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[2024] ZAECELLC 11
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Nahoon Estuary Management Forum NPO (Batting Bridge Picnic Site) v Buffalo City Metropolitan Municipality and Another (EL 1730/2022) [2024] ZAECELLC 11 (2 April 2024)
FLYNOTES:
MUNICIPALITY – Municipal parks –
Maintenance
and care
–
Whether
Municipality is legally obliged to perform all functions which
applicant seeks it to perform – Constitutional
responsibility to make and administer Bylaws – Obliged to
perform duties set out therein and exercise such powers as
may be
prescribed by law – Failed to discharge its constitutional
and legislative obligations – Failed to protect
rights of
site users – Relief sought warranted and granted –
Constitution, s 38(1)(d).
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE CIRCUIT
DIVISION, EAST LONDON]
CASE NO:
EL 1730/2022
In
the matter between:
NAHOON
ESTUARY MANAGEMENT
FORUM
NPO
Applicant
(BATTING
BRIDGE PICNIC SITE)
And
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
1
st
Respondent
THE
MUNICIPAL MANAGER BUFFALO
CITY
METROPOLITAN MUNICIPALITY
2
nd
Respondent
JUDGMENT
ZONO
AJ
INTRODUCTION
[1]
The Applicant approached this court on a notice of motion for a
relief more fully
set out in paragraph 1 to 9 thereof which is the
following:
“
1.
That the respondents be ordered to implement its protocols, operating
procedures, management
systems and resources to ensure access
control, limit access, open and locking the boom gate at designated
times as stipulated
in terms of the standard Bylaw relating to
Municipal Parks within 90 days of the granting of this order;
2.
That the respondents be ordered to maintain and keep the park free of
litter
by regularly cleaning the park and/or providing more bins in
the park area;
3.
That the respondents be ordered within 90 days of the granting of
this order
to ensure that the lock at the boom gate of the picnic
site is replaced with a more suitable lock;
4.
That the respondents be ordered to fence the boundary of the picnic
area to avoid
unauthorized access to the picnic site within 90 days
of the granting of this order;
5.
That the respondent be ordered to take measures to ensure that it
monitors and
controls the use of liquor and excessive music being
played at the picnic site;
6.
That the respondents be ordered to comply with the Operational
Environment Management
Plan by erecting a sign within 90 days of the
granting of this order which indicates the following:
6.1
All users of the Batting Bridge public launch site do so at their own
risk;
6.2
The hours of operation of the batting Bridge launch site;
6.3
The name and contact number of the operator; and
6.4
Indicating that users of the launch site must obtain a launch permit
to launch a boat from
the operator and complete a formal register
7.
That respondents are ordered to ensure compliance with par 3.1.3 of
the Operational
Environment Management Plan in respect of providing
adequate access control to the Batting Bridge launch site by
inserting a boom
gate at the front of the launch site or any other
manner the respondents deem fit in terms of the Operational
Management Plan within
90 days of granting of this order;
8.
That the respondents appoint an operator for the batting bridge
launch site whose
details appear on the sign to be inserted as per
prayer 6 above;
9.
The first respondent be ordered to pay costs of the application.”
[2]
The applicant brings this application in terms of section 38(1)(d) of
the Constitution
in that it is acting in the public interest. It is
complaining of an alleged dilapidated state of public places which
are allegedly
neglected by the respondents. The two public places
complained about are the following: Batting Bridge Picnic site
hereafter referred
to as “
Picnic
site
”
and
Batting Bridge Launch site, hereafter called “
Launch
site
”
.
The picnic site and launch site are sharing the same entrance. The
two sites conform or conduce to the definition of the “
Park”
as
defined in the Standard ByLaw relating to Municipal parks
[1]
.
[3]
With regard to picnic site, the applicant states that it has
complained to the respondent
regarding its state and that it is left
with the members of public who are overcrowding it, playing loud
music and indulging in
intoxicating liquor and thereafter leaving the
area with their dumped used goods. No Law Enforcement Officer is
present in the
site to monitor same. On 22
nd
May 2022 and
26
th
May 2022, the deponent to the founding affidavit Mr
Christo Theart, applicant’s Chairperson attended and inspected
the site
and took photographs of the state thereof. With a view to
enforce the relevant legal prescripts, the applicant caused the
correspondence
to be penned and delivered upon the respondents. No
response thereto had been forthcoming. The picnic site was causing
nuisance
to the residents who reside next to it.
[4]
The boom gate that is providing access to both picnic and launch
sites had a broken
lock and the boom gate is closed with a piece of
wire that can be removed at any time. Launch site does not have
separate access
as its access is linked to the picnic site.
[5]
The launch site had no sign board to warn people who wish to use
launch site, to complete
register, nor there is indication as to
where such register can be found. The sign board would also indicate
the name and contact
number of the operator as required by the law
and it must be erected at the parking area or at the entrance to the
public launch
site. According to the applicant the sign boards would
indicate the following:
“
(a)
warning people that they use the launch site at their own risk;
(b)
indicate hours of operation of the launch;
(c
) indicate the name and contact details of
the operator and
(d)
indicate to the users the need to obtain a launch permit to
launch a boat from the operator and to complete
a formal register.”
