The much-awaited appeal took place in the Supreme Court of Appeal in Bloemfontein on 13 May 2013. The MPA was represented by Advocates Peter Lazarus and Fiona Southwood, with Amanda van der Lith as our attorney, all three acting on a pro bono basis. There were two advocates representing the Province and one the developer. Kevin Gill and I (Paul Fatti) attended the hearing.
Judgement was reserved, but here is an outline of the proceedings as assessed by Kevin and myself at the time:
• The Bench comprised five Judges: Plasket, Maya, Navsa (Presiding Judge), Tshidi and Swain.
• We received a good hearing from the judges but they, particularly the presiding judge, were tough on Peter (who was leading for us), whom they questioned for the majority of the time. To be fair, they were also tough on the advocates for the respondents, although their questioning was much shorter.
• The judges were generally sympathetic towards the MPA’s concern for the MPE.
After the hearing our prediction on how the judgement would turn out were:
• We were confident that the order for costs that were awarded against the MPA by the Mafeking High Court would be reversed
• We were also pretty confident that the developer would not be ordered to demolish the lodge
• We hoped that the judges would find a way in their judgement to highlight the administrative shortcomings in such a way as to discourage future misuse of Section 24G (of the National Environmental Management Act) particularly by unscrupulous developers in the Magaliesberg.
Judgement was received on 31 May, 2013.
While our first two predictions turned out to be correct, we were very disappointed to learn that the MPA’s Appeal was dismissed, except for the reversal of the costs order.
Two positive aspects do, however emerge:
1. The MPA has not been bankrupted (and donations have continued to flow in) so we can continue on our quest to protect the Magaliesberg.
2. The fact that the completion of Kgaswane Country Lodge was held back by the court case (it has still not opened for business) and the developer has had to pay his own costs will hopefully deter other people from trying the same.
We are currently studying the judgement and will report back in due course.
Chairman, Magaliesberg Protection Association
2 June, 2013