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2023
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[2023] ZAFSHC 377
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Mafube Business Forum and Others v Premier of the Free State Province and Others (6435/2022) [2023] ZAFSHC 377 (3 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NUMBER:
6435/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MAFUBE
BUSINESS FORUM
1
st
APPLICANT
AFRIFORUM
NPC
2
ND
APPLICANT
JOHAN
ALEXANDER ANTHONIE
UNGERER
3
RD
APPLICANT
and
THE
PREMIER OF THE FREE STATE PROVINCE
1
ST
RESPONDENT
MEC:
COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS – FREE STATE
2
ND
RESPONDENT
MEC
OF FINANCE FREE STATE
3
RD
RESPONDENT
THE
MEC OF ECONOMIC, SMALL BUSINESS
DEVELOPMENT,
TOURISM, AND ENVIRONMENTAL
AFFAIRS,
FREE STATE PROVINCE
4
TH
RESPONDENT
THE
EXECUTIVE COUNCIL OF FRE STATE
PROVINCE
5
TH
RESPONDENT
THE
ADMINISTRATOR: MAFUBE LOCAL
MUNICIPALITY
6
TH
RESPONDENT
THE
MAFUBE LOCAL MUNICIPALITY
7
TH
RESPONDENT
THE
MUNICIPAL MANAGER: MAFUBE
LOCAL
MUNICIPALITY
8
TH
RESPONDENT
THE
MAYOR: MAFUBE LOCAL MUNICIPALITY
9
TH
RESPONDENT
THE
FEZILE DABI DISTRICT MUNICIPALITY
10TH RESPONDENT
THE
MINISTER OF COOPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
11
TH
RESPONDENT
THE
MINISTER OF FINANCE
12
TH
RESPONDENT
THE
MINISTER OF WATER AND SANITATION
13
TH
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
25
MAY 2023
DELIVERED
ON:
03
OCTOBER 2023
[1]
These are contempt of court proceedings brought
against the Respondents for alleged collective and individual
disobedience of the
Court orders of Opperman, J of 29 July 2021 and
one of Van Rhyn, AJ (as she then was). In
essence, the
Applicants seek, firstly, a declaration that the First to Fifth
Respondents are in contempt of the order of Van Rhyn,
AJ in case
number 1969/2021; secondly, a declarator that the first, sixth,
seventh, and eighth respondents are in non-compliance
with the order
of Opperman, J in case number 333/2021. The Applicants
further
seek the imprisonment of the First Respondent and a structural
interdict to ensure compliance. For convenience, the two
Judges
aforementioned will collectively and conveniently be referred to as
the ‘two Justices’.
[2]
On 21 July 2021, Opperman, J. granted the
following orders:
1.
“ …
2.
The first and second respondent, jointly and severally, are to
implement the following steps immediately;
a.
To properly maintain and operate all the pumps at the Namahadi
Pump House and Namahadi Sewage works situated on the Remaining Extent
of the Farm Palsiey no 73, District Frankfort (Collectively referred
to as “the works”).
b.
To effect any repairs that may be required at the works.
c.
Inspecting the works on a regular basis.
d.
Attending to any operational crises at the works promptly and
without undue delay when it arises.
e.
Specifically, to prevent any sewage spillages which may affect
the Wilge River.
f.
To make available to the applicant samples of effluent
produced at the works, upon request.
g.
To make timeous payment to ESKOM in order to ensure continuous
functioning of the works.
3.
First and Second respondents, jointly and severally, are
ordered to report back to the applicant’s attorney (Ms van
Schalkwyk)
in writing regarding the progress made with the required
steps set out in the previous paragraph every two (2) weeks for
6(six)
months from the date of this order. In the event of
noncompliance by the respondents the applicant is granted leave to
approach
this court on the same papers for an order of contempt of
court against the first and second respondents.
4.
…”
[3]
Almost a year later, on 28 April 2022 Van Rhyn, AJ granted the
following
orders:
“
1. It is
declared that:
1.1
The First Respondent the Mafube Local Municipality
(hereinafter referred to as “the Municipality”) together
with the
Second to Fifth and Sixteenth Respondents (collectively
referred to as “the Local Respondents”) are in breach of
the
constitutional, legislative and regulatory obligations towards
their residents.
