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[2023] ZAFSHC 318
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Makhekhe v Mantsopa Local Municipality and Others (4009/2022) [2023] ZAFSHC 318 (11 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: 4009/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
THABO
PATRICK ALLINBORNE MAKHEKHE
Applicant
and
MANTSOPA
LOCAL MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER OF MANTSOPA
LOCAL
MUNICIPALITY
Second
Respondent
DIRECTOR
OF TECHNICAL SERVICES OF
MANTSOPA
LOCAL MUNICIPALITY
Third
Respondent
THABO
MUFUTSANYANA DISTRICT MUNICIPALITY
Fourth
Respondent
HEARD
ON:
23 MARCH 2023
CORAM:
JONASE, AJ
The judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLII on 11 AUGUST 2023.
The date and time for hand-down is deemed to be 11 AUGUST 2023 at
11h00.
Introduction
[1]
The Applicant seeks an interdict in the following terms;
a)
The First Respondent is directed to
forthwith take all necessary steps to search for and effectively
repair the leaking municipal
water pipe(s) and /or water reticulation
infrastructure responsible for the ongoing seepage and accumulation
of water at the Applicant’s
property at M[…]6 Muelli
Street, Manyatseng, Ladybrand, and to thereafter properly fill and
restore any excavations made
in the process, including the existing
trench on the pavement of the said property, depicted in annexure
“FA15” to
the founding affidavit.
b)
The First, Second, and Third Respondents
are directed to take all necessary steps to ensure that the order in
paragraph 1 above
is carried out, within 30 (thirty) days from date
of such order, alternatively within such period as this court may
direct;
c)
Costs of this application are to be paid by
the First Respondent, provided that if any of the other respondents
should oppose the
matter unsuccessfully, they be directed to pay the
said costs jointly and severally with the First Respondent.
[2]
The First, Second, and Third Respondents (“the respondents”)
oppose this application.
The facts
[3]
The Applicant is the owner of the property known as M[…]6
Muelli Street, Manyatseng Ladybrand
from 1986/1987. Shortly after the
Applicant moved in, there was a leak in the municipal water supply
pipeline running parallel
to Muelli Street and workers from the
erstwhile Municipality of Ladybrand came to attend to the problem.
Since then and for more
than 30(thirty) years, there were no further
issues with leaks, seepages, or the accumulation of water at the
property.
[4]
During or about 2018/2019 the Applicant noticed that a section of the
ground on the pavement next
to the driveway was damp. That struck the
Applicant as strange since there had been no
recent rain or other reason for the area to be wet. The damp
section was easily visible because the soil on the pavement
was darker and wet. The dampness gradually expanded under the
front wall of the property and into the yard. The property is
slightly
lower lying than the street, which facilitates the movement
of water towards the house.
[5]
The Applicant reported the issue to the municipality and the workers
were sent to dig open the
soil in the damp area and search for the
source of the water. The workers later filled the holes and left
without giving any feedback.
The Applicant was also never contacted
by anyone from the municipality and accepted that the problem had
been fixed.
[6]
Unfortunately, it did not take very long before the same area on the
pavement again appeared to
be damp. The dampness seems to be isolated
to one specific area on the pavement. The Applicant had not noticed
any similar issues
on the neighbouring pavements nor he is aware of
any complaints by other resident’s in the street/area about
problems with
seeping and accumulating water.
[7]
The Applicant went back to the municipality and spoke to one Mr.
Moeti as the Applicant understood
that the said Moeti is employed in
the Technical Services Department, which is responsible,
inter
alia,
for the maintenance and repair of municipal water pipes and
infrastructure. Moeti explained that the workers who had recently
been
to the property had been unable to discover anything that might
cause water seepage. According to Moeti, the damping was therefore
caused by underground water and the municipality was not to blame.
[8]
The Applicant indicates that he finds it difficult to accept the
so-called “
underground water
” explanation because
he lived at the property since 1986/1987 and had never experienced
any similar issues with dampening,
even during years with good
rainfall. The problem had to be put on hold because of the Covid-19
pandemic. The dampening problem
continued over the lockdown and
subsequent months, as it was difficult to pursue the municipality due
to Covid-19 protocols.
[9]
In June 2021, the Applicant decided to hire a local plumber, one
Letuka, to investigate the source
of the water. Letuka and his
assistant started in the yard and dug in the direction of the water
until they got to the front wall.
At that point, Letuka advised that
the water seem to come from the municipality’s side of the
property and the Applicant
should report the problem because they
could not excavate on municipal land or work on any municipal water
infrastructure.
