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[2019] ZAECMHC 29
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Mgobozi v Mhlontlo Municipality and Others (70/2017) [2019] ZAECMHC 29 (4 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :MTHATHA
CASE NO. 70/2017
In
the matter between:
MAKAZIWE
MGOBOZI Applicant
and
MHLONTLO
MUNICIPALITY
1
st
Respondent
BOXER
SUPERSTORES, QUMBU
2
nd
Respondent
THE
MUNICIPAL MANAGER,
O.
R. TAMBO DISTRICT MUNICIPALITY 3
rd
Respondent
O.
R. TAMBO DISTRICT MUNICIPALITY 4
th
Respondent
JUDGMENT
GRIFFITHS,
J.
[1]
This is an opposed application in which the applicant seeks the
following orders:
1. That
the 3
rd
and 4
th
Respondents (the Respondents)
be and are hereby ordered to take immediate steps to stop any seepage
of dirty water and sewerage
emanating from the 2
nd
Respondent’s premises or septic tanks into Applicant’s
premises at Erf No. 13, Main Road, Qumbu.
2. That
the Respondents are interdicted from allowing any nuisance-causing
substance or material of any nature
whatsoever emanating from the
aforesaid premises or buildings into the Applicant’s premises
aforesaid.
3. That
the 3
rd
and 4
th
Respondents are ordered to pay
costs of this application jointly and severally, the one paying the
other to be absolved.
4. That
the 1
st
Respondent be ordered to pay costs up to the date
of filing of the replying affidavit by the Applicant.
[2]
The application has traversed a rather rocky route. Initially, the
applicant cited
the first respondent (Mhlonto Local Municipality) and
Boxer Superstores, Qumbu, as first and second respondents. However,
on receipt
of an answering affidavit from the first respondent in
which the first respondent disavowed any legal responsibility for the
sewerage
problem that has arisen, as this fell within the sphere of
influence of the District Municipality, she applied for joinder of
the
O. R. Tambo District Municipality and its municipal manager as
third and fourth respondents respectively. This order was duly
granted.
[3]
As regards the current position of the second respondent, the papers,
and indeed the
file relating to this matter, were silent. The
applicant stated in her second replying affidavit “
As to
whether the application is withdrawn against of the second respondent
I state that it transpired that Boxer is not responsible
for the
sewerage problems in Ngcobo, but respondents are.”
As will
be obvious from this statement, it is entirely unhelpful in this
regard. However, when the matter was heard Mr Kunju, who
appeared on
behalf of the applicant, confirmed that indeed the applicant had at
some stage withdrawn the application as against
the second
respondent. Accordingly, at this stage I have before me the first
respondent (Mhlonto Local Municipality), the third
respondent (O. R.
Tambo District Municipality) and the fourth respondent (The Municipal
Manager, O R Tambo District Municipality).
[4]
Once all this was said and done, the position is this: the applicant
seeks a costs
order against the first respondent based on the
submission that the first respondent did not respond to certain
letters sent to
it in which complaints were levelled about the
leaking sewerage. This, the applicant submits, lulled it into a false
sense of belief
that sewage disposal, by law, fell within the first
respondent’s area of responsibility. The applicant has also
pointed to
the fact that, apparently in response to these letters,
the first applicant attempted to dig a trench to alleviate the
situation
which it says was a further signal in this regard. It no
longer seeks relief against the second respondent which is no longer
before
me (but to which, in the balance of this judgment, I shall
refer as the “second respondent”). It however seeks the
substantive relief set out in the notice of motion
[1]
as against the third and fourth respondents.
[5]
The essential facts of the matter appear to be that the applicant
runs a medical surgery
in Ngcobo. Diagonally opposite her is the
second respondent’s business. Between the two is a gravel or
dirt road. A certain
septic tank owned by the second respondent and
which is situated upon its premises appears to be unable to contain
or process the
sewerage emanating from the business. As a
consequence, the surplus sewerage seeps out onto the road situated
between the two premises
and ultimately ends up at the premises of
the applicant which is situated downhill from the second respondent’s
premises.