1.2
The conduct of the First Respondent, (including the Second to
Fifth and Sixth Respondents), in failing to ensure the provision of
services to its community in a sustainable manner; in failing to
promote a safe and healthy environment for its community; in failing
to structure and manage its administration, budgeting and planning
processes; in failing to give priority to the basic needs of
its
community; and in failing to promote the social and economic
development of its community, is inconsistent with the Constitution
of the Republic of South Africa, 1996; is in breach of s 152(1) and s
153(a) of the Constitution, as read with its supporting legislation
in terms of the Local Government: Municipal Finance Management Act of
56 of 2003 (hereafter: “the LGMFMA”) and the
Local
Government: Municipal Systems Act 32 of 2000 (hereafter: “the
LGMSA”), and is declared invalid to the extent
of these
inconsistencies.
1.3
In terms of the provisions of section 139(1)(b) and s 139(4),
read with s 139(5) of the Constitution, and read further with
sections
139 and 140 of the LGMFMA, it is declared that the
Provincial intervention by the Sixth to Tenth Respondents has failed
to ensure
that the Municipality and the rest of the Local Respondents
meet the obligations to provide basic services and to meet their
financial
commitments.
1.4
The conduct of the Sixth to Tenth Respondents, in failing
effectively to carry out their mandate in terms of section 139 of the
Constitution and the LGMFMA, to intervene and resolve the issues of
the First and the rest of the Local Respondents, is inconsistent
with
the Constitution and is declared invalid to the extent of these
inconsistencies.
1.5
The jurisdictional facts for mandatory Provincial intervention
in the affairs of Mafube Local Municipality in terms of s 139(4) and
(5) of the Constitution, as read with s139, s140, s 146 to 149 of the
LGMFMA are now present and have consistently been present
in the
past; as a result of the failure of the First to Fifth and Sixteenth
Respondents, as well as the Sixth to Tenth Respondents,
to ensure
that the First Respondent meets its constitutional obligations.
2.
In terms of the provisions of s139(4) and (5) of the
Constitution, read with the aforementioned
provisions of the LGMFMA,
Sixth to Tenth Respondents (“the Provincial Respondents”)
are directed forthwith to undertake
a mandatory provincial
intervention into the affairs of the First Respondent by exercising
the powers conferred by section 139(4)
and (5) of the Constitution,
as read with sections 139, 140 and 146 to 149 of the LGMFMA. The
Sixth to Tenth Respondents are specifically
directed:
2.1
to approve a temporary budget or revenue-raising measures or any
other measures intended to give effect to
the Financial Recovery Plan
detailed in paragraph 2.2 below, to provide for the continued
functionality of the Municipality.
2.2
to implement a recovery plan aimed at securing the Municipality’s
ability to meet its obligations to
provide basic services and to meet
its financial commitments, having due regard to the existence and the
terms of the Financial
Recovery Plan already developed for Mafube
Municipality (the plan is attached to the Founding Affidavit as
Annexure “JJS26”).
2.3
to take immediate action to ensure that any and all pollution of the
Vaal River or any other water sources
in the Municipality’s
vicinity – by the Municipality’s sewage works - ceases
immediately.
2.3…”
[4]
Mafube Local Municipality consists of the small towns of Frankfort,
Villiers,
Tweeling, and Cornelia. The dire state of affairs of the
said towns compelled the Applicants to, inter alia, seek orders
against
the First, Second, Third, and Fifth Respondents (the
Provincial Respondents) to undertake a mandatory provincial
intervention into
the affairs of the Municipality by exercising the
powers conferred by sections 139(4) and (5) of the Constitution. Of
further importance,
Van Rhyn, J ordered the Respondents to approve a
temporary budget or revenue-raising measures intended to give effect
to the financial
recovery plan; to implement a recovery plan aimed at
securing the Municipality’s ability to meet its obligations to
provide
basic services and to meet its financial commitments and to
take immediate action to prevent pollution of the Vaal river or any
other waste sources in the vicinity of the Municipality.