[6]
The applicant ultimately seeks the respondents to provide access
control to the launch site
as cars are not permitted to access the
picnic site and launch site. The applicant seeks an appointment of an
operator for the
launch site.
[7]
The applicant seeks to enforce the provisions of standard Bylaw
relating to Municipal
Park published by the
Beacon Bay
Municipality on
21
st
August 1987
Provincial Gazette No 4494 of 21
st
August
1987
. Section 3 of the said Standard Bylaw provides as follows:
“
Any
person who, other than in the course of his duties as an employee of
the council or, where he is duly authorized by council
to do so-
(a)
(i) damages property
(ii)
places or affixes a placard, notice or any other object;
(iii)
lights or in any other manner causes a fire at a place other than
that specially provided
by the council, as indicated in terms of
section 2;
(iv)
drives, rides, draws or propels any vehicle other than a manually
operated wheeled chair
or perambulator when used for the conveyance
of an invalid or a child;
(v)
in any way interferes with the animal life or garden or with nature;
(vi)
fires a fire arm or an air gun, discharges any firework, catapult or
sling or throws a
stone or other missile
;
(vii
)drinks intoxicating liquor or begs;
(viii)
sells or offers or exposes for sale or hire any article or
distributes any pamphlet, book, handbill
or other matter;
(ix)
enters upon abduction or sanitary conveniences indicates as having
been provided for persons
of the opposite sex;
(x)
plays a musical instrument, sings or addresses a meeting;
(xi)
washes any article at a tap or in a pond or foundation or in
ornamental water feature or
otherwise pollutes water, or
(xii)
in any other manner causes a nuisance, obstruction, disturbance or
annoyance to the public in
a park;
(b)
removes or disturbs any soil or water in a park at a place other than
that specially provided
by the Council;
(c)
enters or in a park or any part thereof during the
hours when such park or
part thereof is closed to the public in
accordance with a notice displayed in terms of section 2
(d)
parks a vehicle or cross a booth, tent swing or other like structure
in a park;
(e)
deposits any refuse or rubbish in a park at a place other than that
specially provided for
such purpose;
(f)
enters or leaves a park or nay part thereof other than by an entrance
or exit provided
for that purpose, or
(g)
takes a dog or any other animal into a park or allows it to enter a
park.”
It is therefore plain
from the reading of the Standard ByLaw that it proscribes all of the
acts or conducts listed therein.
[8]
Section 2 of the Standard ByLaw provides as follows:
“
The
council may by means of notices prominently displayed at every
entrance of a park or at every entrance to any part thereof indicate
the days and hours during which such park or part thereof shall be
open to the public and the places where fires may be lit”.
[9]
Similarly and in addition to the above, the applicant seeks to invoke
the provisions
of the Buffalo City Municipality Waste Management
ByLaw, Published on the
Provincial Gazette extraordinary dated
04
th
November 2005 under Gazette No 1448.
Reliance is placed on the provision of Section 37 of the ByLaw
which reads as follows:
“
37
Prohibitions of littering
(1)
No person may –
(a)
Cause litter;
(b)
Sweep any waste into a gutter, onto a road reserve or onto any other
public place;
(c)
Disturb anything in, or remove anything from any receptacle which has
been placed for the purposes
of collecting litter in such a manner as
to cause the contents of the receptacle to spill or fall onto the
ground around it; and
(d)
Allow any person under his control to do any of the acts contemplated
in paragraphs (a), (a) or (b)
above.”
[10]
Section 38 of the same ByLaw reads as follows:
“
38
Prohibitions of dumping and abandoning articles
(1)
No person may, without
authorization, deposit or permit the depositing of any waste whether
for gain or reward or otherwise, upon any land or in any building of
which he is the owner or occupier except where such deposits
are made
in accordance with the provisions of this By-law.
(2)
Subject to any provisions to the contrary contained in this By-law,
no person may leave any article
or allow any article under his or her
control to be left at a place with the intention of abandoning it.
(3)
No person may dump waste.
(4)
Any article, other than a motor vehicle deemed to have been abandoned
in terms of section
114 of the Road Traffic Act, 1989 (Act 29 of
1989), which, in the light of such factors as the place where it is
found, the period
it has been lying at such place and the nature and
condition of such article, is reasonably regarded by the council as
having been
abandoned, may be removed and disposed of by the council
as it may deem fit.
(5)
The council may remove and dispose of any article which is chained or
fastened to any pole,
parking meter or any other property belonging
to the council, without authorization as it may deem fit.”
[11]
The applicant in its papers seeks to invoke the provisions of
Operational Environmental Management
Plan (hereafter refer to as
Management Plan) for the Batting Bridge Public Launch Site allegedly
compiled and completed by the
MEC of Environmental Affairs and
Tourism. The Management Plan was completed in terms of section 2 of
Management of Public Launch
sites in the Coastal Zone Regulations
published by the Minister of Environmental Affairs on 27
th
June 2014 in the Government Gazette R497 of 27
th
June
2014.
