Authored By: Makhanana Clara Baloyi
Full case name: Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others
Citation: Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others (CCT 331/24) [2026] ZACC 25 (24 June 2026).
Court: Constitutional Court of South Africa.
Date of decision: 24 June 2026.
Bench composition: Savage J (majority judgment), with Mlambo DCJ, Kollapen J, Majiedt J, Mhlantla J, Opperman AJ and Tshiqi J concurring. Rogers J delivered a dissenting judgment, with Dambuza J concurring.
Introduction
Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others is an important Constitutional Court decision concerning environmental law, administrative law and civil procedure. The case arose from a dispute over the environmental authorisation granted to a composting facility situated adjacent to a protected nature reserve in the Western Cape. Although the substantive environmental issues were significant, the Constitutional Court primarily addressed whether the Supreme Court of Appeal had correctly applied the doctrine of res judicata to bar the applicant’s challenge. The judgment is noteworthy because it clarifies the limits of the res judicata doctrine, particularly where a prior settlement order was made between different parties. It also reinforces the constitutional right of access to courts under section 34 of the Constitution and provides guidance on when matters should be remitted to the Supreme Court of Appeal rather than determined directly by the Constitutional Court.
Facts of the Case
Jan Louis Jordaan owned property within the Doornkloof Private Nature Reserve near Robertson in the Western Cape, where he operated tourism facilities. His neighbouring property housed a composting facility operated by South African Farm Assured Meat Group CC (SAFAM), which processed organic waste generated by its abattoir. Jordaan alleged that unpleasant odours from the composting operation negatively affected both the enjoyment of his property and the viability of his tourism business.
SAFAM began operating the composting facility in February 2017. In January 2018, it applied for environmental authorisation under the National Environmental Management Act (NEMA) to undertake certain listed activities requiring prior approval. Jordaan and another neighbouring landowner, Hanneré Cecile Jooste, registered as interested and affected parties and formally opposed the application because they believed the operation was environmentally harmful and had commenced unlawfully.
During the administrative process, the Department of Environmental Affairs and Development Planning requested SAFAM to withdraw its application pending further investigation into whether it had already contravened environmental legislation. The application eventually lapsed because SAFAM failed to submit the required Basic Assessment Report within the prescribed period.
In 2019, SAFAM instituted review proceedings against the Department. Jordaan and Jooste were aware of the litigation but were not joined as parties. Before the matter could be heard, SAFAM and the Department concluded a settlement agreement, which the High Court made
an order of court. The settlement allowed SAFAM to continue its application process, condoned certain procedural shortcomings and required the Department to reconsider the environmental authorisation. SAFAM subsequently obtained environmental authorisation for parts of its composting operation.
Jordaan unsuccessfully challenged the environmental authorisation through an internal appeal to the MEC and thereafter applied to the High Court to review and set aside the authorisation. He argued that SAFAM’s activities fell within listed activities requiring environmental authorisation and that the High Court had incorrectly interpreted the applicable environmental regulations. The High Court dismissed the review application. On appeal, however, the Supreme Court of Appeal did not consider the substantive environmental issues. Instead, it held that the earlier settlement order rendered Jordaan’s claims res judicata, meaning that the issues had already been finally determined. Jordaan then appealed to the Constitutional Court, contending that the settlement order could not prevent him, as a non party to those proceedings, from challenging the later environmental authorisation.
Legal Issues
Issue 1: Whether the Supreme Court of Appeal correctly applied the doctrine of res judicata by holding that the settlement order made in earlier proceedings barred Jordaan’s review application, despite him not being a party to those proceedings.
Issue 2: Whether the Constitutional Court should determine the remaining environmental and administrative law issues itself or remit the matter to the Supreme Court of Appeal for consideration after resolving the res judicata issue.
Issue 3: Whether it was in the interests of justice to grant Jordaan leave to appeal against the decision of the Supreme Court of Appeal.
Arguments Presented
Appellant’s Arguments
The appellant, Jan Louis Jordaan, argued that the Supreme Court of Appeal had incorrectly dismissed his appeal on the basis of res judicata. He contended that the requirements for res judicata were absent because the earlier settlement order involved different parties, a different cause of action and a different subject matter from his review application. Since he had not been a party to the earlier proceedings between SAFAM and the Department, he could not be bound by the settlement agreement or expected to apply for its rescission.
Jordaan further submitted that the Supreme Court of Appeal had effectively developed the common-law doctrine of res judicata without this issue having been pleaded by the respondents or justified by the Court. He argued that this unjustifiably restricted his constitutional right of access to courts under section 34 of the Constitution. He also relied on section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 (PAJA), contending that he was entitled to have the lawfulness of the environmental authorisation judicially reviewed.
On the merits of the environmental dispute, Jordaan argued that the High Court had incorrectly interpreted the National Environmental Management Act 107 of 1998 (NEMA) and the applicable Environmental Impact Assessment Regulations. He maintained that SAFAM had unlawfully commenced activities requiring environmental authorisation, particularly Listed Activities 8 and 28, and that the High Court had relied on reasons not advanced by the MEC when upholding the administrative decision.