[5]
The Applicants contend that six months after the order of Van Rhyn,
J,
the situation of Mafube has largely remained the same as there is
no improvement. Numerous meetings were held between the officials
of
the First Applicant and those of the Municipality and the Provincial
Respondents as well as the Administrator. On 30 May 2022
a certain Mr
Jansen Van Vuuren, acting on behalf of the First Applicant, forwarded
a document entitled “
The Dawning of the New Day”
to the Administrator. This document, according to the First
Applicant, provided some background to the effect of the First
Applicant
to engage the Municipality and the Provincial Departments
with the aim of assisting in the recovery of the affairs of the
Municipality.
[6]
On 14 June 2022, the Second Applicant forwarded two letters to the
Administrator
in which it highlighted issues pertaining to ‘service
delivery’ in Mafube, and a synopsis of the service delivery
challenges
still experienced by the Mafube community was annexed to
the letter. The Second Applicant also raised the alleged
non-compliance
with the orders of the Justices aforementioned as well
as the pollution of the Vaal river. A point was also made that the
service
delivery challenges experienced by the Mafube community
remained unresolved by either the Municipality or the First
Respondent
(the Premier) as mandated by the two Court orders. I will
deal with other submissions of the Applicants later in this
judgment.
[7]
It is necessary, as a starting point to refer to the concepts of
judicial
authority and the binding effect of Court orders. In this
regard, in
Matjhabeng
local Municipality v Eskom Holdings Limited and Others: Mkhonto
[1]
and Others v Compensation Solutions (Pty) Ltd
the
Court said the following:
“
[47] Section
165 of the Constitution, indeed, vouchsafes judicial authority.
This section must be read with the supremacy
clause of the
Constitution. It provides that courts are vested with judicial
authority, and that no person or organ of state
may interfere with
the functioning of the courts. The Constitution enjoins organs
of state to assist and protect the courts
to ensure, among other
things, their dignity and effectiveness.
[48] To
ensure that courts’ authority is effective, section 165(5)
makes orders of court binding on “all
persons to whom and
organs of state to which it applies”. The purpose of a
finding of contempt is to protect the fount
of justice by preventing
unlawful disdain for judicial authority. Discernibly, continual
non-compliance with court orders
imperils judicial authority.”
[8]
It is trite that the Applicant who alleges contempt of court must
establish
the following requirements in order to succeed with this
kind of application; (a) that an order was granted against the
alleged
contemnor;(b) that the alleged contemnor was served with the
order or had knowledge of it and (c) that the alleged contemnor
failed
to comply with the court order.
[9]
If the Applicant manages to prove the above-mentioned three
requirements,
a presumption then arises that the Respondent’s
non-compliance is wilful and mala fide. The evidentiary burden will
then
shift to the Respondent to show reasonable doubt. Failure on the
part of the Respondent to discharge this burden will result in
contempt being established
[2]
.
[10]
With regard to wilfulness and mala fides, it is necessary to refer to
Fakie v
CCII Systems (Pty) Ltd
[3]
where the Court held as follows where the conduct of the contemnor is
said to undermine the authority of the Court and adversely
affect the
public interest:
“
While the litigant
seeking enforcement has a manifest private interest in securing
compliance, the court grants enforcement also
because of the public
interest in obedience to its orders since disregard sullies the
authority of the courts and detracts from
the rule of law.”
[11]
In
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma
[4]
(
the
State Capture
)the court also observed as follows:
“
It is indeed the
lofty and lonely work of the Judiciary, impervious to public
commentary and political rhetoric, to uphold, protect
and apply the
Constitution and the law at any and all costs.. The corollary duty
borne by all members of South African society-lawyers,
laypeople and
politicians alike- is to respect and abide by the law, and court
orders issued in terms of it, because unlike other
arms of the State,
courts rely solely on the trust and confidence of the people to carry
out their constitutionally-mandated function.”
[12]
The Applicants seek a criminal sanction, which is punitive in nature,
against the
First Respondent and a coercive order against the Second
to Ninth Respondents. The Court in the
State Capture
decision
said the following with reference to a coercive order:
“
A coercive order
gives the respondent the opportunity to avoid imprisonment by
complying with the original order and desisting from
the offensive
conduct. Such an order is made primarily to ensure the effectiveness
of the original order by bringing about compliance.
