with

the concern.

21. The Birdlife South Africa in their comments 04 October 2013 and

comments on 22 March 2016 does not support the proposed

development due to the following reasons

21.1. Finding 3 e) confirms that Birdlife Africa ignored the Amended EIAr

Dated June 2016 and the Addendum so their value as concerns is

premature and thus fall to be ignored.

21.2. BirdLife SA’s March 2016 comments are addressed in in Chapter 1 of

the Addendum report, and the detailed responses to the October 2013

comments are included in Appendix F of the Addendum report. The

central thrust of the March 2016 comments was to support SANParks

in its objections to the project, and to encourage DEA to do the same.

These comments are not a valid response to a detailed EIA and its

comprehensive supporting documents, which BirdLife SA gave no

indication that it had read. Its objections rely instead on its own

assessment of the:” … landscape being so worthy of protection as to be

accorded South Africa’s highest conservation status, that of a national

park, is a principle that must be upheld.” That Groenkloof National Park

is a national park and iSimangaliso Wetland Park is not completely

diminishes the value of this statement.

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21.3. The October 2013 comments were much more detailed, and are

addressed, also in detail, in Appendix F of the Addendum Report.

However, as noted in the Addendum report, these earlier comments

were sent to the previous EAP after the Final Scoping Report had been

submitted to DEA. As a result they did not have the benefit of the more

recent information about the development of the project (such as, for

instance, that the evacuation powerline crossing the park will be

buried), or of site-specific environmental information in the subsequent

reports, especially those prepared by the faunal and botanical

specialist. Neither of these specialists agreed with BirdLife SA’s

pessimistic assessment of the impacts of the project on the avifauna of

the area. Absolute reliance on the AFNP being a national park and

therefore no development can be supported is not endorsed globally or

by SANParks. It is common knowledge that there is a large hydro

scheme located in a UNESCO world heritage site at Victoria Falls. An

article discussing this is attached marked “RVM11”. Also SANParks is

aware of essential services infrastructure and other bulk infrastructure

in its own parks and elsewhere. The minutes attached marked “RVM12”

of a meeting early in 2013 confirms that SANParks is aware that similar

developments exist in protected areas globally. At page 4 of the minutes

it is recorded that “FR (SANParks) questioned what other projects

similar to that proposed were operating elsewhere in the world and

whether these projects were successful. NW(Entura) noted that Hydro

Tasmania in Tasmania, Australia, operated 26 hydropower stations

similar to those proposed and that three of these were within or

adjacent to world heritage sites. NP (SANParks) noted that the proposed

projects were, however, the first in South Africa to be within a national

park.”

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21.4. It is unfair to rely on an organisation’s general objections to any

development in or around a national park, instead of considering the

project on its own merits.

22. The proposed development can cause the loss of habitat for and

displacement of bird species, particularly threatened, endemic and

range-restricted species

22.1. The botanical specialist rated the loss of habitat as Moderate negative

after mitigation, while the faunal specialist rated the loss of bird

diversity as Low negative. The main mitigation measure in both cases

was to minimise habitat destruction during construction, and to

rehabilitate disturbed habitat, under specialist supervision, on

completion of construction, both of which are the Appellants intention.

22.2. The botanical specialist noted that the construction of the offtake

structure will necessitate the clearance of Lower Gariep Alluvial

Vegetation, which is classed as Endangered A1. He noted that the loss

of this type of vegetation along the Orange River has mainly been as a

result of (apparently unregulated) clearance for “the intense agriculture

(mainly table grapes and citrus) on the alluvial soils”, and that the

impacts of the off take structure would be “within a localized area”.

23. Global IBA (SA029). Developments that cause habitat loss should not

be allowed within such protected areas which are important for the

conservation of biodiversity

23.1. Finding 3 e) ii). All national protected areas, apart from Groenkloof

National Park, form part of an IBA. They overlap and don’t give the area

an enhanced conservation status.

23.2. The potential impacts of the project on the IBA are addressed in section

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6.2 of the faunal specialist study. There is no attempt to deny the

importance of the IBA to avifauna. Since the boundaries of IBA ZA022

are identical to the boundaries of the AFNP – the AFNP is the IBA - the

arguments against the project are essentially the same: no development

should be allowed in protected areas which is not a position supported

by either the enabling legislation or AFNP Management Plan.

23.3. The threshold here is an absolute prohibition since any development,

from a management road to an accommodation camp, results in habitat

loss. The philosophy seems to go further than the peripheral

development theory which finds some support by SANParks. Besides

NEM:PAA sections 49, 50, 52 and 53 specifically provide for the specific

evil BLA argues against. The only absolute prohibition supported by

legislation is in respect of mining and prospecting.

23.4. The Appellant submits that any development, by definition, will cause

habitat loss. The Competent Authority cannot rely on an arbitrary

absolute standard prohibiting developments that cause habitat loss to

support the Refusal Decision as that results in arbitrary decision

making directed at the Applicant only as it is not a standard applied

consistently across protected areas. If it were there would be no need

for zonation in parks as they would all be wilderness inaccessible to

tourists and communities.

23.5. Besides if “no-development” was a policy it ought to be in the AFNP

Management Plan and it should have been brought to the attention

and disclosed to the Applicant before the Refusal Decision was made,

especially as the Refusal Decision purports to rely on this policy.

Notwithstanding, on a less restrictive policy of peripheral development,

and mentioned in the AFNP Management Plan, a research study

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commissioned by SANParks (Koedoe, vol 42, No2 (1999) says the

“principle does not merit the status of a rule”. The abstract is attached

marked “RVM13”.

23.6. It is difficult in these circumstances to understand on what basis the

Competent Authority would chose to rely on a developmental theory

that has not been adopted either by SANParks or DEA.

23.7. For the Competent Authority to rely on a “not in my back yard” anti-

development position not supported by the enabling legislation, policies

and plans reviewed by it, is unfair, illogical and so unreasonable that no

reasonable person could have made the Refusal Decision relying on

such a policy.

24. The proposed development will negatively impact the falls, which is a

tourism attraction to both national and international tourist

24.1. This issue has been extensively addressed previously and is completely

unsubstantiated. There is no evidence submitted by SANParks or

anyone to support the contention that tourism will be affected by the

alteration of the flow regime over the falls or that the Department of

Tourism was even consulted and accordingly it is not a fair reason to

support a Refusal Decision.

24.2. The Specialist Report noted that the area includes the major tourist

attraction, namely, the Augrabies Falls but the part of the AFNP

adjacent to the project site where the main facility is located is not open

to visitors.

24.3. The CBA further determines at 5.4.2.3 of the report that “The AFNP is a

significant tourist attraction in the region, mainly because of the 56m

waterfall. A key concern expressed by SANParks over the construction

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of the RVM hydropower project is that the reduced amount of water

reaching the falls when the river is flowing above 30m³/s will have a

negative impact on the number of tourists to the park. It was found,

however, that the slight reduction in the volume of water channelled to

the falls will not be likely to have an impact on tourist levels as the

number of visitors to the Park is not solely determined by the volume of

water over the falls and will thus not result in a decrease of tourism-

related revenues for AFNP (Environmental Impact Report, RVM 1 Hydro

Electric Power (Pty) Ltd - 40 MW Hydroelectric Scheme on Orange River,

October 2015, CESNET, accessed on 15.10.2015

http://www.cesnet.co.za/rvm.html).