[10] On
1 July 2021, the Applicant went back to the offices of the
municipality and managed to convince Moeti
to visit the property for
himself to see what was going on. On 2 July 2021, Moeti came to the
property and the Applicant showed
him the hole that had been dug by
Letuka and his assistant in the yard towards the wall. The hole was
filled with water from the
seeping. Moeti took a sample of water from
the hole and told Applicant that he was going to test it for
chlorine. After performing
the tests, Moeti claimed that the water
was not coming from the municipal water supply pipes and repeated
that there is nothing
the First Respondent can do.
[11]
The Applicant tried to explain to Moeti that if the water is coming
from the municipality’s side of
the property boundary they
should at least try to assist, but Moeti remained adamant that it was
not the municipality’s responsibility
and left. The Applicant
decided to approach one Ms Tshidi Leseotsa, who was the Acting
Municipal Manager of the First Respondent
at the time. Due to
Covid-19 measures, the Applicant was not allowed to meet with
Lesoetsa but was advised to talk to one Mr Africa
Masuku, the
Director of Technical Services and Moeti’s supervisor. Masuku
was on sick leave, but the Applicant managed to
contact him
telephonically and Masuku promised to attend to the matter when he is
back at work.
[12] In
the meantime, the Applicant was able to get the cellphone number of
Letsoetsa who agreed to come to the
property, witnessed the extent of
the water accumulation problem, and promised that the municipality
would try to see what the
cause was and fix it. The Applicant also
sent Letsoetsa photographs of cracks in the walls of his house which
the Applicant believes
have been caused by water continually seeping
underneath his house and damaging the foundations for years.
[13]
When Masuku came back from sick leave, the Applicant explained that
municipal workers had previously been
to the property during
2018/2019 but that the problem had not been resolved. The Applicant
also told Masuku about his interaction
with Moeti and that the
Applicant disagreed with the so-called “underground water”
explanation. Masuku promised to
investigate the matter. Later on, a
team of workers from municipality arrived and dug a trench on the
pavement exposing a section
of the municipal water supply pipeline as
well as the connection branching off from the supply pipeline to the
Applicant’s
house.
[14]
The Applicant indicates that no visible leak on the exposed section
of the water pipeline or at the connection,
but water could clearly
be seen seeping into the trench from the direction of the street. The
workers were not seen taking samples
of the seeping water for
testing. If samples were taken and tested, the Applicant was never
informed of the nature of the tests
or the results. Masuku also
blamed underground water for the ongoing problem. Days later, they
came and dug an inspection hole
on the other side of the street,
which was not cordoned off, which hole also filled up with water,
which was not tested.
[15]
The Applicant contends that he remains of the view that this is
highly improbable when considering that there
has never been any
similar water accumulation problem since 1986/1987. The Applicant
further contends that he is not aware that
a single test for
groundwater has been done by the First Respondent to support their
theory. The Applicant has no objection to
the trench remaining open
because it allows the water that continually fills the hole to be
drained to mitigate the ongoing damage
to the property. However, the
Applicant asked Masuku to arrange for the municipality to drain the
water with a pump at least once
a day. One Mr. James Makeka, an
employee of the municipality, initially came to drain the water, but
there were many days when
he was not available, and the Applicant had
to pay somebody else to do it.
[16]
The municipality’s workers failed to cordon off the trench with
netting or barrier tape, even though
it constitutes a serious risk of
damage and/or injury to vehicles, drivers, pedestrians, and cyclists.
The water volume is quite
considerable which amounts to 500 liters in
the hole when is full. The hole fills up continuously and it is
absorbed into the ground.
The Applicant has been to the municipality
offices from time to time to enquire about progress but has realised
that nothing is
going to be done because of the view that the water
problem stems from underground water and not municipal water
infrastructure.
As a result, thereof the Applicant has been forced to
buy a petrol-powered water pump so that the hole can be drained
without having
to rely on the municipality or casual labour. The
Applicant has arranged for some concrete to be poured in the area
around the
municipal water meter in the yard to lessen the nuisance
and inconvenience of the mud caused by the perpetual seeping of the
water.
The concrete, however, does nothing to address the problem.
[17] On
31 August 2021, the Applicant laid a complaint to the Public
Protector and towards the end of November
or beginning of December
2021 a response from the municipality was conveyed to the Applicant
by the investigator from the Public
Protector. The said report read
as follows;
“
the
alleged leak was investigated by the
municipality, the water seepage in that area is not because of pipe
leaks.
After doing the
investigations, we observed that the whole area is experiencing water
seepage into properties.
