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[2022] ZALMPPHC 9
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Communities around Labalelo and Others v Labalelo Water User Association and Others (2907/2021) [2022] ZALMPPHC 9 (14 February 2022)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 2907/2021
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: NO
REVISED.
DATE: 14 FEBRUARY 2022
In the matter
between:
COMMUNITIES
AROUND LABALELO
1
ST
APPELLANT
PHETHO
MARKS MOELA
2
ND
APPLICANT
MATOME
JOEL MOKOENA
3
RD
APPLICANT
JOSEPH
MONGANA LEKWADU
4
TH
APPLICANT
And
LABALELO
WATER USER ASSOCIATION
1
ST
RESPONDENT
J.A
BIERMAN, CHIEF EXECUTIVE OFFICER
2
ND
RESPONDENT
MINISTER
OF WATER AND SANITION
3
RD
RESPONDENT
OFFICE
OF THE PUBLIC PROTECTOR
4
TH
RESPONDENT
JUDGMENT
MANGENA:
AJ
[1] Sekhukhune district
is endowed with minerals and is a home for several mining companies
operating in the area. To maximize their
operations, mining companies
established Lebalelo Water User Association whose objectives is
amongst others to establish, operate
and maintain a bulk water supply
scheme by abstracting raw water from Olifants River and distribute it
to its members.
[2] The association is
governed by a constitution approved by the Minister of Water and
Sanitation on 22 January 2002 and its founding
members are mentioned
in clause 7 of the Constitution.
[3] In addition to the
founding members, the Constitution makes provision for the admission
of new members by way of application.
The application for membership
is processed by the Management Committee which is enjoined to
consider such application and approve
it unless there is a good
reason to refuse.
[4] Membership is
categorised into two parts, namely “
industrial members”
whose principal business is mining and require the water for
industrial purposes or mining purposes and “Ordinary Members”
whose principal business is not mining and require water for
non-industrial or non-mining purposes.
[5] The applicants
approached this court for an order compelling the first and second
respondents to permit community representation
on the membership of
the first respondent “
as provided for in the constitution of
the first respondent”.
The applicants further seek an order
directing the first and second respondents to supply the communities
with the water as per
the water licence granted to the 1
st
respondent. There were other ancillary orders prayed for in the
notice of motion which I do not deem it necessary to mention given
the conclusion I have reached.
[6] The application is
opposed by the first and second respondents who have raised two
preliminary points for consideration by the
court before determining
the merits. At the hearing, the parties agreed to make submissions
holistically on an understanding that
I would in this judgment make a
ruling on the points in limine raised and uphold or dispose of the
matter on that basis. I am indebted
to counsel for their
understanding
[7] The first point in
limine raised is lack of locus standi on the part of the applicants
to institute the proceedings. The respondents
contend that the
applicants are not properly authorised to institute this legal
proceedings and attack the resolution attached
to the papers on the
basis that it has not been confirmed by the respective chiefs/headmen
of the affected villages, to the extend
that applicants argue that
they were authorised to institute the proceedings such authorisation
does not appear in the resolution
attached. The resolution only
record that a meeting was held on 21 March 2021 and the second, third
and fourth applicants were
elected to represent the community members
at Lebalelo Water User Association.
[8] Adv Letsoalo,
representing the applicants argued fervently that the resolution by
the community is sufficient to clothe the
applicants with a legal
standing to come to court as on the face of it is clear that the
members who had gathered in that meeting
gave their elected
representatives the authority to represent them at all relevant fora
for the purpose of discussing water shortage.
Indeed, this may well
be so, but does it follow automatically that authority to represent
include authority to institute legal
proceedings? I do not think so.
[9] The above
notwithstanding, I prefer to resolve the issue of standing guided by
the relief sought in the notice of motion. The
applicants are members
of the rural communities affected by the shortage of water in their
area. Acting in terms of the provisions
of
Section 38 of the
Constitution,
they came together to assert their right to be
provided with water and cited the Minister of Water and Sanitation,
who is the ultimate
authority for the supply of water to the
communities.
[10]
In Ferreira v
Levin No and Others, Vryenhoek 7 others v Powell,
1996 (1) SA 984
(CC),
the Constitutional Court cautioned against a restrictive
and narrow approach to the issue of standing on matters affecting
constitutional
rights. It urged that a broad and liberal approach
should be adopted. The same approach was followed in
Lawyers for
Human Rights V Minister of Home Affairs,
2004 (40) SA 125
(CC)
where
the court said: The issue is always whether a person or organisation
acts genuinely in the public interest. A distinction
must however be
made between the subjective position of the person or organisation
claiming to act in the public interest on the
one hand, and whether
it is, objectively speaking, in the public interest for the
particular proceedings to be brought.