25. The location alternative for the proposed construction of a weir is not

feasible as it is not in line with the zonation plan of the AFNP

25.1. The reliance on zonation to block the construction of the weir is not

supported by the enabling legislation and is dealt with in detail in

paragraph AA above.

25.2. Regulation 39 (2) NEM:PA Regulations specifically contemplates that

weirs can be constructed inside national parks consequently to rely on

zonation for the Refusal Decision is based on an error in law.

25.3. There is no alternative site.

26. The proposed development will affect part of the AFNP and its buffer

zone

26.1. This theme is found in Findings 3 e) ii); 3 f) ii); 3 g) i); 3 g) ii); and 3 l).

26.2. The area outside the park where the project will be situated is not part

of the AFNP, it is on land owned by the Riemvasmaak Community.

Page 41 of 80

26.3. As submitted in the Addendum:EIAr the legal opinions demonstrate

that there is no buffer zone for the Park as contemplated in section 28

of NEM:PAA and accordingly no regulations in terms of section 51

regulating any development that may be inappropriate in that

environment, The reliance on a buffer zone is not enforceable against

third parties outside the Park including on the Riemvasmaak land.

Other than in respect of EIA regulations which require environmental

authorisation for certain activities within 10 kilometres of a protected

area, but do not prohibit such activities, the entire buffer zone issue is

a guide for SANParks alone.

26.4. NEM:PAA does not authorise the issuing of strategy, only regulations,

consequently reliance on the buffer zone strategy is misplaced.

Especially when SANParks was asked to provide these policies none

were forthcoming (see legal opinion Hannes Gouws & Partners Inc,

para 2.5.5.). A decision maker cannot rely on an undisclosed policy in

support of a Refusal Decision.

27. The proposed development is not consistent with NEM:PAA, 2003

Section 50(5)

27.1. The Competent Authority relies in Finding 3 f) on a letter from

SANParks dated 2 June 2016. First that letter was part of private

correspondence between the Appellant and SANParks and only found

its way into the EIA process when it was submitted as part of the

Addendum. The Appellant is advised that the reliance on section 50(5)

is wrong in law for the reasons set out in the legal opinions.

Furthermore the Competent Authority, after doing an about turn, by

acceptance of the FEIR confirms section 50(5) compliance is not an

EIA requirement in any event.

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27.2. Critically the reliance of SANParks and the Competent Authority on

section 50(5) is against the law. Section 53 (1) provides that:

“Section 45, 46, 49, 50., or 52 may not be applied in a manner that

would obstruct the resolution of issues relating to land rights dealt

with in terms of-

(a) ….

(b) The provision of essential services and the acquisition of

servitudes for that purpose”.

27.3. Government Gazette No. 18276, GN No. 1216, dated 12 September

1997 designated the generation, transmission and distribution of

power as an essential service. It is attached marked “RVM14”.

27.4. SANParks and the Competent Authority make an issue about

SANParks consent being required before the lodgement of the EIAr is

procedurally unfair. First DEA said it was required, then it clarified via

email that prior consent was not needed from SANParks but that it

was before implementation, then DEA retracted that view only to

accept the amended EIAr without SANParks approval being a part

thereof. Finally the Competent Authority then relies on the lack of

SANParks prior approval as a Refusal Decision.

27.5. This created procedural uncertainty and simply wrong in law. The

words implemented and commenced provide the answers.

27.6. The reliance of section 50(5) is misplaced and is based on an incorrect

reading of the legislation and is wrong in law.

28. The proposed development is not consistent with the National

Protected Areas Expansion Strategy 2008 (NPAES)

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28.1. Finding 3 f) i). The AFNP Management Plan approved by the Minister

relies on different reasoning to that now relied on by DEA concerning

expansion. The AFNP Management Plan records at page 19: “The

expansion and consolidation of the park is in line with the national

strategic objective (DEA 2005) of expanding South Africa’s protected

area system. The expansion and consolidation programme are [sic]

also informed by SANParks policy regarding land inclusion (SANParks

2006; Knight et al. 2009), and the National Protected Areas Expansion

Strategy (DEA 2008) and the three year rolling land acquisition plan”.

28.2. For DEA to reason therefore that the development “is not consistent

with the National Protected Areas Expansion Strategy 2008 (NPAES)”

(which is the same Strategy as the one referenced DEA 2008)

introduces a different standard to the publicly quoted one.

28.3. Besides it is clear from the SANParks map attached hereto marked

“RVM15” (being Appendix 4, Map 3 to the AFNP Management Plan)

that the development has absolutely no impact whatsoever on any

SANParks expansion programme as all the expansion is west of and

outside the AFNP and the Riemvasmaak property where the

development is planned.

28.4. The reliance on one national strategic objective, DEA 2005, in

approving SANParks expansion programme and then on another

strategy, 2008 (NPAES), which merely “informed” the approved

expansion plan, to determine that the proposed development “is not

consistent” amounts to unfair administrative action. The criteria ought

to be the same for both SANParks and the Applicant.

29. Given the potential adverse threats posed by the project on water

resources

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29.1. Findings 3 i) and 3 g) iii).

29.2. Water is not for SANParks or DEA to regulate but the Minister with the

concurrence of the Minister DWS – section 53 (2) NEM:PAA – the

reliance on their comments about water is ultra vires their authority.

29.3. It is not clear what the reference to water levels in the park means. It

could relate to the flow regime over the falls, in which case it has been

addressed extensively previously. If it refers to elevated water levels in

the river upstream of the weir (which they will be), the faunal

specialist rated this as a positive impact, because at low flows it will

result in more water being retained in the braided channel upstream

of the weir, thereby providing more aquatic (and probably riparian)

habitat. Also, the tailrace outfall into the currently mainly-dry paleo-

channel will create more aquatic and riparian habitat.

30. The proposed development will impact on the specific attributes for

which the area was originally declared as a national park

30.1. Finding 3 g) i) and 3 i). Both DEA: BC and the Competent Authority

rely on the following in support of the Refusal Decision: “impact on the

specific attributes for which the area was originally declared as a

national park”.

30.2. The AFNP Management Plan at page 1 says: “It (the Park) was initially

proclaimed in order to conserve a small area of geological interest

around the Augrabies Falls which is the largest waterfall on the

Orange River”. Then the AFNP Management Plan at page 11 says:

“NEM:PAA requires that the park be managed in accordance with

purpose [sic] for which it was declared. The original purpose of the

park is not officially specified, neither in the first gazetted declaration

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nor any subsequent addition (Appendix 1)”. Neither DEA:BC nor the

Competent Authority advance any objective criteria used in their

evaluation as to how they concluded that the proposed development

will impact on “a small area of geological interest around the

Augrabies Falls”. The said falls and the geology around it are

unaffected and untouched by the project. At best this shows that the

decision maker was ill-informed and relied on similarly ill-informed

submissions which resulted in decision making that was factually

incorrect, unreasonable and unfair.

30.3. This point, the park expansion and the NIMBY approach of BLA

demonstrate that the Competent Authority could not have considered

the AFNP Management Plan, but if it did, it dismissed it. This, despite

the Competent Authority, stating at page 12 1 e), that it took into

consideration all policies and guidelines. On the Competent

Authorities version it follows that the AFNP Management Plan must be

considered a guideline. Guidelines do not have the force of law

30.4. Given that the original purpose of the park is not officially specified,

not in the first gazetted declaration nor any subsequent addition it is

illogical to rely on a non-existent declaration to support the Refusal

Decision.

