South African Human Rights Commission v Msunduzi Local Municipality and Others (8407/2020P) [2021] ZAKZPHC 35; [2021] 3 All SA 939 (KZP); 2021 (6) SA 500 (KZP) (17 June 2021)

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[2021] ZAKZPHC 35
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South African Human Rights Commission v Msunduzi Local Municipality and Others (8407/2020P) [2021] ZAKZPHC 35; [2021] 3 All SA 939 (KZP); 2021 (6) SA 500 (KZP) (17 June 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 8407/2020P
In the matter
between:
SOUTH AFRICAN
HUMAN RIGHTS COMMISSION
APPLICANT
and
MSUNDUZI LOCAL
MUNICIPALITY
FIRST RESPONDENT
HEAD OF THE
DEPARTMENT OF
ECONOMIC
DEVELOPMENT,
TOURISM AND
ENVIRONMENTAL AFFAIRS,
KWAZULU-NATAL
PROVINCIAL GOVERNMENT
SECOND RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL
FOR ECONOMIC
DEVELOPMENT,
TOURISM AND
ENVIRONMENTAL AFFAIRS,
KWAZULU-NATAL
PROVINCIAL GOVERNMENT
THIRD RESPONDENT
ORDER
The
following order is granted:
Declaratory
relief
1.
It is hereby declared that the first
respondent is in breach of paragraph 3.1 read with paragraphs 4.1.8
and 4.1.16 of the Revised
Compliance Notice (as amended) issued by
the second respondent on 18 February 2020.
2.
It is hereby declared that the first
respondent is in breach of the Variation Waste Management Licence
issued by the second respondent
on 3 July 2017, in respect of the
operation of the New England Road Landfill Site on Lot 1853 of the
Farm Darvill No 15036, New England
Road, Pietermaritzburg.
3.
It is hereby declared that the first
respondent is in breach of:
3.1.
Section 24 of the Constitution of the
Republic of South Africa, 1996;
3.2.
Section 20
(b)
of the
National Environmental Management: Waste Act 59 of 2008
;
3.3.
Section 31L(4)
of the
National
Environmental Management Act 107 of 1998
;
3.4.
Section 28(1)
and (3) of the
National
Environmental Management Act 107 of 1998
;
3.5.
Section 19(1)
of the
National Water Act 36
of 1998
; and
3.6.
Its obligations in terms of international
law.
Structural
Interdict
4.
Within one (1) month of the date of this order, the first respondent
is directed
to file an Action Plan with this court, which shall
substantially comply with the following terms. The Action Plan shall:
4.1
be detailed and comprehensive;
4.2
address all non-compliances identified by the second respondent in
paragraph 3.1 of the Revised
Compliance Notice;
4.3
be designed to comply with paragraphs 4.1.8 and 4.1.16 of the Revised
Compliance Notice;
4.4
explain the steps that the first respondent will take in order to
comply with the Revised Compliance
Notice and the Variation Waste
Management License, and
4.5
set measurable, periodic deadlines for progress.
5.
All the parties to this application will be
entitled to comment on the Action Plan within one (1) month from the
date on which that
plan is filed with this court.
6.
The first respondent will thereafter file
with this court, and serve on the other parties to this application,
monthly reports indicating
its progress with regard to the
implementation of the Action Plan, after its approval by the second
and third respondents.
7.
All the parties to the application will be
entitled to comment on these monthly reports within thirty (30) days
after the date on
which they are filed.
8.
The court may, at any stage and on its own
accord, or at the instance of the applicant or the first respondent
make further directions
or orders it deems fit.
9.
Thereafter this matter may be enrolled on a
date to be fixed by the registrar in consultation with the Presiding
Judge for consideration
and determination of the aforesaid reports,
commentary and replies.
10.
Furthermore, the first respondent is
directed to discharge its duty of care and remediation of environment
as required by
section 28(1)
and (3) of the
National Environmental
Management Act 107 of 1998
.
11.
Within six (6) months from the date of this order,
the first respondent is directed to file a report, under oath, with
this court
on the progress on the first respondent’s discharge of
the duty of care and remediation as referred to above.
12.
There will be no order as to costs.
JUDGMENT
SEEGOBIN
J
Introduction
[1]
This matter concerns the New England Road Landfill Site in
Pietermaritzburg (the ‘landfill
site’) and the alleged failure on
the part of the Msunduzi Municipality (‘the municipality’) from
complying with its constitutional
obligations in operating and
maintaining the landfill site in a manner that causes no harm to the
health and well-being of the citizens
of Pietermaritzburg and
surrounding areas.
The parties
[2]
The applicant is the South African Human Rights Commission, a
national institution established
in terms of Chapter 9 of the
Constitution of the Republic of South Africa, 1996 (‘the
Commission’). The constitutional role of
the Commission is to
protect and promote the fundamental human rights enshrined in Chapter
2 of the Constitution
[1]
as well
as to
inter
alia
take
steps to secure appropriate redress where human rights have been
violated.
[2]
The Commission’s
founding affidavit was deposed to by Mr Jonas Ben Sibanyoni, a part
time commissioner appointed as such in terms
of s 193 of the
Constitution and s 5 of the South African Human Rights Commission Act
40 of 2013 (‘the SAHRC Act’).
[3]
The first respondent is the Msunduzi Municipality, a municipality
[3]
established under the Local Government: Municipal Structures Act 117
of 1998 (‘the municipality’).The municipality’s answering
affidavit was deposed to by its municipal manager, Mr Madodo Phumula
Kathida.
[4]
The second respondent is the Head of Department of Economic
Development, Tourism and
Environmental Affairs, Province of
KwaZulu-Natal (‘the Department’).
[5]
The third respondent is the Member of the Executive Council for
Economic Development,
Tourism and Environmental Affairs, Province of
KwaZulu-Natal (‘the MEC’).  The MEC is also responsible for
waste management
in the province in terms of s 1 of the National
Environmental Management: Waste Act 59 of 2008 (‘the Waste Act’).
[6]
The Department and MEC do not oppose the application and the relief
being sought by
the Commission.  Whilst they abide by the
decision of this court they have, however, put up explanatory
affidavits to assist
the court in making a determination herein.
[7]
The main explanatory affidavit on behalf of the Department and the
MEC has been deposed
to by Ms Kim Lea Van Heerden who is the district
manager of the Umgungundlovu District at the KwaZulu-Natal Department
of Economic
Development, Tourism and Environmental Affairs. She is
also designated as a Grade 1 Environmental Management Inspector
(‘EMI’)
in terms of s 31B of the National Environmental
Management Act 107 of 1998 (‘NEMA’). Ms Van Heerden has been
involved in past
and present engagements and enforcement measures
involving the landfill site with the municipality and other
stakeholders.
[8]
The MEC himself has deposed to an affidavit in which he records,
inter alia
,
that he and his department remain committed to continue their
engagements with the municipality in order to monitor, supervise and
assist it and, most importantly, to ensure that there is no further
compromise to the health and safety of the surrounding communities,
the public and the environment.
[9]
Apart from the other portfolios held by the Department and the MEC,
they remain the
official environmental authorities in the province.
Relief
[10]
The relief being sought by the Commission is two-fold. In the first
place it seeks declaratory relief
against the municipality in regard
to the municipality’s violation of the terms of its Waste
Management Licence (‘WML’), its
failure to comply with compliance
notices issued by the Department from time to time, its blatant
failure to comply with s 24
of the Constitution; its fundamental
breaches of various provisions of other relevant legislation such as
the Waste Act, NEMA, the
National Water Act 36 of 1998 (‘the Water
Act’), as well as its failure to fulfil its obligations in terms of
international law.
In the second place the Commission seeks a
structural interdict in order to allow this court to exercise some
form of supervisory
jurisdiction over the municipality to ensure that
the order is implemented.
[11]
The relief claimed by the Commission is foreshadowed in a Draft
Amended Order.
[4]
Whether
and to what extent such relief will be necessary will be considered
later in this judgment.
The opposed
hearing
[12]
At the opposed hearing on 28 May 2021, the Commission was represented
by Mr Madonsela SC, the municipality
by Mr Y N Moodley SC (assisted
by Mr V Moodley) and the Department and the MEC by Ms A Gabriel SC. I
am indebted to all counsel for
their useful submissions and the
professional manner in which they discharged their respective briefs
herein.
[13]
I point out at this stage that while the municipality sought to fully
oppose this application from the
outset, in argument I was informed
by Mr Moodley SC that the municipality would ‘welcome’ the grant
of a structural interdict
and accordingly would no longer oppose this
aspect of the relief. The municipality was, however, opposed to the
grant of any declaratory
relief against it. Mr Moodley pointed to a
number of challenges facing the municipality in giving effect to its
constitutional obligations
to maintain the landfill site. I will deal
with the municipality’s contentions in this regard later on in this
judgment. For now,
however, it is perhaps convenient to sketch the
relevant facts and circumstances giving rise to the Commission’s
involvement in
this matter and the institution of these proceedings.
