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2023
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[2023] ZAFSHC 484
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Hilandale Homeowners Association t/a Woodland Hills Wildlife Estate Homeowners Association v Mangaung Metropolitan Municipality and Another (5026/2022) [2023] ZAFSHC 484 (13 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
5026/2022
In
the matter between:
THE
HIILANDALE HOMEOWNERS ASSOCIATION
t/a
WOODLAND HILLS WILDLIFE ESTATE
HOMEOWNERS
ASSOCIATION
(REG
NO:
2005/010574/08
) Applicant
And
THE
MANGAUNG METROPOLITAN
1
st
Respondent
MUNICIPALITY
THE
MEMBER OF THE EXECUTIVE COUNCIL:
CO-0PERATIVE
GOVERNANCE & TRADITIONAL
AFFAIRS,
FREE STAT
E
2
nd
Respondent
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
10
AUGUST 2023
DELIVERED
ON:
13
DECEMBER 2023
[1]
The Applicant seeks, firstly, an order
declaring it entitled to perform its own refuse removal services
within the Woodlands Hills
Township and thus divesting the First
Respondent of the said obligation. Consequently, it also seeks an
order that the First Respondent
shall forthwith cease to levy fees
related to refuse removal services in respect of all immovable
properties situated within the
Woodland Hills Township. Only the
First Respondent opposes the granting of the relief sought.
[2]
The Applicant is the Hillandale Homeowners Association, a non-profit
company
duly incorporated in terms of the statutes of the Republic of
South Africa, with registration number 2005/01057/08, trading as the
Woodland Hills Wildlife Estate Homeowners Association.
[3]
The First Respondent is the Mangaung Metropolitan Municipality
,
a
metropolitan municipality duly established in terms of the provisions
of
section 12
of the
Local Government: Municipal Structures Act, 117
of 1998
.
[4]
The Second Respondent is the Member of Executive Council
,
responsible for the Department of Co-operative Governance &
Traditional Affairs in the Free State, being the functionary
responsible
for the Provincial Department of Spatial Planning.
[5]
During or about August 2000, the developers of Woodlands Hills
Township, ultimately
known as Woodland Wildlife Estate(‘Woodlands’)
submitted a duly completed application form for its township
establishment
to the Second Respondent for approval. On 20 August
2000, the Head of Department in the Department of Local Government
and Housing
in approving the application informed Cebo
Planning
[1]
in writing as
follows:
“
Approval in
terms of section 10 of the Township Ordinance, 1969(Ordinance, No. 9
of 1969) has been granted for the establishment
of a town Hillandale
subject to the following:
·
A signed service agreement between
the developer and the Municipality of Bloemfontein comprising the
rendering of all services.
·
An agreement concerning the
administration of the town as a section 21 company.
·
The Town- Planning Scheme of
Bloemfontein has to be amended to include the entire town as a
special use regulating all uses of all
the erven.
·
The final erf numbers will have to be
obtained before the land developments is proclaimed.
·
All the above will have to be
resolved satisfactorily before proclamation takes place.”
[6]
On 16 April 2004 Phase 1 of Woodlands was included in the
Municipality
as Bloemfontein Extension 166 by way of a Proclamation
of even date by the responsible Member of the Executive Council. On 9
March
2018, Phase 2 thereof was also included in the Municipality as
Bloemfontein Extension 275, also by Proclamation by the responsible
Member of the Executive Council. The Proclamations herein
aforementioned contain the conditions in terms of which Woodlands was
established. These conditions dealt with streets, electricity, water,
sanitation services and removal of household refuse, endowment,
protection services, buildings and golf course. Both Proclamations
stipulated in their respective paragraphsA.4(c) that:
“
The Town Owner
shall be responsible for the removal of household refuse in the town
”
[7]
It is common cause that the Applicant and the First Respondent
concluded a service
level agreement (SLA)pertaining to the first
phase of the development in the township proclaimed as Extension 166
and a second
service level agreement in respect of Extension 275,
referred to as the Extension agreement in this judgment.
