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[2018] ZAKZDHC 37
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Upper Highway Air NPC v Enviroserv Waste Management (Pty) Ltd and Others (3692/2017) [2018] ZAKZDHC 37 (31 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 3692 /2017
In
the matter between:
UPPER
HIGHWAY AIR
NPC
Plaintiff
and
ENVIROSERV
WASTE MANAGEMENT (PTY) LTD
First
Defendant
DEAN
LEE
THOMPSON
Second
Defendant
ESME
GOMBAULT
Third
Defendant
MINISTER
OF ENVIRONMENTAL
AFFAIRS
Fourth
Defendant
MINISTER
OF WATER AND
SANITATION
Fifth
Defendant
THE
MEC: ECONOMIC DEVELOPMENT, TOURISM
AND
ENVIRONMENTAL
AFFAIRS
Sixth
Defendant
ETHEKWINI
MUNICIPALITY
Seventh
Defendant
Coram: Koen J
Heard: 26 April 2018
Delivered: 31 July 2018
O R D E R
1. (a) Paragraph 12.8
(ii) of the plaintiff’s particulars of claim is vague and
embarrassing insofar as it alleges that it
was a condition of the
licence that the First Defendant would conduct its waste management
activities also in accordance with ‘other
written instructions
by the director and by adequate and competent staff’ but does
not identify and allege what these ‘written
instructions’
entailed.
(b) Paragraph 12.4 of the
particulars of claim is vague and embarrassing insofar as it fails to
identify ‘the further relevant
statutory and regulatory
provisions governing the conduct of the waste management operations,
the by-laws promulgated by the Seventh
Defendant from time to time,
and the instructions issued by the Fourth Defendant or her delegates
or her designated environmental
management inspectors’
with reference to the contents thereof and/or in a manner making them
clearly identifiable,
including the relevant provisions thereof upon
which reliance would be placed.
(c) Paragraph 12.15 of
the particulars of claim is vague and embarrassing insofar as it
alleges that the First Defendant was directed
to ‘classify,
treat and dispose of waste in a more restrictive manner’ but
without identifying the direction by the
Fourth Defendant, the date
thereof and the full ambit and details of any such direction.
(d) Paragraph 14.3 of the
particulars of claim alleging a common law duty of care is vague and
embarrassing as the extent or ambit
of that duty has not been
pleaded.
(e) Paragraphs 13.15 and
13.16 and prayer (v) to the particulars of claim are set aside as
disclosing no valid cause of action.
(f) Paragraphs 13.15 and
13.16 and prayer (vi) to the particulars of claim are set aside as
disclosing no valid cause of action.
2. The Plaintiff is given
leave to cure the aforesaid defects in its particulars of claim by
filing a notice of amendment delivered
within 15 days of the date of
this order;
3. If the Plaintiff fails
to give such notice of amendment, its claims in those paragraphs of
its particulars of claim and the prayers
thereto are dismissed with
costs, including the costs of two counsel where so employed.
4. All other exceptions
are dismissed.
J
U D G M E N T
Koen
J
Introduction
[1]
The Plaintiff has instituted action against Enviroserv Waste
Mangement (Pty) Ltd.,
[1]
its
Managing Director,
[2]
its
Technical Director,
[3]
the
Minister of Environmental Affairs,
[4]
the Minister of Water and Sanitation,
[5]
the Member of the Executive Council: Economic Development, Tourism
and Environmental Affairs
[6]
and
the eThekwini Municipality.
[7]
It contends that it does so in its own interest, the public interest,
and in the interests of protecting the environment, as contemplated
in terms of s 32 of the National Environmental Management Act 107 of
1998 (‘NEMA’). It further institutes the action
on the
basis that in terms of s 24M of NEMA, the Second and Third Defendants
are jointly and severally liable for any negative
impact on the
environment, whether advertently or inadvertently caused by the First
Defendant including damage, degradation or
pollution. In this regard
it relies on the definition of ‘environment’ contained in
s 1 of NEMA which includes the
surroundings within which humans exist
and making up the land, water and atmosphere of the earth,
micro-organisms, plants and animal
life, any part or combination of
the above and inter-relationships among and between them and the
physical, chemical, aesthetic
and cultural properties and conditions
thereof that influence human health and well-being.