A final
characteristic is that it only incidentally vindicates the authority
of the court that has been disobeyed…”
[5]
[13]
Upon establishment of contempt, the sanction which the court may
impose may take
various forms bearing in mind that the ultimate aim
of the enforcement of the order is to vindicate the rule of law.
Nkabinde ADCJ
puts it in this way in
Matjhabeng
[6]
:
“
Not every court
order warrants committal for contempt of court in civil proceedings.
The relief in civil contempt proceedings can
take a variety of forms
other than criminal sanctions, such as declaratory order, mandamus
and structural interdicts. All of these
remedies play an important
part in the enforcement of court orders in civil contempt
proceedings. Their objective is to compel
parties to comply with a
court order. In some instances, the disregard of a court order may
justify committal, as sanction for
past non-compliance. This is
necessary because breaching of a court order, wilful and mala fides,
undermines the authority of the
courts and thereby adversely affects
the broader public interest.”
[14]
The Applicant in their founding affidavit set out in detail and with
applicable timelines
the events from granting of the orders of the
two Justices. It is in my view unnecessary to traverse the contents
of each and every
document, correspondence or meeting held as set out
by the Applicants in their founding affidavit. For the purpose of
this application,
reference will only be made to the allegations
necessary to the adjudication of this dispute.
[15]
The Applicants, in their replying affidavit, criticize and lament the
approach of
the Respondents in the answering affidavit in how they
dealt with the allegations of the Applicants in the founding
affidavit.
The Respondents specifically indicated that they
would not deal with the Applicant’s allegations “
paragraph
by paragraph but as a whole
.” The Applicants point out that
it was irregular not to deal with every particular paragraph in the
answering affidavit.
The Applicant points out that this conduct of
the Respondents demonstrates non-compliance with Rule 6 of this
Court.
[16]
The Applicants chose not to invoke the procedure and mechanism set
out in Rule 30.
The opposition by the Respondent appears to have been
structured in such a way as to give a version intended to demonstrate
what
steps were taken by the Respondents in alleged compliance with
the orders of the two Justices. The Applicant managed to reply to
the
answering affidavit and I could not discern any prejudice on their
part. While I take note of the remarks of the Applicants,
in my view
nothing much turns on this.
[17]
The essence of the case of the Applicants is that the Respondents did
not comply
with the peremptory court orders of the two Justices by
virtue of not complying with the requirements pertaining to the
intervention
as envisaged in section 139 of the Constitution and the
empowering municipal legislation as well as preventing the sewerage
spillage.
The Applicants also hold the view that the intervention by
the Respondents was belated, reactionary and lackluster.
[18]
The Applicants contend that the spillage of sewerage into the Vaal
River has not
been attended to. As an illustration, on 13 June 2022,
the First Applicant, Dr Ntili from the Department of Water Services
held
a meeting to address, inter alia, the sewerage crisis. Prior to
the said meeting, the Administrator had indicated that the Municipal
Manager and the intervention team member for technical services would
attend the meeting. The latter member did not attend. This,
according
to the Applicant is indicative of a lack of urgency especially on the
part of the intervention team from the onset.
[19]
On 5 August 2022 the Applicants, through their legal representatives
wrote to the
Municipality with reference to the orders of the two
Justices. In the letter, it is averred that the Municipality had
continuously
failed to comply with the order of Opperman J and that
the issue of the sewerage spillage had not been addressed
sustainably.
[20]
In the above-mentioned letter, reference is also made to the Green
Drop Report in
which the following is said:
“
Wastewater
infrastructure and treatment processed are largely dysfunctional in
Mafube, as is evident by a 0% Green Drop audit score.
The Regulator
notes the dreadful state of negligence, lack of management
commitment, effort, or duty to maintain public assets.
Mafube leaves
an impression of disregard for the environment and serviceability to
the communities that Mafube is tasked to serve.
The lack of
compliance to mandatory standards and absence of accountable
governance trigger regulatory invention with immediate
effect.
Drastic changes will have to be made to effect turnaround,
as the situation has already reached a critical low point.