[12]
The respondents deposed to an answering affidavit on 06
th
June 2023 about the attendance and inspection of the picnic site by
the applicant on 21
st
May 2022. The respondents posit a
case that, 21
st
May 2022 was a Saturday, a day on which
most of the East London residents attend the Picnic Site. They state
that the Municipality
cleans the Picnic site three (3) times per week
and once on Sundays. The Municipality deploys employees to the Picnic
Site. The
employees collect the litter that is left over and place it
in the Municipality’s truck. The employees empty the rubbish
bins four (4) times per week.
[13]
The Municipal Manager, the deponent to the answering affidavit states
that the Municipality has
erected a sign board at the entrance of the
Picnic Site. He further states that the sign board states that the
Municipality and
its employees will not be held liable for injury or
loss, theft or damage to persons or their property. He confirms that
the Picnic
and Launch site share common entrance.
[14]
The Municipal Manager states in the answering affidavit that the boom
gate is working and further
states that the lock depicted in the
annexure
G6
to the applicant’s founding affidavit is an
old lock. There is no overcrowding at the Picnic Site.
[15]
With regard to the Management Plan and Compliance therewith the
Municipality states that, it
has complied therewith. It has within
its available resources erected a sign board as required. About the
sign board the Municipality
states also that a signboard was erected
and stolen. Boom gate has no old pad lock as depicted in the
annexure. Boom gate is working
between 07h00 to 18h00.
[16]
Surprisingly, after having alleged that they have complied with the
Management Plan, the respondents
state that there is no valid
Management Plan warranting compliance as there is none signed and
approved by Municipality. The respondents
do not submit that it is a
legal requirement that the Management Plan must be signed and
approved by the Municipality for it to
be legally effective. A
common cause fact is that the Management Plan was compiled by the
relevant MEC in terms of the law.
The Municipality does not even say
that a signed copy was sought from the relevant MEC.
[17]
About the relevant Bylaws, the Municipality, whilst not disputing its
existence, states that
they only criminalize the conducts listed
therein. The applicant should have reported the criminal conduct to
the members of South
African Police Services. The ByLaw does not
impose an obligation on the Municipality. Accordingly, the
Municipality does not have
a duty to enforce the law.
[18]
In conclusion, the Municipality states that it is regularly cleaning
the Picnic Site. In doing
so it is complying with its ByLaw. However,
Constitutional and legislative mandate to prevent and remove the
waste from the park
area and clean up same seem not to be in dispute.
CONSTITUTIONAL AND
LEGISLATIVE FRAMEWORK
[19]
In addition to the provisions of the ByLaws cited above, section
155(6) provides as follows:
“
6
.
Each Provincial Government must establish Municipalities in its
Province in a manner
consistent with the legislation enacted in terms
of subsections (2) and (3) and, by legislative or other measures,
must-
(a)
provide for the monitoring and support
of local government in the province; and
(b)
promote the development of local government capacity to enable
Municipalities to perform their
functions and manage their own
affairs.”
[20]
Section 156 of the Constitution provides that:
“
1.
A municipality has executive authority in respect of, and has the
right to administer
–
the
local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
any
other matter assigned to it by national or provincial legislation.
2.
A municipality may make and administer by-laws for the effective
administration
of the matters which it has the right to administer.
3.
Subject to section 151(4), a by-law that conflicts with national or
provincial
legislation is invalid. If there is a conflict between a
by-law and national or provincial legislation that is inoperative
because
of a conflict referred to in section 149, the by-law must be
regarded as valid for as `long as that legislation is inoperative.
4.
The national government and provincial governments must assign to a
municipality,
by agreement and subject to any conditions, the
administration of a matter listed in Part A of Schedule 4 or Part A
of Schedule
5 which necessarily relates to local government, if –
(a) that matter would
most effectively be administered locally; and
(b) the municipality
has the capacity to administer it.
5. A
municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to,
the effective performance
of its functions”.
Part A of Schedule 4
referred to in subsection 4 above prescribes functions of
environmental and pollution control for the Municipality.
[21]
Part B of Schedule 5 referred to in section 156 of the Constitution
provides and lists
inter alia,
the following matters as the
responsibilities of the Municipality;
“
(a) Billboards
and the display of advertisements in public places,
(b)
Cleaning
(c
) Control public nuisance
(d )
Fencing and fences
(e)
Municipal parks and recreation,
(f)
Noise pollution
(g
) Public places
(h)
Refuse removal, refuse dumps and solid waste, etcetera.”
[22]
Section 24 of the Constitution provides as follows:
“
24.
Environment
Everyone has the right-
(a)
to an environment that is not harmful to their health or wellbeing; and
(b)
to have the environment protected, for the benefit of present and future
generations, through
reasonable legislative and other measures that-
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting
justifiable economic and social development.”
These rights are
enjoyable by everyone in the Republic.
[23]
Section 4
of the
Local Government: Municipal Systems Act 32 of
2000
provides:
“
Rights
and Duties of Municipal Councils
2.
