Case  CCT331/24
[2026] ZACC 25

Hearing Date: 3 February 2026

Judgement Date: 24 June 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today, this Court handed down judgment in an application for leave to appeal the judgment and order of the Supreme Court of Appeal, which dismissed an appeal against the judgment of the High Court of South Africa, Western Cape Division, Cape Town (High Court). The applicant, Mr Jordaan, was the owner of property within the Doornkloof Private Nature Reserve, located in Robertson in the Western Cape. Ms Hanneré Cecile Jooste, who has since passed away, was a co-applicant in proceedings in the lower courts. Her estate had been joined to these proceedings as the eighth respondent. The phrase “the applicants” will be used in relation to the proceedings before the lower courts.).

The first respondent was the Member of the Executive Council for Local Government, Environmental Affairs and Development Planning, Western Cape (MEC). The second and third respondents were officials of the Department of Environmental Affairs and Development Planning, Western Cape (Department): the Director, Development Management and the Director, Waste Management, respectively. They abided by the decision of this Court. The fourth respondent was South African Farm Assured Meat Group CC (SAFAM), which operated a composting facility for abattoir waste on a portion of the Farm Middelburg, owned by the Reben Trust. The trustees of the Reben Trust were the fifth to seventh respondents. They were, respectively, Mr Hendrik Johannes Swanepoel de Bod N.O., who is also the sole director of SAFAM; Mr Johannes Petrus du Bois N.O.; and Mr Daniel Jacobus van Staden N.O. They are collectively referred to as the fourth to seventh respondents; they all opposed the appeal.

SAFAM began operating a composting site in February 2017 to process waste generated by its abattoir in Robertson in the Western Cape. The composting site abuts the Doornkloof Private Nature Reserve, a protected area under the National Environmental Management: Protected Areas Act. The applicant operated tourism facilities on property he owns within the Nature Reserve. He alleged that the odour emanating from the composting site has impacted his tourism facilities and enjoyment of his property.

In January 2018, SAFAM applied for environmental authorisation in terms of the National Environmental Management Act (NEMA) to engage in Listed Activities 4, 8 and 28 as defined in the Environmental Impact Assessment Regulations Listing Notice 1. The applicants registered as interested and affected parties and actively opposed SAFAM’s application. On an initial understanding that SAFAM’s composting facility contravened Listed Activity 28, the Department requested SAFAM to withdraw its application pending further investigation. SAFAM’s application lapsed on 23 May 2018 as it did not submit a final Basic Assessment Report on time.

SAFAM instituted a review application in the High Court in August 2019, which the Department opposed. The applicants were not cited as parties, but were made aware of the proceedings six days before the scheduled hearing date. Before the application was heard, however, the parties reached a settlement agreement, which was made an order of court in chambers by Hlophe JP on 18 October 2019. The settlement order: set aside the refusal of the waste management licence; allowed SAFAM to submit any further information required by the Department within five days and declared that information already provided did not need to be resubmitted; condoned SAFAM’s failure to submit a Basic Assessment Report regarding Listed Activities 4, 8 and 28; required the Department to decide SAFAM’s environmental authorisation application by 29 November 2019, so long as SAFAM timeously supplied the necessary information; and, finally, recorded SAFAM’s undertaking to not operate composting activities in an area larger than one hectare. SAFAM complied with the settlement order and, on 29 November 2019, was granted an environmental authorisation in respect of Listed Activities 4 and 28. After an unsuccessful internal appeal to the MEC, the applicants challenged the environmental authorisation in the High Court.