[8]
The essence of the Applicant’s case is
aimed at enforcing a single condition
of the establishment of
Woodlands as a township relating to refuse removal as set out in the
Proclamations of the Second Respondent
dated 16 April 2004 and 9
March 2018. The Applicant contends that the approval of the
establishment of Woodlands followed a process
as set out in the
letter from the Second Defendant. The said approval occurred after
several role players including the First Respondent
approved its
establishment. Such approval was subject to the terms as set out in
the Proclamations mentioned above.
[9]
The Applicant acknowledges that at all material times the First
Respondent
rendered the refuse removal service either by doing so
itself or by hiring private contractors. While the Applicant contends
that
there are other reasons why the Applicant seeks to render the
refuse removal service, it contends however, that its reason for
seeking relief in this application is simply that the condition of
establishment relating to refuse removal was never implemented,
hence
the need for the relief sought.
[10]
Because the First Respondent renders refuse removal services, it
charges all Woodlands
property owners a fee for such service. The
contention of the Applicant is that, should the first leg of the
relief sought be granted,
then in that case, there will be no reason
for the First Respondent charge a fee for removal.
[11]
The First Respondent, on the other hand, contends that the Applicant
was granted
approval to establish Woodlands by the Second Respondent
subject to the developer signing a service level agreement with the
First
Respondent “comprising of
all
services
”
[2]
.Pursuant
to the said approval the developer and the First Respondent concluded
a Service Level Agreement and later its “
Extension
[3]
”
for the provision of all services as envisaged in the approval
letter.
[12]
The First Respondent contends that at all times it was and it still
renders all the
services on the ervens subject to the authority of
the Applicant in accordance with the Service Level and Extension
Agreements.
The defences raised by the First Respondent are not
articulated in a familiar manner but the deponent in the answering
affidavit
engages in somewhat rhetoric questions/statements instead
of pertinently responding to the allegations of the Applicant. For
this
reason, the answering affidavit must be cautiously approached
lest the defences be misinterpreted and consequently misunderstood.
a)
Firstly,
it seems upon reading the whole answering affidavit, that according
to the Respondent, since the establishment of the township
was
subject to the condition that the developer and the Municipality had
to conclude a Service Level Agreement(SLA) for the rendering
of all
services, then in that case, the First Respondent contends that the
Applicant is prevented from relying on the Proclamations,
instead of
the SLA and its Extension. It is prudent to quote the defences of the
First Responded are set out in the answering affidavit
:
[4]
“
4.7
Has First Respondent, at all times relevant hereto rendered and is
still rendering all the services to and on the erven as referred
to
in 4.6 in accordance with the Service Level Agreement and its
extension.
4.8
Has Applicant at all times relevant hereto not amended or applied for
amendment of the SLA
and the Extension Agreement.
4.8.1
Applicant will, if he applies for the amendment will have to comply
with the relevant provisions with Ordinance
9/69 for purposes of
notice, advertisement and forum.
4.9
Is Applicant estopped from denying the
existence of the agreement and its extension?
4.10
Is the relief applied for in the Notice of Motion, paragraph 1 and
paragraph 2 contrary to and acceding the
service agreement? The
Service Level Agreement, referred to in 4.4 and 4.4.1 and the
extension to the Service Level Agreement referred
to in 4.5 and 4.5.1
and impairing First Respondent’s rights and is First Respondent
prejudiced by the mentioned relief in
the Notice of Motion,
Paragraphs 1 and 2.”
b)
Secondly, it is contended that the “First Respondent has
“the exclusive authority in respect of and the right to
administer
refuse removal, refuse dumps and solid waste disposal and
the Council of the First Respondent has a duty to ensure that
municipal
services are provided to Applicant and have equitable
access to the municipal services.”
c)
And thirdly, it is contended that the Applicant, has not
invoked the provisions of the Service Level Agreement relating to
resolution
of disputes.