The council of a Municipality within the Municipality’s
financial and administrative capacity having regard to practical
considerations,
had the duty to-
(a)
A exercise the municipality’s
executive and legislative authority and use the resources of the
municipality in the best interests
of the local community;
(b)
provide, without favour or prejudice, democratic and accountable
government;
(c )
encourage the involvement of the local community;
(d)
strive to ensure that municipal services are provided to the local
community in a financially and environmentally sustainable manner;
(e)
consult the local community about—
(i)
the level, quality, range and impact of municipal services provided
by the municipality,
either directly or through another service
provider: and
(ii)
the available options for service delivery:
(f)
give members of the local community equitable access to the
municipal
services to which they are entitled:
(g)
promote and undertake development in the municipality;
(h)
promote gender equity in the exercise of the municipality’s
executive and legislative
authority;
(i)
promote a safe and healthy environment in the municipality:
(j)
and contribute, together with other organs of state, to the
progressive
realization of the fundamental rights contained in
sections 24
,
25
,
26
,
27
and
29
of’ theConstitution.”
From this it is clear
that the rights enshrined in Section 24 of the Constitution
quintessentially obliges the Municipality to ensure
that they are
realised.
[24]
These provisions help provide a broader scope of Municipality’s
Constitutional and legislative
powers, duties or responsibilities.
[25]
The Municipal Systems Act 32 of 2000 is the national legislation that
seeks to give effect to
the Constitutional provisions referred to
above. Similarly, the Bylaws referred to above are those referred to
in the Constitutional
provisions adverted above. These provisions
give Citizen’s rights and impose obligations, by and large on
the Municipality.
DISCUSSION
[26]
The Court is called upon to determine whether the Municipality is
legally obliged to perform
all of the functions which the applicant
seeks them it to perform.
[27]
Even prior to the advent of the constitutional dispensation, powers
conferred on administrators
were inevitably accompanied by an implied
duty to exercise the power.
[2]
Plasket
J
[3]
held
that:
“
35.
Public
powers and functions such as the power to decide on an entitlement to
social assistance are given to administrative officials
for a
purpose: they are intended to be exercised in the furtherance of the
public interest.
As
a result, when officials fail to exercise their powers or perform
their functions, affected parties may require defaulting officials
to
perform their duties.”
In
those cases, as in here, an order may be issued to compel the
administrative official to take a decision or perform duties.
[28]
Even the foreign jurisdictions
[4]
agree that where a power is deposited with a public officer for
the purpose of being used for the benefit of persons who
are
specifically pointed out and with regard to whom a definition is
supplied by the legislature of the conditions upon which they
are
entitled to call for its existence, that power ought to be
exercised, and the court will require it to be exercised.
[29]
The Constitution imposes
inter
alia,
the
following obligations on the Municipality like the respondents:
[5]
“
(1)
A municipality has executive authority in respect of, and has the
right to administer—
(a)
the local government matters listed in Part B of Schedule 4 and Part
B
of Schedule 5; and
(b)
any other matter assigned to it by national or provincial
legislation.
(2) A municipality may
make and administer by-laws for the effective
administration
of the matters which it has the right to administer.
[30]
Part B of schedule 5 referred in section 156(1) of the Constitution
lists
inter alia,
the following responsibilities of the
Municipalities: Billboards and the display of the advertisements in
public places, cleaning
control of public nuisances, fencing and
fences, Municipal parks and recreation, noise pollution, public
places, refuse removal,
refuse dumps and solid waste disposal. It is
a constitutional responsibility of the Municipality to monitor and
control public
places and noise pollution. Cleaning, refuse removal,
refuse dumps and solid waste disposal are Constitutional obligations
imposed
on the Municipality.
[31]
It is important to note that the Municipality has a Constitutional
responsibility to make and
administer ByLaws for the effective
administration of matters which it has the right to administer.
ByLaws give effect to the provisions
of section 156(1) and (2) of the
Constitution. They seek to ensure that the Constitutional obligations
imposed by the Constitution
are fulfilled.
[6]
Significantly
this application is about fulfilment of the aforesaid constitutional
obligations.
[32]
In giving effect to these Constitutional responsibilities, section 3
of the Municipal Standard
ByLaw proscribes the occurrence of certain
antithetical conducts and behavioral tendencies. It is worth
repeating that the administration
of the Municipal Standard ByLaw is
the responsibility of the Municipality.
[33]
Courts are themselves subject to the fundamental principle of
legality as they are bound to uphold
the Constitution
[7]
.
Failure to exercise the power where exigencies of a particular case
require it, would amount to undermining the legality principle
which
is intrinsically linked to the Rule of Law. The Court has a duty to
uphold the doctrine of legality, by refusing to countenance
an
ongoing statutory contravention and criminal offence
[8]
.
[34]
It is the Municipality that is enjoined to enforce and administer
section 3 of the standard ByLaw.
It does not avail the Municipality
of any defence to hold that it does not have a duty to enforce the
law especially its standard
ByLaw relating to Municipal Parks. The
Municipality in its staff establishment has Law Enforcement Officers.
