Priority ‘number four’ in terms of the ‘list of actions’ was stated as being to ‘inform relevant
authorities of the illegal activities to stop the issuing of certificates or identification of sites’. The
action required in respect thereof was stated as follows:
‘Inform via Minister of Environmental Affairs and Tourism the Eastern Cape Premier; Eastern
Cape Minister of Agriculture and conservation; Department of Land Affairs; Department of
Justice of current problems and request that that all illegal activities perpetuated in the erection of
illegal cottages and alienation of land be ceased.’
In these circumstances, where ‘political support’ for legal action had to be first determined and
where persons illegally allocating sites,- sometimes in return for little more than a bottle of
brandy were to be requested to stop doing so, applicants’ averred sense of frustration at the lack
of any concrete action in terms of S. 39 of the Decree becomes palpable. The overwhelming sense
to be gained from reading the minutes of the Task Group is that of the slow and inexorable
grinding of wheels across a bureaucratic landscape, regardless of the urgency of the situation. My
above comments should not be misconstrued. The Task Group may well be performing excellent
work in regard to other matters, such as the eventual rationalization of applicable legislation. My
comments relate only to its performance in relation to the Task Group is a non-statutory advisory
body of uncertain nature and duration, its difficulties in this regard are perhaps understandable.
The fact remains however, that first respondent’s opposition to this application is based largely
upon the existence of the Task Group and its actions and these actions have, in my view, fallen
woefully short of establishing that the provisions of S. 39(2) of the Decree were and are being
enforced by first respondent.
It is also clear from the papers that it was only after the institution of this application that first
respondent took the action referred to by Mr. Botha in his affidavit. In the light of the minutes of
the Task Group the inference is inescapable that the launching of the application galvanized first
respondent into such action as it eventually took. The action taken by first respondent does not,
however, in any way address all the abuses raised by applicants in their papers.
I am satisfied in all the circumstances that applicants were and entitled to approach the court for
relief. In granting relief to the applicants the court is not crossing the boundary between what is
administration whether good or bad, and what is an unlawful failure to perform a statutory duty
by the body or person charged with performance of that duty.
In my view, however, the relief sought by applicants in para 1(a) of the notice of motion is
couched in terms that are much too wide and vague. I am therefore not prepared to grant an order
in terms of para 1 (a) of the notice of motion. Applicants’ case was premised throughout on land
practice uses in contravention of s 39 of the Decree. In my view, therefore applicants are entitled
only to an order in terms of para 1 (b), namely that first respondent enforce the provisions of s
39(2) of the Decree. Such an order is easily capable of compliance and as I have stated above, no
where has first respondent averred that it lacks the logistical means to enforce those provisions.
The application for a declarator
This aspect of the case can, in my view, be very shortly disposed of. It is common cause that
before 27th April 1994 Decree 9 applied within the area which comprised the then Republic of
Transkei and that the Environment conservation Act 73 of 1989 applied with in the area which
then comprised the Republic of South Africa. Mr. Gauntlett submitted, with specific reference to
S. 235(6) of the constitution of the Republic of South Africa Act 200 of 1993 that the
Environment Conservation Act 73 of 1989 that formally the Republic of Transkei.