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[2016] ZAGPJHC 380
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Astral Operations Limited v Ekurhuleni Metropolitan Municipality and Another (39702/2016) [2016] ZAGPJHC 380 (18 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No. 39702/2016
In
the matter between:
ASTRAL
OPERATIONS
LIMITED
Applicant
and
EKURHULENI
METROPOLITAN
MUNICIPALITY
First
Respondent
RAND
WATER
Second
Respondent
Case
Summary: Application for Final Interdict - sought against
municipality not to implement its water shedding programme
pending a
consultative process to be followed – alleged contravention by
municipality of s 4(3)(b) of the Water Services
Act 108 of 1997 (the
WSA) in not having been heard prior to implementation of water
shedding programme – municipality acted
in terms of subsections
11(2) or 12(1) of its water supply by-law - subsection 4(3) of the
WSA does not require notice and an opportunity
to make
representations where other consumers would be prejudiced –
consequences of providing uninterrupted water to applicant
would be
prejudicial to other consumers – the decision to implement
water shedding programme and its consequences will have
legal effect
until set aside by a court in proceedings for judicial review –
this is not a case where a collateral challenge
even arises –
application dismissed.
Application
for Amendment – of the relief claimed for a final interdict to
relief for an interim interdict pending the finalisation
of review
proceedings to be instituted - no or an inadequate explanation
proffered for belated application for an amendment - case
made out in
the founding affidavit does not sustain claim for an interim
interdict pending the outcome of a review proceedings
–
municipality was not called upon to raise a defence to the relief
sought in terms of the amendment and it is impermissible
to consider
municipality’s answering affidavit in isolation, divorced from
the context of the case it was called upon to
answer –
application dismissed.
JUDGMENT
MEYER
J
[1]
This is one of fifty urgent applications which I have heard in the
urgent motion court last week. The applicant, Astral
Operations
Limited (Astral), sought to interdict the first respondent, the
Ekurhuleni Metropolitan Municipality (EMM), from implementing
its
water shedding programme in relation to Astral, pending a
consultative process to be followed to determine how the water
shedding
programme should be implemented or amended or to grant
Astral twelve weeks to implement a contingency plan to comply with
the programme.
The ordinary rules for the granting of a final
interdict applied. (See
Telkom v Mzanzi and others
(383/12)
[2013] ZASCA 14
(18 March 2013).)
[2]
The application was heard on Thursday, 10 November 2016, during the
afternoon and into the evening. I reserved judgment
overnight.
When I was about to make an order on Friday morning, 12 November
2016, Astral brought an oral application for
the amendment of its
notice of motion in which it then sought an interim interdict pending
the outcome of an urgent review application
for the setting aside of
EMM’s decision to implement the water shedding programme.
I dismissed the main application
with costs, including those of two
counsel and I made the same order in the interlocutory application.
These are my reasons.
[3]
Subsection 72(1) of the National Water Act 36 of 1998 (the NWA)
inter
alia
gives the Minister of Water and Sanitation (the minister)
the powers listed in Schedule 3 of that Act. In terms of item
6(1)(
i
) of Schedule 3, the minister may by notice in the
Gazette
limit or prohibit the use of water. Subsections
151(1)((
l
) and 151(2) make it an offence to fail to comply
with a temporary restriction on the use of water in terms of item 6
of Schedule
3. On 12 August 2016, a notice was published in the
Gazette
(the ministerial notice) by the Acting
Director-General of the Department of Water and Sanitation (the
national department) under
delegated authority of the minister in
terms of item 6(1) of Schedule 3, limiting the taking of water from
the Integrated Vaal
River System, a system that supplies water to
amongst others, EMM. The ministerial notice required a 15%
curtailment on urban
water usage from the date of the ministerial
notice until further notice.
[4]
It is necessary for a better understanding of the background facts
leading up to this litigation to first refer to the legislative
framework within which EMM sought to enforce the ministerial notice.