31. The proposed development has the potential to have grave impacts on

the well protected and managed AFNP

31.1. Finding 3 d) iii); 3 e) ii); 3 f) ii) 3 g) ii) and 3 i).There is a theme that

runs through the comments relied on by the Competent Authority

which is that because part of the area where the proposed

development will be located is a proclaimed National Park, the project,

which entails the provision of essential services, just simply cannot

Page 46 of 80

proceed. This reliance on a 'fortress’ conservation' model is seemingly

no longer supported by SANParks and certainly not by the enabling

legislation.

31.2. There is no single official policy about development in protected areas

as development is park specific and management authority dependent

and to argue that because the area is a national park no development

should be allowed is not supported by the enabling legislation.

31.3. In June 2015 the former CEO of SANParks said, “The Constitution's

section 24 defines a social contract that is completely different from

that followed by the National Parks Board before 1994. Whereas

communities were evicted to make way for conservation areas..."we are

mainstreaming conservation areas into communities in a formula that

creates a healthy balance between people's aspirations and

conservation objectives in line with international best practice that

dictates the Convention on Biological Diversity (CBD) which protects

biodiversity and encourages access and benefit sharing of such

resources."” (the extract is attached marked “RVM16”)

31.4. He said the Programme of Action of the CBD underpins the

management of national parks and is completely different in the

approach followed by both the Colonial and Apartheid era

conservation strategies which informed a purist view that national

parks must be exclusively managed for animals. The Competent

Authority is relying on an out dated policy consideration which has

not been canvassed with the Appellant and is furthermore not

supported by the enabling legislation or the management plans of

various protected areas.

32. The proposed development also does not take into consideration the

Page 47 of 80

need for an offset to mitigate for the loss of pristine wilderness in a

declared National Park

32.1. Finding 3 g) ii and repeated in 3 g) iii) by DEA: BC.

32.2. There is no enabling legislation mandating biodiversity offsetting.

Offsets have been the subject of frequent policy discussion, with a

draft national policy produced in 2012 and a further discussion

document on ‘environmental offsets’ produced by DEA in 2015.

Applicant could not therefore have considered “offset” as an integral

part of the EIA process. Furthermore no one from the Competent

Authority at any stage of the EIA process or anywhere else has raised

the requirement of an off-set which would obviously have been

considered by the Applicant. The Refusal Decision is also the first

time this concept has been raised.

32.3. If biodiversity off-sets are policy then that policy had to have been

brought to the attention of the Applicant before the Refusal Decision

was made.

32.4. The concern also goes to an offset for the loss of pristine wilderness. It

is not clear to the Appellant how not sure the area can be described as

pristine, given its history as the home to a community, a military

training area, and 4x4 trail including a rustic camp. Even if pristine

means restored to its original state, SANParks does not appear to have

attempted do so by, for instance, removing the 4x4 camp.

32.5. An environmental standard not supported by the facts is relied on to

support the Refusal Decision. It is instructive that the regulations

speak about land that has been undisturbed for 10 years. Most of this

land is former military land and cannot be considered pristine. The

Page 48 of 80

measure for EIA purposes is "indigenous vegetation" which refers to

“vegetation consisting of indigenous plant species occurring naturally

in an area, regardless the level of alien infestation and where the

topsoil has not been lawfully disturbed during the preceding ten

years;” not an undefined immeasurable reference to a pristine

wilderness when the area is by and large one under restoration.

32.6. Besides the route of the underground conduit as depicted in figures

3.2, 3.3, 3.4 and 3.5 at pages 61/62/64 of paragraph 3 “ General

Project Description of the EIAR shows the route of the underground

conduit following as far as practically possible the path of an existing

road, an already disturbed environment

32.7. The most obvious and inherent offset of the project but ignored by the

Competent Authority and seemingly DEA:BC is the contribution to

greening the economy by the reduction in reduction in carbon

emissions

33. The Competent Authority is of the opinion that the listed activities will

be in conflict with the general objectives of integrated environmental

management stipulated in Chapter 5 of NEMA

33.1. This concluding Finding is dealt with in detail in the Grounds for

Appeal below as Appellant submits that the Competent Authority has

not given effect to the general objectives and has applied a

precautionary approach incorrectly by applying only environmental

protection without reference to human health and the sustainable

utilisation of natural resources which should include the

consideration of all possible means to prevent harm occurring, directly

and indirectly.

Page 49 of 80

34. GROUNDS OF APPEAL

It is the appellant’s submission that the decision to refuse to grant

environmental authorisation to Appellant for the project must be set aside by

the Minister for the reasons set out in paragraphs 9 to 33 above which must be

read into the Grounds of Appeal below as if specifically incorporated therein.

35. First Grounds of Appeal: The Respondent Failed to Comply with

Section 24 of the Constitution and the provisions of NEMA.

35.1. The first respondent failed to comply with section 24 of the

Constitution (The Constitution of the Republic of South Africa, 108 of

1996) and the provisions of NEMA – which failure is, in itself, a

contravention of section 240(1)(a) of NEMA – by:

35.2. Failing to apply the principles of national environmental management

set out in section 2 of NEMA; and

35.3. Failing to give effect to the general objectives of integrated

environmental management laid down in Chapter 5 of NEMA; and

35.4. Failing to take into account all relevant factors as required by section

240(1)(b) of NEMA, and

35.5. Any feasible and reasonable modifications or changes to the activity

that may minimise harm to the environment – s240(1)(b)(iv); and

35.6. Comments received from organs of state that have jurisdiction over

any aspect of the activity which is the subject of the application –

s240(1)(b)(vii) and s240(1)(c); and

35.7. Guidelines, departmental policies and decision making instruments

that have been developed or any other information in the possession of

Page 50 of 80

the competent authority that is relevant to the application –

s240(1)(b)(viii).

35.7.1. Section 2 of NEMA sets out the environmental management

principles that must “serve as guidelines by reference to which any

organ of state must exercise any function when taking any decision

in terms of [NEMA] or any statutory provision concerning the

protection of the environment” and must “guide the interpretation,

administration and implementation of [NEMA], and any other law

concerned with the protection or management of the environment.”

35.7.2. The respondent was therefore under an obligation to have regard to

the provisions of section 2 addressed herein in making the decision

in respect of the authorisation.

35.7.3. Section 2(2) NEMA stipulates that “environmental management must

place people and their needs at the forefront of its concern, and serve

their physical, psychological, developmental, cultural and social

interest equitably”.

In this regard, respondent ought to have had reference to the wealth

of evidence regarding the significant negative health impacts of coal

fired power stations.(For example: Business Enterprises University of

Pretoria. 29 September 2001, “The external cost of coal-fired power

generation: The case of Kusile”, at:

http://www.greenpeace.org/africa/Global/africa/publicatins/coal/F

ULL%20SCIENTIFIC%PAPER%20139%20pages.pdf), A recent report

on the health impacts and social costs of coal-fired power stations

concluded that atmospheric emissions from coal-fired power stations

“are currently causing an estimated 2,200 premature deaths per year,

due to exposure to fine particulate matter (PM2.5). This includes

Page 51 of 80

approximately 200 deaths of young children. The economic cost to the

society is estimated at 30 billion rand per year, including premature

deaths from PM2.5 exposure and costs from the neurotoxic effects of

mercury on children.”(79 Bellanger, M et al. 2013, “Economic benefits

of methylmercury exposure control in Europe: Monetary value of

neurotoxicity prevention” Environ Health. 2013; 12:3. available

at:http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3599906.)The

aforementioned study evidences that, in addition to the detrimental

health impacts which the project would help in alleviating additional

expenses are incurred by people living in close proximity to coal fired

power stations. These are generally low-income settlements, and this

will give rise to further impacts upon their physical, psychological,

developmental, cultural and social interests. This is contrary to the

following NEM Principle: “Environmental justice must be pursued so

that adverse environmental impacts shall not be distributed in such

a manner as to unfairly discriminate against any person, particularly

vulnerable and disadvantaged persons”.(section(4)(c)).

