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[2023] ZAECELLC 27
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Malgas v Buffalo City Metropolitan Municipality and Another (729/2022) [2023] ZAECELLC 27 (12 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO: 729/2022
NOT
REPORTABLE
In
the matter between:
ALMARIE
MALGAS
Applicant
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER: BUFFALO CITY
METROPOLITAN
MUNICIPALITY
Second
Respondent
JUDGMENT
HARTLE
J,
[1]
The applicant sought a mandamus directing
the respondents, who I will collectively refer to as “the
municipality”, to
clean and rehabilitate an area along the
“Jennings Road Circuit”, Morningside, East London of
waste and rubble “within
a reasonable time” and to
transport it “properly” to a designated landfill
area/rubbish dump.
[2]
The applicant also asks that the
municipality be ordered to erect any such signage, barricading and/or
supply a municipal “skin”
bin (which I assume is a
reference to a skip bin) to ensure that residents in the identified
area can at least dispose of their
waste into the bin.
[3]
Other mandatory relief relates to providing
education to members of the community regarding the harmful effects
of dumping, putting
measures in place to avoid a reoccurrence of
illegal dumping in the area and, over the long term, for the
municipality to provide
a valid proper integrated waste management
plan for the city.
[4]
Also prayed for is an attorney and client
costs order which was orally supplemented at the hearing to include
the costs of an environmentalist
expert.
[5]
Before I deal with the brief summary below,
in the applicant’s replying affidavit (delivered on 12
September 2022) it was
conceded that the municipality had taken some
steps to address her complaints since the launch of the application
by way of clearing
the site although not to her complete satisfaction
and had put up signage to warn members of the community not to dump
at the impugned
site. These endeavours were alluded to by the
applicant as a clear indication that since the commencement of the
application the
municipality by its actions had evinced an awareness
that they “needed to correct a wrong”. Hence the
applicant sought
to suggest that she was entitled in all the
circumstances to her costs although she relented that a punitive
costs order was no
longer warranted, instead praying for costs on the
party and party scale. It was also pointed out in her replying
affidavit that
the “expert” environmentalist’s
report had gone “un-contested” which is probably why in
the course
of enrolling the matter for hearing a draft order was
provided (served upon the municipality’s attorneys on 17
February 2023)
which indicated that she was intent upon asking for
the costs of the “expert environmentalist.” This request
was also
repeated at the hearing by counsel appearing on her behalf.
[6]
The applicant is simply described in the
founding affidavit as a person resident at an address in Morningside.
[7]
The founding affidavit put up by her is
carelessly riddled with errors of grammar and syntax and comprises of
a random mishmash
of allegations. It is ostensibly missing
paragraphs/pages and, most significantly, is unsigned.
[8]
It purports in places to support prayers
for urgent relief but the notice of motion prefixed does not herald
an urgent application.
Instead, it follows the template of an
ordinary long form notice of motion save that it ends (no doubt
courtesy of a copy and paste
gremlin), with an odd injunction that:
“
TAKE
NOTICE FURTHER THAT
if the respondents
fail to deliver a notice of intention to oppose, the matter will,
without further notice, be placed on the roll
for hearing after
expiry of the period mentioned in paragraph (a) above, on a date to
be fixed by the Registrar; as Ms Almarie
Malgas is of the belief that
the Department of Public works and Road Works could be playing delay
tactics to pro- and delay an
inevitable main action.”
(Sic)
[9]
The cause of action made out in the
unsigned affidavit is premised on the allegation that:
“
The
First Respondent is empowered to clean and rehabilitate its waste
management and transport the rubbish to the designated/allocated
rubbish dump and upon doing so create real measures to ensure this
never happens again and not fruitful meetings that do not render
any
implementation plans as this place is soon going to be inhabitable
and ensure the environment and its property valuations to
decrease
further due to maladministration of the Respondents.”
(Sic)
[10]
The applicant claimed that “in or
around the first week of May 2022” she passed a dumpsite as she
was driving along
Jennings Road. She also noticed the absence of any
municipal skip bin having been put in place for members of community
of the
community to dump their waste into.
[11]
She added that there were numerous other
“dumping spots” along the same road which are being used
as illegal dumping
sites. She asserted that “the
property” (undescribed) was “
not
being cleaned not being fenced off nor barricaded to, prevent further
dumping is now a human environment health risk”.
(Sic)
[12]
This
prompted her immediately to approach her attorneys of record to place
the municipality on terms who, on 9 May 2022, addressed
a formal
statutory demand to it, ostensibly on the basis provided for in terms
of the provisions of section 3 of The Institution
of Legal
Proceedings Against Certain Organs Of State Act, No. 40 of 2002
(“ILPACOSA”) concerning an illegal dumpsite
“
along
the Jennings Road, Morning Side East London behind SPCA and/or Public
Works and Roads & Safety near Amalinda off ramp.”