[11] In my view, the
community represented by the applicants are asserting their
constitutional rights and have a legal standing
to institute the
proceedings without the approval of their headmen/ headwomen. There
is, therefore no merit in the respondent’s
submission that
community members should have the authority of their traditional
leaders before asserting their rights arising
out of the
Constitution. The point in limine is dismissed.
[12] The second point in
limine is non-joinder of the relevant and necessary parties with a
direct interest on the outcome of the
proceedings. The respondents
argue that the applicants seek to place an obligation on them to
provide drinkable water, an obligation
which legally falls on
Sekhukhune District Municipality and Lepelle Northern Water. The two
entities are the water services authorities
and have a legal
obligation to ensure that the communities are provided with drinkable
water. The applicants failed to join these
entities to this
proceedings and such failure is fatal to their case.
[13] The principles
governing joinder are trite and are simply that a third party should
be joined in proceedings if he or she has
a direct and substantial
interest in a matter. What constitute a direct and substantial
interest is the legal interest in the subject
matter of the case
which could be prejudicially affected by the order of the court.
[14] The Constitution
demarcated responsibility for the provision of water to the service
authorities and in this instance Sekhukhune
District Municipality.
The municipality has an obligation to ensure that the water supplied
to the communities is purified and
suitable for household purposes.
In relation to the obligations and the first respondent, there is no
duty on its part to supply
drinkable
water to the surrounding
communities. As part of its social responsibility, the first
respondent has a duty to supply
raw
water to the municipality
which must in turn process it and distribute to the communities. To
the extent that the applicants argued
that the first respondent must
be ordered to supply
drinkable
water, such a prayer is bound
to create a tension and impact on the constitutional obligations of
both Sekhukhune District Municipality
and Lepelle Northern Water,
which are the water services authorities recognised in terms of the
Water Services Act No 108 of 1997
[15] Given the role
played by the two entities, it is clear to me that it was necessary
that they be joined to this proceedings
as their operations will be
prejudicially affected by the order made. Both counsel drew my
attention to the case of
Judicial Services Commission and another
v Cape Bar
Council and another,
2013 (1) SA 170
(SCA) at para
12
and the principle stated therein which confirms that the
joinder of a party is only required as a matter of necessity as
opposed
to convenience. In this case and owing to the
constitutionality of the obligations placed on Sekhukhune District
Municipality,
it was incumbent upon the applicants to have joined
them to the proceedings. This point in limine is upheld.
[16] With regard to the
merits of the application, particularly prayer 1 for community
representation on the membership of the 1
st
respondent,
the applicants have not made out a case. I have set out the
provisions of the constitution dealing with membership,
and none of
the provisions relied upon by the applicants gives them a right to be
members of the water user association. Both the
Water Act and the
constitution of the association prescribe methods through which
membership can be obtained and the applicants
do not comply with any.
[17]
Section 93 (2)
(b) of the National Water Act of 36 of 1998
provides that the
constitution of the water User association should contain procedures
and requirements for admitting new members
of the association,
Clause: 7.5 of Lebelo Water User Association constitution allows
admission of new members on application and
Clause 7.6 state that the
association must allow a person to become a member of the association
if directed by the Minister to
do so.
[18] The applicants have
not demonstrated compliance with the prescribed requirements for
admission either in terms of clause 7.5
or clause 7.6 of the
constitution and their application is bound to fail as they have no
legal entitlement to membership of the
association. Their
participation in the meetings of the association is by invitation and
occurs as a matter of privilege and not
a right. The minister has the
power to direct that the community be awarded a membership status and
has not done so. Their relief
does not lie with this court but within
the office of the Minister of Water and Sanitation.
[19] In the
circumstances, the application fails. I intend to make no order as to
costs because the applicants are acting in the
public interest.
Considerations of fairness and equity requires that they be not
mulcted with costs as they sought to vindicate
their constitutional
right.
[20] For the above
reasons, the application is dismissed.
MANGENA AJ.
ACTING JUDGE OF THE
HIGH
COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the Appellant
:
Adv.
JLH Letsoalo
Instructed
by
: PE
Mashola Attorneys
Counsel
for the Respondent :
Adv. SARAJULIE
SWARTZ
Instructed
by
: Webber
Wenzel Attorneys
Date
of Hearing
: 07
FFEBRUARY 2022
Date
of Judgment
: 14
FEBRUARY 2022