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[2020] ZAGPPHC 12
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Concerned Residents of Flag Boshielo West and Others v Sekhukhune District Municipality and Others (15437/15) [2020] ZAGPPHC 12 (7 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 15437/15
7/2/2020
In
the matter between:
CONCERNED
RESIDENTS OF FLAG BOSHIELO WEST
First Applicant
SMAKELENG JACOB
BALOYI
Second Applicant
KLAAS
BAPELA
Third Applicant
SELLO FREDDIE
PHEFADI
Fourth Applicant
MARIA
MOKOMANE
Fifth Applicant
ELSIE
LETAGENG
Sixth Applicant
And
SEKHUKHUNE
DISTRICT MUNICIPALITY
First Respondent
EPHRAIM
MOGALE LOCAL MUNICIPALITY
Second Respondent
MEC,
DEPARTMENTG OF WATER AFFAIRS,
LIMPOPO
Third Respondent
MINISTER OF
WATER AND SANITATION
Fourth Respondent
MINISTER OF
BASIC EDUCATION
Fifth Respondent
MINISTER OF
HEALTH
Sixth Respondent
THE PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA: ACTING
MUNICIPAL MANAGER:
SEKHUKHUNE
Seventh Respondent
DISTRICT
MUNICIPALITY: MPHO JOSEPH
MOFOKENG
Eighth Respondent
JUDGMENT
RANCHOD,
J
[1]
The applicants seek on an urgent basis,
joinder of the eighth respondent in his
personal
capacity; that the first to eighth respondents be interdicted from
committing any act which is in violation of or prejudicial to
the
order of Fabricius J dated 17 August 2017 in this matter; that first
to fourth and eighth respondents be interdicted from "instructing
or effecting or causing any employee, or staff member or official
[presumably of the first respondent] to violate or prejudice
the
Court Order." That prayers 2 - 4 are to serve as an interim
order against the respondents until the return date.
[2]
The first respondent delivered a notice
of intention to oppose but did not file an answering affidavit.
[3]
At the hearing of the matter I was
informed by first respondent's counsel that first respondent intended
to raise three points of
law and a notice in terms of Rule
6(5)(d)(iii) of the Uniform Rules of Court was also delivered. The
points raised are: -
1.
That
there was non-compliance with the Practice Directive of this Court in
that the setting down of the application was premature;
2.
That
there was a failure to give 72 hours' notice to the respondents in
terms of the General Law Amendment Act 62 of 1955; and
3.
That
there was no urgency in the bringing of the application before the
Urgent Court.
[4]
The genesis of the present application
stems from the main application which was launched in February 2015
and concerns the applicants'
rights of access to water.
[5]
On 21 July 2015, by agreement between
the parties, an interim court order was obtained in terms of which
the first respondent (the
Municipality) would provide the applicants
with water on a specified basis as set out in the order.
[6]
The first respondent failed to comply
with the agreement hence applicants launched a contempt application.
A further agreement was
then reached and made an order of court on 29
September 2015.
[7]
Part B of the main application was set
down for hearing before Fabricius Jon 17 August 2017 when a further
interim agreement was
reached to ensure that the applicants were
provided with water in accordance with the previous orders and the
matter was postponed
sine die.
It
was also provided in the order that the first respondent provide
monthly reports to the court on the attainment of its obligations
as
per the court order.
[8]
Fabricius J was appointed case manager
and the learned Judge served as such until December 2019.
The
present application
[9]
The applicants say that the Municipality
has constantly failed to honour the court orders.
[10]
The applicants accordingly obtained an
order on 29 November 2019 holding the Municipality in contempt. The
order was granted by
Fabricius J.
[11]
Immediately prior to the contempt
application the applicants became aware that the previous Municipal
Manager had been replaced
by the present Acting Municipal Manager who
is sought to be joined in these proceedings by the applicants.
[12]
As the Acting Municipal Manager had been
in that position for only about two months at the time of the
contempt application, the
applicants abandoned seeking personal
sanctions against him.
[13]
The applicants say the Acting Municipal
Manager continued with the offending conduct of his predecessor hence
the present application.
[14]
I turn then to the points of law raised
by the first respondent.
[15]
The submission that the applicants set
the matter down prematurely and accordingly did not comply with the
Practice Directive of
this Court is without merit. The applicants
seek an interim order pending final relief in regard to an alleged
failure by the Municipality
to provide the applicants with potable
water in accordance with the previous court order o Fabricius J of
20107. I do not think
the application is premature.
[16]
The second argument was that the
applicants failed to give the first respondent adequate notice of 72
hours of their intention to
apply for an interim interdict as
provided for in the General Law Amendment Act 62 of 1955 as amended.
[17]
The application was served on the
Municipality and the Acting Municipality Manager's attorneys on 30
January 2020 at 09:00 am and
on the State Attorney (for the third to
seventh respondents) on the same day at 09:30 am. The application was
set down for Tuesday
04 February 2020 at 10:00 am
-
after the lapse of 72 hours. The submission cannot be sustained.
[18]
Lastly it was submitted that the matter
lacked urgency. In my view the application is inherently urgent as it
relates to the applicants'
constitutioned right of access to water. I
accordingly deem it to be an urgent matter.
[19]
The applicants seek that the Acting
Municipal Manager be joined in these proceedings in his personal
capacity. In my view that would
be improper. The correct procedure
would to join him in his official capacity as the Acting Municipal
Manager.
[20]
Prayer 3 cannot be granted for three
reasons. Firstly, Fabricius J previously directed that any papers in
this matter insofar as
the fourth respondent is concerned must be
served on the fourth respondent personally. That directive has not
been complied with.
Secondly, the founding affidavit does not
explicitly state what acts of the first to eighth respondents are in
violation of the
court order of Fabricius J of 17 August 2017.
Thirdly, no basis has been set out for the order as sought against
the fifth, sixth
and seventh respondents.
[21]
Prayer 4 of the notice of motion cannot
be granted as there is no or insufficient evidence in the founding
affidavit showing or
alleging that the first to fourth and eighth
respondents are instructing or effecting or causing any employee,
staff member or
official to violate or prejudice the court order.
[22]
In the circumstances, the following
order is made:
1.
The
forms and service as prescribed by the Uniform Rules of Court are
dispensed with and the matter is enrolled as an urgent matter.
2.
The
Acting Municipal Manager, Mr Mpho Joseph Mofokeng is joined as such
in these proceedings in his official capacity.
3.
There
is no order as to costs.
RANCHOD, J
JUDGE OF THE
HIGH COURT
Appearances:
Appearance
for applicants:
Adv M Matlapeng
Instructed by Centre for
Applied Legal Studies
c/o Centre for Child Law
University of Pretoria
Faculty of Law
Law Building (Room 4-31)
Tel: (012) 420 - 4502
Appearance for
first and eighth respondents: Mr SC Mdhluli
SC Mdhluli Attorneys
c/o Lekhu Pilson Attorneys
90 Florence Ribeiro Avenue
Walker Creek Office Park
Building No. 2, 1
st
Floor
Muckleneuk, Pretoria
Tel: (012) 323 - 4547