EMM is a ‘water services provider’ and ‘water
services authority’ within the meaning of s 1 of the Water
Services Act 108 of 1997 (the WSA). Subsection 4(1) provides
that ‘[w]ater services must be provided in terms of conditions
set by the water services provider.’ Subsection
21(1)(
f
)
provides that ‘[e]very water services authority must make
by-laws which contain conditions for the provision of water services
and which must provide at least . . . the circumstances under which
water services may be limited or discontinued and the procedure
for
such limitations or discontinuation’. Subsection
21(2)(
e
)(i) and (ii) provides that ‘[c]onditions under
which water services are provided . . . may provide for the general
limitation
or discontinuation of water services where . . . national
disasters cause disruptions in the provision of services . . . or . .
. sufficient water is not available for any other reason’.
[5]
EMM has published Water Supply By-Laws by council resolution MI
1991/2001, which commenced on 6 March 2002 (the water supply
by-laws). Subsection 11(2)(
a
) provides that ‘[i]f
the Council considers it necessary as a matter of urgency to prevent
any wastage of water, unauthorised
use of water, damage to property,
danger to life or pollution of water, and national disaster or if
sufficient water is not available
for any other reason the Council
may, without prior notice and without prejudice to the Council’s
power under section 9(2)(
b
) . . . suspend the supply of water
to any premises’. Section 12 is headed ‘[s]pecial
water restrictions’
and subsections 12(1) and (2) read thus:
’
12.(1) The Council may at any
time, by public notification in a manner, as the Council may consider
expedient-
(a)
restrict the supply of water in
the whole or any part of its area of supply to such hours as it may
determine;
(b)
prohibit or restrict the use of
water-
(i)
during specified hours of the
day or on specified days;
(ii)
for any specified purpose or
for any purpose other than that specified.
(c)
determine and impose-
(i)
limits on the quantity of
water, which may be consumed over a specified period;
(ii)
special charges, which shall be
levied in respect of water, consumed in excess of the limit imposed
under subsection 12(
c
)(i)
(iii)
a general surcharge on the
prescribed charges in respect of the supply of water; or
(d)
impose restrictions or
prohibitions on the use or manner of use or disposition of an
appliance by means of which water is used or
consumed, or on the
connection of appliances to a water installation.
(2) A notification in terms of
subsection 12(1) may be limited to apply only to specified areas or
to specified categories of consumers,
premises or activities.’
[6]
EMM sought and obtained a council resolution in response to the
ministerial notice. The council meeting was held on 31
August
2016. It was resolved that restrictions and prohibitions on
water use be implemented in terms of the water supply
by-laws, that a
10% increase be imposed on all metered water consumption above 25
kilolitres per month for all household/domestic
users and that the
applicable water restriction tariffs be imposed on all other user
categories who fail to reduce their consumption
by 15%. The
Head of the Department Water and Sanitation (EMM’s head of the
water and sanitation department) was also
granted the authority ‘to
implement any other measures necessary towards achieving the demand
reduction target of 15%.’
[7]
The measures initially imposed by EMM to restrict water use resulted
in a 3.5% reduction, woefully short of the 15% reduction
prescribed
in terms of the ministerial notice. On 4 October 2016, EMM’s
head of the water and sanitation department
met with the minister and
the MEC of Cooperative Governance and Traditional Affairs in
Gauteng. At the time of the meeting
EMM’s daily water
consumption from Rand Water was approximately 974 860kl.
EMM’s head of the water and sanitation
department was informed
that the minister was going to instruct Rand Water to throttle the
water provision to EMM by 15%, by both
reducing the water pressure
and turning off water provision completely once a certain volume of
water usage had been reached.
This would result in a maximum
daily water ration of 828 631kl. By authorising Rand Water to
throttle EMM’s water supply
the minister thus ensured the 15%
reduction in water consumption would be achieved.
[8]
On 5 October 2016, EMM received a letter from Rand Water setting out
the reduction in water it would implement through throttling
measures. The implementation of these measures has resulted in
a finite volume of water being allocated to EMM on a daily
basis,
specifically only 85% of the total volume that EMM previously used on
an average daily basis. EMM was required to
submit a plan on
how water restrictions would be managed. The head of EMM’s
water and sanitation department therefore
had to make provision for
this 15% reduction across EMM. He instituted the Water
Restrictions Schedule from which Astral
now sought exemption.