35.7.4. Section 2(3) of NEMA requires that development be socially,

environmentally and economically sustainable and section 2(4) of

NEMA provides that:

“sustainable development requires the consideration of all relevant

factors including, but not limited to, the following:

(a) That the disturbance of ecosystems and loss of biological

diversity are avoided, or, where they cannot be altogether

avoided, are minimised and remedied.”

(b) That a risk averse and cautious approach is applied, which

takes into account the limits of current knowledge about the

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consequences of decisions and actions; and

(c) That negative impacts on the environment and on people’s

environmental rights be anticipate and prevented, and where

they cannot altogether be prevent, are minimised and

remedied.”

35.7.5. The ‘positive effects’ of the project listed in the FEIR are “an increase

in national electricity, economic development, job creation, increase

in household income and government revenue” are simply overlooked

in favour of preserving the physical environment at the project site

and ignores its contribution to sustainable development. The

assessment of the economic sustainability of an activity must look

not only at the needs of Appellant but also at the needs of the general

public and communities in the immediate vicinity of the project. In

this regard the Riemvasmaak community will directly benefit

financially from a rental income and a shareholding interest in the

Appellant. The estimated annual rental income for the Riemvasmaak

Community Trust will be R 13 million, compared to the

approximately R 45 000-00 per annum now paid by SANParks. The

shareholding interest of the Riemvasmaak Community in the project

could earn dividends as much as an estimated R 26 million per

annum.

35.7.6. Benefits in this context do not refer only to material benefits but also

to environmental goods and services provided or environmental costs

and hazards avoided. In this project the net environmental impact on

the general public consists of reduced health hazards from pollution

and reduced carbon emissions and the unnecessary waste of scarce

water in the generation of coal fired electricity.

Page 53 of 80

35.7.7. South Africa’s immediate and future energy needs can be much

better addressed through securing renewable energy that can come

online much more quickly than a coal-fired power station.

35.7.8. It is submitted that the proposed activity is socially, environmentally

and economically sustainable and brings many benefits to the area

and beyond as is evidenced in the summary Cost Benefit Analysis

attached marked “RVM17”. What RVM 17 shows is a massive

contribution to community upliftment in the form of Community

Development Expenditure benefits of R 1.46 billion being the total

direct economic impact over the lifetime of the project.

35.7.9. In addition the project will:

35.7.9.1. Positively impact on the health of communities living in the area

and beyond, which would be directly attributable to the

anticipated atmospheric emissions savings of pollutants such as

particulate matter (PM), including dust, SO2 and mercury by

directly resulting in 40 MW not having to be produced using fossil

fuels;

35.7.9.2. Result in reduced medical and other expenses being incurred by

affected communities and the state;

35.7.9.3. Have absolutely no impact upon the limited and scarce water

resources in the country as it is not an extractive use of natural

resources;

35.7.9.4. Have no impact upon heritage resources

35.7.9.5. Have little biodiversity impact on the AFNP site since the weir is

not an impoundment so there will always be a flow of water over

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the falls, the water conveyance is via an underground conduit and

the evacuation powerline is also underground;

35.7.9.6. Create much needed employment opportunities in a very poor and

economically depressed part of the country during both the

construction phase and operational phase of the project; and

35.7.9.7. Positively impact upon the economy in the medium to long-term,

given the global trend towards divestment in coal and other fossil-

fuels (http://blueandgreentomorrow.com/2015/03/17/un-

backing-fossil-fuel-divestment-campaign) and towards investment

in renewable energy sources.

35.8. It is submitted that the Refusal Decision also violates section 2(4)(b) of

NEMA, which requires: “environmental management must be

integrated, acknowledging that all elements of the environment are

linked and interrelated, and it must take into account the effects of

decisions on all aspects of the environment and all people in the

environment by pursuing the selection of the best practicable

environmental option”. The best practicable environmental option

(BPEO) is that “option that provides the most benefit or causes the

least damage to the environment as a whole, at a cost acceptable to

society, in the long term as well as in the short term”.(Section 1(1)).

35.9. Section 2(4)(p) of NEMA provides that “the cost of remedying pollution,

environmental degradation and consequent adverse health effects and

of preventing, controlling or minimising further pollution,

environmental damage or adverse health effects must be paid by those

responsible for harming the environment.” The project contributes

positively by the reduction of pollution.

Page 55 of 80

35.10. It is submitted that the respondent has failed the proper evaluation

required of NEMA, in that it issued the Refusal Authorisation without

regard, inter alia, to the impacts on health or the climate impact. The

respondent should, at the very least, have considered:

35.10.1. The health impact on communities with regard to air quality and

water resources;

35.10.2. The impacts of climate change for, in particular, water resources

estimated to be made available as a result of this project, as well

as the impacts of the project on greenhouse gas emissions and

adaptation to a changed climate.

35.10.3. It is submitted that any envisaged loss of revenue from a reduction

in visitors, which is denied, the environmental, social and

economic benefits deriving from the project outweigh speculated

harm to tourist numbers.

35.10.4. Failing to give effect to the general objectives of integrated

environmental management laid down in Chapter 5 of NEMA

through failing to comply with section 240(1)(b)(vii) and section

240(1)(c) of NEMA.

35.10.5. Section 240(1)(b)(vii) of NEMA provides that when a decision-maker

is considering an environmental authorisation application, he or

she must take into account “any comments received from organs of

state that have jurisdiction over any aspect of the activity which is

the subject of the application.” Section 240(1)(c) of NEMA also

obliges a decision-maker to take into account the comments of any

organ of state charged with the administration of any law which

relates to the activity in question.

Page 56 of 80

35.10.6. It appears that the Competent Authority ignored the comments

received from DWS in relation to the project.

35.10.7. It is not known to what extent the DoE or other relevant state

departments were involved in the decision-making process of the

respondent with regard to the Refusal Decision. It is however

noted that, given the anticipated impacts of the project on the

surrounding community, the respondent should have consulted

with DEA: Directorate People & Parks, DEA: Directorate Air

Quality and the Department of Energy should have participated in

this decision-making process. Failure to do so amounts to a

neglect of their constitutional and legislative obligations. This

especially when the DEA says when the DEA Minister officially

opened the seventh People and Parks Conference entitled

“Unlocking Protected Areas Economic Potential,” a month before

the Refusal Decision, that the initiative was to provide a platform

for stocktaking on progress being made in addressing land claims

issues affecting protected areas and measures instituted to

facilitate the contribution of protected areas in the enhancement of

rural livelihoods. Speaking at the conference, The Minister urged

the delegates to actively engage in deliberations that will result in

the formulation of “South African People and Parks Midrand

Declaration.” The Midrand Declaration will be taken to CITES COP

17, to ensure South African voice is heard in the space of

endangered species management. (DEA Media release at

http://www.environment.gov.za/mediarelease/molewa_opens7th_

people and parks_co). Then delivering the closing remarks, the

Deputy Minister said “the conference is another pivot in our efforts

as government to create platform for engagement with

communities on protected areas management and how such areas

can be repositioned to respond to the economic development of our

rural areas, the deliberations attained here gives me satisfaction

that our envisaged goal will be achieved.” (DEA Media release at

http://www.environment.gov.za/mediarelease/thomson_closes7th

_people and parks_co) It is not immediately evident that the

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Riemvasmaak Community share the same sentiments but it is

submitted that the Refusal Decision was taken without having

regard to all the relevant considerations.

