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[2022] ZAFSHC 275
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Afriforum NPC v Ngwathe Local Municipality (Parys) and Others (3185/2020) [2022] ZAFSHC 275; [2022] 4 All SA 666 (FB) (19 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 3185/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
AFRIFORUM
NPC
Applicant
and
NGWATHE
LOCAL MUNICIPALITY (PARYS)
1st
Respondent
FEZILE
DABI DISTRICT MUNICIPALITY
2nd
Respondent
MF
MOKGOBU
3rd Respondent
V
DE
BEER
4th Respondent
ESKOM
HOLDINGS SOC
LTD
5th Respondent
THE
MINISTER OF HUMAN SETTLEMENTS,
WATER
AND SANITATION
6th Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
13
JULY 2022; 15 JULY 2022
DELIVERED
ON:
19
OCTOBER 2022
[1]
This application served before me for the first time on 13 July 2022
as
an urgent application. I was performing recess duty and as such I
was responsible to deal with the urgent court roll.
[2]
During the said hearing the founding papers of the applicant served
before
me and a Notice of Intention to Oppose by the first to fourth
respondents, as well as an unsigned copy of their answering
affidavit,
had been filed. A Notice to Abide had also been filed on
behalf of the fifth respondent (Eskom"), in which notice the
following
was stated:
"Be
pleased to take notice that the fifth respondent hereby gives its
conditional notice to abide with the court order based
on papers as
they stand. Should anything over and above what appears on the papers
occur, then in that event the fifth respondent
reserves its right to
reconsider its stance."
[3]
During that appearance Mr Coertze appeared on behalf of the applicant
and Mr Nyangiwe appeared on behalf of the first to fourth
respondents.
[4]
At the commencement of that hearing Mr Coertze indicated that the
applicant
was ready to continue and to argue the application. Certain
procedural aspects were raised by myself, as well as on behalf of the
applicant on the one side and the first to fourth respondents on the
other side. As a result of further discussions which developed
in
open court it was agreed that the hearing of the application was to
be postponed to Friday, 15 July 2022,
at 11h30. I
consequently issued an order pertaining to the aforesaid postponement
and further ordered as follows:
"2.
The first to fourth respondents shall file their signed answering
papers, an unsigned copy of which has already been
placed before
court, on or before Thursday, 14 July 2022.
3.
Leave is granted to the first to fourth respondents to file
supplementary answering
papers on or before Thursday, 14 July 2022 at
10h00.
4.
The applicant shall file its replying affidavit on or before
Thursday, 14 July
2022 at 16h00.
5.
The first and fourth respondents' signed affidavits referred to in 2
and 3 above,
and the applicant's replying affidavit, shall also be
served upon the fifth respondent.
6.
The fifth respondent shall file further papers, if any, on or before
Thursday,
14 July 2022 at 16h00.
7.
The costs of the day shall stand over for later adjudication."
[5]
The aforesaid affidavits were duly filed, which included an
"Explanatory
Affidavit" filed by Eskom.
[6]
The matter subsequently again served before me on 15 July 2022. In
addition
to Mr Coertze and Mr Nyangiwe who appeared on behalf of the
applicant and the first to fourth respondents, respectively, Mr
Rhynhard
appeared on a watching brief on behalf of Eskom.
[7]
The application was fully argued before me by Mr Coertze and Mr
Nyangiwe.
The
relief sought in terms of the notice of motion:
[8]
In terms of the notice of motion, the applicant was seeking the
following
relief:
"Main
relief
:
1.
That this application be heard on an urgent basis as set out in Rule
6(12) of
the Rules of Court and that the court dispenses with the
forms and service provided for in these rules and dispose of this
matter
on an urgent basis, including service by e mail.
2.
That the first to fourth respondents are ordered to take immediate
action to
get the pumps for water supply and processing of sewage
waste in running order by way of alternative energy sources within 24
hours
of this order.
3.
That the first to fourth respondents are ordered to resolve the
financial dispute
with the fifth respondent which is causing the
delay in the repair of the electricity supply to the first
respondent; alternatively,
use the remedies in the Municipal Finance
Managing Act (sic) to resolve the problems within two 2 days of this
order.
4.
That the first to fifth respondents must report to the Court, in
detail, within
7 days of the steps taken and progress made towards
resolving the financial dispute between them.
5.
That, in the event that the first to fourth respondents fail to
restore the water
and sanitation networks of the town to a functional
state within 24 hours of this order, the applicant may intervene with
the supply
of generators, technical experts or such other
interventions which may be necessary in the circumstances, to ensure
the continued
supply of water and sanitation services to the
residents in the town of Parys, and that the first respondent will
pay the expenses
incurred by applicants in providing this service
upon presentation of invoices for the expenses incurred.
6.
Ordering the first to fourth respondents to pay the costs of the
application
(and any other party who opposes the application).
7.
That the applicant be granted such further and/or alternative relief
as the Court
may deem appropriate.
Alternative
relief:
8.
Declaring that the first to third respondents are under a
Constitutional and/or
legal or statutory duty to ensure that:
8.1
The water supply to the homes of the town is restored.
8.2
The electricity supply to the town is restored.
8.3
The spill of sewage in the town is contained and cleaned.
9.
Declaring that the first to fourth respondents are in breach of a
duty referred
to in prayer 7
(sic).
10.
Declaring that the conduct of the first to fourth respondents is
unconstitutional and a breach
of the following fundamental rights of
the inhabitants of Parys, namely:
10.1
The right to life in section 11 of
the Constitution, which includes a
right to biological and physical life, here threatened by the health
hazards arising or likely
to arise from the shortage of potable water
and the discharge of raw sewage and untreated effluent into the
streets and waterways
of the town.
10.2
The right in section 24(a) of the
Constitution to an environment that
is not harmful to the health or well being of the residents of
Parys (Ngwathe Municipality).
10.3
The right in section 24(b) of the
Constitution to have an environment
protected for the benefit of present and future generations.
10.4
The right in section 27(1) of the
Constitution to have access to
sufficient and clean water.
11.
The first to fourth respondents are ordered to take all necessary
steps to ensure compliance with
the obligations emanating from
prayers
7(sic)
and
8
supra.
12.