As explained in a letter addressed to Rand Water dated 21 October
2016 the schedule ensures ‘every
water district [in EMM] will
experience limited water supply to no water at different periods per
week’. No issue was
taken with this averment by EMM.
The authority that was given to EMM’s Head of the water and
sanitation department
at the council meeting held on 31 August 2016
to implement ‘any other measure necessary’, according to
EMM, included
the authority to impose water rationing and to restrict
the supply of water in the whole or any part of the EMM area of water
supply
to such hours as may be determined, as contemplated in section
11 or 12(1)(a) of the water supply by-laws.
[9]
Astral is active in the broiler industry, which industry is involved
in the growing and slaughtering of broiler chickens for
human
consumption. It is a distributor and supplier of breeding
parent stock, supplying day old chicks to independent broilers
as
well as parent stock to its own businesses. It has conducted a
poultry abattoir and processing facility since 1964.
Its
principal place of business falls within the Ekurhuleni industrial
area which area includes the businesses of other large companies.
Astral is a major water user in EMM’s area of water supply.
Its abattoir and processing facility use water for critical
functions, such as cleaning, sanitation, cooling, transportation,
chilling, disinfection and evisceration processes. Water
is
also used to produce boiler steam used in the initial slaughter
process and to de-feather the broiler chickens as well as cooling
the
plant in order to be able to deliver fresh as well as frozen
products.
[10]
EMM is divided into different zones, each of which includes between
2000 and 3 500 occupants/water users. When water
rationing
is implemented the water supply is shut off at zone level.
Astral is located within EMM’s ‘Clayville
Zone’.
The water restriction schedule implemented by EMM results in the
Clayville Zone, including Astral, not receiving
any water on
Tuesdays, Thursdays and Saturdays from 21:00 to 5:00. The
interruption in the continues water supply to its
abattoir and
processing facility seriously prejudices Astral’s operations
and causes it substantial financial loss.
Its chief operating
officer central region, Mr. Eugene Viljoen, who deposed to its
founding affidavit, states that the interruption
to the continues
water supply to the abattoir would probably result in an estimated
mortality of some 270 000 chickens per day.
Astral only became
aware of EMM’s water shedding programme on the morning of 8
November 2016 by means of an email which had
been sent to it by the
Olifantsfontein Business Forum (OBF), which represents the
Olifantsfontein industrial area within which
Astral’s abattoir
and processing facility is situated.
[11]
It is common cause that EMM is obliged to administer its services in
a transparent and fair manner and that the same holds
true for the
interruption of services. It is also common cause that EMM has
failed to engage Astral in any manner prior to
scheduling the
interruption of its water supply. EMM contended that it was not
under an obligation to engage with the applicant
prior to the
interruption of its water supply. Astral contended that EMM was
bound by the provisions of subsection 4(3) of
the WSA, which, so it
contended, proscribes that procedures for the limitation or
discontinuation of water services must be fair
and equitable and must
require reasonable notice and an opportunity for representations.
[12]
I have referred to subsection 4(1) of the WSA, which requires water
services to be provided in terms of conditions set by the
water
services providers. The conditions must, in terms of
subsections 4(2)(iv) and (v) provide for ‘the circumstances
under which water services may be limited or discontinued’ and
for ‘procedures for limiting or discontinuing water
services’.
Subsections 4(3)(a) and (b) provide as follows:
‘
Procedures for the limitation
or discontinuation of water services must-
(a)
be fair and equitable;
(b)
provide for reasonable notice
of intention to limit or discontinue water services and for an
opportunity to make representations,
unless-
(i)
other consumers would be
prejudiced
(ii)
there is an emergency
situation; or
(iii)
the consumer has interfered
with a limited or discontinued service.’
