In my view however, Mr. Moerane correctly submitted that the relevant section of the
constitution Act in this regard was s 229, which provides:
Continuation of existing laws subject to this constitution, all laws, which immediately before the
commencement of this constitution were in force in any area, which forms part of the national
territory, shall continue in force in such area, subject to any repeal of such laws by a competent
authority.
‘Section 229 provides a constitutional foundation for the continuation of the “old laws”
after the coming into force of the constitution... the continuity given by S. 229 is
applicable only to areas in which such laws were in force prior to the commencement of
the constitution.’
Clearly therefore until such time as the Environment Conservation Act 73 of 1989 is applied by a
law of competent authority to the whole of the national territory it shall continue to apply only to
that part of the national territory in which it was in force immediately before the commencement
of the constitution.
Section 235(6), read with s 126(3), relied upon by Mr. Gauntlett, deals with the question of
executive authority and does not purport to extend the territorial application of any laws which
immediately prior to the commencement of the constitution were in force in any particular area
forming part of the national territory.
The application for a declarator in terms of Para 2 of the notice of motion must accordingly fail. I
furthermore decline Mr. Gauntlet’s invitation to grant a declarator incorporating certain
submissions made by Mr. Botha during the course of this presentation at the first meeting of the
Task Group on 14th August 1995. This was not the relief sought by applicants and neither first
respondent, nor Mr. Botha in particular was required to apply their minds thereto.
In these circumstances the relief sought by applicants in terms of para 2 and 3 of the notice of
motion must be refused.
The interdict sought against fourth to seventh respondents.
As I have stated above, these respondents, despite having entered an appearance to oppose the
application filed no papers and did not appear at the hearing. Accordingly they have not denied
applicants’ allegations concerning the wrongful and unlawful allocation by them of sites to
certain persons. This being so applicants are entitled to an order against them in terms of para 4 of
the notice of motion.
Costs
It is clear that the primary focus of the application was the interdictory relief sought against the
various respondents in differing respects. The application for a declarator constituted a relatively
insubstantial component of the application as a whole. In these circumstances although applicants
have failed in their application for a declarator they have nevertheless achieved substantial
success in the application as a whole and there is accordingly no reason why they should be
deprived of any part of their costs against first respondent. First respondent will pay such costs
jointly and severally with second and third respondents who in terms of their agreement with
applicants agreed to pay such costs. Counsel was agreed that the costs of two counsels should be
allowed.