35.10.8. Failure to consider applicable policies relevant to the application,

as required by section 240(1(b)(viii) NEMA.

35.10.9. Section 240(1)(b)(viii) NEMA provides that a decision maker must

consider “any guidelines, departmental policies, and environmental

management instruments that have been adopted in the

prescribed manner by the Minister or MEC, with the concurrence

of the Minister, and any other information in the possession of the

competent authority that are relevant to the application”.

35.10.10. It is submitted that the respondent, in refusing the authorisation,

evidently failed to take into account the National Climate Change

Response White Paper (the “White Paper”)( Available at

http://www.sanbi.org/sites/default/files/documents/national-

climate-change-response-white-paper.pdf) which “presents the

South African government’s vision for an effective climate change

response and the long-term, just transition to a climate-resilient and

lower carbon economy and society.”(Page 5, Executive Summary,

National Climate Change Response White Paper.)

35.10.11. It acknowledges, inter alia, that: “although there will be costs

associated with South Africa’s adaptation and GHG [greenhouse

gas] emission reduction efforts, there will also be significant short

and long-term social and economic benefits…Furthermore various

economic studies have shown that the costs of early action will be

far less than the costs of delay and inaction”. In its objectives, it

records that it will “effectively manage inevitable climate change

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impacts through interventions that build and sustain South

Africa’s social, economic and environmental resilience and

emergency response capacity [and] make a fair contribution to the

global effort to stabilise GHG concentrations in the

atmosphere.”(Page 11, National Climate Change Response

Objective, National Climate Change Response White Paper.)

35.10.12. This White Paper confirms, among other things, that “South Africa

is a water scarce country with a highly variable climate and has

one of the lowest run-offs in the world – a situation that is likely to

be significantly exacerbated by the effects of climate change.”(Page

17, Section 5.2: Water, National Climate Change Response White

Paper.)

35.10.13. The White Paper indicates clearly the intention of the government

to take positive steps to address issues of air quality and climate

change in South Africa. In refusing the authorisation, and given

the significant greenhouse gas emissions of coal-fired power

stations, the respondent, has directly contradicted these intentions

and consequently contravened section 240(1)(b)(viii) NEMA.

36. Second Grounds of Appeal: The Respondent Failed to give Appellant

an opportunity to be heard

36.1. Respondent received comments from Northern Cape Department:

Environment & Nature Conversation and did not share these with the

EAP or the Appellant but nevertheless relied on those comments in

making the Refusal Decision. That is in breach of Appellant’s right to

be heard, renders the process unfair and, as has been demonstrated

contributed to the Competent Authority relying on factually incorrect

objections such as the construction of a canal and the white

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rhinoceros issue.

36.2. The comments relied on by the Competent Authority received from

DEA: PAPLCM and the DEA: BC were never shared with the Appellant.

Consequently the Appellant never had the opportunity to respond to

the comments.

37. Third Ground of Appeal: the First Respondent Failed to take into

Account the Cumulative Impacts of the Project

37.1. The NEMA EIA Regulations, 2010 define cumulative impacts as “in

relation to an activity…the impact of an activity that in itself may not

be significant, but may become significant when added to the existing

and potential impacts eventuating from similar or diverse activities or

undertakings in the area.”(Regulation 1(1) NEMA EIA Regulations,

2010.)

37.2. Regulation 31(20(I)(i) of the EIA regulations, 2010 requires an EIA to

contain an assessment of each identified potentially significant impact

including, inter alia, cumulative impacts.

37.3. The “Integrated Environmental Management Information series:

Cumulative Effects Assessment 7 issued by DEA” to be found at

http://www.deat.gov.za confirms that indirect effects need to be

assessed. This is international practice as demonstrated by the

Nathan Dam case (refer paragraph 39.5 below).

37.4. The Competent Authority failed to take cumulative impacts into

account adequately or at all as it confined its evaluation to the

“cumulative impacts the proposed development will have within the

Orange River as an international river”.(Key factor 2 g))

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37.5. Appellant submits that the project will have no impacts in the river

beyond a point about 10km downstream of the falls, where discharge

from the tailrace re-joins the mainstream channel via the paleo-

channel. There will be some minor evaporative losses from the open

surface of the power station headpond, but it’s improbable that these

losses will exceed the evaporative losses from the river as it passes

through the gorge, which is compounded by the spray from the very

turbulent water surface. The issue is addressed in section 3.3.4 of the

Amended Final EIAR and, at the request of DEA, in section 6.9 of the

Addendum Report.

37.6. With regard to the potential cumulative socio-economic impacts the

Refusal Decision did not take climate change and South Africa’s

commitment to the international community. The Competent Authority

confined itself to “within the Orange River” and not the area as

required by NEMA.

37.7. South Africa is a party to the United Nations Framework Convention

on Climate Change 1992 (UNFCCC) and the Kyoto Protocol 1997. The

‘Conference of the Parties 17’ (COP17) was hosted in Durban, KZN.

37.8. COP is the supreme decision-making body of the International

Convention (Public International Law). Our country committed to take

on a more active role in ensuring that global CO2 emissions decrease

37.9. South Africa is one of the largest carbon emitters in the world (12th)

and contributes over 480 million tons of CO2 per year.( United Nations

Framework Convention on Climate Change (UNFCCC)

Page 61 of 80

Figure 4: CO2 Emissions [Metric tons per capita]

37.10. Over 90% of South Africa’s electricity is generated via coal-fired power

stations. These power stations are responsible for over 80% of South

Africa’s yearly CO2 emissions. (Department of Energy, Republic of

South Africa, Basic Electricity Overview).

37.11. Coal fired power stations are also responsible for the release of

approximately 20 toxic-release chemicals (sulphur dioxide, mercury,

nitrogen oxide, carbon monoxide, lead, hydrocarbons, arsenic,

cadmium, uranium and others).

37.12. South Africa has an economy that is highly energy and carbon

intensive, with the energy sector being highly responsible for a

significant proportion of greenhouse gas (GHG) production. These

GHGs are responsible for the global warming phenomenon. Average

global temperatures have been on the increase for the past 50 years at

an alarming rate. It is estimated that by the year 2035 the average

temperature increase would be 2-5°

Page 62 of 80

37.13. South Africa is particularly vulnerable to the effect of climate change

given our economic dependence on the primary sector (agriculture,

fisheries, mining, etc.). Approximately 64% of South Africans are

employed in this sector. (Discussion Paper for Public Comment,

Reducing Greenhouse Gas Emissions: The Carbon Tax Option,

National Treasury Republic of South Africa, Dec 2001)

37.14. It is estimated that a temperature change of 3-4°C, could cause a 15%

deterioration in crop yields, with significant drawbacks in sub-

Saharan Arica, where only 4% of arable land is irrigated. An increase

in average temperature of this magnitude will lead to massive food

shortages, rise in mosquito populations (malaria) and a reduced

growth rate.(Discussion Paper for Public Comment, Reducing

Greenhouse Gas Emissions: The Carbon Tax Option, National

Treasury Republic of South Africa, Dec 2010)

37.15. It is of the utmost importance to understand the carbon footprint

associated with various technologies of Energy Resources, see Figure 5

(below). For technologies that do not actively emit CO2 during

operation, a value has been given for the emission during construction

and development. (IPCC Special Report on Renewable Energy Sources

and Climate Change Mitigation, 2012)

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Figure 5: Various Carbon Intensities of Energy Technologies

37.16. Although a nuclear power plant does not emit CO2 (Figure 5), it

utilizes non-renewable resources and nuclear waste remains

radioactive and hazardous to health for thousands of years

(Plutonium-239 has a half-life of 24,000 years) (IPCC Special Report

on Renewable Energy Sources and Climate Change Mitigation, 2012).