The first to fourth respondents are ordered within 2 (two) days of
this order to each file at
this Court under oath, and provide the
applicant, the action plan and programme which they will implement,
without delay, so as
to ensure that the duties and obligations in
prayer 7
(sic)
above,
are performed or carried out and which action plan shall address at
least the following issues:
12.1
The steps already taken to ensure
that the officials and staff of the
first respondent will give effect to the duties and obligations
referred to in prayer 7 (sic)
supra.
12.2
What further steps will be taken in
this regard.
12.3
When each of such further steps will
be taken.
13.
Ordering the first to fourth respondents to pay the costs of the
application (and any other party
who opposes the application).
14.
That the applicant be granted such further and/or alternative relief
as the Court may deem appropriate.
The
parties as cited in the application:
[9]
In terms of the founding affidavit the applicant, Afriforum NPC, is a
non-profit organisation located in Centurion, Gauteng Province.
[10]
With regard to the standing of Afriforum, the applicant alleged,
inter alia,
as follows in paragraph 5 of the founding
affidavit:
"5.1
The applicant is a civil rights organisation that focusses on the
constitutional rights of its members....
5.2
The applicant has numerous members in the municipal area governed by
the first respondent and
these members are affected by the absence of
electricity and water supply to the town.
5.3
The applicant brings the application in the interest of its members
and in the public interest."
[11]
The first respondent is the Local Municipality with physical address
at Parys, Free State
Province ("the Local Municipality").
[12]
The second respondent is the District Municipality under which the
Local Municipality falls
with its head office located at Sasolburg,
Free State Province.
[13]
The third respondent is the Acting Municipal Manager of the Local
Municipality.
[14]
The fourth respondent is the Mayor of the Local Municipality.
[15]
The applicant stated that the first to fourth respondents will
collectively be referred
to as "the Municipality". The
applicant further stated as follows in paragraph 2.6 of the founding
affidavit:
"The
first to fourth respondents has a duty to supply basic services to
the residents in the Ngwathe municipal area and are
cited as the
responsible parties in the first instance."
[16]
The fifth respondent ("Eskom") is an organ of state by
virtue of section 239
of the Constitution. In paragraph 2.7 of the
founding affidavit the following was stated with regard to Eskom:
"Eskom
as sole provider of electricity in South Africa has the duty to
supply electricity to Municipalities for redistribution
to their
residents."
[17]
In paragraph 2.8 of the founding affidavit it was indicated that the
sixth respondent will
be referred to as "the Minister of Water
and Sanitation". The applicant further averred as follows with
regard to the
Minister:
"She
is cited in her capacity as the national executive official
responsible for ensuring compliance at a national level with
legislation and regulations relating to the water quality at the
Municipality. She is mandated to step in and resolve issues should
the need arise. ... The sixth respondent is cited as the member of
the National Executive under whose portfolio the current crisis
falls."
The
application papers:
[18]
For reasons that will become evident later in this judgment, I deem
it apposite to provide
an exposition of portions of the contents of
the respective affidavits which are most relevant to the adjudication
of the application.
The
founding affidavit:
[19]
The District Co-ordinator for the North-West Branch of Afriforum
deposed to the founding
affidavit. The founding affidavit was deposed
to on 8 July 2022.
[20]
In paragraph 3 of the founding affidavit the purpose of the
application was set out to
be the following:
"3.2
The purpose of this application is to obtain an order for immediate
intervention to prevent a health and social and socio-economic
disaster in the district of the first respondent which is caused by
the continuous and ongoing:
3.2.1
Lack of electricity supply to the whole
town;
3.2.2
Lack of water supply to the whole town;
and
3.2.3
Absence of the processing and safe flow
of sewage in the town."
[21]
In the founding affidavit it was further stated that since the lack
of water is primarily
an infringement of the basic human rights
contained in Chapter 1 of the Constitution, the application was being
brought in the
public interest and in the interest of justice and to
enforce the rights of the residents of Parys.
[22]
Under the heading
"IMMEDIATE
CRISIS
-
A TOWN IN
DISTRESS",
paragraph 6 and its sub-paragraphs of the founding affidavit
followed.
[23]
The deponent stated,
inter alia,
as
follows in paragraph 6.1 of the founding affidavit:
"The
electricity supply to the town was apparently shut down due to the
lack of maintenance to the electrical supply to the
town, and as far
as I could establish, because of non-payment of the Municipality's
electricity account to Eskom "
[24]
In paragraph 6.2 reference was made to a letter head dated 1 July
2022 from Eskom to the Municipal
Manager of the Local Municipality,
attached to the founding affidavit as annexure "FA2'', in which
Eskom stated the following:
"Eskom
is aware of the fact that there is no electricity supply in Ngwathe
and acknowledges that the fault is on its side.
The fault is due to
two hot connections, one on transformer 1 and the other on the cable.
However, Eskom does not have money to
cover the costs of repairs. At
this point, Eskom cannot confirm restoration time as it is yet to
source funds for repairs.
Eskom will therefore appreciate if
the Municipality could provide funds for the repairs.”
[25]
The following was stated in the subsequent paragraph, paragraph 6.3
of the founding
affidavit, .apparently with
reference to the contents of the aforesaid letter:
"In
an impasse between the Municipality, where the Municipality expect
from Eskom to do maintenance and supply electricity
and Eskom
expecting from the Municipality to supply the necessary funding, it
is the residents of Parys that pays the price and
need the
intervention of the Court."
[26]
In paragraph 6.4 of the founding affidavit the deponent stated the
following, which averments
will become very relevant later in the
judgment:
“
I
travelled to the town to deliver water to the residents, and to
establish the situation on the ground. As far as I could get
information in the limited time to investigate the matter, it seems
as if the Municipality indeed paid R1,5 million to Eskom on
Monday, 4
July 2022. Despite this payment, Eskom has not repaired the defect to
the electricity. In the limited time due to the
urgency of this
matter, no written confirmation could be obtained.”
[27]
The following allegations, which will also become very relevant later
in the judgment,
were made in paragraph 6.5 of the founding
affidavit:
"6.5
The electricity is not only a serious inconvenience, but is also
causing immeasurable harm to the local economy of the
town. The
domino effect of the lack of electricity stretches much further than
that, causing the further and even more serious
problems being:
6.5.1
No water has been supplied to residents
in Parys. The pumps that have
to pump water into the water system of the town, cannot run without
electricity and the first to
fourth respondents do not supply any
alternative source of energy to fulfil this life saving service and
supply in this basic constitutional
rights of its residents. A town
without water is heading for disaster, which can result in death of
residents, due to dehydration
or disease.