[2]
The Plaintiff further alleges that at all material times the First
Defendant was in possession of:
(a) a H:h waste
management licence issued on 8 April 2014
[8]
in terms of the provisions of the National Environmental Management:
Waste Act 59 of 2008 (‘NEMWA’) pursuant to which
it owns
and operates a waste disposal facility known as the Showgweni
landfill site (‘the site’) located at portion
of the farm
remainder of Kirkfalls 14227, Durban, eThekwini Municipality,
KwaZulu-Natal; and
(b) a class H:H storage
licence
[9]
pursuant to which it
operates a recovery and treatment of hazardous waste and effluent
plant/facility at the site on portion 36
of the Farm remainder of
Kirkfalls 14227, eThekwini Metropolitan Municipality, KwaZulu-Natal.
The
site is situated within the geographical area of jurisdiction of this
court.
[3]
The relief claimed against the First Defendant, alternatively the
First to the Third Defendants, jointly and severally,
ex facie
the
prayer to the particulars of claim is as follows:
‘
(i) In the event
of the Fourth Defendant as at the date of the hearing of this matter,
not having suspended or revoked the First
Defendant’s waste
management licences, or any period of suspension, and as at the date
hereof, the odour/nuisance and/or
associated health impacts are still
being suffered by members of the public, the First Defendant is
interdicted and restrained
from conducting any further waste
management activities pursuant to its waste management licences
(Annexures “A”
and “B” hereto) other than for
those activities necessary for the mitigation and remediation of the
pollution, degradation,
odour/ nuisance and health impacts resulting
from, or possibly resulting from, the operations of the First
Defendants SLS
and as directed by the Fourth to Seventh
Defendants;
(ii) The First Defendant
is interdicted and restrained from conducting any of its Waste
Management License activities at the SLS
in contravention of its
Waste Management Licence conditions (Both Annexures A & B) until
duly varied by the Fourth Defendant
in terms of s 54 of NEMWA;
(iii) The First Defendant
is directed to comply with its operational practices as contained in
its Site Operational Control and
Plan, including those obligations as
set down in paragraph 12.6 above, save as is directed otherwise by
the Fourth to Seventh Defendants;
(iv) The First Defendant
is directed to comply with the statutory regulatory obligations as
set out in paragraph 13 above;
(v) It is hereby declared
that the First Defendant, alternatively First to Third Defendants,
are not fit and proper persons for
the purposes of any licence
applications, reviews or renewals thereof in respect of the
operations conducted by the First Defendant
at the Shongweni landfill
site;
(vi) The First Defendant
is obliged and directed to account in respect of the advantages
received by it as a consequence of its
contraventions aforesaid;
and thereafter to expend such an amount in the manner and on the
conditions as the above Honourable
Court deems meet;
(vii) The First
Defendant, and insofar as the Second and Third Defendant’s
oppose their relief sought the First to Third Defendant’s
jointly and severally, are directed to pay to the Plaintiff’s
costs of suite, including the reasonable costs incurred by
the
Plaintiff in the investigation of the matter and its preparation of
these proceedings;
(viii) Further and/or
alternative relief.’
[4]
After the
dies
for the filing of a plea expired, the Plaintiff
issued a notice of bar. During the 5 day period afforded by the
notice of bar to
plead, the First Defendant’s filed a rule
23(1) notice in which it raised various grounds on which the
Plaintiff’s
particulars of claim were alleged to be vague and
embarrassing.
[5]
On 20 June 2017 after the expiration of the 5 day period envisaged by
the notice of bar but within the period allowed in this
rule 23(1)
notice for removing any complaint of vagueness and embarrassment the
First to Third Defendants (‘the Excipients’)
filed an
‘Exception and rule 30A(2) application’ in which they
take exception to the Plaintiff’s particulars
of claim and
apply for relief in terms of rule 30A(2) on the grounds that the
particulars of claim are vague and embarrassing and
do not comply
with rule 18 in a number of respects (as contained in paragraph 2 of
that notice) and that the particulars of claim
do not disclose a
cause of action for various reasons (set out in paragraph 3 of that
notice). The contents of that notice will
be referred to in more
detail below.