[1]
[13]
Despite the founding affidavit giving the
impression that the applicant had casually witnessed the illegal
dumping site in passing
along Jennings Road and had promptly sprung
into action by consulting with her attorney in this respect, the
notice complained
of a long term problem as follows:
“
The
community in Morning Side has had enough of the slow service delivery
and further have most probably opted to not put up with
an eyesore
outside of their immediate property, and therefore wish to show their
great displeasure and complaint as those are their
permanent homes
that they reside with their families, children and elderly people and
such illegal dumping site has been like this
for more than a few
Months and getting worse as time goes on. Despite such health and
environmental concerns you have not done
anything to date thereof.”
(Sic)
[14]
The notice requested, rather than demanded,
that the municipality “
kindly
remove the illegal informal dumping site
at
the end of business day
as our
environmental experts have raised serious concerns”
and that it “
provide an
alternative dumping site or ensure that every week the community of
Morning Side are catered for with efficient service
delivery.”
[15]
Lastly, the notice requested (again rather
than demanded) quite unintelligibly that “
your
long-term solution as well as such that we engage with yourselves
regarding to the issues pertaining to the illegal dumping.”
(Sic)
[16]
The notice expressed the applicant’s
attorney’s belief “
that a
procedurally fair process could settle this matter without any
necessity of approaching the court to argue settled law”
yet threatened quite paradoxically that their instructions were to
bring an urgent application failing the municipality’s
“
positive conduct in cleaning up
our Municipality.”
[17]
The notice concluded with the hope
expressed that litigation would not be necessary in the circumstances
and that the municipality
would “
urgently
attend”
to the applicant’s
rights.
[18]
This notice was hand delivered to the
offices of the municipal manager at 11h18 on 9 May 2022.
[19]
It therefore came as a shock to the
municipality when the present - on the face of it not an urgent
application, ostensibly prepared
and dated 10 May 2022 already, was
launched the following day on 11 May 2022. Service thereof was
effected on the municipality
at 15h23 on that day.
[20]
A professional environmental opinion (on
the face of it dated 5 May 2022) accompanies the founding affidavit,
but ironically does
not reference the illegal dumping site in
question.
[21]
The municipality opposed the application on
four essential grounds.
[22]
Firstly, it asserted that the applicant has
not established
locus standi
which is a justifiable concern as I will demonstrate below.
[23]
Secondly
it complained that the statutory demand sent by the applicant to
clear the illegal dump site, in half a business day in
effect, was
unreasonable both with regard to the processes that the department of
Solid Waste Management Services is required to
follow when a
complaint of this nature is registered and because the invocation of
the provisions of the ILPACOSA naturally implicates
a lead up of 30
days’ notice before intended action is commenced pursuant to
its relevant provisions.
[2]
[24]
Thirdly the municipality suggested that the
applicant ought first to have exhausted internal remedies (if after
having engaged its
relevant directorate it was not satisfied of a
positive outcome) which entail the invocation of an appeal process
envisaged by
the provisions of
section 62
of the
Local Government:
Municipal Systems Act No. 32 of 2000
.
[25]
Finally,
it submitted that if the applicant’s matter constituted a
review under the provisions of the Promotion of Administrative
Justice Act, No. 3 of 2000 (“PAJA”),
[3]
that
in terms of the provisions of that Act the municipality would have
been afforded 90 days “to do an act”. It asserted
that
whichever process was of application, whether in accordance with its
internal processes or subject to the provisions of PAJA,
it would
have been given a decent opportunity to investigate and handle the
complaint in a manner which accords with its mandate
in terms of the
Constitution rather than this abrupt resort to litigation by the
applicant denying it the very opportunity it is
entitled to, which in
turn holds huge costs implication for it and the public purse. (As an
aside it was not central to the matter
to decide whether the
provisions of PAJA apply or not but the point made is that the time
frames indicated in an administrative
law setting are indicative of
the deference shown to state agencies to resolve issues in a
structured and preordained manner before
litigants should be entitled
to approach a court to intervene.)
[26]
On the merits the municipality denied that
prior to receipt of the notice it had been apprised of any complaint
in relation to the
particular area or that the matter was urgent and
could not therefore be resolved “
in
a manner in which a solution driven process is achieved.
”
[27]
As for the existence of a waste management
plan it asserted that one already existed, was not primitive as was
suggested by the
applicant, and that it already adequately dealt with
illegal dumping, which malaise it branded as a “social issue”.