Commission’s
involvement
[14]
In February 2020 the Commission commenced with an intensive
investigation of the municipality’s operation
of the landfill site
and its failure to comply with its Constitutional obligations in
terms of s 24 of the Constitution and the various
other pieces of
legislation referred to above. The Commission’s involvement was
informed by what can only be described as a desperate
cry for help by
the citizens of Pietermaritzburg to make the municipality account for
its continued failure to maintain the landfill
site in a manner that
would not be injurious to their health and well-being.  This cry
for help resonated from a number of newspaper
articles, media reports
and petitions from ordinary citizens and civil society organisations.
[15]
That the Commission was duty-bound to act arises from its
constitutional duty to ‘promote the protection,
development and
attainment of human rights’ and to ‘monitor and assess the
observance of human rights’.
[5]
The Commission’s powers to act are further fortified by the
provisions of s 38 of the Constitution and s 32 of NEMA which
provides
that:
‘
Any
person or group of persons may seek appropriate relief in respect of
any breach or threatened breach of any provision of this
Act [NEMA] .
. . or of any provision of a specific environmental management Act
[for example, the Waste Act of the
National Water Act], or
of any
other statutory provision concerned with the protection of the
environment . . .’
[16]
Specifically, in terms of
s 32
of NEMA, a person seeking relief may
act in his or her interests, in the interests of a group or a class
of people whose interests
are affected, in the public interest or in
the interest of protecting the environment.
[6]
[17]
In its letter dated 14 July 2020, the Commission informed the
municipality of its investigations and
requested the municipality to
furnish it with all relevant information relating to its management
of the landfill site. The municipality
duly complied and furnished
the Commission with a voluminous amount of documents spanning a
number of years.
[18]
On 27 August 2020 the Commission gave the municipality formal notice
of its intentions to institute legal
proceedings against it for its
alleged violations of the Constitution arising from its operation of
the landfill site. This letter
is detailed in its content. It sets
out the municipality’s operation of the landfill site from a
historical perspective, it details
the municipality’s failure to
comply with the terms and conditions of the licence issued by the
Department of Water Affairs and
Forestry in 1998, and it highlights
the manner in which the municipality has simply failed to fulfil its
constitutional mandate in
the operation of the site. This letter
forms the basis of the Commission’s case against the municipality
as set out in the founding
papers in these proceedings.
Commission’s
engagements with stake holders and interested parties
[19]
As part of its investigations, the Commission engaged interested and
affected parties in order to solicit
their views on the matter. The
details of such engagements are dealt with by the Commission from
paragraphs 75 to 89 of its founding
affidavit. On 25 August 2020 the
Commission received a petition signed by 17 122 people from a
voluntary association in Pietermaritzburg
known as ‘Love PMB’.
The petition dealt with the state of the landfill site and the fact
that residents had lost faith in the
municipality to protect their
rights enshrined in the Constitution. The Commission also engaged
with representatives of the Organised
Ratepayers Association in the
Msunduzi-Pietermaritzburg area on 15 September 2020 regarding its
views on the state of the landfill
site. On 16 September 2020 the
Commission engaged with (a) representatives of Siyazuza Ngemvelo, an
association of the Sobantu Township,
and (b) groundWork, an
organisation based in Pietermaritzburg which represents waste pickers
who are affected by the municipality’s
operation of the landfill
site. On 18 September 2020 representatives of the Commission
conducted an on-site inspection of the landfill
site.
Relevant
background
[20]
There are no material disputes of fact in this matter. For purposes
of this judgment I see no need to
sketch the full history of the
landfill site as the Commission has laudably tried to do so in its
founding affidavit.  The following
facts are relevant in my view
to provide some context for the relief being sought by the
Commission.
[21]
The landfill site is located on Lot 1853 of the Farm Darvill 15036 in
Pietermaritzburg, within the area
of jurisdiction of the
municipality. The landfill site lies approximately two kilometres
south of the N3 Freeway, in an area between
the Sobantu Township, the
Darvill Waste Water Treatment Works and the Maritzburg Golf Course.
[22]
The landfill site is used for the disposal of general waste only,
including domestic waste, inert waste
and garden waste. It is the
primary landfill disposal site of the municipality. The waste
disposed at the landfill site includes
waste form other local
municipalities falling within the Umgungundlovu District
municipality’s family of local municipalities.
[23]
On 22 April 1998 the Department of Water Affairs and Forestry (DWAF)
granted the then Pietermaritzburg-Msunduzi
Transitional Local Council
a fresh permit in terms of s 20 of the Environmental Conservation Act
73 of 1989 (‘ECA’) to operate
the landfill site. This permit was
commonly referred to as a ‘section 20 permit’ or a ‘Replacement
Permit’ since it replaced
the previous one. The permit was issued
subject to certain ‘Minimum Requirements’
[7]
that were published by DWAF from time to time. These Minimum
Requirements dealt with every aspect of the landfill site from
disposal
of waste to management, to security, etc. The references to
the Minimum Requirements in the permit effectively meant that the
then
local council was obliged to comply with them at all times.
[24]
NEMA, which is a national statutory framework designed to give effect
to s 24 of the Constitution, came
into effect on 29 January 1999.
Amongst other things, NEMA imposes a legal duty on persons in control
of land or premises to take
reasonable measures in certain
circumstances prescribed in the Act. This duty is often referred to
as the ‘duty of care’ towards
the environment. The scope of this
duty is broad and is encapsulated in s 28(2) as follows:
‘
(2)
Without limiting the generality of the duty in subsection (1),
[8]
the
persons on whom subsection (1) imposes an obligation to take
reasonable measures, include an owner of land or premises, a person
in control of land or premises or a person who has a right to use the
land or premises on which or in which—
(
a
)
any activity or process is or was performed or undertaken; or
(
b
)
any other situation exists,
which
causes, has caused or is likely to cause significant pollution or
degradation of the environment.’
[25]
The duty of the care prescribed by NEMA applied with equal force to
the then local council in its operation
and management of the
landfill site.
[26]
The municipality herein was established as such on 19 September 2000
in terms of the
Local Government: Municipal Structures Act 117 of
1998
. It became the owner and operator of the landfill site from that
date to now.
[27]
The Waste Act came into effect on 1 July 2009. The coming into effect
of the Waste Act resulted in two
consequences which are of
significance to this matter:
(a)
firstly, that for all intents and purposes, all section 20 permits
were to be regarded as
Waste Management Licences (WMLs) issued in
terms of the Waste Act;
(b)
secondly, that the regulation of the operations relating to the
landfill site was transferred
from DWAF to the Department and the
National Department of Environmental Affairs (‘DEA’). This
effectively meant that the Department
and the DEA became responsible
for the monitoring of compliance of the municipality’s section 20
permit.
[28]
Section 81 of the Waste Act is of particular relevance to this
matter. Its significance is that it repealed
s 20 of the ECA. Despite
that repeal, a permit issued in terms of s 20 of the ECA remained
valid subject to s 81(2) and (3) of the
Waste Act. Hence, the repeal
of s 20 of the ECA did not have the effect of repealing the
municipality’s ‘Replacement Permit’
relating to the landfill
site. Instead, the Replacement Permit became regarded as a WML issued
in terms of the Waste Act.
[29]
On 6 June 2016, the municipality made an application to the
Department for a variation of the Replacement
Permit. At that time
the Department and the MEC had become the competent environment
authorities responsible for the regulation of
the municipality’s
operation of the landfill site.
[30]
The application for a variation was granted on 3 July 2017. The
Department issued a WML in terms of the
Waste Act. This licence was
referred to as a Variation Licence. The Variation Licence is the
current instrument that regulates the
municipality’s operation and
management of the landfill site.
[31]
The holder of a WML is required to operate a landfill site lawfully
within the prescripts of the prevailing
legislation and in accordance
with certain Norms and Standards set by the Minister of Environmental
Affairs from time to time. The
Commission amplifies these obligations
as follows:
(a)
Firstly, in terms of s 20
[9]
of
the Waste Act, an operator of a landfill site must be a holder of a
WML if that operation involves the disposal of general waste
to land
covering an area in excess of 200 square metres with a total capacity
exceeding 25 000 tons. This is because operating a
landfill site of
such dimensions is a listed waste management activity which requires
to be undertaken in accordance with a WML.
(b)
Secondly, s 16(1)
(d)
of the Waste Act provides that:
‘
A
holder of waste must, within the holder’s power, take all
reasonable measures to—
. . .
(
d
) manage
the waste in such a manner that it does not endanger health or the
environment or cause a nuisance through noise, odour or
visual
impacts.’
(c)
Thirdly, an operator of a landfill site is required to comply with
the National Norms and
Standards for Disposal of Waste to Landfill,
2013.
[10]
On the same date the
Minister issued the Waste Classification and Management
Regulations.
[11]
By issuing
both the regulations and the Norms and Standards, the Minister had
effectively incorporated the Norms and Standards into
law.