We suspect that this
could be caused by the underground water.
We will continue to
monitor the situation through different seasons and respond
appropriately as and when required.
The inspection hole is
backfilled.
Kind regards
Afrika Masuku
Dir. Technical
Services
[18]
The Applicant takes issue with the contents of the said letter as
follows;
a)
The inspection hole to which Masuku refers
is the hole that was dug on the other side of the street, which was
indeed backfilled
by the municipality;
b)
The trench on the pavement on his side of
the street was however not backfilled;
c)
He is not aware of any investigations done
by the municipality to prove that the whole area is experiencing
water seepage into properties
as claimed.
d)
Neither Moeti, nor Masuku, nor anyone else
at the municipality has ever made mention of any such investigations
or the possibility
of generalised water seepage in the area.
[19]
The Applicant’s immediate reaction to the response sent by the
Public Protector was that he did not
feel that Masuku showed any
urgency in solving the problem. The Applicant requested permission to
proceed and resolve the issue
and that stemmed from the possibility
that upon fixing the leakage the Applicant would have to dig on
municipal land. There was
no response from either municipality or the
Public Protector for the remainder of December 2021 or the first two
weeks in January
2022 until the Applicant approached his attorneys of
record. A letter of demand was sent to the municipality requesting it
to conduct
a formal investigation into the serious water problem and
issue an expert report on its findings, failing which the Applicant
be
granted permission to do so. The investigation was to determine
who was responsible to resolve the situation. The municipality failed
to respond.
[20] On
1 February 2022, the Applicant received an email from the Public
Protector with a letter dated 31 January
2022 from Letsoetsa stating;
“
The
request from the complainant for the approval is hereby granted on
condition that the Applicant submits amongst others a method
statement of the proposed solution. Such submission shall be subject
to approval by the municipality.
All
the correspondence/discussions shall be directed to Mr Afrika
Masuku
…
.”
[21] On
2 February 2022, the Applicant received a letter from the Public
Protector confirming that the investigation
is considered finalised
and the file will be closed. The Applicant states that that was
apparently based on the municipality granting
approval to Applicant
to resolve the problem on his own, subject to their approval. The
municipality has failed to carry out any
proper scientific
investigations into the matter or provide a written report on its
findings as requested in the letter of demand
dated 25 January 2022.
The municipality is evidently not prepared to get involved in any
further attempts to resolve the issue
other than allowing the
Applicant to conduct their own investigations on municipal soil,
subject to their prior approval of any
recommendations made by his
appointed contractor on how to resolve the issue.
[22] On
17 February 2022, the Applicant attorneys of record sent a follow-up
letter to the municipality requesting
a reply to the letter of demand
and no reply had been received resulting in the advice to appoint an
independent expert to evaluate
the situation. The Applicant agreed
and instructions were given to one Mr Franz Josef Roberg to
investigate and report on the circumstances
and causes of the water
seepage together with any solution as may be recommended to resolve
the problem once and for all. Roberg
is a qualified, licensed, and
registered plumber with a certificate in Construction Management from
the University of Cape Town.
In addition to his qualifications,
Roberg has for the past five years been engaged in a water savings
project of the Department
of Public Works and Infrastructure through
his employer, Re-Solve Consulting (Pty) LTD, where one of his chief
daily duties is
finding and repairing water leaks in water
reticulation infrastructure at various sites around Free State.
Roberg worked on bulk
water supply networks on numerous occasions and
has also frequently engaged with various municipalities and their
employees in
the execution of his duties.
[23]
On 30 March 2022, Roberg visited the property where he did an
inspection of the problem area, made observations,
did
investigations, and performed certain water tests as detailed in his
report dated 30 March 2022. Roberg’s report was
sent to the
municipality on 1 April 2022 which explained the findings and
highlighted that the municipality was not performing
its duties and
obligations. The municipality was requested to comply with its
obligations, failing which this court would be approached
for
assistance. Roberg prepared an amplified report dealing with certain
aspects of the problem in further detail. Roberg explained
and
confirmed the following;
a)
Two sets of samples of water were taken at
the property during his visit on 30 March 2022- the first from the
water in the hole
at the municipal side of the boundary and the
second from the side of the hole closer to the street where Roberg
suspected the
leak was coming from.
b)
While at the scene, Roberg did DPD reagent
tests on both sets of samples and both showed a pink hue confirming
the presence of chlorine.
c)
Water from the two sets of samples was also
taken to Bloemfontein where it was tested by Roberg using a digital
chlorine meter to
provide a more accurate reading.
d)
The samples were transported to
Bloemfontein in sealed and sterilised bottles and were tested by
Roberg as soon as he returned to
Bloemfontein just after 11h00 on
30 March 2022.
e)
The digital chlorine water meter was not
taken to the inspection because it is the property of his employer,
Re-Solve Consulting.