[13]
In my view the following issues call for determination:
a)
Whether the First Respondent has the
exclusive authority in respect of the right to administer refuse
removal and to impose fees
and/or surcharges for such removal and the
Applicant, being the recipient of such services to pay for such
service;
b)
Whether the Applicant is enjoined to
invoke the dispute resolutions mechanism as set out in clauses 10.2
and 10.3 of the Service
Level Agreement.
c)
Whether the Service Level and Extension
Agreements prevent the Applicant in seeking relief sought, from
relying on the Proclamations
dated 16 April 2004 and 9 March 2018,
instead of the Service Level Agreement and its Extension;
d)
If any of the above issues are answered
in favour of the Applicant, then, in that case, whether the Applicant
would effectually
be entitled to an order that the First Respondent
must cease to charge fees for refuse removal service in respect of
the properties
situated in the Woodlands Township.
[14]
Section 152(b) of the Constitution obliges municipalities to ensure
the provision
of services to communities in a sustainable manner.
Section 73 of the Local Government: Municipal Systems Act,32 of 2000
gives effect to this constitutional imperative by providing that:
1)
A municipality must give effect to the
provision of the Constitution and-
a)
Give priority to the basic needs of the
local community;
b)
Provide the development of the local
community; and
c)
Ensure that all members of the local
community have access to at least the minimum level of basic
municipal services.
[15]
These services include
provision of electricity, roads and storm water drainage,
water
supply, refuse removal as well as water supply. The provision of
these services may be given by the municipality itself or
same may be
provided by the municipality through some other arrangements with
other municipal service partnerships,
[5]
in which case the municipality hires the service providers to
provide these much needed services. The fact that the municipality
may render the provision for services through a third party does not
however relieve the municipality of its constitutional obligation
to
provide the basic municipal services to the citizens.
[16]
In the Heads of Argument, Counsel for the Applicant submits that ‘it
is trite
that the provision of refuse removal services is a municipal
executive and legislative competency and a service which
municipalities
usually render’ but stresses that it is not a
right. I agree with the submission. Section 104(1)(b) of the
Constitution empowers
the provincial legislatures to pass legislation
for their provinces with regard to any matters within the functional
areas listed
in Schedule 5 of the Constitution. With this in mind, it
is important to note that local government matters enumerated in Part
B of Schedule 5 are reserved for the municipalities. In this regard,
s156(1)(a) of the Constitution provides that the “municipality
has executive authority in respect of, and has the right to
administer the local government matters listed in Part A of Schedule
4 and Part 5 of Schedule 5.”
[17]
If one were to accept that the obligation to render refuse
removal services is an executive
and legislative competency of
a municipality and not a right of the municipality together with what
I say later in this judgment,
[6]
it is difficult to accept the submission by the First Respondent that
it has the exclusive authority to remove the refuse within
the
township of Woodlands.
[18]
Although the First Respondent holds the view that it has the
exclusive authority
to render refuse removal service, it appears that
the reason for denying the Applicant to remove refuse within
Woodlands stated
in the correspondence dated 15 July 2021
[7]
centres
around revenue generation as opposed to the alleged exclusive
authority. In the said correspondence, upon a request for
a meeting
to discuss the ‘taking over’ of the refuse removal by the
Applicant, the First Respondent indicated that
refuse removal was one
of the competencies available to it for income generation. It also
indicated that “
giving
away such competency will have adverse effects on the Municipality’s
revenue and workforce”.
The First Respondent, in this correspondence does not contend that
refuse removal falls within its exclusive authority but it is
more
worried about the revenue it will not generate. It thus appears that
the First Respondent vacillates from the notion that
it has exclusive
authority to render refuse removal to refusing to ‘hand over
the service’ solely for fear of losing
income.
[19]
The First Respondent contends that the Applicant has failed to invoke
clauses 10.2 and 10.3 of
the SLA for the purposes of the Dispute
Resolution. The First Respondent contends
[8]
that Clauses 10.1,10.2 and 10.3 are “
prescriptive
provisions to be followed in Resolution of Disputes for mediation and
then arbitration.”
Although the First Respondent does not pertinently say so, I
understand this contention to mean that the Applicant was obligated
to exhaust the dispute resolutions contained in the SLA before
embarking on the process before me. It is necessary to set out the
said provisions of the SLA which provide as follows:
RESOLUTION OF
DISPUTES
“
10.1
Should any dispute arise between the parties hereto with
regard to the interpretation or implementation of any
one or more of
the provisions of this Agreement, the parties shall in the first
instance attempt to resolve such dispute by amicable
negotiation.