[6]
That notice gives rise to a notice which was filed by the Plaintiff
in terms of rule 30(2)(b) affording the First to Third Defendants
10
days within which to withdraw, alternatively abandon the exception
and its application in terms of rule 30A(2), failing which
the
Plaintiff would apply to have the Defendant’s notice set aside
in certain parts. This notice was delivered on 3
July 2017.
[7]
When the notice was not withdrawn the Plaintiff followed up with an
application in terms of rule 30(2)(c) (‘the irregular
step
proceedings’) for an order in the following terms:
‘
1. Paragraph 3 of
the First to Third (Excipients) Notice of Exception delivered on 20
June 2017 be and is hereby struck out as an
irregular step;
2. The First to Third
(Excipients), jointly and severally, pay the costs of the
application;
3. Further and/or
alternative relief.’
In
brief, this application was based on the following. The First
Defendant was not obliged to file a rule 23(1) notice to
remove
causes of complaint in respect of its argument that the particulars
of claim disclose no cause of action. However
it could not wait
until the Plaintiff had responded to the rule 23(1) notice in respect
of the complaints relating to vagueness
and embarrassment, before
noting the exception on the grounds that the particulars did not
disclose a cause of action. The exception
on both grounds namely that
the particulars of claim were vague and embarrassing and that did not
disclose a cause of action was
noted after the expiration of the 5
day period envisaged by the notice of bar. Therefore, the argument
went, the exception based
on the particulars of claim allegedly not
disclosing the cause of action, was out of time and constituted an
irregular step.
[8]
In addition the Plaintiff also brought an application for early
discovery (‘the rule 35(12) application’) in which
it
seeks the following order:
‘
1. The First
(Defendant) is directed to comply with the (Plaintiff’s) Notice
in terms of Rule 35 (12) delivered on 18 December
2017, within 10
days of the date of this Order;
2. In the event of the
First (Defendant) failing to comply with the order in para. 1 above,
the (Plaintiff) is given leave to apply
on the same papers,
supplemented insofar as may be necessary, for an order striking out
the First (Defendants) defence to the application;
3. The period provided
for delivery of the (Plaintiff’s) replying affidavit in the
order of court of 8 May 2017 and is varied
and substituted with an
order that the (Plaintiff ) is given leave to file its replying
affidavit within 10 days of the First
(Defendants) compliance with
the (Plaintiffs) Rule 35(12) Notice alternatively complies with para.
1 above, further alternatively
within 10 days of any order granted in
terms of para. 2 above;
4. The First Respondent
is directed to pay the costs of this application;
5. Further and
alternative relief.’
[9]
The following matters came before me as an opposed motion on 26 April
2018:
(a) The Irregular step
proceedings;
(b) The rule 35(12)
application; and
(c) The exception.
[10]
The rule 35(12) application was disposed of in terms of a consent
order granted on that day, granted in the following terms:
‘
1.
The
period for delivery of the Applicant’s replying affidavit per
the court order of 8 May 2017, is varied and substituted
with an
order that the Applicant is given leave to file its replying
affidavit or any supplementary replying affidavit, within
10 days of
the 23
rd
of April 2018;
2.
The
First Respondent is directed to pay the costs of the application, and
it is further directed that the person or persons entitled
to
practice as advocates or attorneys in the Republic who have provided
free legal assistance or representation to the Applicant
in the
conduct of this application be entitled to recover such costs on the
party and party scale.’
[11]
The irregular step proceedings to have paragraph 3 of the notice of
exception struck out as an irregular step, were abandoned.
[12]
All that remained was the exception. This judgment deals with
the exception.
The
exception
[13]
The Plaintiffs particulars of claim are voluminous, not with respect,
always a model of clarity, probably mainly because it
at times
follows a narrative form rather than containing distinct and separate
averments in separate paragraphs. The particulars
of claim are not
repeated herein,
[10]
save for
those portions to which exception was taken, which will be referred
to below.