6.5.2
The sanitation services in the town is
also dependent on electricity
to transfer this waste to the sewerage plant where it can safely be
processed and disposed of. Without
electricity supply, raw sewage is
running in the streets and waterways of the town, causing a severe
health risk for all residents
in the town as epidemic illnesses like
cholera can result from these circumstances.
6.5.3
The town borders to the Vaal River, which
supplies numerous towns and
farming activities downstream with water. At present, the raw sewage
is flowing into the Vaal River.
...
6.5.4
The businesses and shops in the town are
effectively unable to
conduct business, and have to rely on generators, in so far as
possible, to open their shops.
6.5.5
Like all towns the residents of this town
also have elderly people
and young children. .. In order to put before this Court the harm
suffered by these elderly people, an
affidavit from the manager of
the Sonskyn Old Age Home ... is attached hereto ...
6.5.6
I attach hereto screenshots of complaints
on social media platforms
of residents expressing their concerns and frustration. ... I attach
hereto a screenshot from ... sent
the 7
th
of July 2022 wherein she says that Derdelaan Street have been without
water for 7 days. ... I attach a screenshot from Facebook
wherein ...
confirms that there are no water trucks and that she has not been
unable to bath."
[28]
The application was issued on 8 July 2022. Prior to the launching of
the application, a
letter of demand, dated 6 July 2022, was sent by
the applicant's attorneys of first instance, Hurter Spies Attorneys,
to Eskom
and the first to fourth respondents. The letter was headed
"ELECTRICITY SUPPLY
INTERRUPTIONS
AND
RESULTING
WATER
CRISIS:
NGWATHE LOCAL MUNICIPALITY".
In the said letter, under the
heading
"Electricity supply
interruptions"
reference
was made and enquiries were raised regarding the interruption in
electricity supply. Under the heading
"Water
crisis caused by electricity interruption"
it
was stated that Parys has been without water since 1 July 2022.
Reference was made to applicable legislation and
regulations
pertaining to basic water supply and it was demanded
"that
you comply with the regulations set out above and urgently provide
the basic water supply to the consumers in Ngwathe
Local
Municipality, and specifically the town of Parys".
The letter was concluded with the following
"Demand':
"17.
Given the gravity of the problem and the fact that the Municipality's
non-compliance with its various basic obligations
that
(sic)
amount to a violation of the basic human rights of the residents
of Parys, we demand the following:
17.1
That Eskom
immediately
refrain from interrupting the electricity supply to the Municipality,
due to them reaching the maximum demand as a result of non
payment of their account.
17.2
... as this causes a domino effect
on the water supply as well as
several other damages that the residents experience.
17.3
The Municipality to immediately put
emergency measures in place in
order to provide a sustainable interim solution to the water supply.
17.4
That in so far as the Municipality
and/or Eskom is unable to adhere
to the above demands due to financial constraints, National Treasury
be approached to resolve
the financial shortfall.
17.5
We request that a written undertaking
be provided before
11h00
on
7
July
2022
of the emergency plan to address the above requests.
18.
Should you fail to adhere to this urgent demand, our client will have
no other choice but to exercise its rights and commence
with the
necessary legal action in order to obtain the necessary relief."
[29]
The first to fourth respondents did not respond to the aforesaid
letter of demand. Eskom
did respond to the letter of demand by means
of a letter attached to the founding affidavit as annexure "FAB".
The said
letter is not dated and there is no allegation as to when it
was received by or on behalf of the applicant, but it was obviously
received before the application was launched. I will deal with
certain portions of the contents of this response letter later in
the
judgment.
[30]
The deponent to the founding affidavit furthermore stated as follows
under the heading
"URGENT
ASSISTANCE AND INTERVENTION REQUIRED":
"11.
Unless
the Court intervenes on an urgent basis the situation is headed for a
massive health, social and socio-economic disaster
which will destroy
the lives and livelihoods of the residents of the town of Parys. The
applicant will not be able to obtain substantial
redress in the
ordinary course, because by the time the application is heard
immeasurable and irreparable harm will already have
been suffered due
to the ongoing violence of the basic human rights of the residents.
12.
To
cater for the basic need and for the mere survival of the residents
of the town, the applicant, in addition to farmers and other
organisations in the local community, are delivering water to the
residents in the town. This water is only enough for the bare
essentials and does not provide for any other needs like hygiene and
sanitary needs of the residents. These bits and pieces are
not enough
to help every resident in the town and can only supply limited
relief, to those in most dire need."
[31]
Further allegations were made regarding the sewage problems and the
consequent health risks.
[32]
The deponent further stated as follows in paragraphs 16 and 17 of the
founding affidavit:
"16.
The
breakdown in service delivery of water and sanitation services must
be resolved on an urgent basis.
The breakdown in electricity
supply is the cause of the first respondent's inability to supply
these
services.
(Own emphasis)
17.
The
cause of the breakdown is apparently a dispute between the first and
fifth respondents. It is unconscionable (that) the fundamental
human
rights of the residents of the town are held hostage as a result of
this dispute. The Court's urgent intervention is prayed
for to ensure
the safeguarding of the lives of the residents and the preservation
of their fundamental rights."
[33]
The rest of the founding affidavit dealt with the
"LEGAL
CONTEXT FOR THIS APPLICATION".
The
first to fourth respondents' answering affidavit:
[34]
The third respondent, in her capacity as the then Acting Municipal
Manager of the first
respondent, deposed to the answering affidavit
filed on behalf of the first to fourth respondents, dated 13 July
2022
[35]
Under the heading
"LACK OF
URGENCY"
the following
allegations were made in the said answering affidavit:
"7.
The allegations of urgency flow from the fact (that) a transformer
ceased functioning on Friday
1 July 2022. The issue with the
transformer were however resolved on Monday 4 July 2022 after the
first respondent effected payment.
A copy of a letter from Eskom
dated 4 July 2022 is attached hereto as 'MM1'.
8.
The applicant contends that Eskom has not remedied the issue however
that is simply not the
case. In substantiation of this allegation I
attach a letter from Eskom dated 9 July 2022 confirming that the
transformer has been
remedied 'MM2'.
9.
10.