The digital chlorine meter is of high quality
and is accepted for use in the water-saving project of the Department
of Public Works
and Infrastructure. To the best of Roberg’s
knowledge, the meter was functioning properly, was free of faults,
and is, in
his experience, known to produce accurate results.
f)
The digital chlorine meter confirmed the
presence of chlorine in the water sample taken from an excavation at
0.63mg/L and at 0.91mg/L
in the sample taken close to the suspected
direction of the leak nearer to the street.
g)
The fact that the digital chlorine meter
reading is high in the second sample is to be expected because it is
closer to the direction
of the suspected source and also because the
chlorine in the open hole would have started to evaporate.
h)
The presence of chlorine in the water
samples taken from the excavation confirms that the water is treated.
i)
Based on his experience, and with the
supporting evidence of the tests conducted, Roberg believes with a
high degree of certainty
that the cause of the water seepage is not a
natural spring or the surfacing of groundwater but rather the leaking
of a freshwater
reticulation system or municipal water.
j)
After all the water from the hole was
pumped out, Roberg was able to visually confirm the presence of a
small leak that fills up
the hole. The leak was in the direction of
the street.
k)
Roberg was not able to excavate to find the
source of the leak but initially suspected that it might be due to a
leaking joint.
l)
During a consultation with his legal
representative, the Applicant in preparation for this application, he
explained to Roberg that
he personally saw the saddle connection to
the water meter for his property and could confirm that there was no
leak as suspected
in his initial report.
m)
According to Roberg it is clear from the
tests that the water responsible for the accumulation is treated and
therefore comes from
a municipal source.
n)
Roberg’s view is that the Applicant
cannot be expected to search for and repair the problem at own
expense because all available
evidence suggests that the
municipality’s property is responsible for the leak and it
should be their duty to find and repair
same and the Applicant
agrees.
o)
According to Roberg the costs involved in
trying to resolve the issue by the Applicant could be substantial
depending on the amount
of work required and would also involve
obtaining the necessary approvals which would be time consuming and
burdensome.
p)
Roberg also explained that the leak could
even be coming from one of the connections branching off from the
water supply pipeline
and running under Muelli Street to the vacant
erven across the road. If that is the case, it is even more
unreasonable for the
Applicant to be expected to excavate a public
road in search of the problem at own cost.
q)
Roberg on being asked how was it possible
that the test done by Moeti could have been negative for chlorine and
Roberg explained
that if the sample used by Moeti was taken from the
hole dug by Letuka and his assistant and the water had been exposed
to the
elements for a few days, it was entirely possible for the
chlorine levels to be quite low and difficult to see with the reagent
test. According to Roberg the fact that the water had filtered
through soil could also have contributed to a further reduction
in
the levels of chlorine.
r)
In Roberg’s opinion, the test done by
Moeti cannot be regarded as determinative. Further and more reliable
tests could and
should have been done by the municipality which would
undoubtedly confirm the presence of chlorine.
s)
Roberg also confirmed that the Applicant’s
initial idea to install perforated pipes in the wet area would not be
an adequate
remedy because it does not cure the underlying problem.
At best, perforated pipes might assist in partially dispense a
portion
of the seeping water but would do little to effectively stop
the risk of further damage to driveways, walls, and constructed works
by a longed water leak.
t)
Roberg maintained that it cannot fairly or
reasonably be expected of the Applicant to search for and/or resolve
an issue that plainly
seems to be caused by a fault in municipal
infrastructure and thus the responsibility of the municipality.
The opposition
[24]
The respondents filed their opposing affidavit and stated as follows;
a)
The purpose of this application is noted
and accepted. Tshepo Selepe is the Manager Project Management Unit of
the First Respondent
and attached the Notice of Progress On Projects
(July 2022) which identified the project in Manyatseng relating to
Investigation
and mitigation of high underground water in low laying
areas as contained in paragraph 4.2. bullet 6 thereof. Applicant is
thus
put to the proof that the First Respondent refuses to further
investigate or repair the water accumulation problem at M[…]6
Muelli Street, Manyatseng.
b)
It is denied that there is ongoing refusal
by the First Respondent to conduct the required inspections.