Accordingly, I find
that it is the responsibility of the Municipality
to enforce the provisions of section 2 and 3 of its standard of
ByLaw.
[35]
Section 37(2) of ByLaw on Waste Management makes it plain that the
Council must within a reasonable
time after any litter has been
discarded, dumped or left behind, remove such litter or cause it to
be removed. A reasonable time
may mean that period of time before the
litter becomes a nuisance or cause for complaint. Subsection 1 of the
same ByLaw prohibits
litter and sweeping of any waste into a gutter
or onto any other public place. The removal or disturbance of bins
which are for
purposes of collecting litter is prohibited. Section 38
of the Municipal Bylaw on Waster Management Prohibits the dumping and
abandoning
of articles.
[36] The purpose of the
ByLaw on Waste Management is to regulate collection and disposal of
waste. It is to promote
inter
alia,
effective
delivery of council services and commercial services. Lastly it is to
promote and ensure environmentally responsible council
services and
commercial services
[9]
.
[37]
Local Government: Municipal Systems Act 32 of 2000
crystallizes
Municipal Council’s duties
[10]
.
About the environment
[11]
the
provisions prescribe a duty to promote a safe and healthy
environment. The Municipal Council has a duty to use its resources
in
the best interest of the local community.
[12]
It has a duty to strive to ensure that Municipal services are
provided to the local community in a financial and environmentally
sustainable manner
[13]
. It
must give members of the local community equitable access to the
Municipal services to which they are entitled
[14]
.
[38]
The
Local Government: Municipal Systems Act 32 of 2000
[15]
was enacted to give effect to provisions of section 24 of the
Constitution referred to in paragraph 21 above. It is unequivocally
the responsibility of the Municipality to ensure that the rights
enshrined in section 24 of the Constitution are realised.
[39]
In the light of the ByLaws referred to above and the provisions of
the
Local Government: Municipal Systems Act read
together with the
abovementioned Constitutional provisions, it is plain that the
Municipality is obliged to perform duties set
out therein and
exercise such powers as may be prescribed by the law. All the
legislative obligations set out in the ByLaws and
the Municipal
Systems Act are legislative mechanisms to give effect to
Constitutional provisions set out in section 24 and 156
of the
Constitution. The contextual and purposive reading of all of these
provisions come to a conclusion that the Municipality
is obliged to
perform those duties; and has failed to discharge its constitutional
and legislative obligations, and that has taken
place for a long
time. All constitutional obligations must be performed diligently and
without delay.
[16]
[40]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[17]
Wallis
JA
held
that:
“
[18]
… Interpretation is the process of attributing meaning to the
words used in a document, be it legislation, some other
statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the
light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document,
consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which
the provision appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production.
Where more than one meaning
is possible each possibility must be weighed in the light of all
these factors. The process is objective
not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the
apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as
reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to
cross the divide between
interpretation and legislation. In a contractual context it is to
make a contract for the parties other
than the one they in fact made.
The ‘inevitable point of departure is the language of the
provision itself’, read in
context and having regard to the
purpose of the provision and the background to the preparation and
production of the document.”
[41]
A fundamental tenel of statutory interpretation is that the words in
a statute must be given
their ordinary grammatical meaning, unless to
do so would result in an absurdity. There are three important
interrelated riders
to this general principle, namely:
(a)
that statutory provision should always
be interpreted purposively;
(b)
that the relevant statutory
provision must be properly contextualised;
(c)
all statutes must be construed consistently with the constitution,
that is, where reasonably
possible, legislative provisions ought to
be interpreted to preserve their Constitutional validity.
[18]
The
Municipality’s responsibility is to perform the duties
constitutionally and legislatively placed on its shoulders.
[42]
The applicant is justified to approach this court to seek a relief
directing the Municipality
to keep the park free of litter by
regularly cleaning the park and providing more bins in the park area.
That is consistent with
the Constitutional provisions in section
156(1) and Part B of Schedule 5 thereto. Section 37 and 38 of ByLaw
on Waste Management
are equally on point. Section 2 and 3 of Standard
ByLaws relating to Municipal parks are equally enforceable against
the Municipality.
The fencing of the Municipal parks is the
responsibility of the Municipality. Fencing is aimed at preventing
unauthorised access
to the parks. Fencing invariably includes
erecting proper and working boom gates. General monitoring and
controlling of public
places like Municipal parks is the
responsibility reposed to the Municipality. Control of public
nuisance, noise pollution and
use of liquor in public places or parks
is the responsibility of Municipality.
[43]
The applicant makes the following undisputed allegations in paragraph
10, 11, 12, and 13 of its
founding affidavit:-
“
11. I confirm
that Anthony Balshaw has on the 06
th
September
2021 completed a report and submitted it physically and expressed it
verbally at a meeting between stakeholders in the
area of the picnic
site as well as the respondents which meeting was conducted on the
07
th
September
2021. Mr Balshaw on behalf of the surrounding property owners made
submissions with regards to locking the boom gate over
the weekends
and daily specified time, police public alcohol consumption at the
picnic area and further recommend that steps taken
by the respondents
to:
11.1 Prevent
overcrowding at the picnic site, exercise access control to restrict
numbers.