Going forward, the
municipality is urged to start planning towards a full refurbishment
and upskilling programme, to ensure that
qualified skilled persons,
functional systems and streamlined processes are in place to address
the basics of wastewater services.
This would involve Process
Controller registration, training and appointments, plant
classification, compliance, and operational
monitoring, as well as
flow measurement. The staff are keen to improve and understand the
process to meet compliance standards.
Regrettably, the current state
does not bode well for immediate and sustainable wastewater services
in the Mafube municipal area,
and the regulator will prioritise
urgent interventions.
A drastic intervention from national
and provincial government would be required
.”
[21]
A request was made to the Municipality to provide an indication of
its plan to address
the problems in the Green Drop report and
further, whether any steps had been taken to act on the findings of
the report.
[22]
On 15 August 2022, the Municipality replied to the letter of the
Municipality and
I quote the relevant parts as it appears to form the
basis of the defence of the Respondents as will later appear:
“
3. Our
instructions are inter alia as follows:
3.1The Provincial
Government has invoked Section 139(5)(a), and (c ).
3.2 An intervention
team has been appointed and has reported to the Municipality;
3.3 The intervention
team and National Treasury is in the process to
Draft a financial
recovery plan;
3.4 The 2022/2023
budget of Mafube Local Municipality has been
Approved by the
Municipal Council.
3.5 Department of
Water and Sanitation is assisting the Municipality
And compiling reports
on the municipal water treatment works.
3.6 The report will
ultimately assist in resolving spillage –related problems.
3.7 The intervention
team has approached local stakeholders in an
Attempt to resolve
various issues/ problems.
3.8 The Municipal
Council has adopted a resolution to dissolve the
Audit Committee and
appoint a new Committee, which will ultimately
Play a positive role
to get local shareholders to participate in resolving
Various issues.
3.9 The Premier
arranged a gala dinner in May 2022. The purpose was
To outline the
Provincial Government’s plans to assist Mafube Local
Municipality in solving its issues which will ultimately
enable them
to Comply with the Court Order.
3.10 The Free State
Provincial Department of COGTA has in its letter
Of 12 August 2022
informed the Municipality that they will be giving financial
Assistance in the amount of R5 000 000
subject to certain
conditions. These monies will be used for construction of emergency
overflow ponds in Namahadi/ Frankfort.
[23]
It appears that a meeting was held on 30 August 2023 between the
Applicants and various
government representatives about the issues
forming the subject matter of the orders herein. On 9 September 2022,
the Applicants
responded to the letter of the Respondents and decried
the inadequacy of the response from the Municipality representatives.
According
to the Applicants, the Municipality failed to address the
immediate problem of sewerage spillage. The Applicants highlighted
their
view that according to them, an emergency overflow pond would
not resolve the spillage. The Applicants also questioned the failure
to explain what should happen in the meantime.
[24]
The Department of Water Affairs and Sanitation also compiled a report
for the Municipality.
This report was commissioned almost a year
after the order of Justice Opperman. The report paints a disturbing
picture. It highlights
dysfunctional pump stations and the
discharging/channelling of raw water into water resources including
the Vaal, Wilge and Liebenbergvlei
rivers.
[25]
The Applicants also contend that the Municipality has failed to
implement the financial
recovery plan as ordered.
[26]
The following issues are to be adjudicated in this application:
1.
Whether the Respondents are in
non-compliance with the orders of the two Justices;
2.
Whether the Applicants have made out a
case for contempt and/ or relief as sought;
3.
Whether the First Respondents should be
ordered to pay the costs of this application on an attorney and
client scale.
[27]
It is without doubt that the
orders of the two Justices are in existence. The Respondents
do
not
contend that the said
orders are in existence.
The body of evidence as well as the minutes and correspondence
between them, prove that all parties are
ad
idem
that the orders are in
existence. It is undisputed that the Respondents in this matter had
knowledge of the orders that also is
not in dispute. The Applicants
seek a criminal sanction against the Premier by way of imprisonment.
The return of service of this
application indicates that the
application was served on 09 January 2023 on the Registry Clerk. In
my view, where committal of
a person is required, then in that case,
the personal service of the application seeking the committal must be
effected.
