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[2019] ZAGPPHC 300
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Myburgh N.O and Others v Msukaligda Local Municipality and Another (3542/18) [2019] ZAGPPHC 300 (4 March 2019)
REPUBLIC OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION (FUNCTIONING AS
GAUTENG DIVISION, PRETORIA – MIDDELBURG CIRCUIT COURT)
CASE NO: 3542/18
In the matter
between:
CAROL
MYBURGH N.O.
First
Applicant
IGNATIUS
WILHELM MYBURGH
N.O.
Second Applicant
(In their
capacities as trustees of the Carna Trust)
BURLEC
ELECTRICAL DISTRIBUTION (PTY) LTD
Third
Applicant
(Registration Number:
2005/028601/07)
and
MSUKALIGDA LOCAL
MUNICIPALITY
First Respondent
GERT SIBANDE
DISTRICT MUNICIPALITY
Second Respondent
JUDGMENT
Coram
:
Roelofse AJ:
[1]
This application concerns Wessel Road located on the Western
periphery of the Central Business District of Ermelo (“
the
road
”). The road is in a serious state disrepair. The road
is no longer a functional tar road. It is almost impossible for
normal
vehicles to use the road and at best an off-road vehicle is
required. The road is pot-hole ridden and it is even not possible to
dodge certain of the pot-holes on the road because by doing so,
another pot-hole would be driven through. Vehicles are forced to
drive on the pavement area of the road. The road is also used for
purposes of detouring heavy vehicles from the Ermelo CBD - as
a
result, it carries heavy traffic.
[2]
The first and second applicants are the trustees of the Carna
Trust who owns a business premises being leased by the third
applicant
from where the third applicant conducts a business. The
business premises are situated along the road.
[3]
The applicants and another business owner along the road have
been in engagement with the Msukaligwa municipality since 2015 and
2016 respectively over the condition of the road. The owners complain
that they are severely affected by the condition of the road.
Not
only do their business suffer, but also, the road poses danger to
road users as well as health risks.
[4]
The road falls within the area of jurisdiction of the first
and second respondents. The respondents are both joined in the
proceedings
and relief is sought against them on this basis, and,
according to the applicants, on the basis that the respondents may
point
fingers at each other.
[5]
The applicants approach the court for a structural interdict
aimed at forcing the first, alternatively second respondent, further
alternatively, both the respondents to repair and do whatever is
necessary to restore the road to a functioning tar road to
accommodate
the flow of traffic. The applicants also seek orders
compelling the respondents to commence with steps to repair the road
within
30 days of the date of the order and that they fully comply
with the interdict within 180 days of the order. The applicants also
seek an order that once the road is restored the respondents be
ordered to maintain and do whatever may be necessary to procure
the
functionality of the road.
[6]
A structural interdict consists of five elements - “
First
the court declares the respects in which the violator’s conduct
falls short of its constitutional obligations, second
the court
orders the violator to comply with its constitutional obligations,
third the court orders the violator to produce a report
within a
specified period of time setting out the steps it had taken, fourth
the Applicant is afforded an opportunity to respond
to the report and
finally the matter is enrolled for a hearing and, if satisfactory,
the report is made an order of court”
. See:
Propshaft
Master (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality
and Others
2018 (2) SA 555
(GJ) at para. 10.2. I do not think that
the aforesaid dictum intends to set the requirements to be complied
with before a structural
interdict may be granted in order to compel
an organ of state to comply with its constitutional obligations.
[7]
It is common cause that the road falls within the area of
jurisdiction of the respondents and the road is in a serious state of
disrepair. At the hearing of the matter, counsel for the respondents
conceded (rightly so) that the first respondent is obligation
to
maintain and repair the road and that the applicants are entitled to
a proper road. I say that the respondents rightly conceded
that the
first respondent must maintain the road because the Constitutional
responsibility of the first respondent in this matter
arises from the
Bill of Rights, the provisions of section 156 of the Constitution of
the Republic of South Africa, 1996 (“
the Constitution”
)
read with Sections 83 and 84 of the Local Government: Municipal
Structures Act 117 of 1998 (“
the Structures Act”
)
– See:
Kenton on Sea Ratepayers Association
and Others v Ndlambe Locol Municipality and Others
2017 (2) SA
86
(ECG).
I proceed to refer to the relevant provisions of the
Structures Act later in this judgment.
[8]
The respondents elected to oppose the application on a number
of preliminary defences
.