Respondent’s Arguments
The respondents did not dispute that the Constitutional Court had jurisdiction but argued that leave to appeal should be refused because the appeal had no reasonable prospects of success. They maintained that the earlier settlement order finally resolved the dispute concerning SAFAM’s allegedly unlawful commencement of the listed activities and therefore rendered Jordaan’s review application res judicata. They further contended that the settlement order operated in rem, making Jordaan’s participation in the earlier proceedings unnecessary.
On the substantive environmental issues, the respondents argued that SAFAM’s composting operation did not trigger Listed Activity 28 because the operational footprint neither exceeded nor was intended to exceed one hectare before environmental authorisation was obtained. They also submitted that the composting of organic abattoir waste did not fall within Listed Activity 8 and therefore did not require environmental authorisation under that provision. In addition, they denied that the High Court had exceeded the permissible scope of judicial review in upholding the MEC’s decision.
Court’s Reasoning and Analysis
The Constitutional Court began by determining whether it had jurisdiction to hear the appeal. It held that the matter engaged both its constitutional and general jurisdiction because the Supreme Court of Appeal’s application of the doctrine of res judicata potentially limited Jordaan’s constitutional right of access to courts under section 34 of the Constitution. The Court further held that the case raised an important question of law concerning the effect of settlement orders on persons who were not parties to the earlier proceedings, making it a matter of general public importance.
Turning to the principal issue, the Court examined whether the Supreme Court of Appeal had correctly concluded that Jordaan’s review application was res judicata. Referring to established principles set out in Ascendis Animal Health (Pty) Ltd v Merck Sharp & Dohme Corporation, the Court reiterated that res judicata generally requires a prior final judgment by a competent court involving the same parties, the same cause of action, and the same subject matter. The doctrine serves the important purpose of ensuring finality in litigation, but it must not be applied in a manner that unjustifiably deprives litigants of their right to have disputes determined by a court.
Applying these principles, the Court found that the requirements for res judicata were not satisfied. Jordaan had not been a party to the earlier review proceedings between SAFAM and the Department, nor had he participated in the settlement agreement that was subsequently made an order of court. Moreover, the earlier proceedings concerned the review of a different administrative decision, whereas Jordaan’s application challenged a later environmental authorisation issued after the settlement. Consequently, the parties, cause of action and subject matter were materially different.
The Court also rejected the suggestion that the earlier settlement order created issue estoppel. Because the settlement order contained no judicial reasons, it was impossible to determine which legal or factual issues had actually been decided. The Court further rejected SAFAM’s argument that the settlement order operated in rem so as to bind Jordaan. Although the order setting aside the earlier administrative decision had legal effect against the world at large, Jordaan’s challenge related to the validity of the subsequent environmental authorisation, not to the settlement order itself.
The majority further criticised the Supreme Court of Appeal for effectively extending the common-law doctrine of res judicata without the issue having been pleaded by the parties or supported by adequate reasons. Any development of the common law must comply with section 39(2) of the Constitution and promote the interests of justice. In the majority’s view, expanding res judicata to bind non-parties without proper justification unjustifiably limited the right of access to courts guaranteed by section 34.
Having concluded that the Supreme Court of Appeal had erred, the majority considered whether it should determine the outstanding environmental issues itself. It declined to do so, reasoning that those issues involved technical questions concerning the interpretation of the National Environmental Management Act and the Environmental Impact Assessment Regulations. Since the Supreme Court of Appeal had never considered those issues, it was preferable to remit the matter to that Court for determination.
In a dissenting judgment, Rogers J (with Dambuza J concurring) agreed that the doctrine of res judicata had been wrongly applied but disagreed with the remedy. He considered the remaining issues sufficiently clear and fully argued and therefore would have decided the merits himself to avoid further delay, costs and additional litigation.
Judgement and Ratio Decidendi
The Decision
The Constitutional Court unanimously granted leave to appeal and upheld the appeal to the extent that it found the Supreme Court of Appeal had erred in dismissing Jordaan’s appeal on the basis of res judicata. The majority held that the doctrine had been incorrectly applied because the earlier settlement order did not involve the same parties, the same cause of action or the same subject matter as Jordaan’s review application. Consequently, Jordaan was not precluded from challenging the subsequent environmental authorisation.
Having reached this conclusion, the Court set aside the order of the Supreme Court of Appeal. However, it declined to determine the substantive environmental and administrative law issues itself. Instead, it remitted the matter to the Supreme Court of Appeal for consideration of the remaining grounds of appeal concerning the interpretation and application of the National Environmental Management Act 107 of 1998 (NEMA) and the Environmental Impact Assessment Regulations.