10.2
Should any dispute remain unresolved, either party may
require that the matter be referred by the parties,
with or
without legal representation, to a mediator at a place and at such
time as to be determined by the mediator….
The opinion of the
mediator shall be final and binding upon the parties until otherwise
ordered as contemplated in 10.3 or 10.4.
10.3. if any of the
parties is dissatisfied with or unwilling to accept the opinion
expressed by
the mediator or if the parties are not able to agree to
a mediator…then either party may by way of written notice to
the
other give notice of the existence of the dispute and request
that same be referred to arbitration.”
[20]
Clause 10.1 of the SLA reveal that the ‘dispute’
envisaged in the ‘Resolution
of Disputes’ paragraph deals
with the ‘
interpretation or implementation of one or more of
the provisions of the Agreemen
t.” As I will later show, the
refuse removal services were not included in the SLA notwithstanding
that there is reference
to “all services” in Annexure FA
3 attached to the founding affidavit. The dispute between the parties
does not arise
from the interpretation or implementation of the terms
of the SLA but solely on the question of whether the First Respondent
is
bound and should give effect to the Proclamations of the Second
Defendant. There is in my view no necessity for the Applicant
to first engage the mechanism of dispute resolution set out in the
SLA before embarking on the process before me. The contention
by the
First Respondent must thus fail.
[21]
It appears that the First Respondent holds the view that the refuse
removal was contained
in the SLA as being one of the conditions
included in the letter dated of approval of the first phase where
office of the Second
Respondent approved the township establishment
subject to a “signed agreement between the developer and the
municipality
of Bloemfontein comprising the
rendering of all
services
” (my emphasis). On 30 March 2004 the First
Respondent and the developers signed the SLA. The SLA deals with what
it terms
external services, internal services, engineering services
(standards and designs, external engineering services (levels,
description
and completion), internal engineering services,
maintenance services and so on. All these services deal in essence
with what one
can term engineering services. The SLA and its
Extension also deal pertinently with the supply of electricity, water
and sewerage
effluent. No reference whatsoever is made to refuse
removal in the SLA. With reference to refuse removal it was
specifically proclaimed
that the “
town owner shall be
responsible for the removal of household refuse in the town.”
[22]
Years later, the second phase of Woodlands was proclaimed. The second
Proclamation contained the same clause
regarding refuse removal as
the first Proclamation, namely, that the town owner was responsible
for the removal of household refuse
in the town. In my view, it is
difficult to understand why the First Respondent would have allowed
the two Proclamations to be
gazetted without any objection thereto.
Section 9 of the Ordinance prescribes the procedure to be followed
when considering the
application for the township establishment. Such
procedure includes publication of the application in the Gazette and
a newspaper
circulating in the area of the township to be
established. On the part of the First Respondent, this publication
was even superfluous
although it is a statutory obligation in view of
the fact that the developers were enjoined to conclude a SLA with it.
Bottom line
is that the First Respondent played an active part in the
establishment of the township and must have been aware of the
conditions
of the establishment.
[23]
Of importance, section 9 of the Ordinance makes provision for
objections and representations
concerning the application. I am
unable to comprehend why the First Respondent did not object to the
reservation of refuse removal
to the town owner. If for whatever
reason the First Respondent was remiss during the Proclamation of the
First Phase, certainly
one would have expected this issue to have
been differently dealt with in the second Proclamation. The first
Proclamation occurred
barely seventeen days after the signing of the
SLA.
[24]
In my view, the express exclusion of refuse removal a mere
seventeen days’ after signing
the SLA as well as in the
Extension agreement together with the reservation of the
refuse removal by the town owner
in the two Proclamations, implies
that refuse removal was reserved for the Applicant and was never
intended to be a service to
be performed by the First Respondent. For
this reason, I am of the considered view that refuse removal in this
case is a service
to be rendered by the Applicant. The Second
Respondent expressly reserved it for the town owner. I can only
remark that the First
Respondent in the answering affidavit or during
submissions before me made no reference whatsoever to any clause in
the SLA or
its Extension to assert that the refuse removal in this
particular township falls within the competency of the First
Respondent.