c)
In as far as the Applicant not having
noticed any similar issues on neighbouring pavements and not being
aware of any complaints
by other residents in the street/area about
problems with seeping and accumulating water, are not denied, but
that does not mean
there are no neighbours experiencing same problem
and /or having made complaints about the seeping and accumulating
water in the
street/area. This court is referred to both supporting
affidavits of Selepe and Koalane specifically relating to other
residents
experiencing similar problems of seeping and accumulating
water in the street/or area of the Applicant.
d)
The First Respondent further refers to the
supporting affidavit of Moeti, marked “AFM1” in as far as
the test conducted,
samples already taken and the results thereof.
e)
The fact that the hole was filled with
water the next day, is consistent with the belief that ground water
is to
blame,
and further reference is made to the supporting affidavit of Koloane
“AFM3” that the whole area has lot of underground
water.
f)
The Applicant’s view is not based on
any finding, though the view is respected. The investigations as
envisaged in the supporting
affidavit of Selepe, “AFM4”,
will give a professional conclusion as the relevant experts are
sought to conduct those
investigations.
g)
Annexure “AFM4” clearly shows
that the First Respondent is doing something about the underground
water, by way of conducting
intensive investigations by relevant
experts with relevant degree of expertise and whatever the Applicant
is praying for in this
application is already being done.
h)
The Applicant does not clarify as to the
nature of independent expert to appoint as per advise. Independent
expert can be on various
fields, especially relevant to the problem
to be determined and Applicant is put to proof of nature of expertise
of the independent
expert to appoint.
i)
The credentials of Roberg are noted and it
is denied that he is expert as it is not on record as to what
academic qualifications
does he possess from which institution that
qualifies him as an expert( except only mentioning that he is a
qualified, licensed
and registered plumber and trained in
construction management by the University of Cape Town as contained
in annexure “FA14”
not to mention anything as to him
being independent as he was instructed by Applicant to give the
report that is sought by Applicant
himself. The Applicant is thus put
to proof that Roberg is an expert as well as to whether he was
independent in conducting his
investigation.
j)
The nature of the problem as experienced by
in the areas of Manyatseng, wherein Applicant’s house is
situated and other low
laying area, requires the expertise of a
person who possesses the necessary qualification and registered as
the Geohydrologist,
a person who scientifically investigate and
evaluate underground water resources, their quality and
characteristics, exploring
groundwater by means of geophysical
techniques. A Plumber is not qualified as an expert in determining
the nature of the problem
experienced. That is the reason Selepe
seeks the approval of the council of the First Respondent so that the
finance can be sourced
to secure the professional service of the
Geohydrologist to conduct the investigations as envisaged as the
First Respondent does
not have anyone possessing that skill and
expertise in its human capital.
k)
As such Roberg’s report is denied on
basis of lack of necessary expertise, the observations,
investigations and certain water
tests from the water samples that
were taken from the property of the Applicant and the findings are
equally denied. Applicant
is put to proof that any tests made were
done from the samples taken from his house, as the samples can be
from anywhere. The independence
of Roberg as such are challenged over
and above, he being considered an expert.
l)
Roberg could not find the source of real
source of leakage due to uncertainty of the source thereof, if there
is leakage at all.
The uncertainty of the source of the water seepage
can be anything including underground water hence the First
Respondent in annexure
“AFM4” recommends the thorough
investigations by the people with relevant expertise.
m)
The First Respondent admits that the
Applicant has a clear right but First Respondent has never refused to
conduct the required
inspections.
n)
The First Respondent denies the
infringement on the right of the Applicant on its entirety.
The reply
[25]
The Applicant requests this court to consider that the following;
a)
According to Roberg, it is clear from the
tests that the water responsible for the accumulation is treated and
comes from a municipal
source.
b)
The Respondents do nothing to answer the
case for the relief sought in substance, except to rely on bare
denials, speculations,
and inadmissible evidence in the form of
hearsay evidence and opinion.
c)
The contention that Roberg is not qualified
and experienced to give the expert evidence which he does is entirely
without basis
when considering his trade, qualifications, occupation,
experience, and expertise.
d)
Roberg has experience in finding and
repairing water leaks in water reticulation infrastructure at various
sites around the Free
State and also has worked on bulk water supply
networks on numerous occasions. He is more than capable of testing
water for the
presence of chlorine and providing an expert opinion on
the source.
e)
It is not necessary for a Geohydrologist to
test accumulated water for chlorine.
f)
If it is the First Respondent’s case
that underground water is responsible for the seepage/accumulation
problem, they bear
the onus in this regard and should have incurred
the services of a relevant expert of their own choosing.