37.17. A 40 MW Run-of-River (ROR) hydroelectric power plant would spare

the atmosphere 13.5 million tons of CO2 from a coal fired power

station of the same installed capacity over 60 years. One must also

consider that sulphur dioxide (acidic counterpart) and nitric oxide

(ozone depleter) are also by-products (in the magnitude of thousands

of tons) of coal being burnt.

37.18. If one examines the renewable technologies, it can be seen that there

are still carbon emissions associated with construction and

development:

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Figure 6: Renewable Energy Technology Carbon Intensities

37.19. As one can see (Figure 6), hydroelectric power is three times more

carbon friendly than its nearest competitor (wind power) in the REIPPP

Programme.

37.20. According to the Kyoto Protocol South Africa is classified as a non-

annex 1 developing country and is not explicitly required to undertake

specific emission reduction commitments; however, South Africa has

announced a willingness to undertake nationally appropriate

mitigation actions to deviate from its high GHG production activities.

South Africa announced, that upon availability of adequate,

predictable levels of funding, a goal to reduce its GHG emissions by

34% by 2020 and 42% by 2025.

(https://www.environment.gov.za/speech/molewa_cop17delegation_re

adiness

“Minister Edna Molewa engages media on the state of readiness

of South African delegation to COP17“ 22/11/2011

37.21. The consultancy Airshed Planning Professionals prepared a report (Air

Pollution Health Risk Analysis of Operations of Current and Proposed

Eskom Power Stations located in the Limpopo Province 2006) for

Eskom Holdings in which it states that “Current Eskom power stations

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are cumulatively calculated to be responsible for 17 non-accidental

mortalities per year and 661 respiratory hospital admissions”.( “Air

Pollution Health Risk Analysis of Operations of Current and Proposed

Eskom Power Stations Located in the Limpopo Province”, Report No.:

APP/06/ESKOM-07 Rev 0, November 2006, Airshed Planning

Professionals (Pty) Ltd)

37.22. It is submitted that the respondent failed to attach any weight to the

cumulative impacts beyond “within” the Orange River, and should

have. To consider cumulative impacts only “within” the river is an

extremely narrow horizon. Whenever an economic activity has benefits

or costs that are shared by persons other than the demanders or

suppliers of a good or a service, an externality is involved. Pollution is

a negative externality. Externalities need to be dealt with in a way that

enhances the social good. (See Hydropower Externalities: A meta-

Analysis, M.Mattman 2016:

http://www.sciencedirect.com/science/article/pii/SO1409883163009

50)

38. Fourth Ground of Appeal: The First Respondent Failed to take into

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Account International and National Obligations

38.1. It is an established fact that climate change impacts upon, and will

continue to impact upon, inter alia:

38.2. water resources due to changes in rainfall and evaporation rates,

which will consequently impact upon agriculture, forestry and

industry due to an increased irrigation and water supply demand;(

Pages 6 – 9, Long Term Adaptation Scenarios: Summary for Policy

Makers available at

http://www.sanbi.org/sites/default/files/documents/Itassummary-

policy-makers2013high-res.pdf)

38.3. air quality, through the impacts upon weather patterns which will

negatively influence criteria pollutants such as PM, SO2, NO2, ozone,

carbon, monoxide, benzene, lead; (Page 11, Long Term Adaptation

Scenarios: Summary for Policy Makers).

38.4. human health, through bringing about an increase in, for instance,

vector-borne diseases, heat stress, increased natural disasters; (Page

11, Long Term Adaptation Scenarios: Summary for Policy Makers.)

38.5. biodiversity due to, for instances, loss of habitat resulting from

increased temperatures and desertification; (Page 15, Long Term

Adaptation Scenarios: Summary for Policy Makers.) and

38.6. marine fisheries, due to changes in water flows and ocean

temperatures.( Page 13, Long Term Adaptation Scenarios: Summary

for Policy Makers).

38.7. South Africa is a signatory to the United Nations Framework

Convention on Climate Change and the Kyoto Protocol, international

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agreements which seek to address climate change and set

internationally binding emission reduction target.

38.8. According to a media release of the DEA on 18 November and speaking

from Marrakech the DEA Minister said the Paris Agreement

represented a major step towards an inclusive low carbon and climate

resilient future, guiding the task of managing climate change and its

associated impacts by all stakeholders-including communities, civil

society, labour and the private sector: with government taking a

leadership and facilitative role. “each and very South African must be

a part of the climate action solution. At the end of the day, we are all

in this together”, the Minister said.

(http://www.environment.gove.za/mediarelease/marrakechclimatecha

ngeconference_o). At the Paris meeting South Africa undertook to

make commitment for nation contributions towards greenhouse gas

(GHG) emission reductions for period 2020-2030, and signed a

universal agreement on climate change into at COP21 in Paris in

December 2015. South Africa acknowledges that “the science is clear

that action to address the causes and impacts of climate change by a

single country or small ground of countries will not be successful. This

is a global problem requiring a global solution through the concerted and

cooperative efforts of all countries.”(Pages 8 and 9, Introduction,

National Climate Change Response: White Paper.) It is incumbent on

the state to ensure that its actions, laws and decision-making coincide

with its evident intentions to address climate change and take into

account internationally binding climate change obligations.

38.9. The South African Government has acknowledged the risks of climate

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change by adopting the White Paper which is addressed in paragraph

XX above. It confirms that “the policy outlined in this White Paper

embodies South Africa’s commitment to a fair contribution to stabilising

global GHG concentrations in the atmosphere and to protecting the

country and its people from the impacts of inevitable climate

change.”(White Paper p 10) The White Paper includes a National

Climate Change Respondent Strategy (“the climate change response

strategy”), which has listed, as one of its strategic priorities, the need

to “prioritise the mainstreaming of climate change considerations and

responses into all relevant sector, national, provincial and local planning

regimes such as, but not limited to, the Industrial Policy Action Plan,

Integrated Resource Plan for Electricity Generation, Provincial Growth

and Development Plans, and Integrated Development Plans.”(p 15) This

White Paper, as a national policy document, speaks to and should

direct decision-making in respect of authorisations for any

developments.

38.10. It can be concluded that, as part of the integrated environmental

authorisation process envisaged by chapter 5 of NEMA and

requirements in section 240(1)(b)(viii) of NEMA to consider relevant

policy and other relevant information in deciding whether or not to

grant an authorisation, the GHG emissions and climate change

impacts of the project should have been taken into account in deciding

whether or not to grant the authorisation. They were not considered –

either adequately or at all.