I am unable to agree with the First Respondent that the
removal of household waste is a service envisaged in the SLA and its
Extension
and that the Applicant ought to have sought the amendment
of the SLA and its Extension before launching these proceedings.
[25]
The next issue to decide is whether the Applicant will become
effectually entitled to an
order that the Municipality must cease to
charge refuse removal fees in the properties situated in Woodlands.
[26]
This question should in my view be decided having regard to the fact
that the Applicant
will be responsible for removal of the refuse in
the township but dump it in the municipality landfill site. This
calls for the
above question to be couched thus: Is it legally
permissible to allow the residents of Woodlands to enjoy and use the
landfill
site of the Municipality without paying for its maintenance
and/or upkeep.
[27]
It is trite that the Constitution imposes certain obligations on
municipalities.
As a result, municipalities discharge certain
important functions including seeking to provide the communities in
which they operate
with an environment which is not harmful. Keeping
and maintaining an environmentally friendly landfill site is one of
its functions.
It cannot be disputed that the residents of Woodlands,
even if the service of refuse removal is taken away by the Applicant,
will
still enjoy the use of the dumping site of the municipality.
[28]
Reference to
Rademan
v Moqhaka Local Municipality
[9]
is appropriate. The court in that case said the following:
“
Where
a municipality claims payment from a resident or ratepayer for
services, it is only entitled to payment
of
services that it has rendered. By the same token, where a
municipality claims from a resident, customer or rate payer payment
for services, the resident, customer or ratepayer is only obliged to
pay the municipality for services that have been rendered.
There is
no obligation on a resident, customer or ratepayer to pay the
municipality for a service that has not been rendered.”
[29]
The residents of Woodlands, in spite of the fact that the Applicant
will be entitled to remove
household refuse from their township,
remain the end users of the landfill site of the municipality. It
only makes sense that if
they enjoy the use of the said site, then in
that case, they must pay for it. There is however no counter
application from the
First Respondent claiming imposition of the
levies of the use of the site and consequently I am unable to make
that order.
It does follow that the First respondent is not
entitled to levy refuse removal fees where it does not render a
service. The application
must accordingly succeed. I accordingly make
the following order:
ORDER
1.
It is declared that the Applicant shall
be responsible for the removal of household refuse from Woodland
Hills Township, being Bloemfontein
Extension 166, situated on Portion
1 of the Farm Hillandale, Administrative District Bloemfontein, and
Bloemfontein Extension 275,
situated on the remainder of the Farm
Hillandale 2960, Administrative District of Bloemfontein
(Collectively referred to as ‘Woodland
Hills Township’),
to a designated landfill site in Bloemfontein;
2.
The First Respondent shall forthwith
cease to charge fees related to refuse removal services in respect of
all immovable properties
situated within the Woodlands Hills
Township;
3.
The First Respondent shall be liable for
the costs of this application, which costs shall include the costs
occasioned by the employment
of two counsels.
___________________________
P. E. MOLITSOANE, J
On
behalf of the Applicant:
Adv. S. Grobler SC
Appearing
with
Adv. JS Rautenbach
Instructed
by
Symington & De Kok
BLOEMFONTEIN
On
behalf of the 1
st
Respondent: Adv. AH Burger
Instructed
by
Rampai Attorneys
BLOEMFONTEIN
On
behalf of the 2
nd
Respondent: No Appearance
[1]
Cebo Planning was commissioned by the developers to compile the
township establishment application and lodge it. - See FA page
14
para29.
[2]
FA3, para 2, first bullet point- emphasis by Respondent.
[3]
AA, para 4.4 and 4.5.
[4]
AA, pages 114-115.
[5]
See
s76(b)
of the
Local Government: Municipal Systems Act, 32 of
2000
.
[6]
On the Proclamations by the Second Respondents and the right to
impose levies on the removal of refuse.
[7]
FA, Annexure 9 page 92.
[8]
By reference to footnote 14 on page 116 in the AA.
[9]
[9]
2013(4) SA 225(CC) para 42.