The obvious consequences of this are,
inter alia
,
that it is a health hazard and it is causing damage to the
applicant’s premises. As a medical doctor, she is also losing
patients. The applicant maintains that as far back as 2008 she
contacted the first respondent’s Environmental Health Officer
by way of letter requesting that the problem be corrected. She
subsequently, and during 2016, had her attorneys address letters
to
the municipal manager of the first respondent in an attempt to stop
this nuisance.
[6]
As I have indicated, the first respondent’s response hereto was
to indicate
in its answering affidavit that it was not vested with
the power to deal with such sanitation and sewage and that this area
of
responsibility lies with the third respondent. As a consequence,
the third and fourth respondents were duly joined as parties to
these
proceedings.
[7]
Despite some toing and froing with regard to condonation
applications, the third and
fourth respondents ultimately filed an
answering affidavit. In that affidavit, the third respondent accepted
that indeed it, by
statute, holds the responsibility of dealing with
sanitation and related issues. However, this responsibility relates,
as I understand
the answer, to the bulk removal of sewerage and the
processing thereof. It does not hold a responsibility in law to deal
with sanitation
and sewage within the premises of a private residence
or business. It proceeds to point out that on the applicant’s
own case,
the spillage of sewerage does not emanate from any bulk
sewer piping belonging to the third respondent, but comes from the
septic
tank and/or pit latrines which are situated on the premises of
the second respondent. From there, the sewerage seeps out onto the
public road and ultimately onto or into the premises of the
applicant.
[8]
The first and third respondents accept that the responsibility for
sewage disposal
lies with the third respondent. Indeed, this appears
to be so as the Municipal Structures Act
[2]
(“The Structures Act”) states that a District
municipality has the responsibility to deal with “
[d]omestic
waste-water and sewage disposal systems.
”
[3]
[9]
As I understand the contention of the applicant, it is to the effect
that the third
respondent has a constitutional obligation not to
expose the applicant to an unhealthy environment, that the situation
that has
arisen in this matter is clearly an “unhealthy
environment” and that, bearing in mind its powers, functions
and duties,
the third respondent is obliged to take all necessary
measures to ensure that the seepage of dirty water and sewerage is
contained
and that the unhealthy situation is rectified. In response
hereto, it is the third respondent’s contention that it is
common
cause that the sewerage emanates from a sewerage pit or what
is referred to as a “septic tank” situated on the
premises
of the second respondent. It contends thus that this is a
nuisance caused by a neighbour and that the sole responsibility
therefor
lies with the second respondent who is the owner of the
septic tank and thus the cause of the leaking sewerage. Whilst there
was
some talk of there being public ablutions lying between the
applicant’s and the second respondent’s premises, it
appears
from the applicant’s founding affidavit that the
seepage does not emanate therefrom.
[10]
It seems to me that the starting point is to accept that what the
applicant, in essence, seeks
is a structural interdict that is, an
interdict by virtue of which the violator is instructed to take steps
to comply with the
constitutional obligations resting with it and,
although not sought in this matter, to report back to the court on
the extent to
which it has complied with the court’s order
[4]
.
In
Kenton-On-Sea
the court described the nature of such an interdict as follows:
“
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 has 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.”
[5]
[11]
It has been held that appropriate relief is relief that is required
to protect and enforce the
Constitution, and:
“
Depending on the
circumstances of each particular case the relief may be a declaration
of rights, an interdict, a
mandamus
or such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced.
If it
is necessary to do so, the courts may even have to fashion new
remedies to secure the protection and enforcement of these
all-important rights.”