[14]
The ‘First to Third Defendants exception and rule 30A(2)
application’, possibly but not entirely as a result of
the
Plaintiff’s voluminous particulars of claim, is equally
uncertain in many respects. The respects in which it is contended
that the particulars of claim are vague and embarrassing, and do not
comply with rule 18, include:
‘
2.1 In paragraphs
12 and 13 of the particulars of claim, the first defendant is said to
be under 124 duties arising from various
sources of law.
However, in the case of 56 of them, advanced in paragraphs 12.6,
12.7, 12.8(i), 12.8(ii), 12.8(viii), 12.9(ii),
13.1, 13.2, 13.3,
13.4, 13.5, 13.6 and 13.7 it is not clear on what basis the first
defendant is said to have been under the duties
in question.
2.2 In paragraph 14 of
the particulars of claim, the first defendant is said to have
breached the 124 “statutory and regulatory
obligations”
mentioned in paragraphs 12 and 13 of the particulars of claim in 28
different respects. However, the plaintiff
does not explain
which of the 124 “statutory and regulatory obligations”
are said to have been breached in each of
the 28 instances mentioned
in paragraphs 14(i) to (xxii). The first defendant is
accordingly unable to discern the basis
on which it is said to have
breached the obligations and duties allegedly resting on it.
2.3 After paragraph 25,
in an unnumbered paragraph, the plaintiff seeks seven different forms
of relief. However, it does
not explain which of the 28
breaches listed in paragraph 14 of the 124 obligations mentioned in
paragraphs 12 and 13, are said
to warrant the relief sought. The
first to third defendants are unable to determine the grounds on
which the plaintiff claims the
relief it seeks.
2.4 The first to third
defendants are unable to determine the extent of their alleged
obligations because, in paragraph 12.4 of
the particulars of claim,
the plaintiff fails to identify:
- the “further
relevant statutory and regulatory provisions governing the conduct of
the aforesaid waste management operations”,
- the “bylaws
promulgated by the Seventh Defendant from time-to-time” and
- the “instruction[s]
issued by the Fourth Defendant or her delegates or her designated
environmental management inspectors”.
2.5 In paragraph 12.15 of
the particulars of claim, the plaintiff alleges that the fourth
defendant directed the first defendant
to “classify, treat and
dispose of waste in a more restrictive manner”. The plaintiff
fails to identify the contents
of the alleged direction and when and
how it was made.
2.6 In paragraph 14.3,
the plaintiff alleges that the first defendant, alternatively the
first to third defendants, owe a common-law
duty to care to members
of the public “arising by virtue of the circumstances pleaded
in paragraph 12 above”.
However, the plaintiff fails to
explain how the “circumstances pleaded in paragraph 12 above”.
However, the plaintiff
fails to explain how the “circumstances
pleaded in paragraph 12 above” give rise to a common-law duty
of care or the
extent of that duty.
2.7 Paragraphs 12.10,
12.12., 12.13, 12.17 and 12.18 plead evidence, rather than the
material facts on which the plaintiff’s
claim is based.
2.8 The plaintiff’s
reliance, in paragraphs 12.9(i), 12.13, and 12.14, on the “Minimum
Requirements for Handling, Classification
and Disposal of Hazardous
Waste” (“the Minimum Requirements”) is vague and
embarrassing. The handling,
classification and disposal of
hazardous waste has been governed, since 23 August 2013, by the
successor to the Minimum Requirements,
the 2013 Waste Classification
and Management Regulations, and not the Minimum Requirements.’
The
claims which the First to Third Defendants maintain do not disclose a
cause of action are as follows:
‘
3.1 The claim, in
paragraph 12.6 read with paragraph 14.2 and subparagraph (iii) of the
unnumbered paragraph appearing after paragraph
25, based on the first
defendant’s “Site Operational Control Plan”.
3.2 The claim, in
paragraph 12.7 read with paragraph 14, based on the first defendant’s
“Environmental Impact Control
Report”.
3.3 The claim, in
paragraphs 12.9(i) 12.13, and 12.14 read with paragraph 14, based on
the “Minimum Requirements for Handling,
Classification and
Disposal of Hazardous Waste”.