[28]
It thus resisted the call for it to pay the
applicant’s costs.
[29]
After hearing argument in this matter, I
requested the parties to make further submissions to me and I also
called upon the applicant
to supplement the papers which were clearly
deficient.
[30]
Firstly, the report of the environmental
assessment practitioner, ostensibly dated 5 May 2022, was included in
the indexed papers
and referenced as “Annexure D” but was
not given any pretext in the founding affidavit, at least not in any
of the
pages that were before me. Another page was missing elsewhere.
“Annexure F” to the applicant’s replying
affidavit, which it had been portended would comprise of photographs
from which this court was supposed to visualize what steps
the
municipality had undertaken in the interim to clean up the dumping
site and erect signage, was also not included in the indexed
papers.
[31]
On the issue of the applicant’s
purported entitlement to the costs of the expert, which had not been
claimed in the notice
of application, the parties were invited to
consider the fact that there had also been no affidavit filed
qualifying the expert
or identifying the report or placing it in
context. Indeed, the report itself does not reference the dumping
site in contention
but appears to be of general effect and was an
opinion prepared for the applicant’s attorneys with regard to
“
Lack of Efficient Clearing of
Illegal Dumping Hotspots and Provision of Adequate Waste Management
Services”
that nowhere references
the Jennings Road area contended for by the applicant. Further,
and more significantly, the report
references a site investigation
that was conducted on 27 May 2022, which date obviously post-dates
the purported commissioning
of the applicant’s founding
affidavit, and the issue and service of the application. This was not
explained, but the applicant’s
attorneys fairly abandoned the
prayer for these costs.
[32]
The parties were also requested to make
representations regarding whether the applicant’s founding
affidavit, deficient for
want of having been signed at all before the
Commissioner of Oaths on 11 May 2022, was properly rectified by way
of the filing
of the additional affidavits that were delivered,
without any application for condonation at all, on 9 June 2022.
[33]
Firstly, it is accepted that the applicant
did not sign her affidavit as deponent but the copy in the court file
(presenting as
an original) evidences a set of initials on each other
page thereof as well as on the annexures, one being “A.M”
purporting
to be the applicant’s, and the other “M.M”
purporting to be those of the commissioner of oaths, Mr. Mubeen
Moosa.
[34]
The applicant purported to rectify this
deficiency in an explanatory affidavit which provides as follows:
“
3.
I confirm that I have read the founding affidavit of Almarie Malgas
and confirm its correctness insofar as it relates to
me. I confirm
the content to be both true and correct.
4.
I must apologise to the Honourable Court that I was in a hurry on the
11th of May 2022 as I was told by my
attorneys of record that this
matter will be done on urgent basis. I confirm that my intention was
solely to depo(s)e to my founding
affidavit and ensure the
respondents clear up the filth and rot of the illegal dumpsite. I
want to ensure that my founding affidavit
should be read as evidence
in this application and the court to condone my clerical error.
Please find herewith attached AM1 of
the page that I need to sign.”
[35]
Attached
to the explanatory affidavit (on the face of it by
Almaire
Malgas)
[4]
is
a single
pro
forma
page as it were on which a deponent has signed and the date indicated
at the foot of the affidavit is 8 June 2022. The full
signature
that appears above the line reserved for the deponent to sign mirrors
the signature of “Almarie Malgas” in
the explanatory
affidavit. Mr. Moosa ( who at this point would have had an
interest in defending his role played in contributing
to the defect
and so should have declined to administer the oath)
[5]
also
commissioned the latter affidavit and provided a “confirmatory
affidavit” in which he explains that Ms. Malgas
had on 11 May
2022 initialled every page of her founding affidavit in front of him
including the attachments, but he deflected
that he had made a
“
clerical
error of not noting that
(the
applicant had)
left
(his)
offices
without signing as a deponent below paragraph 36,
”
which is the final concluding paragraph in the founding
affidavit.
[6]
He
recalled that the matter was supposed to have been done on an urgent
basis as the applicant was in a hurry to report back to
her
attorneys.
[36]
The filing of these explanatory and
confirmatory affidavits respectively, delivered on 9 June 2022,
obviously passed by without
any demur from the Municipality and
indeed was not objected to during argument until I raised it with the
parties after the fact.
The present contention by the municipality’s
legal representatives, fairly made in my view, is that the
proceedings are fatally
defective since there is no affidavit
initiating the proceedings and that the attempts made by the
applicant to fix the problem
as it purported to cannot cure the
defect. Moreover, there is an absence of any condonation sought from
the court to have filed
these “further affidavits” in any
event.