In respect of the merits, the
defences advanced by the first respondent were that the first
respondent do not have money to fix
the road, that the first
respondent are obliged to comply with the procurement prescripts and
that the applicants have not satisfied
the requirement for the
granting of an interdict, namely establishing a right to the relief
sought. In addition, albeit in a somewhat
disguised form, the
respondents also raised the issue that the applicants have not
established that the no other satisfactory alternative
remedy
requirement because, so the respondents allege, the applicants first
had to exhaust their internal remedy.
[9]
The respondents initially also attacked the first and second
respondent’s standing as trustees of the Carna Trust. This
defence
was abandoned. The respondents persisted with the following
four defences: the applicants have failed to exercise an internal
remedy;
non-joinder, in that the Department of Co-operative
Governance
(“COGTA”)
was not joined in the
proceedings and that the applicants approached the court on a wrong
basis, i.e, the applicants should have
approached court for a review
in terms of the Promotion of Access to Administrative Justice Act 3
of 2000 or Rule 53 of the Uniform
Rules. In the respect of the
second respondent, the respondents allege that the second respondent
was not a necessary party
to the proceedings and therefore was
mis-joined.
MATTER
A PAJA REVIEW?
[10]
The respondents’ first defence hinges upon the question
whether the first respondent failure to repair and maintain the road
constitutes administrative action for only an administrative action
is subject to review in terms of PAJA.
[11]
In order to answer this question, it must be determined what
the nature of the first respondent’s duty is to maintain road
infrastructure within its area of jurisdiction. In order for the
respondents’ defence on this score to succeed, the maintenance
of the road or lack thereof must be an administrative act.
[12]
Section
156 of the Constitution sets
out the powers and functions of municipalities.
The
section provides that a municipality has executive authority over,
and, has the right to administer the local government matters
listed
in Part B of Schedule 4 and Part B of Schedule 5 of the Constitution
and any other matter assigned to it by national or
provincial
legislation. Part B of Schedule 5 specifically refers to municipal
roads. The upkeep and maintenance of the road is
therefore an
executive function of the first respondent. In terms of (cc) under
paragraph (b) of the definition of “administrative
action”
in section 1 of PAJA,
the executive
powers or functions of a municipal council is specifically excluded
from an administrative action. In any event, an
obligation to
maintain roads can never be regarded as decision or failure to take a
decision. I therefore find that PAJA finds
no application. Having
made this finding both the respondents’ first preliminary
defence must fail.
[13]
The respondents’ third
preliminary defence is this. The respondents say that the applicants
approached the court on the wrong
basis in law. On this score the
respondents allege that “…
.where
administrative action is involved….
”
the grounds of review “…
.or
collateral challenge…..
”
are “…
.located….
”
in section 33(1) of the Constitution “…
.read
with….
” section 6(2) of
PAJA (Paragraph 2.4 of the first respondent’s answering
affidavit and paragraph 2.5 of the second
respondent’s
answering affidavit).
[14]
It is therefore clear that is not
the respondents’ case that the applicants must be non-suited
because they should have approached
court with a legality review,
founded upon section 1(c) of the Constitution. The respondents
confine this preliminary defence to
a review under PAJA on not upon a
legality review. In light thereof that I have already found that the
maintenance of the road
constitutes an executive function and not
administrative action, the first and third preliminary defences must
fail.
NON-JOINDER
OF
COGTA
[15]
The respondents’ contention is that the Department of
Co-Operative Governance and Traditional affairs (“COGTA”)
is a necessary party to the proceedings because COGTA “…
..is
also an interested party in matters related to municipalities and
their functioning….”
(Paragraph 2.3 of the first
respondent’s answering affidavit and paragraph 2.4 of the
second respondent’s answering
affidavit). This contention is
incorrect because a party is not liable (or entitled) to be joined in
proceedings just by virtue
of some general interest it may have in a
matter. A person has a direct and substantial interest in an order
that is sought in
proceedings if the order would directly affect such
a person’s rights or interest – see:
Snyders
and Others v De Jager (Joinder)
2017 (5) BCLR 604
(CC) at para. 9.
[16]
The respondents do not set out in any manner whatsoever
what COGTA’s direct and substantial interest is (or even might
be) in the orders that are sought in the proceedings. COGTA’s
alleged interest in matters related to municipalities and their
functioning, do not equate to a direct and substantial interest in
these proceedings. This defence is dismissed.