[28]
In
Mjeni
v Minister of Health and Welfare, Eastern Cape
[7]
the court held;
“
Contempt
of court proceedings can only succeed against a public official or
person if the orders have been personally served on
him or its
existence brought to his attention and it is his responsibility to
take steps necessary to comply with the order refuses
to comply with
the court order”
[29]
This issue of the joinder of the public officials in contempt of
court proceedings
was authoritatively laid
to
rest
in Matjhabeng
,
where the court said:
“
Bearing
in mind, that the persons targeted were the officials concerned –
the Municipal Manager and Commissioner in their
official capacities –
the non-joinder in the circumstances of these cases, is thus fatal.
Both Messrs Lepheana and Mkhonto should thus have been
cited in their personal capacities- by name- and not in their nominal
capacities.
(my emphasis) They were not informed, in their
personal capacities, of the cases they were to face, especially when
their committal
to prison was in offing. Is it thus inconceivable how
and to what extent Messrs Lepheana and Mkhonto could, in the
circumstances,
be said to have been in contempt and be committed to
prison.”
[30]
It is undisputed that the Premier was not personally served with this
application
which seeks to curtail his personal liberty. Failure to
serve him with this order and to cite him in his personal capacity
and
“
by name
” and not only in his nominal
capacity, is fatal to the Applicant’s case in so far as he is
concerned. On this point
alone, the application cannot succeed
against the First Respondent.
[31]
It is the case for the Applicants that the mandatory intervention by
the Respondents
was belated, reactionary, lackluster and did not
comply with the requirements inherent in Section 139 of the
Constitution
[32]
On 10 June 2022 the Provisional Executive Committee, Free State
resolved to place
Mafube Local Municipality under Section 139(5) of
the Constitution. The following officials were appointed in terms of
section
139 of the Constitution. Mr Mkhaza (The local administrator);
Mr. Ntoyi (to assist with technical services) both Mesdames Xulunga
and Lepesa to assist in financial matters. The Applicants are aware
of the appointment of the intervention team as indicated in
their
replying affidavit.
[33]
On 9 September 2022, the Provincial Government gazetted the terms of
reference for
the intervention team. The Applicants also confirm that
they were aware of the terms of reference
[34]
It took about five months from
the order of Justice Van Rhyn for the terms of reference
of the
intervention team to be gazetted. Much as this is worrying, the fact
of the matter is that the terms of reference were gazetted
in
pursuance and compliance with the order of Justice Van Rhyn.
[35]
Following the appointment of the intervention team, the Council of
the Municipality
resolved to dissolve the existing audit committee
and a need then arose for the appointment of a new audit committee.
Various meetings
were also held between Mr Mkhaza and the First
Applicant. It is common cause that the holding of the meetings and
the subsequent
conclusion of the agreements were aimed at ensuring
compliance with the court orders.
[36]
The Municipality issued an advertisement for the appointment of
individuals who possessed
a relevant degree in Financial Management
and Auditing, strong personal, dynamic leadership skills, and people
of integrity, to
serve as members of the selection panel for the
audit committee.
[37]
On 13 October 2023, the Municipal Council resolved to appoint 5
members as Audit
and Performance Committee members. I am unable to
comprehend the dissatisfaction of the Applicants with the appointment
of the
Audit Committee. The Applicants’ complaint is captured
as follows in the replying affidavit;
“
9.2.
insofar as an advertisement was required for the Audit Committee, it
did not help that the Municipality chose to publish the
advertisement
(Annexure “AA5”) in the Sowetan, which is a national and
not a regional newspaper.
9.3.
The First Applicant and several other community structures were
willing to participate, but were effectively barred from doing
so due
to this obscure and irrational advertisement placement.
9.4.
The Municipality and the Administrator (Sixth Respondent) are
therefore to blame that no applications for the ad hoc committee
from
“organized formations as required” were received.
9.5.
It is difficult to resist drawing the inference that such unknown
newspaper (relative to the local community) was chosen deliberately
by the Municipality to thwart First Applicant’s attempts at
participatory governance in local government, as mandated by
the
Constitution and the law.