Not only is the application not urgent
the application is also premature and badly made. The applicant is
simply not aware of the
true state of the facts notwithstanding its
standing as·a litigant litigating in the public interest
11.
The applicant actually concedes that
they do not have the full facts and state as follows in paragraph 6.4
of the founding affidavit,
'in
the
limited
time
due to the urgency
of this matter, no written
confirmation could be obtained'."
I
will deal with certain portions of the contents of the aforesaid
annexure "MM1" later in the judgment.
[36]
In the answering affidavit it was stated that the main relief
sought-are-contrary to the
provisions of the Constitution and
legislation and cannot be granted. According to the Municipality the
procurement prescripts
were simply being ignored by the applicant. It
further alleged that the application amounts to an attempt to usurp
the functions
of the first respondent and/or the Provincial
Government and that the applicant has no authority to act in the
manner described
in the prayers contained in the notice of motion. It
was further contended that the application is contrary to the
provisions of
Section 139 of the Constitution which empowers the
Provincial Government to intervene when a Municipality cannot or does
not fulfil
an executive obligation in terms of the Constitution or
legislation.
[37]
With regard to the alternative relief it was stated that the
requested relief is not urgent
and are in any event not supported by
the true state of affairs.
[38]
Under the heading
"BRIEF
BACKGROUND"
the following
allegations were made:
"31.
On or about 26 May 2020 the Parys Town 132/11kv Substation MP1 Kv
breaker failed and exploded. The first respondent lost
supply for
about two days. Since then the first respondent was supplied from
Transformer 1 via a twin 640 sqmn. ...
32.
On 22 April 2022 an ad-hoe temperature scan was done on the Parys
Town transformer 1 and it was
found that the blue phase MV bushing
connection was hotter than the other bushings. On 10 May 2022 an
Eskom employee saw a colour
change on the connection and the cable
insulation was melting on the transformer MV blue phase connection.
The cause was suspected
to be the higher winter loads.
33.
In order to prevent permanent transformer damage, the overcurrent
settings were lowered to the
transformer rating. The overcurrent
setting applied was 1050 A (20.005 MVA).
34.
It was recommended not to operate the Parys Town transformer no 1
above its rating until the hot
connection on transformer 1 was fixed.
35.
In order to minimize the risk, it was then decided to limit the
transformer load to 20 MVA (transformer
rating) until the hot
connection was repaired. The overload settings was (sic) changed on
30 June 2022 to prevent overloading and
the transformer tripped on 1
July 2022 at approximately 07:28 due to an overcurrent."
The
issue regarding the costs of the repairs, correspondence exchanged
between the first respondent and Eskom in that regard and
the
subsequent payment of the amount to Eskom by the first respondent,
which matters were also referred to in the founding affidavit,
were
also dealt with in the answering affidavit. It was then stated in
paragraph 39 of the answering affidavit that "the supply
of
electricity was restored on 4 July 2022 at about 22h00". The
following allegations were furthermore made:
40.
Notwithstanding that the first respondent had effected payment for
the repairs
to the transformer Eskom still raised issue regarding the
exposure their transformer is likely to experience due to the
overloading
from the municipal network as the consumption /usage far
exceeded the contractual supply of 21
MVA.
41.
Eskom had declared a dispute in terms of Inter-Governmental Relation
(IGR) processes
and requested National Treasury, Provincial Treasury
and the Free State CoGTA to (be) the mediator between the parties. A
meeting
in terms of the IGR processes was held on 6 July 2022.
42.
It was resolved that Eskom would payment
(sic)
of 50% of the outstanding debt over
a period of six months. The first respondent would after a grace
period of six months pay the
current account in full.
43.
Electricity supply was restored to
the first respondent on 5 July
2022
after the repairs were completed."
(Own emphasis)
[39]
The allegations made in the founding affidavit regarding the alleged
absence of electricity
and the consequences thereof pertaining to
water supply and sanitation services, were denied in the answering
affidavit and the
deponent specifically made,
inter
alia,
the following averments:
"52.
It is denied that there is no water being supplied in Parys due to
pumps not working. The electricity supply is in working
order in
Parys."
[40]
It was contended in the answering affidavit that the applicant
"failed to appreciate
the true factual matrix notwithstanding
the fact that the facts are available to the public in media
statements". It was further
contended that there were no facts
to support the applicant's case and its request for an interdict.
[41]
The first to fourth respondents concluded that the application stood
to be dismissed with costs
de bonis
propriis.
The
first to fourth respondents' supplementary answering affidavit:
[42]
Mr TR Malunga, employed by the first respondent as Director:
Technical Services deposed
to the supplementary answering affidavit
filed on behalf of the first to fourth respondents. In the said
affidavit he set out his
academic qualifications and employment
history. He further stated that he is, by virtue of his position,
familiar with the facts
surrounding the water issues at the first
respondent.
[43]
He set out the details of the historical reasons surrounding the
shortage of water in the
Parys area. In this regard he stated that
the Parys water conveyance infrastructure dates back to the year
1912.
[44]
Mr Malunga provided certain technical explanations and subsequently
stated that the water
issues of the first respondent were as a
consequence of the first respondent's infrastructure being old and
dilapidated.
[45]
He, however, indicated that there is a plan to improve water quality
and availability towards
the Parys and Vredefort areas. This plan
entails a refurbishing and upgrading of the bulk supply of water to
the Parys and Vredefort
areas to ensure "reliable, sufficient
and safe water for the residents of the first respondent".
[46]
According to Mr Malunga the projected costs of the project are
estimated at R1 234 356
065, inclusive of profession and specialist
fees. Due to the aforesaid costs of the proposed upgrades, the first
respondent does
not have the resources to implement same. The first
respondent has accordingly applied to the National Department of
Public Works
and Infrastructure for funding to effect the plans. A
copy of the said application, dated 25 May 2022, was attached to the
supplementary
affidavit as annexure "NLM2".
[47]
Mr Malunga consequently stated that
the
founding affidavit
was
premised on incorrect facts, since the water issues are
not as a result of a lack of
electricity.
(Own emphasis)
The
replying affidavit:
[48]
In the replying affidavit the deponent pointed out that the facts
which have been disclosed
by the respondents, especially in their
supplementary answering affidavit, had been withheld from the
residents of Parys and the
applicant. It was contended that those
facts could have and should have been disclosed to the applicant in
response to the letter
of demand of 6 July 2022.