The Court ordered that: the leave to appeal was granted, the appeal was upheld, the order of the Supreme Court of Appeal was set aside, the matter was remitted to the Supreme Court of Appeal to determine the unresolved issues, and the cost of the proceedings in the Constitutional Court were reserved for determination by the Supreme Court of Appeal together with the remaining appeal.
Although Rogers J, with Dambuza J concurring, agreed that the appeal should succeed, the dissent differed only on the appropriate remedy. Rogers J would have decided the outstanding environmental issues instead of remitting the matter, reasoning that this would avoid further delay, expense and duplication of proceedings.
Ratio Decidendi
The ratio decidendi of the case is that the doctrine of res judicata cannot bar a litigant’s claim unless the recognised requirements for its application are satisfied, including that the earlier proceedings involved the same parties (or their privies), the same cause of action and the same subject matter, or a constitutionally justified basis exists for extending the doctrine. A settlement order concluded between other parties cannot, without proper legal justification, deprive a non-party of the constitutional right of access to courts under section 34 of the Constitution.
Critical Analysis
Significance of the Decision
The Constitutional Court’s decision in Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others makes a significant contribution to South African administrative and constitutional law by clarifying the limits of the common-law doctrine of res judicata. The judgment confirms that courts should not expand the doctrine in a manner that prevents litigants who were not parties to earlier proceedings from exercising their constitutional right of access to courts under section 34 of the Constitution. In doing so, the Court reaffirmed that the doctrine must be applied consistently with constitutional values and the requirements of section 39(2) of the Constitution. The judgment also provides important guidance on the legal effect of settlement orders, particularly where subsequent administrative decisions are challenged.
Implications and Impact
The decision has practical implications for environmental litigation, administrative review proceedings and civil procedure. It protects interested and affected parties who may not have participated in earlier litigation but are directly affected by later administrative decisions. Public authorities and private developers cannot rely on settlement agreements concluded with other parties to prevent third parties from challenging subsequent administrative action. The judgment therefore strengthens procedural fairness and judicial oversight of environmental decision-making under the National Environmental Management Act 107 of 1998 (NEMA) and the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It also reinforces the principle that disputes should, where possible, be decided on their merits rather than being excluded through an overly broad application of procedural doctrines. As the judgment is relatively recent, there is currently no substantial body of reported case law demonstrating how it has been applied or distinguished by later courts.
Critical Evaluation
The Court’s reasoning is persuasive because it carefully balances the principle of finality in litigation against the constitutional right of access to courts. By relying on established authority, including Ascendis Animal Health (Pty) Ltd v Merck Sharp & Dohme Corporation, the majority avoided creating unnecessary uncertainty while ensuring that constitutional rights remained central to the development of the common law. Its explanation of why the requirements for res judicata were absent is logically structured and firmly grounded in precedent.
A possible criticism, however, is that remitting the matter to the Supreme Court of Appeal prolonged litigation that had already been ongoing for several years. The dissenting judgment of Rogers J presented a credible alternative by proposing that the Constitutional Court determine the remaining environmental issues itself, thereby promoting judicial efficiency and reducing additional costs. Nevertheless, the majority’s approach is defensible because appellate courts generally benefit from allowing the Supreme Court of Appeal to consider issues that it has not yet addressed. Overall, the judgment successfully reconciles procedural certainty with constitutional fairness and is likely to serve as an important precedent for future disputes involving res judicata and administrative justice.
Conclusion
The Constitutional Court’s decision in Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others represents an important reaffirmation of the constitutional principles that underpin South African civil procedure and administrative justice. By rejecting the Supreme Court of Appeal’s application of res judicata, the Court confirmed that the doctrine cannot be extended to deprive individuals who were not parties to earlier proceedings of their constitutional right of access to courts under section 34 of the Constitution. In doing so, the Court ensured that the pursuit of finality in litigation does not override the fundamental requirements of fairness, legality and accountability.
The judgment is particularly significant because it clarifies the constitutional limits of res judicata while reinforcing that the development of the common law must remain consistent with the spirit, purport and objects of the Bill of Rights. Although the Court deliberately refrained from deciding the substantive environmental issues, its decision provides valuable guidance on the proper relationship between procedural doctrines and constitutional rights. As a result, the case is likely to serve as an important precedent in future disputes involving administrative review, environmental decision-making and the development of the common law, ensuring that procedural certainty is balanced with meaningful access to justice.
BIBLIOGRAPHY
Cases
Ascendis Animal Health (Pty) Ltd v Merck Sharp & Dohme Corporation 2020 (1) SA 327 (CC).
Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others (CCT 331/24) [2026] ZACC 25.
Legislation
Constitution of the Republic of South Africa, 1996.
National Environmental Management Act 107 of 1998.
Promotion of Administrative Justice Act 3 of 2000.
GOVERNMENT NOTICES
Environmental Impact Assessment Regulations, 2014, GN R982 in GG 38282 of 4 December 2014.
SECONDARY SOURCES
Environmental Impact Assessment Regulations, 2014, GN R982 in GG 38282 of 4 December 2014.