(d)
Fourthly, in addition to the requirements imposed by the Waste Act,
an operator is required
to discharge a duty of care in terms of s 28
of NEMA, as already alluded to above.
(e)
Fifthly, section 19
[12]
of the
Water Act contains a duty of care towards water resources which is
similar to the duty of care contained in s 28 of NEMA.
History of
non-compliance by municipality
[32]
The Commission’s founding affidavit proceeds to sketch a long
history of non-compliance on the part
of the municipality in respect
of its WML and constitutional obligations.  While this history
has been broken up into various
periods commencing in about 2000, it
will serve no purpose to delve too deeply into this for present
purposes. It suffice in my view
to have regard to the period 2015 to
2017 and from 2017 to date in order to assess the nature and effect
of such non-compliance.
I deal with this period here below.
[33]
On 10 March 2015 officials of the Department undertook a
comprehensive audit of the municipality’s
operations of the
landfill site. Representatives of the municipality as well as the DEA
were also present. The team leader representing
the Department was Mr
Ian Felton who, like Ms van Heerden, is also a duly appointed EMI.
These officials found numerous instances
of non-compliance by the
municipality of its s 20 permit.
[34]
On page 9 of the audit report
[13]
Mr Felton itemised the following areas of non-compliance relating to
the disposal area under the heading ‘Key Non-Compliances’:
‘
1.
Observations were made that hazardous chemical containers, paint
containers and paint
products, whole tyres and motor oil containers
have been disposed of at the site indicating that the waste
assessment and classification
system was not adequate.
2.
Large numbers of people using the disposal area in circumstances that
pose significant
health hazards. Observations were made that people
have access to the site and are using stagnant and contaminated
surface water
on the site. Structures have been erected on the
disposal area that includes beds and sleeping areas which indicated
that people
may be permanently living within the waste disposal site,
being exposed to extremely hazardous situations.
3.
There was limited or no access control to the site and an unmanned
gate at the
rear of the landfill site. Vehicles and pedestrians
entering the site through this gate and the numerous pedestrian
accesses, were
unchecked and no record of waste entering or leaving
the site through these gates/openings was taken.
4.
The vehicle maintenance area is being used for the servicing and
repair of vehicles
and plant. Extensive areas of oil contaminated
soil exist within the area. Storm water washing off this area flows
directly to the
Msunduzi River.
5.
Leachate was seeping into the environment from the dysfunctional
leachate area
and the toe of the landfill area.’
[35]
Under the heading ‘Working Face Leachate Storm Water
Management’
[14]
the
following key-non-compliances are recorded:
‘
1.
No effective leachate management system is in place with the landfill
site. The leachate
collection and disposal system are currently
dysfunctional.
[a contravention of
section 16 (1) (a), (b) and (c) of the Waste Act, section 21 G and
section 19 (1) of the Water Act, and section
28 (1) of NEMA.]
2.
No repairs or maintenance work was currently taking place on the
leachate system
in spite of the system being in a state of disrepair.
[a contravention of
16 (1) (a) of the Waste Act and section 28 (1) of NEMA]
3.
There is inadequate operation of the site in accordance with the
Minimum Requirements.
The working face of the landfill was not being
effectively compacted and covered.
[a contravention of
section 20 of the Waste Act, section 28 (1) of NEMA and section 19
(1) of the Water Act]
4.
Excessive waste is stored at the transfer station which was providing
condition
for flies and odours arising from the landfill site. The
transfer station area is not lined and there is no storm water
management
of contaminated water.
[a contravention of
section 20 of the Waste Act, section 28 (1) of NEMA and section 19
(1) of the Water Act]
5.
Informal waste recovery and recycling is taking place on the site and
this is posing
significant human health and safety risks.
[a
contravention of 16 (1) (a), (b) and (c) of the Waste Act, sections
21 (g) and 19 (1) of the Waste Act and section 28 (1) of NEMA].’
[36]
Following upon the above site inspection and audit report, the
Department issued a warning letter to
the municipality drawing its
attention to the areas of non-compliance identified in the report. A
year later, on 6 June 2016, the
municipality applied to the
Department for a variation of its s 20 permit. While this request was
acceded to by the Department on
3 July 2017, most of the conditions
of the s 20 permit were retained in the revised WML.
[37]
The period from mid-2015 to mid-2017 was marked by what the
Department considered to be ‘an improvement’
in the management of
the landfill site. This was noted by the Department in its letter to
the Commission dated 7 September 2020.
[15]
It recorded, however, that the site still required continued
financial and human resource capital investments by the municipality
to move towards and achieve compliance with its WML.
[38]
The period from 3 July 2017 to date was marked by the end of what the
Department previously referred
to as ‘substantively improved . . .
management operation’ of the landfill site. According to the
Department, the municipality
had abandoned the steps taken by it
during the period from mid-2015 to mid-2017.
[39]
On 25 October 2017 officials of the Department and the municipality
jointly undertook a further comprehensive
audit of the operations of
the landfill site. The Department produced an audit report
[16]
which sets out the findings made. The report records,
inter
alia
,
that the municipality was found not to have complied with a
substantial number of conditions contained in the WML.
[40]
Between August 2018 and November 2018 several meetings were held
between officials of the Department
and those of the municipality
with a view to ensuring the latter’s compliance with the WML. At a
follow up inspection at the site
on 13 December 2018 officials of the
Department observed that the state of the site had deteriorated
further.
[41]
Thereafter the Department held a series of meetings, site inspections
and other engagements with the
municipality to ensure compliance with
the relevant legislation and the terms of the WML. The Department
asserts that all this was
done in accordance with the principles of
co-operative governance and in conjunction with the Department’s
monitoring, oversight
and supervision role over municipalities in the
province.
[42]
Following a series of fires that occurred at the landfill site and
with no significant corrective action
taken by the municipality, the
Department issued the municipality with a Notice of Intention to
Issue a Compliance Notice, otherwise
known as a Pre-Compliance
Notice. Further meetings were held with municipal officials but a
lack of adequate progress at the landfill
site led the Department to
issue a compliance notice in terms of s 31L
[17]
of NEMA on 15 May 2019.
[43]
Section 31L of NEMA empowers an environmental management officer
(such as Ms van Heerden or Mr Felton)
to issue a compliance notice.
The section provides as follows:
‘
31L.
Power to issue compliance notices
(1) An environmental
management inspector, within his or her mandate in terms of section
31D, may issue a compliance notice in the
prescribed form and
following a prescribed procedure if there are reasonable grounds for
believing that a person has not complied—
(
a
) with a
provision of the law for which that inspector has been designated in
terms of section 31D; or
(
b
) with a
term or condition of a permit, authorisation or other instrument
issued in terms of such law.
(2)
A compliance notice must set out—
(
a
) details
of the conduct constituting noncompliance;
(
b
) any steps
the person must take and the period within which those steps must be
taken;
(
c
) any thing
which the person may not do, and the period during which the person
may not do it; and
(
d
) the
procedure to be followed in lodging an objection to the compliance
notice with the Minister or MEC, as the case may be.
(3)
An environmental management inspector may, on good cause shown, vary
a compliance notice
and extend the period within which the person
must comply with the notice.
(4)
A person who receives a compliance notice must comply with that
notice within the time period
stated in the notice unless the
Minister or MEC has agreed to suspend the operation of the compliance
notice in terms of subsection
(5).
(5)
A person who receives a compliance notice and who wishes to lodge an
objection in terms
of section 31M may make representations to the
Minister or MEC, as the case may be, to suspend the operation of the
compliance notice
pending finalisation of the objection.’
[44]
According to the Department there was no response from the
municipality to this compliance notice. Officials
of the Department
met with officials of the municipality again on 20 June 2019 to
elicit a response, however, none was forthcoming.
[45]
The Department eventually received the municipality’s response to
the compliance notice on 26 July
2019 together with a draft action
plan. None of this was effectively implemented by the municipality,
with significant fires breaking
out at the landfill site on 2, 24 and
25 August 2019.
[46]
Given the deteriorating situation at the landfill site and the fires
mentioned above, the Department
registered a criminal complaint
against the municipality on 27 August 2019. That matter is still
pending.
[47]
The Department received another report of a major fire at the
landfill site in the period 5 to 9 October
2019. The extent and
duration of this fire compromised air quality and resulted, amongst
others, in the closure of schools due to
health and safety concerns
in the surrounding communities.
[48]
On 7 October 2019 an urgent meeting was held between representatives
of the municipality, officials of
the Department as well as officials
of the KwaZulu-Natal Department of Co-operative Governance and
Traditional Affairs. Due to the
severity of the situation the MEC
himself undertook a site inspection on 8 August 2019. Following upon
this meeting a further compliance
notice in terms of s 31L of NEMA
was served on the municipality which undertook once again to submit
an action plan. The action plan
that was subsequently received did
not address the concerns raised in the compliance notice.
