Primary briefing · Judgment
high impact Constitutional Court of South Africa · 24 June 2026
Jordaan v MEC, Local Government, Environmental Affairs and Development Planning, Western Cape and Others
The applicant, a nature reserve operator, sought judicial review of an environmental authorisation granted to a neighbouring composting facility processing abattoir waste. The Supreme Court of Appeal had dismissed the appeal on the basis of res judicata, holding that a prior settlement order in separate proceedings between different parties had already determined the environmental-law issues.
The court held: The Constitutional Court held that the SCA erred. The three requirements for res judicata — same parties, same cause of action, same subject matter — were not met. A settlement order made without reasons cannot ground issue estoppel because it is impossible to infer what issues, if any, were determined. Extending the doctrine to bind non-parties who were not joined to the earlier proceedings violated section 34 of the Constitution and the rule of law. The SCA order was set aside and the matter remitted to the SCA for determination of the merits, including the interpretation of Listed Activities 8 and 28 under the EIA Regulations.
Legal impact: The judgment confirms the strict common-law boundaries of res judicata and forecloses attempts to extend the doctrine to bind persons who were not parties to the earlier proceedings, particularly where the prior order was a settlement without reasons. It reinforces the constitutional imperative of joinder before adverse findings can be made. For environmental law, the remittal signals an imminent SCA determination on the scope of Listed Activities 8 and 28 — including the meaning of 'commencement', 'beneficiation', and 'agricultural produce' in the context of composting abattoir waste — which could materially affect environmental authorisation requirements across multiple sectors.
Who is affected
Environmental litigation practitionersCivil-procedure and constitutional-law practitionersOperators of composting and waste-processing facilitiesApplicants for and opponents of environmental authorisations under NEMALandowners and nature reserve operators affected by neighbouring developmentsMunicipal and provincial environmental authorities What this means for practitioners
Do not rely on settlement orders to assert res judicata against non-parties — the doctrine requires identity of parties, cause of action, and subject matter.
Ensure all interested and affected parties are properly joined in environmental review proceedings to avoid constitutional challenge.
Monitor the SCA for the forthcoming merits determination on the scope of Listed Activities 8 and 28 under the EIA Regulations, which will affect environmental authorisation practice for composting, agri-processing, and waste management operations.