3.4 The claim, in
paragraph 12.15 read with paragraph 14, based on the fourth
defendants “direction”: to the first defendant
to
“classify, treat and dispose of waste in a more restrictive
manner”.
3.5 The claims in
paragraphs 13.1, 13.2, 13.3, 13.4, 13.5, 13.6, 13.7, 13.8, and 13.9
read with paragraph 14, based on the duty
of organs of state to
comply with the requirements of s 2 of NEMA.
3.6 The claim in
paragraphs 13.15 and 13.16, read with paragraph 14, paragraph 25 and
subparagraph (v) of the unnumbered paragraph
appearing after
paragraph 25, to declare that the first defendant, alternatively the
first to third defendants, “are not
fit and proper persons for
the purposes of any licence applications, reviews or renewals thereof
in respect of the operations conducted
by the First Defendant at the
Shongweni landfill site”.
3.7 The claim in
paragraph 14.3, read with the remainder of paragraph 14, based on
“the common law duty of care … arising
by virtue of the
circumstances pleaded in paragraph 12 above.”
3.8 The claim in
paragraph 14(xix), read with paragraph 15, based on the first
defendant’s misrepresentation to the plaintiff,
members of the
public and the fourth to seventh defendants.
3.9 The claim in
paragraphs 22 and 23, read with subparagraph (vi) of the unnumbered
paragraph appearing after paragraph 25, for
the first defendant to
“account for and disgorge the profits generated in consequence
of the advantages generated by such
contraventions akin to that
contemplated by the provisions of s 34 of NEMA.
3.10 The claim in
paragraph 24, read with subparagraph (i) of the unnumbered paragraph
appearing after paragraph 25, to interdict
the first defendant “from
conducting any further waste management activities at the SLS other
than mitigation and remedial
measures as may be directed by the
fourth to Seventh Defendants”.
3.11 The claim in
subparagraph (ii) of the unnumbered paragraph after paragraph 25 of
interdict the first defendant from conducting
any of its waste
management licence activities “until duly varied by the Fourth
Defendant in terms of s 54 of NEMWA”’.
[15]
A party is required to state its case in its particulars of claim
with sufficient precision to assist the parties and the court
to
understand the issues arising in respect thereof.
[11]
This entails setting out clearly and concisely the facts on which the
pleader relies to enable the Defendants to know what case
they are to
meet.
[12]
It has been
stated that the particulars of claim must be lucid and logical and in
an intelligible form so that the causes
of action appear clearly from
the factual allegations made.
[13]
It is only if the vagueness and embarrassment strikes at the root of
the particulars of claim that an exception will be upheld.
[14]
[16]
The First to Third Defendant’s complain that the Plaintiff’s
failure to plead its claim clearly render the particulars
of claim
vague and embarrassing on the grounds in paragraph 2 of the
excipients’ exception as the Plaintiff has pleaded a
disparate
collection of facts and legal instruments and then claims relief
alleged to arise therefrom, whilst it fails to explain
the legal
basis of the duties said to rest on the excipients, which duties have
been breached and/or how the alleged breaches warrant
the relief
sought .
Vague
and embarrassing
[17]
In paragraph 2.1 of the exception the excipients’ complain that
in paragraphs 12 and 13 of the particulars of claim the
First
Defendant is said to be subject to 124 duties arising from various
sources of law.
[18]
Paragraph 12.6 of the particulars of claim avers that the First
Defendant’s ‘Site Operational Control Plan’
compiled by Ian W Hopewell referred to in paragraph 1.2.5 of the
Waste Management Licence, Annexure A, in the class H:h (waste
disposal facility), which governs material aspects of the operational
control measures applicable to the site on,
inter alia,
the
strength of which the waste management licence was issued to the
First Defendant, imposes various obligations on the First
Defendant
in conducting its waste management activities (these are then listed
in sub-paragraphs (i) to (xxxii) of paragraph 12.6
of the particulars
of claim. Paragraph 1.2.5 of this licence, under the heading
‘documents considered’, lists ‘the
Shongweni waste
management facility site operational control plan’.