[49]
Reports of further fires at the landfill site were received on 17
October 2019, 28 October 2019 and 23
December 2019 and the gravity of
the situation was discussed at Provincial Cabinet level. On the basis
of legal advice sought and
obtained at the time, the option of
pursuing an interdict against the municipality was not followed due
to the existing provincial
intervention set out in section
139(1)
(b)
[18]
of the Constitution.
[50]
The continued deterioration of the landfill site in early 2020
compelled the Department to issue a Revised
Pre-Compliance notice on
7 February 2020. In response the municipality submitted its ‘Action
Plan’ on 14 February 2020. On 18
February 2020, after considering
the municipality’s representations, the Department issued a Revised
Compliance Notice.
[19]
This
Revised Compliance Notice is important as it not only details the
historical non-compliance by the municipality with the numerous
compliance notices issued by the Department from time to time, but it
also calls upon the municipality to rectify its breaches within
specified time-frames.
[51]
For the most part of 2020 the municipality simply failed to comply
with its own undertakings and revised
variations issued by the
Department at the municipality’s request from time to time. On 2
July 2020 a major fire occurred at the
landfill site. Site
inspections conducted by officials of the Department with those of
the municipality achieved very little or nothing
at all. On 20 July
2020 another fire broke out and continued until 24 July 2020. The
smoke from this fire enveloped major parts of
the City and also
resulted in the closure of the N3 freeway due to a complete lack of
visibility on that road.
[52]
On 5 August 2020 the municipality itself informed the Premier of the
KwaZulu  Natal that, for a
variety of reasons, the landfill site
was a high risk facility and that, if not managed in compliance with
all relevant legislation,
it can pose a serious health and
environmental risk.
[53]
In a letter to the Commission dated 7 September 2020, the Department
advised the Commission that while
the municipality has made
considerable efforts to meet key actions identified in the Revised
Compliance Notice of 17 August 2020,
there were still areas of
non-compliance as well as a complete failure to provide an acceptable
and comprehensive action plan.
[54]
The present application was brought as a matter of urgency on 26
November 2020.
Municipality’s
opposition
[55]
The municipality has no real defence to this application. While it
attempts to answer the Commission’s
case, it provides no response
whatsoever to the allegations contained in the explanatory affidavits
put up by the Department and
the MEC. These affidavits no doubt serve
to amplify and support the Commission’s case against the
municipality regarding its constitutional
obligations and apparent
failure to comply with the relevant legislation and its own WML.
[56]
While the Commission’s
locus standi
to institute these proceedings and whether the dispute should not be
referred to mediation in terms of rule 41A of the Uniform Rules
were
some of the issues that were raised by the municipality, none of
these were pursued in argument.
[57]
At paragraph 39 of its answering affidavit, the municipality concedes
‘that there was a substantial
deterioration of the landfill site
and that there was historical non-compliance with its operations’.
It goes on to contend, however,
that recent events are of greater
significance to determine this application and that it is committed
to improving the landfill site’s
operations and to ensure strict
compliance with legal requirements. In essence, it accuses the
Commission of instituting these proceedings
in circumstances when it
was aware of the steps being taken by the municipality to improve its
obligations.
[58]
The municipality averred that the Commission had failed to prove any
violation of the provisions of s
24 of the Constitution. It contended
that the non-compliance with conditions in a permit or licence is not
an automatic violation
of the rights envisaged in s 24 unless
the facts prove that the violation caused unacceptable levels of
pollution and ecological
degradation as envisaged in s 24
(b)
(i).
It went on to aver that pollution can simply not be considered
harmful or be at unacceptable levels in the absence of any objective
scientific and/or medical evidence. Once again, however, neither of
these defences were pursued in argument.
[59]
As I mentioned already, while the municipality was no longer opposed
to the grant of a structural interdict,
it was vehemently opposed to
any declaratory relief. It contended in this regard that such relief
was incompetent and served no lawful
purpose. Mr Moodley submitted
that the declaratory relief of the nature being sought by the
Commission served only to duplicate and/or
reinforce the existing
penal and other sanctions found in the various pieces of legislation.
[60]
Mr Moodley argued that although the municipality was trying its level
best to comply with its constitutional
obligations, it faces huge
budgetary and procurement challenges in its management and operation
of the landfill site. However, despite
these challenges, substantial
steps have been taken by it since September 2020 to comply with the
terms of its WML and constitutional
obligations.
Roles of the
Department and the MEC in these proceedings
[61]
The explanatory affidavits put up by the Department and the MEC
provide useful insight into the municipality’s
failure to comply
with the terms and conditions of its WML. As the environmental
authorities in the province, the Department and
the MEC point out
that they have had extensive interactions with the municipality over
a period of many years with regard to its
operation of the landfill
site.
[62]
After the huge fire that broke out at the site on 20 July 2020, the
Department went to the extent of
commissioning an independent Air
Impact Report in terms of the National Environmental Management: Air
Quality Act 39 of 2004 to assess
the impact of the fire on air
quality and related socio-economic, public health and safety impacts.
Since then, the Department has
continued to closely monitor the
municipality’s response and actions in order to ensure that the
terms of the Revised Compliance
Notice of 17 August 2020 are
implemented.
[63]
The Department records that its environmental management inspectors
have conducted more than 22 scheduled
and unscheduled inspections of
the site, facilitated 16 further meetings with officials of the
municipality, and issued warning letters
in instances where there has
been a failure to comply with the Revised Compliance Notice. While
these continued inspections, administrative
enforcement actions and
engagements did result in substantial improvement in the management
of the site, an unscheduled site inspection
on 26 November 2020
revealed that the situation at the site had deteriorated once more. A
further warning letter was issued to the
municipality on 11 December
2020.
[64]
In response to this warning letter, the municipality implemented
certain emergency measures. It even
appointed a contractor to repair
and upgrade the access ramp and roads and it moved the unlawfully
disposed waste into the approved
waste cell. By January 2021, most of
the waste which had not been dumped within the approved landfill site
had been moved to approved
areas and repair work on the access ramp
had begun. However, the Department maintains that problems continue
to persist with maintaining
effective management of the site and
securing adequate equipment to move, cover and compact waste disposed
at the site.
[65]
To illustrate the full extent of the municipality’s non-compliance
with the Revised Compliance Notice,
the Department has incorporated a
table in its affidavit setting out the areas of such non-compliance.
There is no need in my view
to detail every aspect of the
non-compliance, suffice it to state that it ranges from the repair
and maintenance of the road network
at the site to issues relating to
the disposal of waste within the site, maintaining proper security
and access to the site, appointing
a suitably qualified
specialist/engineer to assess the storm water management systems and
to provide recommendations to ensure that
all leachate emanating from
the site, including contaminated run-off water, is treated and
disposed of in a lawful manner.
[66]
The MEC was made aware of the municipality’s non-compliance as set
out above. The MEC instructed the
municipality to submit its plans
and remedial measures within the time frames provided for in the
table referred to above. A draft
action plan which was submitted by
the municipality on 15 December 2020 was found not to be
comprehensive enough and lacked detail.
The plan was accordingly not
accepted by the Department.
[67]
Finally, while the Department and the MEC acknowledge that the
municipality has made some effort to implement
the terms of the
Revised Compliance Notice, the reality is that its historical
mismanagement of the landfill site means that the
remedial action
will take time to achieve and will continue to require sustained
intervention.
[68]
Against this background, I now turn to consider the essential issue
that requires determination in this
application in terms of the
prevailing legislation.
The issue
[69]
The issue (as put by the Commission) is whether the municipality’s
violation of its WML, the compliance
notices issued by the Department
and the MEC, the applicable legislation, that is, NEMA, the Waste Act
and
National Water Act, constitutes
a clear violation of s 24 of the
Constitution. Or as succinctly put by Ms Gabriel, whether the
municipality has discharged its duty
of care in terms of the relevant
legislation.
The Legislative
scheme
[70]
Section 24 of the Constitution provides that:
‘
Everyone
has the right—
(
a
)
to an environment that is not harmful to their health or wellbeing;
and
(
b
)
to have the environment protected, for the benefit of present and
future generations, through
reasonable legislative and other measures
that—
(i) prevent
pollution and ecological degradation;
(ii) promote
conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.’
[71]
In
Fuel
Retailers
[20]
Ngcobo J (as he then was) pointed out that:
‘
Section
24 of the Constitution guarantees to everyone the right to a healthy
environment and contemplates that legislation will be
enacted
for the protection of the environment. ECA and NEMA are legislation
which give effect to this provision of the Constitution.’
(Footnote
omitted.)
[72]
That NEMA and the Waste Act are part of a suite of legislative
measures contemplated by s 24 of the Constitution
was recognised more
recently by Petse DJ in
ArcelorMittal
South Africa
[21]
as follows:
‘
.
. .
The
NEMA and the NEM:WA are two legislative measures contemplated in s 24
of the Constitution.
[5]
The preamble to NEMA, after acknowledging that “many inhabitants of
South Africa live in an environment that is harmful to their
health
and well-being”, recognises the right of everyone “to an
environment that is not harmful to his or her health and well-being”.