[6]
[12]
I however have some difficulty in founding relief solely on this
basis. I say this because this
matter has proceeded on a rather
haphazard basis what with relief initially being sought against the
first and second respondents,
the case being withdrawn against the
second respondent and the relief against the first respondent
subsequently being restricted
solely to costs, and the third
respondent being joined against whom the full relief is finally
sought. This has resulted in a number
of different affidavits being
placed before the court as I have said in rather a haphazard manner.
Whilst the applicant has referred
to the statutory responsibility of
the first respondent in her founding affidavit, she changed horses in
midstream and joined the
third respondent without fully addressing
the nature of the case as against the third respondent so joined. The
third respondent
has accepted in its answering affidavit that it has
responsibility for dealing with sewerage as I have already dealt with
and it
appears that the parties have to some extent accepted that the
allegations in the founding affidavit as against the first
respondent,
are to apply to the third respondent.
[13]
In addition, the nature of the relief sought together with the
allegations in the founding affidavit
appear to indicate that the
applicant’s cause of action is based more in nuisance that it
is on constitutional relief. A
consequence of this is that the third
respondent has not, in my view, fully addressed the alleged
constitutional relief by way
of fully explaining its policy with
regard to sewerage in and about the village, and its implementation.
Absent all of this, together
with the other problems I have
mentioned, I would be loath to found any relief in favour of the
applicant on this basis.
[14]
The applicant has furthermore relied in this matter on the case of
Limpopo Legal Solutions and Others v Vhembe District
Municipality and
Others
2018(4) BCLR
430 (CC))
in this regard
.
It does not seem however that
this case is of any real assistance to the applicant. In that matter
it seems clear that the first
respondent municipality indeed accepted
responsibility for a burst sewer within its area of jurisdiction and
for which it held
a legal duty to maintain. The only argument was
with regard to the question of costs which ended up in the
Constitutional Court.
This matter is entirely distinguishable. In
this case the third respondent contends that the source of the
sewerage is not a burst
sewer or bulk pipe which falls under its
authority and that the source of the nuisance is the second
respondent. She has also relied
on the case of
Mafube
Municipality & Another v Agritrans CC & Another
(FB)
unreported case no
A248/2008 of 05 November 2009.
In
my view, this case does not support the contentions of the applicant.
It involved the failure on the part of the municipality
concerned to
maintain sewerage works in good condition resulting in the leakage of
sewerage into the Wilge River. It is clear that
in that matter the
municipality was in charge of the sewerage works which fell within
its area of responsibility. The leakage came
directly from the
sewerage works. That is a far cry from the facts of the present
matter.
[15]
In my view however applicant’s real cause of action is far more
personal. She, in effect,
has based her case on her right to an
abatement of a nuisance in common law. Nuisance denotes a continuing
wrong “…
whereby
a neighbour’s health, well-being or comfort in the occupation
of his or her land is interfered with, as well as the
causing of
actual damage to a neighbour.
”
[7]
In each case it is a question of fact and often a matter of degree as
to whether or not the state of affairs resulting from the
impugned
activity is sufficiently serious as to constitute an actionable
wrong. The test applied in this regard is one of reasonableness
and
it has been said that:
“
[T]he plaintiff
must show that the inconvenience complained of is in fact more than
fanciful, more than one of mere delicacy or
fastidiousness; that it
was inconvenience materially interfering with the
ordinary
comfort, physically, of human existence, not merely according to
elegant or dainty modes and habits of living, but according to
plain
and sober and simple notions
(Our emphasis)”
[8]
[16]
It is furthermore so that “
[p]ursuant
to the legal entitlement of control which is derived from the
ownership over a thing, an owner has a duty to prevent
damage on a
neighbour’s property resulting from his or her omission to
exercise control.”
[9]
The courts have also made it clear that an owner of the property is
under a legal duty to take reasonable steps to prevent a fire
spreading onto his or her neighbour’s land even if the fire was
not caused by him but emanated from another property.
