the ordinance (which undoubtedly may have an influence on the environment) in accordance with
the policy, determined under S. 2 of the Act. That policy (the material provision.. of which have
been quoted above) requires:
“All responsible government institutions (which phrase clearly includes second and third
respondents) to apply appropriate measures based on sound scientific knowledge to ensure the
protection of designated ecologically sensitive and unique areas for example wetlands...”
The wetlands in question have been designated for protection under an international convention
to which South Africa is a party.
That there is a direct link between s 24(b) of the Constitution and the duties of a functionary
deciding a rezoning application under the ordinance is indisputable, because s 24(b) of the
Constitution applies to all administrative action whereby any person's rights or legitimate
expectations are affected or threatened, A decision to rezone the property on which sixth and
seventh respondents propose to erect a steel mill to allow the erection and operation thereof will
undoubtedly affect applicants' right to the trust property if the effect of the operation of the
proposed steel mill will be to pollute or otherwise detrimentally affect the lagoon for the reasons I
have already given.
It must follow that the applicants have the right to procedural fairness in respect of the rezoning
decision,
Mr. Helberg contended that S. 24(b) merely codifies the common law relating to natural justice
and that as it is not suggested that second and third respondents will deny the applicants a hearing
(and thus fail to comply with the audi alteram panem rule) or be biased (and thus fail to comply
with the nemo iudex in sua causa rule), there can be no breach of natural justice and thus no
procedural unfairness in refusing to wait until after the board has completed its investigation.
I cannot agree with this submission.
Apart from the fact that I do not agree that the rules of natural justice in our law are limited to the
audi alteram panem and the nemo iudex in sua causa rules, I do not think that one can regard s
24(b) as codifying the existing law and thus read down, as it were, the wide language of the
paragraph unless the existing law was already so wide and flexible that it was covered by the
concept of procedural fairness.
It is not entirely clear in England whether natural justice is but a manifestation of a broader
concept of fairness or whether 'natural justice' applies to 'judicial decisions' and 'a duty to act
fairly' exists in administrative or executive determinations see Craig Administrative Law 2 nd edn
207, Whichever is the correct formulation everyone appears to accept the correctness of Tucker
U's dictum in Russell v Duke of Norfolk and Others[ 1949J I All ER 109 (CA) at 118D-E, which
is in the following terms:
'There are, in my view, no words, which are of universal application to every kind of inquiry and
every kind of domestic tribunal. The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the roles under which the tribunal is acting,
the subject-matter that is being dealt with, and so forth.
(This dictum has been quoted with approval from time to time in South African decisions: see for
example Tunter vs Jockey Club of South Africa 19J.J (J) SA 6JJ (AJ at 6-16E.)