It imposes an obligation on the State to “respect, protect, promote
and fulfil the social, economic and environmental rights of
everyone
and strive to meet the basic needs of previously disadvantaged
communities”.
[6]
On the other hand, the long title of the NEM:WA describes its
overarching purpose as being to reform the law regulating waste
management. This, it continues, is “in order to protect health and
the environment by providing reasonable measures for the prevention
of pollution and ecological degradation and for securing ecologically
sustainable development”. To this end, the NEM:WA makes provision
for,
inter alia
,
“the licensing and control of waste management activities”; “the
remediation of contaminated land”; and for “compliance
and
enforcement” measures.’
[73]
The operation and management of any landfill site is a highly
regulated and licensed activity. This is
because landfill sites deal
in waste and the disposal of waste. Waste, the handling of and the
disposal of waste are regarded as
inherently polluting activities.
For this reason the definition of ‘pollution’ in NEMA includes
‘the storage or treatment of
waste substances’. Further, the
Waste Act requires specific approval and authority to dispose of
waste to a landfill site, such
as the landfill site herein.
[74]
The long title to the Waste Act recognises that the purpose of the
Act is to regulate waste management
to achieve the protection of the
environment and ‘for the prevention of pollution’.
[75]
Accordingly, the Waste Act provides statutory recognition that
activities such as waste disposal sites
require licensing and
approval through a statutory regulatory environment, precisely
because of the potential or actual adverse environment
impacts
associate with such activities.
[76]
The concept of ‘regulatory offences’ in regulatory statutes was
recognised by the Constitutional
Court in
S
v Manamela (Director-General of Justice Intervening
),
[22]
as those dealing with licensed activities in the public domain which
‘frequently impose duties on responsible persons’ which
‘put
pressure on the persons responsible to take pre-emptive action to
prevent harm to the public’.
[77]
The Water Act
[23]
came into
effect on 1 October 1998. The term ‘waste’ in section 1 of the
Water Act includes
‘
any
solid material or material that is suspended, dissolved or
transported in water (including sediment) and which is spilled or
deposited
on land or into a water resource in such volume,
composition or manner as to cause, or to be reasonably likely to
cause, the water
resource to be polluted.’
[78]
Part 4 of Chapter 3 of the Water Act deals with pollution prevention,
and in particular, the situation
where pollution of a water resource
occurs or might occur as a result of activities on land. The person
who owns, controls, occupies
or uses the land in question is
responsible for taking measures to prevent pollution of water
resources. If these measures are not
taken, the catchment management
agency concerned may itself do whatever is necessary to prevent the
pollution or to remedy its effects,
and to recover all reasonable
costs from the persons responsible for the pollution.
[79]
In
Really
Useful Investments 219
[24]
Navsa JA carefully analysed the regulatory nature of some of the
provisions of the now repealed ECA and those contained in NEMA and
how such regulatory authority extends beyond listed activities, thus
broadening the powers of an environmental authority to regulate
the
activities of owners of land or holders of real rights in land. In
the quoted passages herebelow the learned judge deals with
the duty
of care imposed upon owners of land or holders of real rights in land
and the provisions that are aimed at preventing their
activities from
causing environmental harm:
‘
[27]
Even at common law no person could use property owned by him or her
in a manner that harmed the rights of others. Nuisance involves
the
unreasonable use of property by one neighbour to the detriment of
another. Examples include repulsive odours, smoke and gases
drifting
over the plaintiff’s property from the defendant’s land, water
seeping onto the plaintiffs property, leaves from the
defendant’s
trees falling onto the plaintiff’s premises, slate being washed
down-river onto a plaintiff’s land, causing a disturbing
noise,
causing a common wall to become unstable by piling soil up against
it, overhanging branches and foliage, an electrified fence
on top of
a communal garden wall, blue wildebeest transmitting disease to
cattle on neighbouring ground, and occupants of structures
on
neighbouring land allegedly causing a nuisance.
[28]
In an increasingly ecologically sensitive world the emphasis shifted
beyond the interests of immediate neighbours to the protection
and
preservation of the environment for the benefit of present and future
generations. This shift has been given added emphasis by
our
Constitution. That idea was already evident, even if only in
nascent form, in the provisions of ECA, which dealt not only
with the
regulation of dangers posed to the environment but also provided for
the declaration of protected natural environments,
special nature
reserves and limited development areas.
[29]
NEMA was enacted after the advent of our new constitutional order. It
is legislation envisaged in s 24 of the Constitution.
It almost
completely replaced ECA. Only certain provisions of ECA remain,
including ss 21, 22 and 23. Significantly, ss 31A,
34 and 37
also continue in existence.
[30]
NEMA was enacted to provide for co-operative environmental governance
by establishing principles for decision-making on matters
affecting
the environment, institutions that will promote cooperative
governance and procedures for co-ordinating environmental functions
exercised by organs of state and to provide for certain aspects of
the administration and enforcement of other environmental management
laws.
[31]
Section 2 of NEMA sets out applicable national environmental
management principles, inter alia, that environmental management
must
place people and their needs at the forefront of its concern, and
serve their physical, psychological, developmental, cultural
and
social interests equitably. Section 2(3) of NEMA states that
development must be socially, environmentally and economically
sustainable.
Section 2(4)
(a)
provides, amongst others,
for the following factors to be taken into account when considering
what constitutes sustainable development:
“
(i)
That the disturbance of ecosystems and loss of biological diversity
are avoided, or, where they cannot be altogether avoided,
are
minimised and remedied;
(ii)
that pollution and degradation of the environment are avoided, or,
where they cannot altogether be avoided, are minimised and
remedied;
.
. .
(vi)
that the development, use and exploitation of renewable resources and
the ecosystems of which they are part do not exceed the
level beyond
which their integrity is jeopardised.
.
. .
(viii)
that negative impacts on the environment and on people’s
environmental rights be anticipated and prevented, and where they
cannot be altogether prevented, are minimised and remedied.”
[32] Like ECA, NEMA
sets out “listed activities” that require authorisation as well
as the identification of an authority to grant
it. Section 24F
of NEMA prohibits the commencement of listed activities without the
requisite authorisation. Section 28 of NEMA
provides that persons who
cause or may cause significant pollution or degradation of the
environment must take reasonable measures
to prevent such pollution
or degradation from occurring, continuing or recurring, or, in so far
as such harm to the environment is
authorised by law or cannot
reasonably be avoided or stopped, to minimise and rectify such
pollution or degradation of the environment.
[33] There are
provisions in NEMA which oblige people engaged in prospecting,
exploration, mining or production to make provision
for remediation
of environmental damage. Section 31L of NEMA empowers
environmental management inspectors to issue compliance
notices. NEMA
also has a number of enforcement provisions.
[34] What is clear
from the regulatory provisions of ECA and NEMA set out above, is that
they are distinct provisions that regulate
the activities of owners
of land or of holders of real rights in land, and are aimed at
preventing such activities from causing environmental
harm. Sections
21 and 22 of ECA, which continue in existence, are such measures.
[35] Insofar as
authorisations are required from environmental authorities to engage
in such activities, either in terms of ECA or
NEMA, these are not
unusual. There are other statutes that require authorisations to
undertake particular activities. Town planning
schemes and
legislation affecting particular undertakings, requiring licences and
specific authorisations, are examples.
[36]
Section 23 of ECA, as stated above, also remains in existence.
However, it deals with the creation of limited development areas.
Section 23 and the repealed sections, 16 and 18, were not
primarily regulatory but sought to preserve, for posterity, areas
considered to be ecologically important. When an authority invoked
its powers in terms of those sections, it curtailed real rights
in
land. The invocation of those powers did not arise from the dangerous
activities of the land owners or of persons having a real
right in
the affected areas. They were invoked to protect and preserve
the environment of South Africa for the benefit of all
its people and
for that purpose restricted or subtracted from the rights of the
owners of the land concerned and others having real
rights in
it.’(Footnotes omitted.)
International
agreements
[80]
The Constitution contains four provisions that regulate the impact of
international law on the Republic.
One concerns the impact of
international law on the interpretation of the Bill of Rights.
[25]
A second concerns the status of international agreements.
[26]
A third concerns customary international law. The Constitution
provides that it ‘is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament’.
[27]
A fourth concerns the application of international law. It provides
that when interpreting any legislation ’every court must prefer
any
reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that
is
inconsistent with international law’.
[28]
In this judgment I deal primarily with section 39(1)
(b)
and section 231(4) of the Constitution.
[81]
The Commission submits that the Republic is a signatory to several
international agreements which have
been ratified or approved by
Parliament. Amongst these are the following agreements that are
relevant to the present dispute and
are binding on the municipality
as an organ of State: the African Charter on Human and People’s
Rights (1981); the Basel Convention
on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal, and the
International Covenant on Economic, Social
and Cultural Rights.