10
…
Applicant
repeats that it and its members were effectively excluded from this
process due to the manner of advert placement and
the Municipal
Manager’s failure to transparent about the process.”
[38]
The above excerpt clearly indicates the
dissatisfaction of the Municipality to advertise in the
Sowetan
newspaper as opposed to the Frankfort Herald, which is the local
newspaper. In my view, there was no obligation on
the
Municipality to place an advert in the local Regional Newspaper. The
Sowetan, being a national newspaper surely reaches more
people than a
local/regional newspaper. It cannot be expected of the Municipality
to second guess which members of
the Mafube community prefer to read
which newspaper(s). It is not contended that the Sowetan does not
circulate in Mafube. The
important thing is that the appointment of
the audit committee was made in a transparent manner in that calls
were made for interested
people on a larger medium, a national
newspaper. To say that a newspaper of the stature of the Sowetan is
‘unknown’
to the local community boggles one’s
mind. How the Applicants even come to this inference is even more
difficult to fathom
owing to the “national” status of the
newspaper. The advertisement did not spell out that the members of
the Applicants
were barred from serving on the audit committee. It
was also not said that they were not to read the newspaper in which
the advertisement
was placed. Consequently, it is difficult to
comprehend why an assertion is made that the Applicants were barred
from participating
in the selection process of the audit committee by
virtue of advertising in the Sowetan.
[39]
According to the Respondents, in May
2022 the Municipality approved a budget. The Applicants
deny
the veracity
of the document attached to the
answering affidavit as “AA7” as being an accurate
reflection of the final medium-term
revenue and expenditure Forecast
for 2022/2023. According to the Applicants, “AA7” differs
considerably from the “Final
MTREF 2022/2023” [ JJS 37]
as published on the Municipality’s official website. “AA7”
is unsigned while
JJS 37 is signed. The question now arises can it be
inferred from this discrepancy that there is no budget approved. If
anything,
such budget is either of the two documents admitted into
evidence. In my view, an inference cannot be drawn that the budget
had
not been approved. I accept that there is a budget in place.
[40]
The other gripe of th
e Applicants is that there is no
mandatory financial recovery plan in place. According to the
Respondents
, this plan falls within the powers
and
domain of the
Department of National
Treasury. According to the Respondents, the Municipal Financial
Recovery Unit has already started with
the process and was
considering the Status Quo Assessment of the Mafube solution. The
latest Status Quo Assessment was submitted
to the Municipality on 4
April 2023. It is the case of the Respondents that Mr. Mkhaza,
crafted a plan of action that focuses on
financial recovery,
Governance and Institutional Capacitation as well as service
delivery. The purpose of the Financial Recovery
Plan is to assist the
Mafube Municipality in the funded programs.
[41]
It is the case for the Respondents that
in order to address
the pollution of the
Vaal
River and other sources the Municipality sought the assistance of
other Departments within the National and Provincial Government.
It
is common cause that the Department of COGTA acceded to a request by
the Municipality to grant funding to the tune of five million
Rands.
These funds were to be used exclusively for the construction of
emergency overflow ponds in the Namahadi/Frankfort area.
[42]
The Respondents aver that the Municipality
has constructed emergency ponds where sewerage
could flow, instead of
the river. In the same breath, the Municipality contradicts itself
and avers that the emergency ponds could
not be constructed
immediately as procurement processes had to be fulfilled. A tender
was advertised for this purpose. That tender
was not responsive. A
new tender was issued. It appears that the procurement is still
ongoing
.
What is important for me is that the Department of COGTA came to the
assistance of the Municipality. Clearly, approval and funding
by
COGTA is not in the hands of the Municipality. Like the Municipality,
COGTA also has to follow its internal processes and conform
to its
financial prescripts in order to assist the Municipality.
[43]
The Applicants confirm that they are aware that there is a 50%
progress made relating to the sewerage
crisis and that the estimated
project completion date is the end of 2023. The Applicants also
contend that it is not a matter of
being aware as the order regarding
this spillage was to the effect that sewage spillage had to be
arrested immediately. I agree
with the Applicants. On the other hand,
I also further agree with the Respondents that certain processes have
to be embarked upon
in order to ensure compliance with the two
orders.