[17]
Whether the site operational control plan indeed imposed the
obligations is not a consideration at the exception stage. The
pleadings must be taken as they stand insofar as their correctness is
concerned. The objection is that the site operational control
plan
was a document considered when the licence was issued, but that its
terms were not incorporated as terms of the licence.
[18]
Prima facie,
the manner in which the site would be operated,
that is according to a required site operational control plan, would
be the basis
on which the First Defendant as applicant for such
licence would have indicated (if it did not warrant) how it intended
and would
operate the site. It is not the only document
relating to the First Defendant’s manner of intended running of
the site
which was considered. So it’ll be correct that it was
inter alia
on the strength thereof that the waste management
licence was issued. Whether control measures according to which the
site would
be operated (contained in the site operational control
plan) indeed imposed obligations and whether they had the parameters
alleged
in the various Roman numeral numbered sub-paragraphs are
questions of fact and law to be decided by the trial court. There is
no
vagueness or embarrassment precluding the excipients from pleading
thereto.
[19]
In paragraph 12.7 it is alleged that in terms of the First
Defendant’s environmental impact control report for valley
2 in
respect of the site dated 11 February 2009 the First Defendant
recognised key mitigation measures necessary in respect of
its
operations at the site to include covered leachate sources,
implementing a rehabilitation of valley 1, extracting and combusting
landfill gas, establishing and maintaining the required buffer zone,
and expanding the monitoring network.
[20]
How the recognition of these measures in the environmental report
would create legal obligations is not alleged. The preamble
to
paragraph 12 of the particulars of claim simply records that the
recognition of these key mitigating measures applied ‘at
all
material times’. However, being identified in the environmental
impact control report as mitigation measures, and given
the
significance in the structure of land use of environmental impact
reports, they need to be complied with by virtue of being
material
measures applicable to the operations at the site in terms of that
report. If their inclusion in the environmental impact
report does
not give rise to a legal duty to take those measures, then that can
simply be denied. If they are alleged not to give
rise to legal
obligations but simply are key mitigating measures which might be
desirable, then this can be pleaded. The failure
to make any further
allegations in this regard, even if possibly vague and hence
embarrassing (which I am not convinced they necessarily
are), does
not strike at the root of the particulars of claim.
[21]
The complaints relating to paragraphs 12.8 (i), (ii), and (viii) can
be dealt with together. The allegation in paragraph 12.8
is to the
effect that the First Defendant was obliged to conduct its waste
management activities at the site in accordance with
the licence
conditions as prescribed in the licenses, and itemised in the
sub-paragraphs to paragraph 12.8. Sub-paragraph (i) alleges
that the
licence conditions required the waste management activities to be
conducted in accordance with the documented environmental
management
system (EMS) that
inter alia
identified and minimised the risk
of pollution including those arising from operations, maintenance,
accident, incidents and non-conformance.
These allegations are clear
and arise by virtue of the EMS which applies to the operation of the
site. If not a licence condition
according to which the site had to
be operated, then that can be pleaded to. Similarly in sub-paragraph
(ii) it is alleged that
it was a condition of the licence that the
First Defendant would conduct its waste management activities in
accordance with the
conditions of the licence and any other written
instructions by the director and by adequate and competent staff. As
a general
statement that the activities had to be conducted in
conditions in accordance with the conditions of the licence, no
complaint
can be raised. If that was the obligation, then any
‘written instruction’ would have to be complied with. The
allegation
lacks particularity and hence is vague and embarrassing
insofar as it does not allege what the ‘written instruction’
of the director or adequate and competent staff entailed. To that
limited extent the exception must succeed and the Plaintiff afforded
the opportunity to remedy such vagueness by identifying and alleging
the extent of any such written instruction. Regarding sub-paragraph
(viii) where the licence condition required waste disposed of on site
to be compacted and covered on a daily basis with a maximum
of 150
millimetres of soil, ash from Mondi or any other material approved by
the director and that ash may only be used on lined
cells with class
H:h specifications, no vagueness arises.