38.11. Nevertheless, it is submitted that the EIA evaluation did not include

climate change considerations in full as part of the evaluation process,

and no ‘climate change screening’ was done. This screening includes

both mitigation , potential contribution to further GHG emissions, as

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well as adaptation measures. In other words, every development

decision must be based on its contribution to both mitigation and

adaptation. In this regard, it is submitted that the evaluation of all

developments should provide for, inter alia:

38.11.1. maximising reduction in direct and indirect GHG emissions;

38.11.2. maximising potential for further mitigation, including

‘sequestration offsets’, ideally seeking a negative GHG balance;

38.11.3. optimising adaptation to impacts over the full life of the

development, using best available knowledge and modelling

projections of future impacts, which will become more extreme

over time;

38.11.4. ensuring that such adaptations are not misdirected

‘maladaptations’ which will fail and/or exacerbate

impacts/increase vulnerability over time; and

38.11.5. contributing to restoration of ecological infrastructures to better

enable ecosystem-based adaptation, namely building improved

resilience in people, infrastructure and ecosystems.

38.11.6. The above all serve to indicate a clear intention on the part of

government to address climate change, and record a national

stance to take steps to reduce GHG emissions, therefore all

decisions, including the current authorisation, should give effect to

and be aligned with the above.

38.12. The Long Term Adaptation Scenarios (LTAS)( See

https://www.environment.gov.za/sites/default/files/docs/ltaspha

se2report7_longterm_adaptationscenarios.pdf and

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https://www.environment.gov.za/sites/default/files/docs/implica

tions_waterbookV4.pdf) aims to respond to the White Paper by

developing national and sub-national adaptation scenarios for

South Africa under plausible future climate conditions and

development pathways. The LTAS reports acknowledge that

impacts on South Africa are likely to be felt primarily via effects on

water resources.( Page 6, Long Term Adaptation Strategies:

Summary for Policy-Makers. Available at

http://www.sanbi.org/sites/default/files/documents/documents/

ltasummary-policy-makers2013high-res.pdf) The LTAS report on

implications for the water sector states that “at present, specific

provisions for climate change adaptation have been made in very few

of the water resources planning tools. There are some early attempts

that have simulated simple scenarios of changed surface water

supply in reconciliation studies.” Page 15, Long Term Adaptation

Strategies: Summary for Policy-Makers. Available at

http://www.sanbi.org/sites/default/files/documents/documents/

ltasummary-policy-makers2013high-res.pdf )

38.13. As already stated above, the project has a positive effect on water

resources as less is required to be used and wasted in mining coal,

washing coal and lost in the production of electricity.

38.14. The LTAS records that “development aspirations in South Africa will

likely be influenced by opportunities and constraints that arise from

climate change impacts on the water sector. Key decisions would

benefit from considering the implications of a range of possible

climate-water futures facing South Africa.”(Page 6, Long Term

Adaptation Strategies: Summary for Policy-Makers. Available at

http://www.sanbi.org/sites/default/files/documents/documents/ltas

Page 71 of 80

ummary-policy-makers2013high-res.pdf )

38.15. The lack of policy coherence with the national climate change response

policy and a disregard for the provision of NEM:AQA and NEMA which

require consideration of international obligations and GHG emissions

as set out above prevented the Competent Authority from evaluating

the application fairly.

38.16. The water flow and probable impact on tourism concerns of the

Competent Authority are without foundation and ultra vires its

jurisdiction. The Orange Rive mouth, as a Ramsar site, is under the

jurisdiction of the Competent Authority so from that perspective it will

be managed appropriately. Applicant has shown that the mouth of the

Orange River will not be affected by the project. Interestingly, if it was

managed correctly there would be a direct impact on water flow and

tourist experience since DEA would want the river to run dry at times.

Nevertheless, that is not going to happen as South Africa is a party to

an international agreement concerning the Orange–Senqu River

Commission. Clause 7.12 of that agreement enjoins the parties to

“take all measures that are necessary to protect and preserve the River

System from its sources to its common terminus.” The water flow

down the Orange River as managed by DWS is accordingly assured.

39. Fifth Ground of Appeal: The Reasons for the Refusal Authorisation are

Vague

39.1. The Competent Authority and others refer to uncertain future issues,

see paragraphs 3 d) iii);3 e) i) 3 g) iii); 3 i) and the conclusion

predicated on the “potentially detrimental environmental impacts”

may not be mitigated to acceptable levels. Acceptable levels remains

an unknown, unspecified, quantified abstract determination

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unsupported by any facts, yet relied on by the Competent Authority as

the foundation for the Refusal decision.

39.2. The Competent Authority concludes that due to the existence of a

number of such potential problems the application must be refused. It

is not evident what a potential issue entails or when a threshold of

potentiality will be reached. The Appellant submits that the

Competent Authority’s assessment criteria were subjective to the point

where it endows a department official with an arbitrary discretion in

deciding when a potential issue becomes a fatal flaw. The exercise of

unfettered administrative discretion is unconstitutional and infringes

upon the right of the Appellant to reasonable and fair administrative

decision making.

39.3. The Appellant submits that, while from EIA perspective, a potential

fatal flaw should be identified and investigated by an EAP as a trigger

event that necessitates further assessment, the discretionary and

subjective element of “potentiality” as adopted by the Competent

Authority, as a reason to reject the application should, within the

context of administrative decision making, not be adopted as the

guiding principle or the discretionary assessment criteria utilised in

reaching a decision. The Appellant submits that an administrative

decision must be taken once certainty has been achieved through the

EIA process as to whether a potential fatal flaw or a fatal flaw indeed

exists. In this regard Section 23 of NEMA lists that a general objective

of integrated environmental management, inter alia, is to identify,

predict and evaluate the actual and potential impact on the

environment, socio-economic conditions and cultural heritage, the

risks and consequences and alternatives and options for mitigation of

activities, with a view to minimizing negative impacts, maximizing

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benefits and promoting compliance with the principles of

environmental management set out in Section 2. Furthermore Section

24 requires that to give effect to the general objectives of integrated

environmental management the “potential consequences for all

impacts on the environment of listed activities or specified activities

must be considered, investigated, assessed and reported on.”

39.4. The Competent Authority has failed to indicate how and why any of

the mitigation measures proposed by Applicant are not deemed

sufficient or relevant to the environmental impacts identified. It is not

clear how the Competent Authority could, as late as the decision

making phase of the EIA, reject Applicant’s specialist reports in broad

terms and adopt the assessment threshold of “potentiality” in order to

support the contention that the application must be refused.

39.5. The Competent Authority has attributed a new meaning to the term

“impact” by relying on potentiality as foundation for a refusal

decision. In the leading international case known as the Nathan Dam

case (2004) FCAFC 190; (2004) 139 FCR294 ( attached marked

“RVM18”) the Australian court stressed that “it is a question of fact”

for the Commonwealth Environmental Minister whether a particular

adverse effect is an “impact” of a proposed action or merely one that

lies “in the rounds of speculation”, at paragraph 28 of the judgement

“RVM18”. The test to be applied is an “objective one in the sense that

which impacts are relevant is a matter of law. But it is a matter of fact

what are the impacts in any particular set of circumstances provided

they are as a matter of law relevant.”(Page 10, UNSW Australian

Environmental Management: A ‘Dams’ Story attached marked

“RVM19”) The critical question is whether adverse environmental

impacts can be said to have some reasonable connection to the

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project, as opposed to being purely speculative or as a hypothetical

possibility. To suggest, as a reason for the Refusal Decision, that the

“probable negative impact on tourism” or the “potential adverse

threats” or that the proposed development “can cause the loss of

habitat for and displacement of bird species” without reference to any

of the scientific reports underpinning the application places the

decisions in the realm of speculation. It renders them vague.