11.2 Control
excessively loud music, clean up and prevent excessive litter tat
neds up in the Nahoon river and sounding residential
properties and
bush;
11.3Refuse bins within
the picnic site be emptied regularly;
11.4 prevent broken
glass from being thrown all over the picnic areas paving a risk of
injury to others such as cutting bare feet
or bathers, fisherman and
paddlers;”
12.I am advised that
Anthony Balshaw further put forward a proposed plan of action and I
am informed by Mr Blashaw that at the time
of the meeting there was a
representative of the respondents’ offices who had minuted the
meeting. I confirm and am advised
by Anthony Balshaw that respondents
are in possession of the minute of the meeting held. I annex a
confirmatory affidavit of Anthony
Balshaw as well as his proposed
plan of action as annexure C.
13.I confirm that on
21
st
May 2022
I attended at the Batting Bridge picnic site and took photographs of
the state that the picnic site has been left in. As
annexure D1 to
D11 I annex photographs of the picnic site and the state that it has
been left in with no Law Enforcement being
present to monitor the
site.”
The respondents do not
dispute these allegations. Any partial compliance, if any, might have
occurred after the institution of the
instant proceedings.
[44]
In the aforegoing it is plain that the respondents have failed to do
what the law demands of
them. In
Head
of Department, Department of Education, Frere State Province v Welkom
High School and Another; Head of Department, Department
of Education,
Frere State Province v Harmony High School and another
[19]
it was held that
“
1
State
functionaries, no matter how well-intentioned, may only do what the
law empowers them to do. That is the essence of the principle
of
legality, the bedrock of our constitutional dispensation, and has
long been enshrined in our law.”
[45]
The primary function of the courts is to ensure that those who are
charged with the duty to perform
public functions in terms of
legislation act within the parameters of the Law.
[20]
Courts have a duty to ensure that the limits to the exercise of
public power are not transgressed. A repository of power may not
exercise any power or perform any function beyond that conferred upon
it by law and must not misconstrue the nature and ambit of
the
power.
[21]
The respondents
misconstrued the ambit of their power and responsibility
when they thought that they
do not have duty to enforce
the law, or that they have no responsibility to implement their
ByLaws which ByLaws are made in terms
of the Constitution.
[46]
About the implementation of the Management Plan, the applicant makes
the following allegations
in its founding affidavit.
“
24.
In terms of this plan specifically 2.2.2 of the plan, it indicates as
follows. All users of the public launch site must be notified
by any
means, including but not limited to a sign board, that they use the
public launch site at their own risk.
25.In
terms of paragraph 3.1.3 it indicates as follows,” There must
be adequate access control of the launch site to prevent
unauthorized
use of the site.”, in this regard there is no access control. I
confirm that there is a boom gate providing
access to the bridge
picnic site and the launch site. However, the lock is broken and the
boom gate is closed with the piece wire
that can be removed at any
time. Access to the launch site is linked to access to the picnic
site. The launch site does not have
separate access.
26.In
terms of paragraph 3.1.6 of the plan it indicates as follows, there
must be a sign board to indicate the hours of operation
of the launch
site. At the Batting Bridge Launch Site there is no such sign which
has been erected.
27.
in terms of paragraph 4.3.1 all users must be made aware of and agree
to comply with the Operational Environmental Management
Plan where
registering to launch on the site and where to obtain a launch
permit. No sign has been inserted to make people who
wish to launch
complete a register nor is there any indication as to here such
register can be found
28.In
paragraph 9.1.1 of the aforementioned plan, it indicates as follows,
a sign board must be erected to indicate the name and
contact number
of the operator which must be erected
29.As
indicated above as per the 5 paragraphs alluded to in the Operational
Environmental Management Plan it is clear that the respondents
are
not Batting Bridge Public site. I annex photographs as annexure G1 to
G6 of google map images as to where the public launch
site is
situated together with what the public site currently looks like. It
is proposed that the respondents are to do the following
to ensure
compliance with the Operational and Environmental Management Plan:
(1)
Erect sign boards which indicate the following
i.
Warning people that they use the launch site at their own
risk;
ii.
Indicating the hours of operation of the launch;
iii.
Indicating the name and contact details of the operator; and
iv.
Indicating to users that they need to obtain a launch permit to
launch a boat from the operator and to compete a formal
register.
(2)
Provide access control to the launch site as cars are not permitted
to access the picnic site and launch site; and
(3)
appoint an operator for the launch site.”
The
provisions relating to the display or erection of sign or notices are
shared with the provisions of section 2 of Standard ByLaw
relating to
Municipal Parks.
[47]
Two answers to these assertions are given, namely, that the
Municipality has substantially compiled
with the requirements of the
Management Plan; Secondly that the Management Plan is invalid for it
has not been signed and approved
by the Municipality. That is said in
the wake of the submission that the Management Plan was compiled and
completed by the Member
of Executive Council for Economic Developmnet
and environmental affairs in terms of section 2 of the Management of
Public Launch
Sites in the Coastal Zone Regulations, published by
Minister of Environmental Affairs on 27
th
June 2014 in
Government Gazette R497 of 27
th
June 2014.