[13]
This is not an application under the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) or of the Constitution
of
the Republic of South Africa, 1996 (the Constitution) for the review
and setting aside of the decision of the head of the water
and
sanitation department under delegated authority of the council nor of
the decision of the council taken on 31 August 2016.
These
decisions (and thus also their consequences) will have legal effect
until set aside by a court in proceedings for judicial
review.
[14]
In
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) ([2004]
3 All SA 1)
, para 26, Howie P et Nugent JA
said the following:
'For those reasons it is clear, in our
view, that the Administrator's permission was unlawful and invalid at
the outset. Whether
he thereafter also exceeded his powers in
granting extensions for the lodgement of the general plan thus takes
the matter no further.
But the question that arises is what
consequences follow from the conclusion that the Administrator acted
unlawfully. Is the permission
that was granted by the Administrator
simply to be disregarded as if it had never existed? In other words,
was the Cape Metropolitan
Council entitled to disregard the
Administrator's approval and all its consequences merely because it
believed that they were invalid
provided that its belief was correct?
In our view, it was not. Until the Administrator's approval (and thus
also the consequences
of the approval) is set aside by a court in
proceedings for judicial review it exists in fact and it has legal
consequences that
cannot simply be overlooked. The proper functioning
of a modern State would be considerably compromised if all
administrative acts
could be given effect to or ignored depending
upon the view the subject takes of the validity of the act in
question. No doubt
it is for this reason that our law has always
recognised that even an unlawful administrative act is capable of
producing legally
valid consequences for so long as the unlawful act
is not set aside.'
[15]
I do not think that this case is one where a collateral challenge
even arises. In
Oudekraal
, para 35, the following was
said about this defence:
‘
It will generally avail a
person to mount a collateral challenge to the validity of an
administrative act where he is threatened
by a public authority with
coercive action precisely because the legal force of the coercive
action will most often depend upon
the legal validity of the
administrative act in question. A collateral challenge to the
validity of the administrative act will
be available, in other words,
only 'if the right remedy is sought by the right person in the right
proceedings'.’
And
in
V &
A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006
(1) SA 252
(SCA) ([2006]
3 All SA 523)
, para 10, Howie P said that a
collateral challenge-
‘
. . . is applicable in
proceedings where a public authority seeks to coerce a subject into
compliance with an unlawful administrative
act. If these
proceedings are not of that nature then the grounding order will have
legal effect until set aside by a reviewing
court’.
[16]
In any event, subsection 4(3)(b) of the WSA does not require notice
and an opportunity to make representations where other
consumers
would be prejudiced. The consequences of providing
uninterrupted water to Astral will be borne by the occupants
of
Ekurhuleni who, in the light of the drought being experienced in
South Africa, face the risk of severe water shortages or more
stringent restrictions. They will obviously be prejudiced if
the whole area in which Astral’s abattoir and processing
facility is situated is exempted from the water shedding programme.
The provisions of subsection 11(2) or of subsection
12(1) of the
water supply by-laws, in terms whereof EMM acted in restricting the
use of water, also do not require a prior public
consultation
process. It is thus unnecessary for me to consider the
questions whether the subsections 11(2) and 12(1) of
the water supply
by-laws comply with the empowering provisions and prescripts of the
WSA and whether the provisions of subsection
4(3) of the WSA apply to
EMM’s decision and its implementation of the water shedding
programme.
[17]
Astral failed to establish a clear right, which is the first
requirement in order to succeed in obtaining a final interdict.
Averments to sustain a right to a continued uninterrupted supply of
water do not appear in the founding affidavit. The main
application was therefore dismissed.
[18]
I now turn to Astral’s belated application for an amendment of
its notice of motion. EMM opposed the application
on the
following grounds: First, no or an inadequate explanation was
proffered for the late application for an amendment;
Second,
the case made out in the founding affidavit does not sustain a claim
for an interim interdict pending the outcome
of review proceedings;
Third, EMM was not called upon to raise a defence to the relief
sought in terms of the amendment and
it is impermissible to consider
EMM’s answering affidavit in isolation, divorced from the
context of the case it was called
upon to answer. I considered
these grounds of opposition to be valid and cumulatively a bar to
permitting the amendment.