[37]
There
is a further issue. The applicant’s attorneys were
also requested to identify the signature that appears
above the
designation of “deponent” in the replying affidavit at
page 101 of the indexed papers, which affidavit was
also commissioned
by the same Mr. Moosa.
[7]
They
acknowledge that it is Ms. Malgas’ but have not dealt with my
other pertinent question which is why it is so patently
different
from the one asserted to be hers in the “confirmatory
affidavit” as also reflected on the annexure thereto
marked
“A.M 1.”
[38]
I would have expected a further affidavit
explaining all of this which is of fundamental concern to this court,
absent which it
must be accepted that the prior signature on the
confirmatory affidavit is not that of the applicant’s and that
the attempt
to rectify the defect (even for the moment accepting that
it was permissible for the applicant to have addressed the
shortcoming
of an unsigned affidavit in this manner) is under
suspicion of being false.
[39]
The result is that there is no founding
affidavit before this court. This is indeed fatal to the application
and warrants its dismissal
without more.
[40]
I would have been concerned in any event on
the terse facts pleaded to have appreciated Ms. Malgas’ real
(very fleeting) interest
in the matter to establish her
locus
standi
, which was mentioned rather
perfunctorily.
[41]
I
would also have found that the application was premature and afforded
the municipality insufficient time to have registered and
responded
to the complaint or to have dealt with it appropriately. On the basis
of the
Plascon-Evans
Rule
[8]
I
would have accepted what the procedures are that the municipality
says are in place for the waste department to deal with complaints,
and that the indecent haste with which the application was launched
without having afforded the municipality a fair opportunity
to deal
with these processes would not have been consistent with or
respectful of these requirements.
[42]
The
applicant could not even have been bothered to allude to process or
to state what the then applicable Waste By-law provided
in respect of
a problem of this nature or how she tried meaningfully to remedy the
situation (short of giving the municipality
half a business days’
notice to act), assuming her to be a concerned member of the
community or acting to protect her own
interests which she does not
really elaborate upon, before (on her supposed version) consulting
with an attorney and an environmental
specialist and launching full
scale into litigation to seek the mandamus which she did. There is no
comfort that she acted
bona
fide
to preserve her constitutional rights (in fact she does not
pertinently reference any right that has been infringed in her
supposed
founding affidavit) or that these are the kind of
circumstances that would have activated the
Biowatch
principle.
[9]
[43]
Instead, this court is left with the
distinct feeling that the application was launched opportunistically
to gain an unfair opportunity
of scoring a costs order. Even if the
demand and service of the application was causal to the Jennings Road
area being cleaned
up and signage erected I would not have been
inclined to award costs in her favour.
[44]
In the result, I issue the following order:
1.
The application is dismissed, with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
26
April 2023
DATE
OF FURTHER SUBMISSIONS:
22 &
23 August 2023
DATE
OF JUDGMENT:
12
September 2023
Appearances:
For
the Applicant
:Adv.
A M Maseti instructed by S J Ngqongqo, East London (ref. Mr
Ngqongqo).
For
the Respondents
:Adv.
X Nyangiwe instructed by B Bangani Attorneys, East London (ref.
Mr. Bangani)
[1]
Google
maps suggest a distance of 1,6km between these two points. The
reference to the SPCA and Public Works is not explained
but perhaps
this might account for the mention of Public Works in the notice of
motion, possibly copying and pasting from a similar
but different
application involving Ms. Malgas.
[2]
Section
5 (2) of the ILPACOSA. Mr. Nyangiwe, who appeared for the
municipality readily agreed however that the provisions
of the
ILPACOSA were not strictly of application in this scenario.
[3]
It
was not really in dispute that the applicant had couched the relief
sought in the form of a mandamus.
[4]
The
applicant’s name is spelt differently in various places.
[5]
See
section 7 (1) of the Regulations Governing the Administering of an
Oath or Affirmation (GNR.1258 of 21 July 1972).
[6]
The missing pages of the founding affidavit which were provided
after the fact were co-incidentally not initialled which suggests
that these were never served on the municipality in the first place
as part of the set of founding papers.
[7]
Well
at least his official stamp bearing his particulars and dated 12
September 2022 appears at the foot of the replying affidavit,
but
his original signature (as opposed to an image of a signature that
forms part of his stamp) is absent.
[8]
Plascon Evans Paints (Ltd) v Van Riebeeck Paints (Pty) Ltd
1984 (3)
SA 263
(A) at 634e – 635c.
[9]
Biowatch Trust v Registrar Genetic Resources and Others
2009 (6) SA
232
(CC)