[49]
With regard to the electricity issues, the deponent conceded that
since she deposed to
the founding affidavit, the supply of
electricity "to some parts of the town has partially been
restored". It was pointed
out that the applicant did in any
event not seek the immediate restoration of electricity services in
the notice of motion. It
was further conceded in paragraph 11.2 that
"it
appears that
some steps have now been taken in an attempt to
resolve
The
dispute between Eskom and the
Municipality"
and
that
"for the moment the
applicant does not seek relief in respect of electricity supply to
residents".
[50]
With regard to the water supply, the deponent stated as follows in
paragraph 13 of the
replying affidavit:
13.1
What is clear from the affidavits filed on behalf of the respondents
is that they are waiting on National Government
to fund the proposed
project to repair and upgrade the water reticulation system of the
town.
13.2
What is glaringly absent from the affidavits filed by the respondents
is any alternative plans or backup measures
to ensure access to water
to the residents of the town, pending the proposed repairs and
upgrades.
13.3
One would at least have expected the first to fourth respondents to
arrange for alternative means to provide water
to residents, for
instance via water trucks or delivery of bottled water for drinking.
This has not been done and the residents
are dependent on the
applicant and other charitable persons and organisations for
provision of basic water."
[51]
With reference to the first to fourth respondents' bare denial in
their answering affidavit
regarding the lack of water supply to the
residents of town, the applicant obtained affidavits from members of
the community and
attached same to the replying affidavit, from which
affidavits it appeared that some community members have been deprived
of water
since 1 July 2022, some of them have been receiving water
some of the-time-; many others-were still without-water, whilst
in-some
instances the water was only restored on 14 July 2022.
[52]
Regarding the sanitation issues, the deponent pointed out that the
Municipality did not
deny that raw sewage is running down the streets
of Parys, nor that it is running into the Vaal River. According to
the deponent
they did also not dispute the cause of the failure of
the town sanitation services to be related to electricity. The
deponent stated
as follows in paragraph 19.3 of the replying
affidavit:
"It
is shocking that the current state of affairs seems to be acceptable
to the respondents, and they do not even bother to
disclose what the
cause thereof is, or what they intend to do to resolve the issue."
[53]
Under the heading
"AD
ALTERNATIVE RELIEF IN LIGHT OF THE
NEW
INFORMATION"
the following was
stated in the replying affidavit:
"20.1
It is clear that some relief is
necessary to safeguard the
Constitutional rights of the
residents of Parys
.
20.2
In so far as the relief which is
sought in the notice of motion
has
been
rendered
moot
or
impossible
in
light
of
the
information
subsequently
provided by the third respondent
and the deponent to the respondents'
supplementary affidavit.
it
is
prayed
that
the
Court
at
least
grant
relief
for the
emergency provision of water.
20.3
The emergency relief can include
water trucks, bottled water
.
public
taps etc to the extent that the court deems meet in the
circumstances."
(Own emphasis)
Consideration
of the urgency of the application and the merits of
the relief sought at the date
of the adiudication of the application:
[54]
From the aforesaid outline of the contents of the respective
affidavits, it is evident
that the disclosure and ventilation of the
relevant facts and circumstances have resulted in the development of
the application
to the extent that the applicant is no longer seeking
and/or persisting with the relief it initially sought in terms of the
notice
of motion. This was indicated in the replying affidavit and
during the hearing of the application, Mr Coertze also confirmed same
in his oral argument. In his oral argument Mr Coertze also indicated
additional aspects in relation to which the applicant is no
longer
seeking relief and/or is not seeking it on an urgent basis and/or is
now seeking relief different from what was sought in
the notice of
motion.
A:
Electricity supply:
[55]
The applicant is no longer seeking relief in respect of electricity
supply to the residents
of Parys. This is evident from the replying
affidavit and Mr Coertze also confirmed same during his oral
argument. According to
the applicant this concession is based on the
fact that electricity supply to the town has been restored or at
least partially
restored. It is furthermore based on the fact that
steps have since been taken by the relevant role players to resolve
the dispute
between Eskom and the Municipality.
[56]
In my view the aforesaid concession was correctly made.
B:
Sanitation issues:
[57]
Mr Coertze pointed out that the first to fourth respondents did not
deny the existence
of problems with the sewerage system, but other
than to deny that it was related to an electricity problem, they did
not disclose
the cause thereof and/or what they intend to do to
resolve the problems. Mr Coertze indicated that the applicant
suspects that
the sanitation issues are probably also as a result of
infrastructure problems and the lack of maintenance thereof. He
consequently
submitted that should the Court be amenable to it, an
order can be made in terms whereof the first to fourth respondents be
compelled
to report to Court on the state and functionality of the
sewerage system. Once such a report has been filed, it can be dealt
with
at a later stage in due course and not on an urgent basis.
C:
Water issues:
[58]
Mr Coertze submitted that it is evident that the basic Constitutional
right of the residents
of Parys to access to water is being violated.
He consequently contended that the matter is urgent in that urgent
intervention
is required to stop the violation of their right to
water and to prevent a threat to life.
[59]
In their answering affidavits, especially in the supplementary
answering affidavit, the
first to fourth respondents blamed the poor
condition of the water infrastructure for the water problems and the
lack of water.
Mr Coertze, however submitted that the maintenance of
the water infrastructure is ultimately the responsibility of the
first to
fourth respondents. Therefore, the first to fourth
respondents cannot blame the lack of maintenance of the water
infrastructure
for the lack of water supply. It does not resolve the
problem and does not exempt the first to fourth respondents from
their Constitutional
obligation to provide access to water to the
residents of Parys.
[60]
However, Mr Coertze conceded that due to the information which
transpired from the answering
affidavits of the first to fourth
respondents, the applicant realises and concedes that even should the
Court grant an order in
terms of the notice of motion to compel the
first to fourth respondents to restore full and complete water supply
within 24 hours,
the first to fourth respondents will not be able to
comply with such an order. Mr Coertze confirmed that the applicant
was therefore
no longer persisting with the relief in that regard. Mr
Coertze, however, submitted that in the meantime there are residents
who
have no access to water. He consequently indicated that what the
applicant is requesting from Court, under the heading of "further
and/or alternative relief' contained in the notice of motion, is to
provide emergency relief to the effect that the first to fourth
respondents be ordered to take the necessary steps to secure access
to water to all residents, be that by means of water trucks,
bottled
water, public taps and/or any other manner in which the first to
fourth respondents can provide same.