39.6. It is further submitted that the test in the concluding paragraph of

“any potentially detrimental environmental impacts”, is the wrong test

and is contrary to the general objective set out in Section 23 (b) and is

dismissive of the scientific reports. It fails as a test as it is futuristic as

it speaks of potential impacts which are detrimental to the

environment and which result from the proposed activities and does

not deal with the actual and potential impact on the environment,

socio-economic conditions and cultural heritage or the risks and

consequences and alternatives and options as required by NEMA.

39.7. Appellant submits that there can be no abandonment of any

international commitments to the Orange River or to reduce carbon

emissions but if SANParks treats the Park like an island and isolates

it, if the air the community at large breathes is suffocated, then there

will be no river, no sense of place and finally no community.

40. Sixth Ground of Appeal: The Reasons for the Refusal Decision are not

justifiable grounds for refusal

40.1. The absolute reliance on the zonation in the AFNP Management Plan,

besides being unlawful, precludes the exercise of discretion, results in

the plan being applied inflexibly and applied as if it is irrebuttable, is

unfair. SANParks version that only the Minister can amend a

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management plan is not supported by the enabling legislation.

40.2. The policies and standards relied on are not compatible with the

requirements of the community as evidenced by recent legislative

innovation. For example the requirements for coastal management

require that decisions are taken in the “ interests of the whole

community” meaning the collective interests of the community

determined by (a) prioritising the collective interests in coastal public

property of all persons living in the Republic over the interests of a

particular group or sector of society;(b) adopting a long-term

perspective that takes into account the interests of future generations

in inheriting coastal public property and a coastal environment

characterised by healthy and productive ecosystems and economic

activities that are ecologically and socially sustainable; and(c) taking

into account the interests of other living organisms that are dependent

on the coastal environment.” (National Environmental Management:

Integrated Coastal Management Act, 2008 (Act No. 24 of 2008)). In this

instance the only sector of the community which seems to have been

considered are tourists.

40.3. The competent authority failed to weigh the different competing

interests adequately, relying rather on incorrect facts and a narrow

environmental view, and not giving due consideration to

proportionality, the bedrock of the Constitution.

41. Seventh Ground of Appeal: The Respondent’s Refusal to Grant the

Authorisation is in Contravention of PAJA

41.1. Section 22 of the Constitution recognises that everyone has the right

to administrative action that is lawful, reasonable and procedurally

fair. PAJA seeks to give effect to this right.

41.2. Section 6(2) provides that a court or tribunal has the power to

judicially review administrative action if, inter alia:

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41.2.1. The action was taken because irrelevant considerations are taken

into account or relevant considerations were not considered.

(Section 6(2)(e)(iii) PAJA)

41.2.2. As already mentioned, it is submitted that the respondent failed to

take into account relevant considerations such as:

41.2.3. the cumulative impacts of the project and other developments in

the region;

41.2.4. the socio-economic benefits to the community;

41.2.5. the air quality impacts of the projects;

41.2.6. the impacts on the water resource;

41.2.7. the health impacts of the project; and

41.2.8. the climate change impacts and obligations.

41.2.9. In addition, besides the fact that the project will be beneficial for

job creation and will benefit the economy; it fails to take into

consideration the health impacts, climate change impacts and

ultimate external costs that would otherwise have been borne by

the state.

41.3. The Refusal Decision itself contravenes a law or is not authorised by

an empowering provision (section 6(2)(f)(i) PAJA).

41.4. It is submitted that, for the reasons outlined above, this decision

constitutes a direct contravention of the constitutional right to an

environment not harmful to one’s health or well-being and to “have the

environment protected, for the benefit of present and future generations,

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though reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural

resources while promoting justifiable economic and social

development.” (Section 24(a) and (b), the Constitution of the

Republic of South Africa, 108 of 1996)

41.5. As submitted above, it is recorded that the Refusal Decision

contravenes section 240(1) of NEMA (as the framework legislation to

give effect to the constitutional environmental right), which requires

that the Minister or MEC responsible must, in considering an

application, comply with the provisions of NEMA. It is submitted that

the respondent has failed to comply with the provisions of NEMA in,

inter alia:

41.5.1. failing to take into account the relevant factors listed in section

24O(1)(b) NEMA in considering the application, as addressed

above; and

41.5.2. failing to take into account the comments of DWS and/or any

other organ of state charged with the administration of any law

which relates to the activity in question, as required by section

240(1)(c).

41.5.3. The Refusal Decision is not rationally connected to the information

before the Competent Authority (Section 6(2)(f)(ii)(bb) PAJA). In

refusing the authorisation, the respondent demonstrates that it

failed to give adequate consideration to the specialist reports in the

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FEIR. As a result, this decision is not rationally connected to the

information that was before the respondent.

41.6. The exercise of the power or the performance of the function

authorised by the empowering provision, in pursuance of which

administrative action was purportedly taken, is so unreasonable that

no reasonable person could have so exercised the power or performed

the function.(Section 6(2)(h) PAJA.)

41.7. In the circumstances it is submitted that the decision is unreasonable

in that it:

41.7.1. fails to give recognition to the long-term and cumulative impacts on

the emission reductions and to attach sufficient weight to the

contribution to reduce these impacts (impacts likely to increase in

severity as a result of climate change); and

41.7.2. fails to attach sufficient weight to the significant health impacts likely

to be brought about as a result of the project; and

41.7.3. fails to take into account climate change and South Africa’s

international commitments and national obligations in respect of

climate change mitigation; and

41.7.4. fails to apply the principles and provisions of NEMA and to give

recognition to the duty to uphold the constitutional rights to an

environment not harmful to health or well-being; and

41.7.5. took irrelevant factors into account and did not consider relevant

factors; and

41.7.6. its unlawfulness; and

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41.7.7. the fact that the Refusal Decision is not rationally connected to the

information before the respondent in making the decision or to the

reasons given for it by the respondent; and

41.7.8. the fact that the decision is so unreasonable, that no reasonable

person could have refused to grant the environmental authorisation.

42. CONCLUSION

42.1. In the context of the Riemvasmaak Community and the proposed

hydro project, which is sustainably significant on the human,

environmental, social and economic fronts, the Refusal Decision is

unlawful, in that it failed to comply with NEMA and NEM:PA. It also

fails to give effect to the constitutional environmental right.

42.1.1. The Refusal Decision constitutes unfair administrative action for all

the reasons stated above and for all of these reasons, the Appellant

submits that the appeal should succeed and that an environmental

authorisation should be granted to Appellant, with or without

conditions.

____________________________ D'ARCY-HERRMAN RANEY

Appellant’s’s Attorney

45 Avonwold Rd, Cnr Ashwold Rd

SAXONWOLD

JOHANNESBURG

P.O. Box 41546, Craighall, 2024

Tel: (011) 486 3894

Fax: (011) 486 0646

Email: raney@ldh.co.za

Ref: Mr S. Raney/tm

Page 80 of 80

TO: DIRECTORS: APPEALS AND LEGAL REVIEW DEPARTMENT OF ENVIRONMENTAL AFFAIRS

Mr Z Hassam

Environment House

473 Steve Biko Street

Arcadia

Pretoria

0083

Private Bag X447

Pretoria

0001

Email: appealsdirectorate@environment.gov.za

Tel: 012 399 9356

Ref: 14/12/16/3/3/2/600

AND

TO: CHIEF DIRECTOR: INTEGRATED ENVIRONMENTAL AUTHORISATIONS

Sabelo Malaza

Email : smalaza@environment.gov.za