MIS-JOINDER
OF THE SECOND RESPONDENT
[17]
The second respondent raises the defence that it was
mis-joined in the application. The second respondent contends that,
because
of its mis-joinder, the application must be dismissed against
it and, in that event, it would be entitled to costs on an attorney
and client scale.
[18]
Section 84 of the Structures Act provides for the
division of functions and powers between district and local
municipalities. In
terms of Section 84(1)(f), m
unicipal
roads which form an integral part of a road transport system for the
area of the district municipality as a whole are included
under the
powers and functions of a district municipality. The basis upon which
the applicant joined the second respondent appear
from paragraphs
2.11 to 2.13 of the founding affidavit. The applicants allege that:
“
2.11 The Second Respondent
‘features’ as a district municipality and the First
Respondent falls within its jurisdictional
area as district
municipality. Accordingly the aforesaid properties as well as Wessels
Road indirectly also fall within the Second
Respondent’s area
of jurisdiction.”
2.12
Both the First and Second Respondents are
cited in this application as the Applicants want to prevent a
situation where a local
municipality blames the district municipality
or visa versa;
2.13 Undoutedly the First Respondent,
alternatively the Second Respondent, further alternatively the First
and
the Second Respondents are responsible for the municipal services
within its area of jurisdiction and obliged to maintain such
services.
[19]
Only municipal roads
which form an integral
part of a road transport system for the area of the district
municipality as a whole are included under the
powers and functions
of a district municipality. For the second respondent to have had a
direct and substantial interest in these
proceedings and therefore
had to be joined by necessity, the applicants had to establish that
the road forms an integral part of
the road transport system for the
area of the district municipality. This is nowhere alleged by the
applicants and the facts does
not establish same. I therefore find
that the second respondent was mis-joined in these proceedings and,
in addition that in the
absence of proof that the road forms an
integral part of the road transport system for the area of the second
respondent, no relief
can be granted against it. The responsibility
of the road is that of the first respondent.
THE
RESPONDENTS’ DEFENCE ON THE MERITS
[20]
The first respondent’s defence is that there is no money
to repair the road. In paragraphs 13.1 to 13.3 Ms Gladness Jabu
Majola,
the first respondent’s municipal manager sets out as
follows:
“
13.1
The Court cannot make the order, that, is asked by the Applicants, as
the Court may know that, the 1
st
Respondent
is duty bound to follow its integrated plan, that, inter alia, is
dependent on budget which is approved annually in
May of each year,
as provided for in the Municipal finance management Act.
13.2
Although Wessel and Pet Street is catered in the First Respondent’s
integrated plan, currently in the approved budget for the financial
year 2018/2019 the Municipality has not budgeted the rehabilitation
of Wessel Street and Pet Street, due to the fact that, The [sic]
Wessel and Pet Street link is about 1,22 km in length and the
estimated cost of the rebuilding the road is about R36,000,00.00
(Thirty Six Million Rand), which is be funded out of rates and
taxes,
as this road is in Town and is therefore not covered by the Municipal
Infrastructure Grant.
Currently the Municipality is in consultation with other sector
departments to raise the necessary funds to rehabilitate the said
Street.
13.3
Furthermore, the financial position of the Municipality is
not good
due to the huge amount owed to Escom and Water and Sanitation which
is approximately +/- R500,000,000.00 (Five Hundred
Million Rand).”
[21]
In my view, the fact that the first respondent may or may not
have money now for the fixing of the road because it has not budgeted
therefore in the 2018/2019 financial years rings hollow and no
defence. I say this because as on 13 April 2015 (Annexure “FA11”),
the second respondent’s Municipal Manager recorded as follows:
“
Your concern is noted and will inform you if we have been
able to secure funding as the budget processes are unfolding.”
[22]
In addition, on 5 December 2017, the first respondent’s
Acting Municipal Manager was mandated to embark with other
municipalities
for a viable road maintenance plans and strategies. On
12 February 2018, the public protector, subsequent to a complaint
laid to
the public protector concerning the road, informed the third
applicant that the first respondent approved an initiative to source
funds from the second respondent, mines and the private sector
including companies and institutions for the road. On 9
February
2018, the Public Protector informed the third applicant that
the municipality has confirmed that the road has deteriorated to such
an extent that it needs to be rebuilt and that the municipality does
not have funds for the road and only does limited maintenance
for the
time being.
[23]
The respondents’ defences that the applicants have not
established a clear right must be dismissed in light of the
respondents’
concession that the applicants are entitled to a
proper road. So also must the respondents’ defence that the
applicants have
an alternative remedy also be dismissed because I
have found that the first respondent’s constitutional
obligations does
not amount to administrative action.