g)
The respondents have no expert evidence to
support their underground water defence or theory. Masuku and
deponents of the supporting
affidavits are not experts in the field
of underground water and are, with the greatest respect, not able to
give any opinion in
connection with the source of the accumulating
water.
h)
Based on the opinion of Roberg, it would
seem that the easiest way to determine the accumulating water stems
from a municipal source
is to test it for chlorine.
i)
Respondents contend that Moeti tested the
water that had accumulated inside the Applicant’s yard during
his visit in July
2021 and found no signs of chlorine. Roberg gave
full explanation as to why chlorine levels in the tested water might
have been
low and difficult to detect with a reagent test.
j)
The Respondents fail to address this
important aspect at all, apart from making various unfounded denials
about Roberg’s expertise
and the manner in which his tests were
carried out.
k)
However, what is even more important is
that on 8 September 2022(not long after this application was served)
Moeti and Cloete came
to Applicant’s property to test the
water, this time a more accurate and reliable digital chlorine meter
was used instead
of visual reagent tests.
l)
The Applicant was present during the visit,
carefully observed events and took photographs using his cellphone.
m)
The Applicant noticed Moeti and Cloete
tested two samples of water, one from the accumulated pool of water
in the excavation on
the pavement (more specifically, from the
section on the hole furthest from the street) and another from an
outdoor tap on the
Applicant’s property which is connected to
the municipal water supply. The test result of the water from the tap
was 0.53mg/L,
clearly showing the presence of chlorine as one would
rightly expect in water treated municipal source. The test result of
the
water sample from the accumulated pool was 0.12 mg/L, which water
was responsible for the ongoing accumulation
and
must come from a municipal source.
Even if the respondents can prove that underground water is present
(which they do not, there
being absolutely no acceptable evidence put
forward by the respondents), it cannot be disputed that the
respondents’ own
tests show that chlorinated/ treated water is
at the very least part of the seepage and accumulation problem. The
Applicant took
photographs of both Moeti and Cloete during their
visit as alleged.
n)
It is concerning that the supporting
affidavits of Moeti and Cloete (dated 28 September 2022) both fail to
make any reference to
their inspection on 8 September 2022 or the
fact that their own tests confirm the presence of chlorine in the
seeping water on
the Applicant’s pavement.
o)
The Applicant maintains that since July
2022, the municipality has refused to take any actual steps to
further investigate or repair
the water accumulation problem. The
Applicant further maintains that the dampness is isolated to one
specific area on the pavement,
has not noticed any similar issues on
the neighbouring pavements are not aware of any complaints by other
residents in the street/area
about problems with seeping and
accumulating water. The respondent contends that there are other
residents experiencing similar
problems, yet they fail to disclose a
single name, address or to attach any confirmatory affidavits.
p)
The Applicant attached a confirmatory
affidavit of one Mohau Jonas Monoane residing at M[…]4 Muelli
Street, Mayatseng, Ladybrand
whose property is on the same side of
the road as Applicant’s property and literally two doors away,
which contradicts the
respondents’ unsubstantiated allegations
of dampness in the area. Monoane confirms clearly that he is not
experiencing any
underground water seepage or abnormal dampness at
his premises and this is contrary to the allegations made in the
opposing affidavit.
Analysis
[26]
The
o
bjects
of local government are contained in section 152 of the Constitution
as follows;
”
152.
(1) The objects of local
government are—
(a)
to provide a democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communities in a sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment; and
(e)
to encourage the involvement of communities and community
organisations in the matters of local government.
(2)
A municipality must strive, within its financial and
administrative capacity, to achieve the objects set out in subsection
(1).
[27]
This application centers around the Applicant’s right to the
provision of services, as a member of
the community, and the
promotion of a safe and healthy environment by the First Respondent.
The Applicant approaches this court
for the enforcement of the said
rights in a form of a final interdict as clearly depicted on the
notice of motion. This application
is mostly fact-based and of more
common cause in nature.
[28]
The Applicant complains about water seepage and/or accumulation
problem which affects his property situated
at M[…]6 Muelli
Street, Manyatseng, Ladybrand. That was discovered through a dampness
on the Applicant’s driveway
to his house and that dampness
appears to be isolated. The only dispute for a determination is, what
is the cause of the said problem?
According to the Applicant,
the cause thereof is from the First Respondent’s source of
water reticulation. It is so
alleged as the results of certain tests
conducted and the results thereof evinced that the water is treated
due to the presence
of chlorine. The Respondents allege that the
cause of the problem is underground water and as such the Respondents
cannot be expected
to take responsibility to assist the Applicant to
find the cause.