The High Court dismissed the application. It found that SAFAM’s composting activities did not fall under Listed Activity 8, as the abattoir waste processed in the composting site was merely a by-product of “agricultural produce” and did not constitute “agricultural produce” itself. The High Court also held that the extent of the composting site must be determined on SAFAM’s version, which showed it was under one hectare. Thus, Listed Activity 28 was not triggered. The High Court rejected the argument that SAFAM unlawfully commenced with Listed Activity 28 by establishing the composting site “in furtherance of” the eventual objective of expanding it beyond one hectare. The applicants appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal held that the existence of the settlement order between the Department and SAFAM in its earlier review application rendered the applicants’ claim res judicata (a matter already decided). According to the Court, the settlement “had resolved the issues between the parties”, including the potential unlawful commencement of Listed Activities. Thus, in the Court’s eyes, the factual and legal issues complained of by the applicant had already been determined. The Supreme Court of Appeal further noted that the applicants had not sought to intervene in the SAFAM review application or argue for the settlement order to be set aside or rescinded. It dismissed the appeal without ventilating the substantive issues.

Appealing to this Court, the applicant submitted that both this Court’s constitutional and general jurisdiction are engaged. He contended that the Supreme Court of Appeal erred in disposing of the matter on the basis of res judicata, since the parties, cause of action and underlying issues differ between the settlement order and his review application. In addition, the applicant argued that the Supreme Court of Appeal effectively developed the common law by extending the application of res judicata, when this was not pleaded. On the merits, the applicant submitted that the High Court exceeded the scope of judicial review by upholding the MEC’s findings on Listed Activity 8 based on new reasons. He argued, in addition, that High Court incorrectly interpreted Listed Activity 8 as excluding SAFAM’s composting activities. Moreover, the applicant asserted that the High Court erred in finding that SAFAM had not commenced with Listed Activity 28 without environmental authorisation, given SAFAM’s intention to expand the composting facility beyond one hectare.

The respondents did not dispute that this Court’s jurisdiction is engaged, but argued that it was not in the interests of justice to grant leave to appeal, as the appeal lacked prospects of success.

They submitted that the settlement order rendered res judicata the issue of SAFAM’s unlawful commencement of the Listed Activities. Furthermore, they contended that, owing to the in rem (against the thing) nature of the settlement order, the applicant’s joinder in the SAFAM review was unnecessary. On the merits, they argued that Listed Activity 28 was not triggered, as the footprint of the composting activity never exceeded one hectare and was never intended to exceed these limits before or unless an environmental authorisation was obtained. On Listed Activity 8, the respondents submitted that, since the composting of organic abattoir waste does not fall under the provision, they were not required to obtain environmental authorisation under it. Additionally, the respondents disputed the applicant’s contention that the High Court strayed beyond the scope of judicial review.

Therefore, the principal issues were whether this Court’s jurisdiction was engaged, whether the settlement order rendered the applicant’s challenge res judicata and whether it was appropriate for this Court to determine the merits of this case.

In a judgment penned by Savage J, with Mlambo DCJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ and Tshiqi J concurring, this Court upheld the appeal, finding that its jurisdiction was engaged, that the applicant’s challenge was not res judicata and that the merits should be remitted to the Supreme Court of Appeal for further hearing.

The applicant sought condonation for the late filing of his written submissions, which was delayed by one day. Since the delay was minimal, had been adequately explained and had caused no prejudice to the respondents, condonation was granted.

In this matter, the applicant plausibly contended that the Supreme Court of Appeal unduly extended the application of res judicata, implicating his constitutional right to have the merits of his appeal determined. This Court’s constitutional jurisdiction was thus engaged. Moreover, the effect, for purposes of res judicata, of a settlement order made without reasons was an issue of general public importance. The Supreme Court of Appeal’s approach risked setting a precedent that expanded the reach of res judicata. This Court’s general jurisdiction was thus engaged and it was in the interests of justice for this Court to consider the matter. Consequently, leave to appeal was granted.

On res judicata, the settlement order in SAFAM’s review application was not between the same parties, based on the same cause of action or concerning the same subject matter. The applicant was not a party to SAFAM’s review application, and accordingly could not have sought rescission of the resultant settlement order. It was for the respondents, in their capacity as applicants in the SAFAM review application, to join the applicants as interested and affected parties. Furthermore, SAFAM’s review application targeted an earlier administrative decision, which, pursuant to the settlement agreement, was set aside, thus prompting a fresh determination by the administrative decision-maker on the matter. It was this subsequent administrative decision that formed the basis of the applicant’s review application to the High Court. Therefore, the underlying cause of action and subject matter in the applicant’s review application were both distinct from what had been settled in the SAFAM review application.