[61]
Mr Nyangiwe commenced his argument with reference to paragraph 20.2
of the replying affidavit,
which I repeat for the ease of reference:
"20.2
In so far as the relief which is sought in the notice of motion has
been rendered moot or impossible in light of the
information
subsequently provided by the third respondent and the deponent to the
respondents' supplementary affidavit, it is prayed
that the court at
least grant relief for the emergency provision of water."
He
submitted that the aforesaid constituted a complete concession that
the entire application is, or has become, moot.
[62]
It was pointed out by Mr Nyangiwe that the entire application was
pinned on the basis that
there was a complete lack of electricity
supply to Parys and as a result thereof also a complete lack of water
supply and no sanitation
processes. That was the case which the first
to fourth respondents had to meet on an urgent basis with only 48
hours' notice of
the application. With regard to the letter of demand
attached to the founding affidavit, Mr Nyangiwe referred to the
letter from
Eskom which was sent to the applicant's attorneys of
record in response to the letter of demand, which response letter is
attached
to the founding affidavit as annexure "FA8". In
paragraph 17.1 of the letter of demand the applicant demanded that
"Eskom immediately refrain from
interrupting the electricity supply to the Municipality, due to them
reaching their maximum
demand
as a
result of non-payment of their
account':
Mr Nyangiwe pointed out
that in response thereto, under the heading
"Ad
para 17.1",
Eskom stated as
follows:
"Please
note that Eskom
is not
interrupting the
supply
of electricity to the Municipality, but has, following
the overloading which resulted in internal damage to the transformer
and
in compliance with its regulatory obligations, reduced the
transformers output to the maximum allowable capacity in order to
protect
the transformer from further damage that could lead to a
total collapse of the transformer.
The
transformer which is providing supply to the Municipality has been
utilized above its capacity as communicated to the Municipality
since
2018. The pending litigation at the Constitutional Court is testimony
to this fact and Eskom has been at pains to explain
that the
transformer will collapse if it is not upgraded. Eskom has quoted the
Municipality to upgrade the supply several times
but to no avail.
The
Municipality
has
now
requested a quotation to increase its Notified Maximum Demand at the
Parys Point of delivery and Eskom is in the
process
of providing the Municipality with
same. Once the Municipality accepts the Budget Quote and fulfils its
obligations
set
out in the Budget Quote, Eskom can proceed to provide the
Municipality with the increase in supply."
Mr
Nyangiwe consequently submitted that from the aforesaid response by
Eskom it must have been clear to the applicant that the electricity
supply to Parys had been restored since the deponent to the founding
affidavit gathered the information she referred to in paragraph
6.4
of the founding affidavit and that there consequently indeed was
electricity supply to Parys at that time. Instead, the applicant
continued with the drafting and issuing of the urgent application in
which the alleged reasons for urgency clearly did not exist
anymore,
as evident from Eskom's response letter.
[63]
I have to agree with the aforesaid contention by Mr Nyangiwe. In
addition to the response
letter by Eskom, which on the applicant's
own version came to its knowledge before the application was
launched, there was also
the Media Statement by Eskom, dated 4 July
2022, attached to the answering affidavit as annexure "MM1",
from which it
was also evident that the electricity supply was due to
be restored
"by midnight"
on 4 July 2022. I need to mention that the deponent to the answering
affidavit referred to the Media Statement as a "letter
from
Eskom", but as correctly pointed out by Eskom in its
"Explanatory Affidavit" it was in fact a media Statement
which, according to Eskom, "was posted publicly and reached a
far wider audience than a letter would have". The following
was,
inter alia,
stated
in the said Media Statement:
"ESKOM
RECEIVED NGWATHE PAYMENT, RESTORATION COMMENCES:
MONDAY,
04 JULY 2022:
After waiting since
Friday, 01 July 2022, for a promised payment of R1.1 million from
Ngwathe Local Municipality, Eskom is pleased
to confirm that the
payment was finally received this morning. The payment will be
allocated to repairs required to restore supply
to Parys and
Vredefort in the Free State after overloading on the Ngwathe
electrical network tripped and damaged Eskom's equipment
on Friday,
01 July 2022.
Repairs
to the Eskom equipment will now commence. Based on the assessments of
the damage, supply to Ngwathe should be restored by
midnight tonight.
...
Supply
to Ngwathe will be restored to the capacity as per the contracted
NMD "
No
allegation was made by the applicant in its replying affidavit that
it did not have knowledge of the said Media Statement nor
was any
explanation provided as to why it would not have come to the
applicant's knowledge prior to the issuing of the application.
[64]
Mr Coertze relied in his argument in support of the urgency of the
application on judgments
of the Constitutional Court in which the
principle was enunciated that in instances of serious violations of
rights matters should
be considered to be urgent enough to warrant
the attention of the Court. Mr Coertze referred,
inter
alia,
to the matter of
Mtolo
and
Another
v Lombard
and
Others
(CCT 269/21)
[2021] ZACC
39
(CC) (8 November 2021) in which the Constitutional Court held as
follows at paras [29] - [32]:
"[29]
The applicants allege that they live in the open, their children
sleep in the car, the children's schooling is negatively
impacted by
this situation, the situation has traumatised the children and the
family has been reduced to being dependent on the
goodwill of members
of the community for such basic necessities as taking baths and
washing clothes. A most demeaning situation.
[30]
If true,
these allegations cry out for urgent resolution. And generally a
situation of this nature cannot automatically be trumped by the
fact
that a litigant is out by a few days in timeously arranging for the
set-down of an urgent application (Own emphasis)
[31]
That said, there is a worrying trend where plainly urgent
applications are struck from
the roll for lack of urgency. A few
years back an example was
Informal
Traders.
A recent and most glaring
example is
Moko.
In that matter an acting principal of a school denied Mr Mako, a
grade 12 student, access to an end-of-year examination for allegedly
having failed to attend extra classes. The High Court struck from the
roll an urgent application in which Mr Mako sought a mandamus
that he
be afforded an opportunity to write the missed examination in time
for the result to be out with the results of other candidates.