[24]
In my view, the applicants are entitled to relief against the
first respondent. I am not going to grant the order as prayed for
because I have a concern that the relief sought in prayers 2 and 3 of
the notice of motion may provide the first respondent with
an
opportunity to delay the repair of the road. My concern lies with the
manner in which prayers 2 and 3 of the notice of motion
is worded.
Paragraphs 1 to 3 of the notice of motion reads as follows:
“
1. That the First
Respondent, alternatively the Second Respondent, alternatively both
the First
and the Second Respondents be ordered to repair and do
whatever may be necessary to restore Wessels Road located on the
western
periphery of the Central Business District of Ermelo, to a
functioning tar road to accommodate the flow of traffic associated
with
a connection road between two class 3 roads functioning as and
[sic]
urban collector street or an urban local street;
2. That the First
Respondent, alternatively the Second Respondent, alternatively
both
the First and the Second Respondents be ordered to commence with
steps in compliance with paragraph 1 above within 30 days
from the
date of the order and fully comply with paragraph 1 above within 180
days from date of the order.
3. Should the
First Respondent, alternatively the Second Respondent, further
alternatively
both the First and the Second Respondents fail to
comply with the time periods mentioned in paragraph 2 above, the
First Respondent,
alternatively the Second Respondent, further
alternatively both the First and the Second Respondents be ordered
to, report to the
above Honourable Court and set out fully the steps
taken to procure compliance with paragraph 1 above and provide full
explanation,
to the satisfaction of the above Honourable Court, on
any extended time period required by the relevant respondent within
which
to comply with paragraph 1 above.”
[25]
The wording of prayer 3 of the notice of motion only obliges
the first respondent to report to court upon the expiry of 180 days
from the date of the order. It does not oblige the first respondent
to do so after 30 days. The insertion of the words “
any of”
between the words “
with”
and “
the time
periods”
in line 3 of prayer 3 of the notice of motion.
COSTS
[26]
The second respondent urges me to award punitive costs in
favour of it against the applicants. I am not going to do so because
the
second respondent’s own e-mail to the other business owner,
dated 13 April 2015 created an impression that the second respondent
is indeed ceased with securing finding for the road (Annexure
“FA12”). This gives credence to the applicant’s
concern that the first respondent might be blaming the second
respondent (Paragraph 2.13 of the founding affidavit).
[27]
The same cannot be said for the first respondent’s
defence. All of its defences were found to be void of any merit. In
my
view the first respondent’s defence to the application was
frivolous and without any basis at all. This as well as the first
respondent’s demonstrated delay to properly address the issue
of the road warrants sanction.
I make the following
order:
1. The
application is dismissed against the second respondent.
2. The
applicants are ordered to pay the second respondent’s costs.
3. The
first respondent is ordered to:
3.1. Repair and do whatever may be
necessary to restore Wessels Road located on the western
periphery of
the Central Business District of Ermelo, to a functioning tar road to
accommodate the flow of traffic associated with
a connection road
between two class 3 roads functioning as an urban collector street or
an urban local street;
3.2. Commence with steps in
compliance with the order in paragraph 3.1 above within 30
days from
the date of the order and fully comply with the order in paragraph
3.1 above within 180 days from date of this order.
3.3. In the event the First
Respondent fails to comply with any of the time periods mentioned
in
paragraph 3.2 above, the First Respondent is ordered to, report to
the this court and set out fully the steps taken to procure
compliance with the order in paragraph 3.1 above and on any extended
time period required by the relevant respondent within which
to
comply with the order in paragraph 3.1 above.
3.4. The applicants are
granted leave to, on the same papers, supplemented as necessary,
approach this court if the first respondent fails in any manner
whatsoever to comply with the orders in paragraphs 3.1 to 3.3 above;
3.5. The first respondent is
ordered to pay the applicants’ costs.
JH Roelofse
Acting Judge of the High Court
APPEARANCES
FOR THE
APPLICANTS:
Adv JA
Venter
Instructed by Schalk Pieterse Attorneys, 4 Santam Trust
Building, McCullam Street, Middelburg
FOR THE
RESPONDENTS:
Adv PW Makhambeni
Instructed by Mothlala Attorneys, Kruger &
Bekker
Attorneys, 32 Walter Sisulu Street, Middelburg
DATE OF
HEARING:
28 February 2019
DATE OF
JUDGMENT:
4 March 2019