[22]
Regarding the complaint relating to paragraph 12.9 (ii), the
Plaintiff averred that in terms of the waste management activities
relating to the storage, recovery or treatment of hazardous waste and
effluent in terms of the licence H:H, the First Defendant
is obliged
to construct and maintain on a continuous basis, a drainage and
containment system capable of collecting and storing
all contaminated
run off water arising from the site in the event of a 1:100 rain
event and maintain a free board of 1 metre. No
vagueness and
embarrassment arises as a statement of the obligations imposed by
such licences. If factually such obligation
was not imposed in
terms of the licence, then the obligation simply falls to be denied.
[23]
Paragraph 13 of the particulars of claim contained a statement of
material statutory and regulatory obligations governing the
conduct
of the operation of the First Defendant’s waste management
activities, over and above conditions imposed by the licence,
alleged
to include:
(a) Those in s 2(1) of
NEMA (paragraph 13.1 of the particulars of claim);
(b) The general caution
in s 2 of NEMA 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
(paragraph 13.2 of the particulars
of claim);
(c) Section 2(4)
(a)
of NEMA which provide that sustainable development requires
consideration of all relevant factors, some of which are listed
(paragraph
13.3 of the particulars of claim);
(d) Section 2(4)
(c)
of NEMA which requires that environmental justice must be pursued so
that adverse environmental impact shall not be distributed
in a
manner as to unfairly discriminate any person, particularly
vulnerable and disadvantaged persons (paragraph 13.4 of the
particulars
of claim);
(e) Section 2(2)(4)
(e)
of NEMA providing for that the responsibility for the environmental
health and safety consequences of
inter alia
service or
activity exists throughout its life cycle (paragraph 13.5 of the
particulars of claim);
(f) Section 2(4)
(g)
of NEMA which provides that decisions must take into account the
interest, needs and values of all interested and affected parties
(paragraph 13.6 of the particulars of claim);
(g) Section 2(4)
(i)
of NEMA that social, economic and environmental impacts of activities
including disadvantages and benefits must be considered,
assessed and
evaluated and decisions must be appropriate in the light of such
consideration and assessment (paragraph 13.7 of the
particulars of
claim).
All
the above obligations state ideals and objectives which at all times
must be sought to be achieved. As a statement of obligations
to be
undertaken, they are not objectionable at the level of an
exception. The only possible embarrassment which could arise might be
the extent to which it is alleged that these obligations might not
have been given effect to or have been breached. That however
is the
subject of paragraph 14 of the particulars of claim. The reference in
sub-paragraph 13.5 of the particulars of claim to
‘s
2(2)(4)
(e)
’ is clearly a typographical error and should
read ‘s 2(4)
(e)
’.
[24]
In paragraph 2.2 of the exception the complaint is that in paragraph
14 of the particulars of claim the First Defendant is
alleged to have
breached 124 ‘statutory and regulatory obligations’ in 28
different respects, but that the Plaintiff
does not explain which of
the 124 statutory and regulatory obligations are said to have been
breached in each of the 28 instances
mentioned in paragraph 14(i) to
(xxii). The complaint is accordingly that the First Defendant is
unable to discern the basis on
which it is said to have breached the
obligations and duties allegedly resting on it.
[25]
The breaches alleged in paragraph 14 are in fact not only confined to
“statutory and regulatory obligations”, but
are also
allegedly breaches of constitutional rights to an environment which
is ‘not harmful to health or well-being’,
as provided in
s 24 of the Constitution, breaches of the First Defendant’s
licence conditions and operating procedures (including
the site
operational control plan), and breaches of a common law duty of care
owed by the First Defendant alternatively the First
to Third
Defendants’ to members of the public residing and/or working in
the vicinity of the site (arising by virtue of the
circumstances
pleaded in paragraph 12).
[26]
The breaches, alleged to consist of omissions (failures to act), are
advanced in a non-succinct and narrative form. My concern
would be
more with whether the breach in each instance is pleaded with
sufficient particularity. That however is not the nature
of the
exception as I understand it. The exception is taken on the basis
that the Plaintiff does not explain which of the statutory
and
regulatory obligations are said to have been breached in each of the
28 instances. In my view the breaches, if arising even
from any one
of the statutory and regulatory obligations, or the licence
conditions, or the Constitutional right to an environment
which is
not harmful, or any common law duty, would not give rise to a
legitimate complaint. The exception on this score must likewise
fail.