With
no regard whatsoever for the impact that its decision was likely to
have on Mr Moko's future, the High Court struck the matter
from the
roll for lack of urgency. That was plainly wrong. Unsurprisingly, we
held as much.
[32]
By their very nature, some cases call
for the striking of a balance between compliance with practice
directives on the conduct of
urgent matters and the clamant need to
come to the assistance of a litigant whose rights are severely being
violated.
Informal
Traders
and
Moko
are examples of such cases and, in
my view, so is the present matter. The facts I have set out above
about the instant case make
this plain. To have this matter heard in
due course, that is, not as one of urgency, means it will be heard
not earlier than the
second quarter of 2022. That cannot be "
(Own emphasis)
[65]
Based on the aforesaid principle, the present application
would obviously have been urgent and would have necessitated urgent
intervention
by the Court had the factual allegations relied on in
the founding affidavit for purposes of urgency and in support of the
relief
claimed, been true and correct. Unfortunately for the
applicant, they are not. As I have already indicated, the urgency of
the
entire application was pinned on the basis that there was a
complete lack of electricity supply to Parys, with the resultant lack
of water supply and no sanitation processes. Mr Coertze confirmed
same in paragraph 5 of his headsof argument where he stated that
the
"crisis related to water and sanitation in Parys has its origin
in the absence of electricity". However, it is evident
from what
I have already stated and found above, that the electricity had
already been restored at the time when the application
was issued.
The alleged reasons for urgency did consequently not exist.
[66]
This, in my view, distinguishes the present application from the
application in the
Mtolo-judgment
.
At the time when the present
application was issued, the alleged grounds for urgency did not exist
anymore. The lack of urgency
became even more evident after the
filing of the answering affidavits.
[67]
I am consequently of the view that I would be entitled to remove the
matter from the roll
due to a lack of urgency.
[68]
However, it is evident from the nature of the substantive relief
which the applicant was
seeking in the notice of motion, that such
relief was premised on the (incorrect) assumption that at the time
when the application
was issued, there was a complete absence of
electricity supply to Parys due to disputes between the first to
fourth respondents
and Eskom, which absence of electricity was the
cause of the water and sanitation problems. The alleged cause of the
alleged urgency
of the application is therefore, in my view,
intertwined with the merits of the relief sought in the notice of
motion. I consequently
consider it apposite in the circumstances to
also adjudicate the merits of the application, despite the lack of
urgency.
[69]
In the answering affidavit the first to fourth respondents explained
the reasons for the
power outage which occurred on 1 July 2022 and
expressly stated that the electricity supply to Parys had since been
restored. On
the applicant's case as presented in the founding
affidavit to the effect that the lack of electricity supply was the
sole cause
of the water and sanitation issues, the explanations and
allegations in the answering affidavit, read on their own, actually
already
disposed of the merits of the application. In the
supplementary answering affidavit, the true and real cause of the
problems with
regard to water supply was explained and the first to
fourth respondents set out the steps they are taking to resolve the
problems.
The contents of the supplementary answering affidavit were
therefore, in my view, further indicative of the complete absence of
any merits in the applicant's application. I consequently agree with
the contention by Mr Nyangiwe that in light of the aforesaid
facts
and circumstances which the first to fourth respondents revealed in
their answering affidavits, one would have expected that
the
applicant, at that stage, would either have withdrawn the application
or have approached the first to fourth respondents with
a letter
indicating that since it has become evident that the relief sought by
the applicant is or has become moot, it is suggested
that the parties
attempt, in the interest of the residents of Parys, to rather resolve
the pressing and immediate plight of the
residents by means of
alternative ways of water supply than to continue with the urgent
application. The applicant, however, failed
to do so.
[70]
Instead, the applicant persisted
with
its
application
and
filed
its replying affidavit in
which it in fact conceded that the relief sought in the notice of
motion has become moot. In addition
to the concession, the applicant
requested that emergency relief be granted pertaining to alternative
ways of supplying water to
the residents. As correctly contended by
Mr Nyangiwe, not only was the request for this relief for the first
time forthcoming in
reply, which is not permissible, but the
applicant did not even attempt to provide any factual basis in
support of such relief.
Not a single allegation was made regarding
the possible availability of water trucks, the number of trucks
available, suggested
central points where such trucks should be
parked in order to make them accessible to residents from all parts
of town, suggested
ways in which and from where bottled water should
be distributed, the number of bottles to be distributed on a daily
basis in order
to fulfil in the need, who was to be responsible for
the procurements and costs of the bottled water, suggested central
points
where public taps should be erected and so forth. It is
impossible to make any such order in the absence of proper
information
regarding,
inter alia,
the mentioned aspects. In fact, to
make any such order in the circumstances may even result in an order
which in any event would
be impossible for the first to fourth
respondents to comply with.
[71]
An order compelling the first to fourth respondents to file a report
regarding the condition
of the sanitation infrastructure, as
suggested and requested by Mr Coertze during argument, can obviously
also not be granted on
the basis of the present application papers.
The relief sought in the notice of motion pertaining to the
sanitation problems and
the case set out in the founding affidavit in
this regard was solely based on the alleged absence of electricity
supply. No facts
whatsoever were alleged in support of an order as
now suggested by Mr Coertze.
Conclusion:
[72]
In the circumstances I am of the view that the application has no
merits and consequently
stands to be dismissed.
Costs:
[73]
Mr Nyangiwe submitted and requested that the applicant's attorneys of
first instance be
ordered to pay the costs of the application
de
bonis propriis.
He contended that it
was the duty of the applicant's attorneys of first instance to have
properly read and considered the contents
of the letter from Eskom in
response to the letter of demand. He submitted that they clearly
failed to do so, because had they
fulfilled that duty, they would not
have advised the applicant to issue the present unfounded
application.
[74]
Mr Coertze submitted that there is no basis in the present matter for
an order of costs
de bonis propriis.
He referred to the judgment in
Multi-Links Telecommunications Ltd
v
Africa
Prepaid Services Nigeria Ltd
2014 (3) SA 265
(GP) at para [35] where the Court pronounced as
follows on costs
de bonis propriis:
"[35]
It is true that legal representatives sometimes make errors of law,
omit to comply fully with the rules of court or err
in other ways
related to the conduct of the proceedings. This is an everyday
occurrence.