[48]
There are numerous difficulties with the later assertion. The
respondents do not offer or state
a scintilla of explanation for
their reason to comply with an invalid Management Plan. They do not
explain why they felt obliged
to comply with it, if their assertion
is not an afterthought or farfetched. Secondly, they do not make an
assertion that the Management
plan compiled and completed by MEC for
Economic Developmnet and Environmental Affairs can only be valid when
it is signed and approved
by the Municipality. There is no assertion
that, as a legal requirement, the Management Plan depends
for its validity
on the signature of the Municipality. On
the contrary, at page 65 of the papers it is shown that the approval
of the Management
Plan is provided to be made by a General Manager of
the Department of Economic Development and Environmental Affairs,
which Department
is its compiller. Accordingly, there is no merit in
respondents’ version and I accordingly find that the
respondents failed
to comply with the Management Plan too. The
Management Plan share some similarities with Section 2 of Standard
ByLaw referred to
above.
[49]
The Management Plan was compiled and completed in terms of the
section 2 of the Management of
Public Launch sites in the Coastal
Zone Regulations. Accordingly, it has the same force and effect as
the Regulations in terms
of which it was made.
[22]
It
is admitted in the respondent’s answering affidavit that the
Management Plan was completed in terms of the aforesaid regulations.
[50]
The respondents have raised a point of misjoinder of the second
respondent, who is the Municipal
Manager. There is no merit on this
contention too. The second respondent is cited in his official
capacity as an accounting officer
of the Municipality and as a
functionary who has power to implement court orders. As an accounting
officer the Municipal Manager
is responsible for all assets, income,
liabilities and expenditure of the Municipality. If there are
liabilities that need to be
discharged, the Municipal Manager is
responsible for that too. The Municipal Manager is reposed with power
to comply with Municipal
Finance Management Act
[23]
.
[51]
The relief sought in this application involves not only the income
and expenditure of the Municipality,
it may lead the Municipality to
incur liabilities as a result of putting into effect contents of the
court order that may ensue
herefrom. Some external service providers
may be required to do some or all of the things the Municipality is
required to do, and
as a result of that the Municipality may incur
liabilities. In discharging its liabilities and expending on
Municipality’s
income, it must certainly comply with the
prescripts of the Municipal Finance Management Act. The Municipal
Park in question is
the Municipality’s asset for which the
Municipal Manager is responsible.
[52]
Misjoinder is the joining of several plaintiffs or defendants in one
action in circumstances
which the law does not sanction; that is,
objection is that wrong plaintiffs are suing or the wrong defendants
are being sued.
[24]
In this
case the joinder of the Municipal Manager is sanctioned by Law as it
would be of no practical value to seek
an order in
matters that are entirely the responsibility of the Municipal Manager
without him having been joined. Otherwise,
the applicant would
be penalized by a plea of non-joinder. Misjoinder issue cannot
succeed. The Municipal Manager has direct and
substantial interest in
the subject matter of litigation.
[25]
[53]
In conclusion the site users and the community around the sites have
a right to an environment
that is free of crime, as envisaged in
section 3 of the standard ByLaw relating to Municipal Parks. They
have a right to enjoy
the parks that are clean, secured or fenced,
without noise pollution or excessive loud music. They have a right
not to experience
uncontrolled intoxication of liquor in the park by
other site or park users. They have a right to notices prominently
displayed
at the entrance to any part of the park indicating the days
and hours during which such park or part thereof shall be open to the
public and places where fire may be lit.
[26]
They have a right to protection of these rights by the Municipality
by means of enforcing and administering its ByLaw relating
to parks
and ByLaw on Waster Management. They have a right to use park or site
that is not overcrowded.
[54]
The Municipality has failed to protect these rights and as a result
of that the park or site
users are unable to enjoy those rights. It
is common cause that endevours were made by Anthony Balshow to
amicably resolve this
matter by complaining to the respondents.
Anthony Balshow prepared and completed a report which was submitted
to the respondents
on 06
th
September 2021. The report was
tabled and discussed in a meeting that was held on 07
th
September 2021 with
inter alia,
the respondents. Subsequently
a proposed plan was submitted to the respondents. All those endevours
did not assist to resolve the
issue of the Municipal parks or sites
in question. This court was resorted to as there was no other remedy
available to the applicant.
The letter that was penned and delivered
to the respondents was in vain.
ORDER
[55]
In the following result I grant the following order:
55.
1.