[19]
OBF notified Astral on 8 November 2016 that ‘the decision to
impose these restrictions has been made on a much higher
level than
municipal government’. Astral was accordingly alerted to
the fact that there was a decision and an application
seeking the
relief which was sought in terms of the proposed amendment ought to
have been launched in the first instance.
An explanation was
required for the late application for an amendment. But this
factor alone was not decisive to my refusal
of the amendment.
[20]
To support the relief claimed in terms of the proposed amendment
Astral ought to have established clear review grounds in its
founding
papers. The founding affidavit, however, sets out no grounds of
review under the provisions of PAJA or the Constitution
for the
review and setting aside of the decision of the head of the water and
sanitation department under delegated authority of
the council nor of
the decision of the council taken on 31 August 2016.
[21]
In
Director of Hospital Services v Mistry
1979 (1) SA 626
(A),
at 635H–636B, Diemont JA said the following:
“
When, as in this case, the
proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge will
look to determine what the
complaint is. As was pointed out by Krause J in
Pountas’
Trustee v Lahanas
1942 WLD
67
at 68 and as has been said in many other cases:
“…
an
applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible to
supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts stated
therein, because
those are the facts which the respondent is called upon either to
affirm or deny”.
Since it is clear that the applicant
stands or falls by his petition and the facts therein alleged, “it
is not permissible
to make out new grounds for the application in the
replying affidavit” (
per
VAN WINSEN J in
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
1953 (3) SA 256
(C)
at 260.).’
[22]
EMM was required to answer a case founded on the allegation of fact
that Astral was not heard prior to the implementation of
the water
shedding programme. EMM was not called upon to raise a valid
defence to a claim for an interim interdict pending
the outcome of
review proceedings. The consultative process that was
undertaken must, for purposes of review proceedings
‘ . . . be
considered in light of “the exigencies and practicalities of
the circumstances”.’ (See
Reflect-All 1025 CC v
MEC for Public Transport, Gauteng
2009 (6) SA 391
(CC), para
45.) To meet a case for review, EMM needs to show that for
Astral to have been heard prior to the taking of the
decisions and
the implementation of the water shedding programme would in all the
circumstances have been inappropriate.
EMM would accordingly
have been prejudiced if the proposed amendment was permitted and its
answering affidavit considered in isolation,
divorced from the case
it was answering.
[23]
A case in point is
Administrator, Transvaal and others v
Theletsane and others
[1990] ZASCA 156
;
1991 (2) SA 192
(A), at 196 C-E.
Therein Botha JA said the following:
‘
It was not for the appellants
to show that the respondents were given a proper hearing; they were
called upon only to meet the specific
allegations put forward by the
respondents in support of the relief claimed. The appellants
were required to answer a case
founded on the allegation of fact that
the respondents were not given a hearing; they were not called upon
in any other way to
raise a valid defence to the relief sought. In
particular, for instance, the question whether the hearing given was
unduly limited
in its scope was not an issue to which the appellants’
deponents were required to address their minds. It is not
permissible
to consider the appellants’ affidavits in
isolation, divorced from the context of the case they were
answering. To
the extent that the appellants’ deponents
went further than may have been necessary to answer the case as
presented, it cannot
be postulated
a
priori
that they will not
be prejudiced if their affidavit is relied upon to determine the
nature and ambit of the hearing that took place.
To do so may
be unfair to the appellants and in effect tantamount to reversing the
onus
.’
[24]
The main application for a final interdict and the interlocutory
application for an amendment of the relief claimed in the
notice of
motion were each, therefore, dismissed with costs, including those of
two counsel.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 10-11 November 2016
Date
of order: 11 November 2016
Date
of judgment: 18 November 2016
Counsel
for applicant: Adv J Smit
Instructed
by: Natalie Lubbe & Associates Inc, North Riding
Counsel
for first respondent: Adv D Watson (assisted by Adv Kentridge)
Instructed
by: AF Van Wyk Attorneys, Booysen, Johannesburg