[82]
The African Charter is relevant to this matter as it gives everyone
the right to ’enjoy the best attainable
state of physical and
mental health’
[29]
and the
right to ‘a general satisfactory environment favourable to their
development’.
[30]
On the
other hand, it imposes an obligation on State Parties to ‘take the
necessary measures to protect the health of their people.
. .’
[31]
[83]
While the Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal
primarily deals with
transboundary wastes (and, in particular, hazardous wastes), it also
imposes an obligation on State Parties
which deals with other wastes.
Article 4(2)
(c)
provides that State Parties shall take
appropriate measures that:
‘
Ensure
that persons involved in the management of hazardous wastes or other
wastes within it take such steps as are necessary to prevent
pollution due to hazardous wastes and other wastes arising from such
management and, if such pollution occurs, to minimize the
consequences
thereof for human health and the environment.’
[84]
The International Covenant on Economic, Social and Cultural Rights
imposes important responsibilities
on States Parties. In article 12.1
thereof, it is recorded that the States Parties recognise ’the
right of everyone to the enjoyment
of the highest attainable standard
of physical and mental health’. It obliges States Parties to
achieve the full realisation of
this right by taking steps that are
necessary for the ‘improvement of all aspects of environmental . .
. hygiene’.
[32]
Findings
[85]
From the myriad legislative provisions referred to throughout this
judgment there can be no doubt whatsoever
that the operation and
management of the New England Road Landfill Site by the municipality
is a highly regulated activity. These
provisions are clearly aimed to
prevent such an activity from causing environmental harm thereby
ensuring that the health and well-being
of ordinary citizens is not
compromised.
[86]
Throughout its operation of the landfill site which spans a period of
about 18 years, the municipality
was legally obliged to comply with
the terms and conditions of (a) the Replacement Permit from 2000 to 2
July 2017; (b) the Variation
Licence from 3 July 2017 to date; (c)
the provisions of s 20 of the ECA (now repealed) from 2000 to 30 June
2009, and (d) the provisions
of the Waste Act from 1 July 2009 to
date.
[87]
Section 16
[33]
of the Waste
Act imposes an onerous duty on the municipality in respect of its
waste management. It is required,
inter
alia
,
to ensure that waste is treated and disposed of in an environmentally
sound manner. It is also required to manage waste in such
a manner
that it does not endanger health or the environment or causes a
nuisance through noise, odour or visual impacts.
[88]
The strong body of evidence presented by the Commission as well as
the Department and the MEC persuades
me that there has been an abject
failure on the municipality to comply with its WML and to fulfil its
constitutional duties to the
citizens of Pietermaritzburg and
surrounding areas. When numerous fires break out at the landfill
site, when thick smoke and dust
engulf the City, when schools have to
be closed, when sections of the N3 freeway have to be shut down and
when citizens start complaining
about their health and well-being due
to the pollution, then there has to be something seriously wrong with
the municipality’s
operation of this landfill site. It is no answer
for the municipality to merely say that it is ‘trying’ in
circumstances when
the overall evidence suggests the opposite.
[89]
The legislative framework enacted by the State since 1994 provides
for a comprehensive set of protective
measures designed to give
effect to the environmental rights enshrined in s 24 of the
Constitution. One of the most important protective
measures is that
provided for by s 31L of NEMA. This is the power given to
environmental authorities to issue compliance notices.
Despite a
clear legal obligation imposed by s 31L(4), there has been a dismal
failure on the part of the municipality to comply with
the terms of
these notices. The following instances of non-compliance are
relevant:
(a)
The municipality simply failed to comply with the notice issued to it
by the Department on
15 May 2019. The Department’s attempts to
ensure that the municipality complied failed. A further compliance
notice was issued
by the Department on 18 February 2020, effectively
replacing that of 15 May 2019.
(b)
Once again, the municipality failed to comply with the notice of 18
February 2020. One of
the key failings by the municipality with
regard to the third variation notice of 17 August 2020 was that it
failed to provide the
Department with a detailed and comprehensive
action plan referred to in the compliance notice of 18 February 2020
in terms of item
4.1.16 of the notice. What is concerning about this
non-compliance is that it continued up to the time of the
Commission’s filing
of its replying affidavit in March 2021.
(c)
Other critical areas of breaches of the notice of 18 February 2020
related to the municipality’s
failure to comply with the terms of
the WML as itemised in paragraph 3.1 of the notice and in paragraph
4.1.18 of its failure to
ensure that appropriate landfill plant,
required to cover and compact the disposed waste, is functioning and
serviced within seven
(7) days of the issuing of the notice.
[90]
The municipality’s failure to comply with compliance notices issued
by the Department has simply rendered
the invoking of s 31L futile.
This consistent and blatant failure by the municipality has resulted
in a complete violation of the
various provisions of the Waste
Act,
[34]
the Water Act,
[35]
NEMA
[36]
and the
municipality’s own WML. Ultimately, these violations constitute a
violation of s 24 of the Constitution.
[91]
The citizens of Pietermaritzburg, including the highly disadvantaged
community of the Sobantu Township,
are justifiably aggrieved at the
manner in which the municipality has conducted itself in relation to
its operation of the landfill
site over such a long period of time.
They have had to contend with an environment that is significantly
compromised by the presence
and operation of the landfill site in a
manner that violates their rights to this degree. The municipality
seems oblivious of the
serious risk posed to the water resources of
the Msunduzi River. The Commission correctly points out that the risk
posed by the landfill
site to the citizens of Pietermaritzburg is
known to all the parties to this application. As I already mentioned
above, the municipality
has in fact acknowledged this risk in its
presentation to the Premier of this Province on 5 August 2020.
[92]
While the municipality was of the view that ‘if not managed in
compliance with relevant legislation
the landfill site can pose a
health and environmental risk’, the engagements conducted by the
Commission with interested and affected
parties prior to the launch
of these proceedings, reveals that the municipality’s operation of
the site has already compromised
the health, negatively affected the
livelihoods, and compromised the well-being of some of its citizens,
and negatively affected
the environment within the municipality’s
area of jurisdiction.
[93
The flagrant disregard by the municipality of its constitutional
obligations is most concerning.
The municipality’s complaints about
budgetary and procurement constraints are just not good enough.
Citizens of Pietermaritzburg
may well excuse the municipality’s
conduct where it struggles to comply with its constitutional
obligation for a short period of
time but where this has persisted
and continues unabated for more than 15 years, it is unacceptable.
[94]
What the municipality seems to forget is that its operation of the
landfill site is a highly regulated
activity and as such is part of a
regulated community. It is therefore expected that the municipality
will act in an exemplary manner
at all times by complying strictly
with the relevant legislation and permits which regulate its conduct.
[95]
Our courts have consistently emphasised the need for organs of state
(such the municipality herein) to
be exemplary in the manner in which
they comply with their constitutional obligations. In
Merafong
[37]
for instance, the Constitutional Court held that a municipality must
act as a ‘good constitutional citizen’ and its conduct should
be
in compliance with the Constitution. A similar observation was made
by the Constitutional Court in
Lesapo
[38]
where it held that an organ of state ‘should be exemplary in its
compliance with the fundamental constitutional principle . . .
Respect for the rule of law is crucial for a defensible and
sustainable democracy’. In
Kirland,
[39]
the Constitutional Court (per Cameron J) made the following
observation:
‘…
To
demand this of government is not to stymie it by forcing upon it a
senseless formality. It is to insist on due process, from which
there
is no reason to exempt government. On the contrary, there is a higher
duty on the state to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing with rights.
Government is not an indigent or bewildered litigant, adrift on
a sea
of litigious uncertainty, to whom the courts must extend a
procedure-circumventing lifeline. It is the Constitution's primary
agent. It must do right, and it must do it properly
.’
(Footnote omitted.)
[96]
Following from the above, the facts of this matter demonstrate
adequately in my view the vulnerability
of the municipality’s
citizens where the municipality fails to act in an exemplary manner
with respect to its obligations to comply
with the law and the
applicable permits. As a regulatory authority in the province, the
Department may be criticised for not acting
swiftly and decisively
against the municipality whenever it violated the terms of its WML.
While the Department may have been constrained
in this regard because
it had to adhere to the principles of co-operative governance and
inter-governmental relations, the same does
not apply to the
Commission. The citizens of Pietermaritzburg can be grateful to the
Commission for bringing this sorry tale to the
fore.
[97]
A contention raised by the municipality on the papers (but not
pursued in argument) was that the Commission
has failed to put up any
scientific or medical evidence to establish that unacceptable levels
of pollution were caused by the operation
of the landfill site and
that it caused unacceptable levels of pollution to the environment or
a community. In my view, this contention
is misconceived. As Mr
Madonsela has correctly pointed out, apart from the body of judicial
authority, there is also academic support
for the Commission’s
propositions. The author G E Devenish of
The
South African Constitution
[40]
points out that:
‘
The
composite nature of this right is apparent from the fact that a
healthy environment is linked to section 24 to the issues of
pollution,
ecological degradation and conservation. The notion of the
environment has become less technical and more sociological as is
evident
from a recent United Nation’s report on Human Rights and
the Environment in which it was stated: “[W]e have moved from an
environmental
right to the right to a healthy and balanced
environment.” This consolidation and synthesis is a comparatively
recent development.