[29]
The Applicant proposed that the whole ordeal he suffered for long
time is readily determinable in that if
the water is tested and
chlorine is found to be present then the Respondents are responsible
to find the cause of the said a water
seepage or accumulation in his
property.
[30]
This court must then proceed to consider the evidence presented
through the parties’ respective affidavits
and at the end,
evaluate which evidence is more probable in the circumstances.
[31]
The Applicant indicates that the seepage or accumulation of water in
his property commenced around 2018/2019
and took reasonable steps to
report same to the respondents. All the steps taken by the
respondents proved fruitless hence this
application. Prior to the
issuance of this application, the Applicant, as a measure to show
that the respondents are responsible
for the problem, sought
assistance from his legal representatives who advised him to seek
professional assistance as to ascertain
the actual cause of the
problem. Indeed, one Roberg was approached, and he compiled a report
which concluded that the seepage or
accumulation of water originates
from the Respondents’ source due to the presence of chlorine in
the water samples taken
from the Applicant’s area of complaint
on his property.
[32]
On 1 April 2022, the said report was then sent to the Respondents,
prior to the institution of these proceedings,
and nothing was done
by the respondents to consider and act on the said Report. The
Applicant, as a result thereof, filed this
application on 23 August
2022. The Applicant alleges that on or about 08 September 2022 the
respondents sent Moeti and Cloete to
do water tests on water from the
tap and water from the pool of the excavation on the driveway of the
Applicant’s property.
The tests were both conducted on a more
accurate and reliable digital chlorine meter instead of visual
reagent tests. The results
on each sample showed the presence of
chlorine which was on high content in the tap water than that from
the pool of the excavation.
The respondents filed their opposing
affidavit on 28 September 2022. They said nothing about the visit of
Moeti and Cloete on the
said date and the outcome of the results of
the tests conducted, which is rather strange.
[33]
This court is also of the view that the issue for a proper
determination of this matter is the quest on whether
or not the water
samples taken from the Applicant’s property where the problem
emanates contained chlorine. This is informed
by the fact that the
dispute between the parties in these proceedings is the presence or
absence of chlorine as to determine who
must take responsibility in
order to find the source of the problem. It was argued on behalf of
the Applicant that the Roberg report
should be admitted as proper and
Roberg himself be considered as properly qualified to be an expert
based on his qualification,
trade, experience, etc. (as
afore-indicated). Whilst the Respondents argued that;
a)
They succeeded
in the onus drawn and proved that they are in the process of
addressing the water seepage problem complaint of the
Applicant.
b)
The report by
Roberg is insufficient to conclude that the water seepage originates
from the First Respondent’s water reticulation
infrastructure
and not from underground.
c)
The expert
investigation by a registered Geohydrologist is necessary to
scientifically investigate and evaluate the underground
water.
d)
In
applying the rule in
Plascon-Evans
[1]
,
a real dispute of fact exists, and Consequently, the application
should be dismissed.
[34]
Firstly, the respondents refer to a notice of progress on projects
and a council resolution both dated July
2022. On closer perusal and
consideration of both respectively, nothing points to the fact that
the Applicant’s problem has
been investigated and /or any way
forward to address the problem. Instead, the items refer to future
actions to be taken to address
underground water in lower bedding
areas at Manyatseng underground water , and those areas do not
include the Applicant’s
property and/or area. The Applicant
furnished this court with the affidavit of his neighbour who resides
next door at […]4
Mueslli Street, Manyatseng, one Monoane, who
confirmed that he does not have a problem which the Applicant on his
property. Such
affidavit sought to address and contradict the
Respondent’s averment that the area has an underground water
problem. have
no reason to reject that evidence.
[35]
Secondly, Roberg states with clear precision, his qualifications,
trade, experience, and how he conducted,
evaluated, and analysed the
water samples taken from the Applicant’s property and the
conclusion he made in formulating his
opinion that there was chlorine
in the said water being a treatment from the First Respondent’s
source and as such the First
Respondent is responsible for the
seepage or accumulation of that water on Applicant’s property.
The respondents indicated
that Roberg does not qualify as an expert
and his report should be rejected without indicating how the
Respondents concluded that
the source of water seepage or
accumulation is underground water. Roberg dealt thoroughly with
respondents’ averments which
he proved to be non-existent. The
respondent failed to file a proper report from their own expert(s)
refuting Roberg’s report
and further, the respondents failed to
disclose the results of the water samples on tests conducted by Moeti
and Cloete on 8 September
2022. Roberg cannot be disqualified as
alleged by the respondents, as such the Robert’s report is
admissible
in
evidence.