Furthermore, the Supreme Court of Appeal could not have relied on issue estoppel, as it was impossible to infer from the mere existence of the settlement order, what issues, if any, were determined. SAFAM’s contention that the settlement order was an order in rem did not take the matter further. While the actual order – the setting aside of the relevant decisions – did bind the world at large, this is not what the applicant complained of in his review application.

Moreover, the Supreme Court of Appeal, by extending the circumstances in which the principle of res judicata may be relied upon, did in effect develop the common law on res judicata. This purported development was not pleaded by the respondents and no reasons were provided by the Court to justify its necessity. When considered in light of its limiting effect on the fundamental right of access to courts, as enshrined in section 34 of the Bill of Rights, it was clear that this development was patently not in the interests of justice, and did not accord with the prescripts contained in section 39(2) of the Constitution. Thus, the Supreme Court of Appeal erred in finding that the matter before it was res judicata.

The remaining grounds of appeal pertained to whether any of the Listed Activities were unlawfully commenced. They raised technical, multifaceted questions that required full and careful consideration, pertaining to the nature and correct description of the organic material being composted, as well as the meanings of various operative words in NEMA and its regulations. The answers may have had far-reaching effects on future applications for environmental authorisations. This Court found that it should not decide them effectively on direct appeal, without the benefit of detailed reasoning from the Supreme Court of Appeal, which is better situated to address such disputes. It was therefore in the interests of justice to remit the merits of the matter to the Supreme Court of Appeal for further hearing.

For these reasons, the appeal was upheld, and SAFAM was ordered pay the applicant’s costs, including those of two counsel.

In a dissenting judgment, Rogers J, with Dambuza J concurring, agreed with the Court’s conclusion that the Supreme Court of Appeal erred in disposing of the appeal on the basis of res judicata. However, he disagreed with the majority’s decision to remit the matter to the Supreme Court of Appeal for a determination of the merits.

The dissenting judgment held that the Constitutional Court should itself determine the merits of the matter. Rogers J noted that the parties had fully argued the merits before both the Supreme Court of Appeal and the Constitutional Court and that the High Court had already delivered a detailed judgment dealing with the substantive issues.

In Rogers J’s view, the merits of the matter were neither legally nor factually complex. The relevant facts were largely common cause and the issues turned principally on the interpretation of Listing Activities 8 and 28 and the application thereof to the facts. He considered that the absence of a judgment from the Supreme Court of Appeal on the merits was not, on its own, a sufficient basis for remitting the matter.

The dissenting judgment emphasised that the parties were not responsible for the Supreme Court of Appeal’s decision to determine only the res judicata issue. Having already argued the merits in two courts, they were entitled to a final determination of the dispute rather than being required to litigate the matter further. Remittal would, according to the dissent, result in additional delay, costs and inconvenience for the parties, while also requiring the Supreme Court of Appeal to hear the matter again.

Rogers J further observed that remittal might ultimately prove inefficient. If the Supreme Court of Appeal were to decide the merits and a further appeal were pursued, the matter could return to the Constitutional Court for consideration of the same issues. This would risk duplicating judicial effort and prolonging the final resolution of the dispute.

The dissenting judgment also distinguished the authorities relied upon by the majority. In Rogers J’s view, those cases involved circumstances where remittal was necessary because further evidence, reasons or factual findings were required. No such considerations arose in the present matter. He also noted that the parties had not bypassed the Supreme Court of Appeal, as they had already received a hearing in that Court.

The dissenting judgment concluded that the interests of efficiency and finality would have been better served by determining the merits immediately. However, because the majority decided to remit the matter to the Supreme Court of Appeal, Rogers J considered it inappropriate to express a view on the merits, which will now be determined by that Court.

The Full judgment  here