Section 24
(a)
,
apart from minor differences, is identical to the corresponding
provision in the interim Constitution, that is, section 29. The
new
section 24
(b)
accommodates some of the concerns expressed by experts in this field.
This section imposes a general duty on the state to protect
the
environment, and unlike the position in terms of section 24
(a)
,
it is not essential to prove that the activities affecting the
applicant’s environment result in harm to his or her well-being.’
[98]
Apart from the serious violations committed by the municipality in
respect of the various provisions
of the legislative framework as
found above, I further consider that it has also acted in breach of
the relevant environmental provisions
contained in the international
instruments referred to above. Since these instruments have been
ratified by Parliament, they are
binding on the municipality as an
organ of state.
[99]
Finally on this aspect, I deal briefly with the role of the courts in
environmental litigation of the
nature herein. In
Fuel
Retailers
[41]
Ngcobo J (as he then was) pointed out that the role of the courts is
especially important in the context of the protection of the
environment and giving effect to the principle of sustainable
development. He emphasised that
‘
The
importance of the protection of the environment cannot be gainsaid.
Its protection is vital to the enjoyment of the other rights
contained in the Bill of Rights; indeed, it is vital to life itself.
It must therefore be protected for the benefit of the present
and
future generations. The present generation holds the earth in trust
for the next generation. This trusteeship position carries
with it
the responsibility to look after the environment. It is the duty
of the Court to ensure that this responsibility is
carried out.’
[100]
Against the findings made herein, I turn now to consider the nature
of the relief being sought by the Commission
in these proceedings.
Relief to be
granted
[101]
As I pointed out at the commencement of this judgment, in the first
place the Commission seeks a range of declaratory
relief, the aim of
which is to clarify to the municipality that its conduct in operating
the landfill site has violated s 24 of the
Constitution. The
declaratory relief will also serve to inform the citizens of
Pietermaritzburg that the municipality’s operation
of the landfill
site has violated their rights as enshrined in s 24. For these
reasons I agree with Mr Madonsela that the declaratory
relief sought
will serve a lawful and useful purpose.
[102]
Given that the Commission has established that the municipality has
violated s 24 of the Constitution and the
reasonable measures
contemplated in that section, this court has no discretion but to
order the declaratory relief sought.
[42]
Section 172(1)
(a)
[43]
of the Constitution enjoins this court in peremptory terms to declare
any law or conduct that is inconsistent with the Constitution
invalid.
[103]
The Commission contends, however, that the granting of a declaratory
would not be enough. Something more is required.
Under the rubric of
‘just and equitable’ relief this court has a wide discretion to
provide the citizens of Pietermaritzburg
with an effective relief
that will ensure compliance by the municipality of its constitutional
obligations. The remedy sought by
the Commission in this regard is a
structural interdict which will allow this court to exercise its
supervisory jurisdiction as a
vanguard of citizen’s human rights.
[104]
Judicial support for the Commission’s contentions for this type of
relief is to be found in
Fose
v Minister of Safety and Security,
where the Constitutional Court held:
[44]
‘
.
. . I have no doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective relief
be
granted for the infringement of any of the rights entrenched in it.
In our context an appropriate remedy must mean an effective
remedy,
for without effective remedies for breach, the values underlying and
the right entrenched in the Constitution cannot
properly be
upheld or enhanced. Particularly in a country where so few have the
means to enforce their rights through the courts,
it is essential
that on those occasions when the legal process does establish that an
infringement of an entrenched right has occurred,
it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to “forge new tools” and
shape
innovative remedies, if needs be, to achieve this goal.’
[45]
[105]
The Constitutional Court also stated in
Treatment Action Campaign
that:
‘
South
African Courts have a wide range of powers at their disposal to
ensure that the Constitution is upheld. These include mandatory
and
structural interdicts. How they should exercise those powers depends
on the circumstances of each particular case. Here due regard
must be
paid to the roles of the Legislature and the Executive in a
democracy. What must be made clear, however, is that when it
is
appropriate to do so, Courts may - and, if need be, must - use their
wide powers to make orders that affect policy as well as
legislation
.’
[46]
[106]
As I mentioned, the municipality considered it prudent not to oppose
the grant of a structural interdict, albeit
in a slightly amended
form to one being sought by the Commission. Neither Mr Madonsela nor
Ms Gabriel objected to the terms of a
draft order proposed by Mr
Moodley in this regard. As to the issue of costs, the parties were
agreed that no order be made in respect
thereof.
Concluding
remarks
[107]
The manner in which the municipality has conducted itself thus far in
its operation of the landfill site is disturbing.
It shows scant
regard for the health and well-being of its citizens and the
environment. The environmental harm caused by violating
the terms of
its WML and failing to fulfil its constitutional duty constitutes, in
my view, a harm to its citizens. This conduct
should not be allowed
to continue. Hopefully the terms of the order set out herebelow will
serve to ameliorate and/or put an end
to this continuing wrong.
[108]
In conclusion I believe that the Commission, its team of
investigators and legal representatives should be commended
for
taking up and highlighting the issues surrounding the landfill site
in the public interest in order to vindicate the constitutional
rights of the citizens of Pietermaritzburg. The issue of the landfill
site is but a microcosm of the many other problems facing the
citizens of Pietermaritzburg. This municipality like so many others
in the country has simply lost touch with its citizens. The officials
who are in charge of the municipality seem to forget that they are
there only to serve the interests of everyone who live and work
within the municipality’s jurisdiction. This is why they are
employed. Hardworking taxpayers and ratepayers expect nothing more
and nothing else. From a ‘City of Choice’ the municipality and
its largely incompetent, inefficient and inept officials have
literally turned this city into one of filth, grime and degradation.
This has to stop. Any expected changes can only be achieved
not by
political will which is sadly lacking but by the efforts of civil
society and organisations such as the Commission herein.
Order
[109]   In
the result, I make the following order:
Declaratory
relief
1.
It is hereby declared that the first
respondent is in breach of paragraph 3.1 read with paragraphs 4.1.8
and 4.1.16 of the Revised
Compliance Notice (as amended) issued by
the second respondent on 18 February 2020.
2.
It is hereby declared that the first
respondent is in breach of the Variation Waste Management Licence
issued by the second respondent
on 3 July 2017, in respect of the
operation of the New England Road Landfill Site on Lot 1853 of the
Farm Darvill No 15036, New England
Road, Pietermaritzburg.
3.
It is hereby declared that the first
respondent is in breach of:
3.1
Section 24 of the Constitution of the Republic of South Africa, 1996;
3.2
Section 20
(b)
of the
National Environmental Management: Waste
Act 59 of 2008
;
3.3
Section 31L(4)
of the
National Environmental Management Act 107 of
1998
;
3.4
Section 28(1)
and (3) of the
National Environmental Management Act
107 of 1998
;
3.5
Section 19(1)
of the
National Water Act 36 of 1998
; and
3.6
Its obligations in terms of international law.
Structural
Interdict
4.
Within one (1) month of the date of this order, the first respondent
is directed
to file an Action Plan with this court, which shall
substantially comply with the following terms. The Action Plan shall:
4.1
be detailed and comprehensive;
4.2
address all non-compliances identified by the second respondent in
paragraph 3.1 of the Revised
Compliance Notice;
4.3
be designed to comply with paragraphs 4.1.8 and 4.1.16 of the Revised
Compliance Notice;
4.4
explain the steps that the first respondent will take in order to
comply with the Revised Compliance
Notice and the Variation Waste
Management License, and
4.5
set measurable, periodic deadlines for progress.
5.
All the parties to this application will be
entitled to comment on the Action Plan within one (1) month from the
date on which that
plan is filed with this court.
6.
The first respondent will thereafter file
with this court, and serve on the other parties to this application,
monthly reports indicating
its progress with regard to the
implementation of the Action Plan, after its approval by the second
and third respondents.
7.
All the parties to the application will be
entitled to comment on these monthly reports within thirty (30) days
after the date on
which they are filed.
8.
The court may, at any stage and on its own
accord, or at the instance of the applicant or the first respondent
make further directions
or orders it deems fit.
9.
Thereafter this matter may be enrolled on a
date to be fixed by the registrar in consultation with the Presiding
Judge for consideration
and determination of the aforesaid reports,
commentary and replies.
10.
Furthermore, the first respondent is
directed to discharge its duty of care and remediation of environment
as required by
section 28(1)
and (3) of the
National Environmental
Management Act 107 of 1998
.
11.
Within six (6) months from the date of this
order, the first respondent is directed to file a report, under oath,
with this court
on the progress on the first respondent’s discharge
of the duty of care and remediation as referred to above.
12.
There will be no order as to costs.