[44]
In my view, the Respondents have embarked on measures to get the
necessary funding in order to comply
with the orders. The view of the
Applicants that an amount of five million Rands is not enough in
order to arrest the situation
does not detract from the fact that
steps have been taken to comply with the orders of this court. The
Department of Water and
Sanitation has also brought in Rand Water and
Bloem Water Boards to assist this ailing Municipality.
[45]
In terms of the agreement between the Municipality and the Rural Free
State, the latter is responsible
for the payment of the bills of
Eskom. This agreement is in place and the Applicants are aware of it.
The parties to the agreement
, to wit,
the Municipality and
Rural Free State agreed to the review of the agreement. The
Applicants are not part of the agreement and it
is axiomatic that
they cannot involve themselves in the agreement of which they are not
part.
[46]
There is a measure of overlap between the orders of the two Justices.
The Respondents have clearly
acted without due diligence to comply
with the orders of the two Justices. The order of Opperman J was
obtained on an urgent basis
and it was expected of the Respondents to
comply with same on an urgent basis. Almost a year later, Justice Van
Rhyn also gave
a similar order with regard to the sewerage spillage
demonstrating the snail’s pace the Municipality has taken to
deal with
the spillage. The First and Second Respondents were ordered
by Justice Opperman to implement the steps aimed at preventing the
sewerage spillage ‘immediately.” That did not happen. At
the end of the day, this illustrates a measure of non-compliance
with
the orders of the two Justices. This notwithstanding, when one looks
at the steps the Municipality took to comply with the
orders I am
unable to find that the Respondents wilfully failed to comply with
the orders.
[47]
It is undisputed that the Municipality has sought the
assistance of COGTA and such Departments
as Water and Sanitation in
order to comply with the orders of the two Justices. There is no
doubt that there is a delay in the
implementation of the orders. Such
delay should however be seen in its proper context. Mafube
Municipality is a small Municipality
with serious financial problems.
Much of the obligations imposed by the orders cannot be performed by
the Municipality alone. The
Municipality is dependent on other organs
of state in order to comply with the orders. This then goes to the
heart of whether the
non-compliance was wilful or not.
[48]
Apart from the sewerage spillage of which I dealt with above,
the undisputed evidence is that a mandatory
provincial intervention
was done in compliance with s139 of the Constitution. The terms of
reference of this team were also gazetted.
The Council of the
Municipality resolved to appoint a five-member Committee member. A
budget was approved and Treasury was involved
in the process of the
Financial Recovery Plan. In the meantime, the Administrator initiated
a plan of action which focusses on
Financial Recovery. The only
criticism that can be levelled against the Respondents is the failure
to address the issues raised
in the orders with the urgency they
deserve.
[49]
In my view, however, the dispute amongst the
parties could have been resolved with openness had
the Municipality
played open cards with the Applicants and kept them abreast with all
that the Municipality was busy with. I am
unable to find that the
Respondents are in contempt of the orders of the two Justices. This
application must thus fail.
[50]
With regard to costs, the Applicants seek to vindicate their
constitutional rights. It would
not be in the interest of justice
that they be
burdened with
costs.
[51]
I accordingly make the following orders
1.
The application is dismissed.
2.
Each party is to bear its own costs.
P.
E. MOLITSOANE, J
Counsel on behalf
of Applicant
:
ADV
F J ERASMUS SC
ADV
P EILERS
Instructed by:
Hendre
Condradie Inc
BLOEMFONTEIN
Counsel
on behalf of Respondents
:
ADV
MENE SC
ADV
T.M NGUBENI
Instructed by:
State Attorney
BLOEMFONTEIN
[1]
2018(1) SA 1 (CC)[ footnotes omitted].
[2]
Pheko v Ekhurulenu City[2015] ZACC 10; 2015(5) SA 660(CC);2015(6)
BCLR 711(CC) at para 36.
[3]
[20060] SCA 54.
[4]
2021(5) SA 327(CC).
[5]
Para 8.
[6]
Para 54.
[7]
2000(4) SA 446(TkHC) 454 G-H.