That the respondents are hereby ordered to take measures to ensure
access control, limit access, open and locking
the boom gate at
designated times at the park area within 90 days of the granting of
this order;
55.2. That
the respondents are hereby ordered to maintain and keep the park free
of litter by regularly cleaning the
park and providing more bins in
the park area;
55.3. That
the respondents are hereby ordered within 90 days of the granting of
this order to ensure that the old lock
at the boom gate of the picnic
site is replaced with a working and more suitable lock;
55.4. That
the respondents are hereby ordered to fence the boundary of the
picnic area to avoid unauthorized access
to the picnic site within 90
days of the granting of this order;
55.5. That
the respondents are hereby ordered to take measures to ensure that
they monitor and control the use of liquor
and excessive music being
played at the picnic site;
55.6. That
the respondents are hereby ordered to comply with the Operational
Environment Management Plan by erecting
a sign within 90 days of the
granting of this order which indicates the following:
55.6.1 All users of the
Batting Bridge public launch site do so at their own risk;
55.6.2
The hours of operation of the batting Bridge launch site;
55.6.3
The name and contact number of the operator; and
55.6.4 Indicating that
users of the launch site must obtain a launch permit to launch a boat
from the operator and complete a formal
register
55.7. That
respondents are hereby ordered to ensure compliance with par 3.1.3 of
the Operational Environment Management
Plan in respect of providing
adequate access control to the Batting Bridge launch site by
inserting a boom gate at the front of
the launch site or any other
manner the respondents deem fit in terms of the Operational
Management Plan within 90
days of granting of this
order;
55.8. That
the respondents are hereby ordered to appoint an operator for the
batting bridge launch site whose details
appear on the sign to be
inserted as per order granted in 55.6 above.
55.9. That
the respondents are hereby ordered to pay costs of the application
on a party and party
scale.
A.S ZONO
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
Counsel
for the Applicant :
ADV
TARR
Instructed
by:
NIEHAUS
McMahon INC
Applicant’s
Attorneys
43
Union Avenue
Selborne
East
London
5219
Tel:
043 721 3322
E-mail:
mkombos@niehausmcmahon.co.za
Ref:B.Blignauut/mk/MAT
Respondent’s
Counsel:
ADV
MAFU
Instructed
by:
DYUSHU
MAJEBE INC
Respondent’s
attorneys
No
20 Smart Road
Nahoon
East
London
Tel:043
726 4616
Email:
admin@dmlaw.co.za
Ref:
MKD/LIT471
Date
heard:
22
nd
February 2024
Date
Delivered:
02
nd
April 2024
[1]
“
Park”
means
any premises or public place as defined in section 2 of the
Municipal Ordinance, 1974 (Ordinance 20 as Botanical, which
have or
has been set apart for use as pleasure resort, recreation resort,
playpark or sports ground under the control of the
council.
[2]
Baxter
L: Administrative Law, Juta (1984) at 414; (
Minister
of Justice and Registrar of Asiatics
1911
AD 13
at 31
;
Luynch
v Union Government (Minister of justice
)
1929
AD 281
at 285.
[3]
Vumazonke
and Others v Member of Executive Council for Social Developmnet,
Eastern Cape and others
2005
(6) SA 229
(SC) Para 35.
[4]
Julius
v Lord Bishop of oxford
[1880]
5 AC 214,225.
[5]
Section
156(1) of the Constitution.
[6]
Section
2 of the constitution provides that:
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled.
[7]
Cools
Ideas 1186 v Hubbard and another
2014
(4) SA 474
(CC) Para 58.
[8]
Lester
v Ndlambe Municipality
2015
(6) SA 283
SCA Para 26 and 27.
[9]
Section
1 of ByLaw on Waste Management
[10]
Section
4 of Local Government: Municipal System Act 32 of 2000
[11]
Section
4(2)(i) of
Local Government: Municipal Systems Act 32 of 2000
[12]
Section
4(2)(a)
of the
Local Government: Municipal Systems Act 32 of 2000
[13]
Section
4(2)(d)
of Local Government: Municipal Act 32 of 2000
[14]
Section
4(2)(f) of Local Government: Municipal Systems 32 of 2000
[15]
Section
4 of
Local Government: Municipal Systems Act 32 of 2000
[16]
Section
237 of the Constitution.
[17]
2012
(4) SA 293
(SCA) Para 18.
[18]
Cools
Ideas 1186 CC v Hubbard and another
2014
(4) SA 474(CC)
Para 28
[19]
2014
(2) SA 228
(CC) Para 1
[20]
Baxter
Administrative Law Page 305;
Mwelase
v Minister of Social Developmnet and Others (
CA
74.16) [2018] ZAECMHC 16 [22March 2022] Para 25
[21]
Fedsure
life Assurance Ltd and others v Greater Johannesburg Transitional
Metropolitan Council and others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) Para 56-58
[22]
National
Pride Trading 452(Pty) Ltd v Media
24
Ltd 2010 (6) 587 (ECP) Para 31.
[23]
Section
55(2)
of the
Local Government Municipal Systems Act 32 of 2000
.
[24]
Erasmus:
Superior Court Practice, 2
nd
Edition,
Volume 2 Page D
1
Rule
10
-
2
.
[25]
Amalgamated
Engineering Union v Minister of Labour
1949(3)
SA 637 at 657.
[26]
Section
156(1)(2) of the Constitution; Section 2 and 3 of the Standard ByLaw
relating to Municipal Parks.