This
does not, however, per se ordinarily result in the court showing its
displeasure by ordering the particular legal practitioner
to pay the
costs from his own pocket. Such an order is reserved for conduct
which substantially and materially deviates from the
standard
expected of the legal practitioners, such that their clients, the
actual parties to the litigation, cannot be expected
to bear the
costs, or because the court feels compelled to mark its profound
displeasure at the conduct of an attorney in any particular
context.
Examples are dishonesty, obstruction of the interests of justice,
irresponsible and grossly negligent conduct, litigating
in a reckless
manner, misleading the court, gross incompetence and a lack of
care..."
[75]
Mr Coertze also referred to the matter of
Stainbank
v SA
Apartheid
Museum at Freedom Park
2011 JDR
0706 (CC) where the Constitutional Court held as follows at para
[52]:
"Although
the courts have the power to award costs from a legal practitioner's
own pocket, costs will only be awarded on this
basis where a
practitioner has acted inappropriately in a reasonably egregious
manner "
[76]
I agree with the contention by Mr Coertze that there is no evidence
of any such inappropriate
conduct by the applicant's attorneys of
first instance. There is no evidence that the application was issued
on the basis of advice
by the said attorneys. It may well be that the
applicant decided to launch the application and/or persist with the
application
despite advice to the contrary by its attorneys of first
instance. Even if it is to be accepted for argument's sake that it
was
done on the advice of the said attorneys, the mere fact that the
attorney erred in advising as such, does not justify an order
mulcting them in costs.
[77]
Mr Coertze further submitted that should I find against the
applicant, it would be inappropriate
to order the applicant to pay
the costs of the application. In this regard he contended that the
applicant acted in the public
interest in the application and that
the purpose of the application was to protect and promote the
Constitutional rights of the
residents of Parys. He consequently
relied on the well-known judgment in
Biowatch
Trust v Registrar Genetic Resources and
Others
2009 (10) BCLR 1014
(CC) at paras [22-] - [23] in which the general
principle relating to costs in litigation between the government and
a private
party seeking to assert a constitutional right was
established to be that ordinarily, if the government loses, it should
pay the
costs of the other side, and if the government wins, each
party should bear its own costs.
[78]
Although the aforesaid Biowatch-principle is in fact well
established, the Constitutional
Court, in the very same judgment, at
para [24] thereof, also determined as follows:
"At
the same time, however, the general approach of this Court to costs
in litigation between private parties and the State,
is not
unqualified. If an application is frivolous or vexatious, or in any
other way manifestly inappropriate, the applicant should
not expect
that the worthiness of its cause will immunise it against an adverse
costs award."
[79]
For purposes of the last-mentioned qualification to the
Biowatch-principle, the Constitutional
Court referred to the judgment
in the matter of
Wildlife and
Environmental
Society-
of
South
Africa- v
MEC-for-
Economic--Affairs
,
Environment
and
Tourism,
Eastern
Cape,
and
Others
2005
(6) SA 123
(E) at 143 I - 144 B where the Court held as follows:
"In
all the circumstances I am of the view that, objectively viewed,
applicant's conduct in launching the application was,
regrettably,
not reasonable. I use the word regrettably advisedly, because it is
quite clear that in bringing the application applicant
acted out of
the best of motives arising out of its very real concern for the
environment. It wished, in the public interest, to
prevent the
installation of a waste disposal system which it considered would be
gravely harmful to the environment and to human
life.
However
,
in the light of al
l
the
circumstances pertaining at
the time the proceedings were instituted
and of which
circumstances applicant. had it exercised due care
,
should
have been aware, its concerns had already been met and the
application was therefore unnecessary
. I am acutely aware of
the above-mentioned authorities as to the chilling effect of adverse
costs orders in matters of this nature
as well as of the pertinent
remarks of Davis J in the
Silvermine
case
(supra).
In
my view, however, it would neither be fair nor in the interests of
justice for first and second respondents to be deprived of
the costs
incurred by them in opposing an application which was doomed to
failure from its inception." (Own emphasis)
[80]
In my view the last-mentioned
dicta
and the mentioned facts and factors
are
mutatis mutandis
applicable
to the present application.
[81]
It appears that the applicant relied on the information referred to
in paragraph 6.4 of
the founding affidavit which the deponent
obtained and prepared the application on that basis without having
considered, or properly
considered, the response letter from Eskom
and the Media Statement of Eskom dated 4 July 2022. The applicant
furthermore apparently
also failed to exercise reasonable care in
ensuring that the alleged facts and circumstances which it intended
to rely on in the
founding affidavit, had not changed between 4 July
2022 and the time when the founding affidavit was deposed to. This
failure of
the applicant resulted in the launching of the baseless
urgent application.
[82]
In my view the facts and circumstances in the present matter are
similar to those in the
Wildlife
and
Environmental
Society
of
South
Africa-judgment,
supra,
which
necessitates a finding similar to the one at 144 A - B of the
aforesaid judgment:
"In
my view, however, it would neither be fair nor in the interests of
justice for first and second respondents to be deprived
of the costs
incurred by them in opposing an application which was doomed to
failure from its inception."
[83]
In my view the application consequently constitutes an appropriate
instance where an order
of costs in accordance with the qualification
to the Biowatch-principle, should be ordered.
[83]
With regard to the costs of 13 July 2022 which stood over for later
adjudication, there
is no reason why those costs should not be
included in the costs of the application.
[84]
As indicated earlier, Eskom filed a Notice to Abide, but deemed it
necessary to file an
Explanatory Affidavit to "address those
aspects of Ngwathe's answering affidavit which merit correction"
in order to
"assist the Court in coming to a just decision based
on correct facts". I also indicated earlier that Mr Raynard
appeared
on instructions of Eskom on a watching brief. In my view it
would not be fair in the circumstances to order the applicant to pay
Eskom's costs. Eskom did also not request any costs order in their
favour. Eskom is to bear its own costs.
Order:
[85]
The following order is consequently made:
1.
The application is dismissed.
2.
The applicant is ordered to pay the first to fourth respondents'
costs of the application, which costs are to include the reserved
costs of 13 July 2022.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv. A Coertze
Instructed
by
:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
- 4
th
respondents:
Adv. L Nyangiwe
Instructed
by
:
Matlho
Attorneys
BLOEMFONTEIN
On
behalf of the 5
th
respondent:
Mr
A Raynard
Instructed
by
:
Raynard &
Associates Inc
BLOEMFONTEIN