[10]
[17]
In the present matter, whilst the property from which the nuisance
emanates (that of the second
respondent) does not border onto the
applicant’s property, it is common cause that there is what is
referred to as a “dirt
road” running between them. Whilst
neither the applicant nor any of the respondents addressed
pertinently the nature of this
road it appears that it is a main road
which runs through the town. Precisely whether or not the first
respondent or the third
respondent is responsible for the upkeep and
maintenance of this road is not clear but the third respondent has
clearly accepted
the fact that it is under a statutory duty to
provide the necessary infrastructure for the removal and disposal of
domestic waste,
particularly in the form of waste water and sewerage.
Surely, therefore, it is to be regarded as the entity in control of
the area
of land in between the second respondent and the applicant,
namely the dirt road or whatever such open property might be, for
this
purpose.
[18]
As regards the question of the actual nuisance itself, as indicated
the test is one of reasonableness.
As the facts relating to the
extent, duration and nature of the seepage of sewerage onto the
property of the applicant remain uncontested
by the third respondent,
it must be accepted that it is both of long duration and ongoing.
That it amounts to a foul and extreme
nuisance to the applicant
cannot be disputed on any reasonable ground. In my view therefore, it
constitutes an actionable wrong
and the applicant is fully entitled
to, at the very least, the interdicts sought.
[19]
Regarding the question of costs vis-à-vis the first
respondent, I have pondered this aspect
extensively. Once the
applicant came to realize that the responsibility for this problem
lay with the third respondent she immediately
sought to join the
third respondent. Whilst it is so that her legal representatives
ought, from the outset, to have researched
the matter and have
realized that this responsibility lay with the third respondent, it
is so that at the time when the third and
fourth respondents were
joined, the first respondent was given the option of withdrawing on
the basis that each party pay their
own costs. This invitation was
not accepted. In view of the shoddy manner in which the applicant was
treated in this regard by
the first respondent who made vague
attempts to alleviate the problem by digging some ineffective
trenches, I believe that the
first respondent should not escape
liability for costs completely.
[20]
In the circumstances,
the following order will issue:
1.
The third and fourth respondents are hereby ordered to take
immediate steps to stop any seepage of dirty water and sewerage
emanating
from the premises of Boxer Superstore, Qumbu, or its septic
tanks into the applicant’s premises at Erf No. 13, Main road,
Qumbu;
2.
The third and fourth respondents are interdicted from allowing
any nuisance causing substance such as dirty water and/or sewerage
to
emanate from the aforesaid premises and onto the applicant’s
said premises;
3.
The third respondent is ordered to pay the costs of this
application, save that the first respondent is ordered to pay such
costs
up to the date of the filing of the replying affidavit by the
applicant.
R.
E. GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
: Mr Kunju
INSTRUCTED
BY
: Bala Mzileni &
Associates
COUNSEL
FOR
1
ST
, 3
RD
, & 4
TH
RESPONDENTS :
Mr Madlanga
INSTRUCTED
BY
: S. S. Nkonyeni
Attorneys
HEARD
ON
: 02
MAY 2019
DELIVERED
ON : 04
JUNE 2019
[1]
In accordance with an amended notice of motion filed by agreement
after argument had been heard.
[2]
117 of 1998
[3]
Ibid section 84 (1) (
d
)
of the Structures Act. See also section 84 (1) (
e
).
[4]
Kenton-On-Sea
Ratepayers v Ndlambe Municipality
2017 (2) SA 86
(ECG) at paragraph 96
[5]
Ibid at paragraph 98
[6]
Fose v
Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC) at paragraph 19
[7]
Badenhorst,
Pienaar & Mostert Silberberg and Schoeman’s The Law of
Property
5
ed (2006) at page 111.
[8]
Holland
v Scott
1882 EDC 307
at 332
[9]
Badenhorst
et al (note 7 above)
at page 131;
Regal
v African Superslate
(PTY) Ltd
1963 (1) SA 102
(A) at 109D – E
[10]
Minister
of Forestry v Quathlamba
(Pty) Ltd
1973 (3) SA 69
(A).