[36]
Thirdly, the necessity of a Geohydrologist to investigate and
evaluate underground water is irrelevant as
it is now clear that the
simple way to determine the problem was the test for chlorine. Even
if it could be said that I am wrong
in my finding, it remains
undisputed as per the report of Roberg that the presence of chlorine
in the water may be the determining
factor as to the actual source,
underground or treated, of the water. The conduct of the First
Respondent also fortifies this notion,
why else would Moeti, Masuku
and Cloete tests the water for chlorine and when it is found to be
present, conveniently not make
any reference to that finding in their
affidavits. As aforesaid, the respondents lost an opportunity to
refute the presence of
chlorine through their own expert(s) and
failed to disclose the results of the tests conducted on 8 September
2022.
[37]
Fourthly, the respondents allege an existence of a real dispute of
fact. In every case the court must examine
an alleged dispute of fact
and see whether in truth there is a real dispute of fact which cannot
be satisfactorily determined without
the aid of oral evidence. As a
general rule, decisions of fact cannot properly be founded on a
consideration of the probabilities
unless the court is satisfied that
there is no real dispute on the facts in question, or that the one’s
party allegations
are so far-fetched or so clearly untenable or so
palpably implausible as to warrant their rejection merely on the
papers
[2]
. It was correctly
argued on behalf of the Applicant that the respondents do nothing to
answer the case for the relief sought in
substance, except to rely on
bare denials, speculations and inadmissible evidence in the form of
hearsay evidence and opinion.
These are dealt with in the analysis of
Roberg’s evidence above as such I find that there exists no
real dispute of fact
and the Respondents averment is palpably
implausible, far-fetched, and so clearly untenable that this court is
fully justified
to reject it on the papers.
[38]
The respondents chose to be technical instead of assuming their
constitutional obligations in terms of section
152 to provide the
Applicant with services and promote a safe and healthy environment.
The Applicant endured untold hardship in
requesting the Respondents
to alleviate his plight with regard to the unbearable nuisance caused
by the Said water seepage or accumulation
which also led to the
Applicant incurring costs of hiring Letuka and his assistant, paying
someone else when the First Respondent
failed to come and assist with
pumping out the water, buying a water pump after the Respondents
stopped assisting him and further
costs to source the services of
legal Representatives and expert (Robert).
[39]
This court finds displeasure in the manner this matter was dealt
with, as indicated above, especially the
dishonest conduct by the
respondents, even when litigation ensued, after they conducted tests
on 8 September 2022 and failed to
disclose the results thereof on
their opposing affidavit, duly filed on 29 September 2022, as they
did with Moeti’s visit
to the Applicant’s property on 2
July 2021. The respondents on receipt of the replying affidavit could
have exercised their
discretion in favour of requesting leave to file
a further affidavit to contradict any issue they deem it fit to do
so. This court
will, therefore, consider this conduct in awarding
costs.
[40]
The respondents dispute that the Applicant is entitled to the relief
sought on flimsy grounds indicated in
this judgment. I am satisfied
that the Applicant has met the requirements of a final interdict in
that it is common cause that
the Applicant has a clear right, he
suffered irreparable harm and has no alternative remedy but had to
approach this court for
the relief sought.
[41]
In the circumstances, I make the following order: -
1.
The First, Second, and Third Respondents
are and hereby directed and ordered to forthwith take all necessary
steps to search for
and effectively repair the leaking municipal
water pipe(s) and /or water reticulation infrastructure responsible
for the ongoing
seepage and accumulation of water at the Applicant’s
property at M[…]6 Muelli Street, Manyatseng, Ladybrand, and to
thereafter properly fill and restore any excavations made in the
process, including the existing trench on the pavement of the
said
property, depicted in annexure “FA15” to the founding
affidavit.
2.
The First, Second and Third Respondents are
and hereby directed and ordered to take all necessary steps to ensure
that the order
in paragraph 1 above is carried out, within 60 (sixty)
days from the date of this order.
3.
The First, Second, and Third Respondents
are ordered to jointly and severally, the one paying to be absolved,
pay the costs of this
application on an attorney-client scale.
SS JONASE, AJ
On
behalf of the Applicant:
Adv.
JMC JOHNSON
Instructed
by:
McINTYRE
VAN DER POST
BLOEMFONTEIN
On
behalf of the Defendant/Respondent:
Adv
JJ BUYS
Instructed
by:
MATLHO
Attorneys
BLOEMFONTEIN
[1]
SEE:
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623
[2]
SEE:
Plascon-Evans above at page 634I