SEEGOBIN J
APPEARANCES:
COUNSEL
FOR THE APPLICANT:
G Madonsela SC (instructed by Ndlovu de Villiers Attorneys)
COUNSEL FOR THE 1
ST
RESPONDENT:
Mr Y N Moodley SC assisted by Mr V Moodley (instructed by Matthew
Francis Inc)
COUNSEL
FOR THE 2
ND
& 3
RD
RESPONDENTS:       Ms A Gabriel SC
(instructed by State Attorney, KZN)
DATE
OF HEARING:
28 May 2021
DATE
OF JUDGMENT:
17 June 2021
[1]
S
184(1) of the Constitution.
[2]
S
184(2) of the Constitution.
[3]
A
municipality is described in section 2
(a)
the
Local Government: Municipal Systems Act 32 of 2000
as ‘an
organ of state within the local sphere of government exercising
legislative and executive authority within an area determined
in
terms of the
Local Government: Municipal Demarcation Act, 1998
.’
[4]
Appearing
at pages 895 – 899 of the papers.
[5]
Chapter
9 of the Constitution, specifically s 184(1)
(b)
and
(c)
,
as well as section 2
(b)
and
(c)
of the SAHRC Act.
[6]
S
32(1)
(a)
,
(c)
,
(d)
and
(e)
of NEMA.
[7]
An
excerpt of these requirements appears as Annexure ‘JBS2’ to the
founding papers.
[8]
Subsection 1 provides as follows:
‘
28.
Duty of care and remediation of environmental damage.
(1) Every person
who causes, has caused or may cause significant pollution or
degradation of the environment must take reasonable
measures to
prevent such pollution or degradation from occurring, continuing or
recurring, or, in so far as such harm to the environment
is
authorised by law or cannot reasonably be avoided or stopped, to
minimise and rectify such pollution or degradation of the

environment.’
[9]
S
20 of the Waste Act provides that:
‘
No person may
commence, undertake or conduct a waste management activity, except
in accordance with—
. . .
(
b
) a waste
management licence issued in respect of that activity, if a licence
is required.’
[10]
National norms and standards for disposal of waste to landfill,
GN R636,
GG
36784, 23 August 2013, issued by the Minister of Environmental
Affairs in terms of s 7(1)
(c)
of the Waste Act.
[11]
Waste Classification and Management Regulations, GN R634,
GG
36784, 23 August 2013.
[12]
Section
19(1) of the Water Act provides that:
‘
An owner of
land, a person in control of land or a person who occupies or uses
the land on which—
(
a
) any
activity or process is or was performed or undertaken; or
. . .
which causes, has
caused or is likely to cause pollution of a water resource, must
take all reasonable measures to prevent any such
pollution from
occurring, continuing or recurring.’
[13]
Annexure
‘JBS7’ to the founding papers.
[14]
Ms
van Heerden has reproduced these violations in the founding
affidavit, and in parenthesis correspondingly annotated the relevant
provisions of the statute breached.
[15]
Annexure
‘JBS8’ to the founding affidavit.
[16]
Annexure
‘JBS9’ to the founding affidavit.
[17]
Annexure
‘JBS17’ to the founding affidavit.
[18]
In
relevant part section 139(1)
(b)
provides:
‘
139.
Provincial intervention in local government
(1) When a
municipality cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the relevant
provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including—
. . .
(
b
)
assuming responsibility for the relevant obligation in that
municipality to the extent
necessary to—
(i) maintain
essential national standards or meet established minimum standards
for the rendering of a service;
(ii) prevent that
Municipal Council from taking unreasonable action that is
prejudicial to the interests of another municipality
or to the
province as a whole; or
(iii) maintain
economic unity.’
[19]
Annexure
‘JBS 19’ to the founding affidavit.
[20]
Fuel
Retailers Association of Southern Africa v Director=General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province, and other
s
[2007] ZACC 13
;
2007 (6) SA 4
(CC) para. 40.
[21]
Minister
of Environmental Affairs and another v ArcelorMittal South Africa
Limited
[2020]
ZASCA 40
paras 4-6.
[22]
S
v Manamela and another (Director-General of Justice Intervening
)
2000 (3) SA 1
(CC) paras 28-29.
[23]
The purpose of the Act is described in s 2 as:
‘
The purpose of
this Act is to ensure that the nation’s water resources are
protected, used, developed, conserved, managed and
controlled in
ways which take into account amongst other factors—
(
a
) meeting
the basic human needs of present and future generations;
(
b
)
promoting equitable access to water;
(
c
)
redressing the results of past racial and gender discrimination;
(
d
)
promoting the efficient, sustainable and beneficial use of water in
the public interest;
(
e
)
facilitating social and economic development;
(
f
)
providing for growing demand for water use;
(
g
)
protecting aquatic and associated ecosystems and their biological
diversity;
(
h
) reducing
and preventing pollution and degradation of water resources;
(
i
) meeting
international obligations;
(
j
)
promoting dam safety;
(
k
) managing
floods and droughts . . .’
[24]
Minister
of Water Affairs and another v Really Useful Investments 219 (Pty)
Ltd and another
[2016]
ZASCA 156; 2017 (1) SA 505 (SCA).
[25]
Section
39(1)
(b)
provides that, when interpreting the Bill of Rights, a court,
tribunal or forum ‘must consider international law’.
[26]
Section
231 of the Constitution provides that:
‘
(1)
The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2) An
international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and
the
National Council of Provinces, unless it is an agreement referred to
in subsection (3).
(3) An
international agreement of a technical, administrative or executive
nature, or an agreement which does not require either
ratification
or accession, entered into by the national executive, binds the
Republic without approval by the National Assembly
and the National
Council of Provinces, but must be tabled in the Assembly and the
Council within a reasonable time.
(4) Any
international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing
provision of an agreement that has been approved by Parliament is
law in the Republic unless it is inconsistent with the Constitution
or an Act of Parliament.
(5) The Republic is
bound by international agreements which were binding on the Republic
when this Constitution took effect.’
[27]
Section
232 of the Constitution.
[28]
Section
233 of the Constitution.
[29]
Article
16.1.
[30]
Article
24.
[31]
Article
16.2.
[32]
Article
12.2(b).
[33]
Section 16 provides as follows:
‘
(1)
A holder of waste must, within the holder’s power, take all
reasonable measures to—
(
a
) avoid
the generation of waste and where such generation cannot be avoided,
to minimise the toxicity and amounts of waste that
are generated;
(
b
) reduce,
reuse, recycle and recover waste;
(
c
) where
waste must be disposed of, ensure that the waste is treated and
disposed of in an environmentally sound manner;
(
d
) manage
the waste in such a manner that it does not endanger health or the
environment or cause a nuisance through noise, odour
or visual
impacts;
(
e
) prevent
any employee or any person under his or her supervision from
contravening this Act; and
(
f
)
prevent the waste from being used for an unauthorised purpose.
(2) Any person who
sells a product that may be used by the public and that is likely to
result in the generation of hazardous waste
must take reasonable
steps to inform the public of the impact of that waste on health and
the environment.
(3) The measures
contemplated in this section may include measures to—
(
a
)
investigate, assess and evaluate the impact of the waste in question
on health or the environment;
(
b
) cease,
modify or control any act or process causing the pollution,
environmental degradation or harm to health;
(
c
) comply
with any norm or standard or prescribed management practice;
(
d
)
eliminate any source of pollution or environmental degradation; and
(
e
) remedy
the effects of the pollution or environmental degradation.
(4) The Minister or
MEC may issue regulations to provide guidance on how to discharge
this duty or identify specific requirements
that must be given
effect to, after following a consultative process in accordance with
sections 72 and 73.
(5) Subsection (4)
need not be complied with if the regulation is amended in a
non-substantive manner.’
[34]
Section
16.
[35]
Sections
19(1) and 21
(g)
.
[36]
Section
28(1).
[37]
Merafong
City Local Municipality v AngloGold Ashanti Limited
[2016] ZACC 35
;
2017 (2) BCLR 182
(CC) paras 60 and 61.
[38]
Lesapo
v North West Agricultural Bank and another
[1999]
ZACC 16
;
1999 (12) BCLR 1420
(CC) para 17.
[39]
MEC
for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
[2014]
ZACC 6; 2014 (3) SA 481 (CC).
[40]
G E Devenish
The
South African Constitution
(2005)
para 111 at 123.
[41]
Fuel
Retailers supra
para
102.
[42]
Bengwenyema
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
[2010]
ZACC 26; 2011 (3) BCLR 229 (CC).
[43]
Section 172(1)
(a)
provides
that:
‘
(1)
When deciding a constitutional matter within its power, a court—
(
a
) must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent
of its
inconsistency.’
[44]
Fose
v Minister of Safety and Security
1997
(3) SA 786 (CC).
[45]
Ibid
para 69.
[46]
[zRPz]Minister
of Health and others v Treatment Action Campaign and others (No 2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) p
ara
113
.