[27]
In paragraph 2.3 of the exception the objection is that the Plaintiff
does not explain which of the 28 different breaches are
said to
warrant the relief claimed in paragraphs 1 to 7 of the prayer to the
particulars of claim; accordingly, that the excipients
are unable to
determine the grounds on which the Plaintiff claims the relief it
seeks. This complaint is likewise in my view without
substance and
does not strike at the root of the particulars of claim. It is
sufficient if any of the forms of relief could
be founded on the
basis of any one breach (or possibly more than one breach) alleged.
[28]
In paragraph 2.4 of the exception the excipients complain that they
are unable to determine the extent of their obligations
because of
the Plaintiff’s failure in paragraph 12.4 of the particulars of
claim to identify the further relevant statutory
and regulatory
provisions governing the conduct of the waste management operations,
the by-laws promulgated by the Seventh Defendant
from time to time,
and the instructions issued by the Fourth Defendant or her delegates
or her designated environmental management
inspectors. This objection
is well taken as the Excipients are entitled to be informed of the
specific ‘further relevant
statutory and regulatory provisions
governing the conduct of the aforesaid waste management operations’
and the specific
‘bylaws promulgated by the Seventh Defendant
from time to time’ and ‘any instruction issued by the
Fourth Defendant
or her delegatees or her designated environmental
management inspectors’ with reference to the contents thereof
and/or in
a manner making them clearly identifiable, including the
relevant provisions thereof upon which reliance would be placed.
[29]
In paragraph 2.5 of the exception the complaint is that the Plaintiff
fails to identify the contents of the alleged direction
by the Fourth
Defendant, made in paragraph 12.15 of the particulars of claim, which
directed the First Defendant to ‘classify,
treat and dispose of
waste in a more restrictive manner.’ The power to direct thus
is alleged to be in accordance with regulation
8(1) of the Waste
Classification and Management Regulations, 2013, which allegedly
prohibited the First Defendant ‘including
during the period
August 2013 to August 2016 to simply conform to the Waste
Classification and Management Regulations 2013
[15]
without variation of the restrictive license condition.’ The
form of the direction by the Fourth Defendant, identifying the
document and date thereof and the full ambit and details of the
direction should be pleaded.
[30]
As regards paragraph 2.6 of the exception the complaint is that
although the Plaintiff in paragraph 14.3 alleges a common law
duty of
care to members of the public by virtue of the circumstances pleaded
in paragraph 12 which is averred applied ‘at
all material times
hereto’, the Plaintiff has failed to explain how those
‘circumstances’ give rise to a common
law duty of care,
and/or the extent of that duty.
[31]
Whether a common law duty exists depends on the legal convictions of
the community. Such a duty arises separate and distinct
from
any statutory duties which may arise from the position occupied by
the First Defendant as a licensee and in terms of the various
statutes licence conditions and the like subject to which the First
Defendant is allowed to operate the landfill site. The
manner
in which circumstances would give rise to a common law duty is a
matter of law and legal argument within the confines of
the
‘circumstances’ as alleged. The extent or ambit of that
duty, although perhaps said to be apparent, have however
not been
pleaded. To that extent the averment is vague and embarrassing, and
the exception hence well taken.
[32]
Paragraph 2.7 of the exception complains that paragraphs 12.10,
12.12, 12.13, 12.17 and 12.18 plead evidence rather than the
material
facts on which the Plaintiff’s claim is based. These paragraphs
relate
inter alia
to what had allegedly been communicated to
the First Defendant by Dr J L Schoonraadt as technical director, by
Air Shed Planning
Professionals (Pty) Limited regarding particulate
emissions, what the Minimum Requirements published by the Fifth
Defendant’s
department, what the September 2015 audit revealed,
and what the Water Quality report of July 2015 prepared by Jones and
Wagener
recorded. These are all things which, according to the
preamble to paragraph 12 to the particulars of claim, existed ‘at
all material times hereto’. Evidence has been pleaded
which is undesirable. The results of these various reports
to
the extent relevant to the Plaintiff’s cause of action should
have been alleged as factual averments (as
per facta probanda)
in respect of which, if denied, the identified witnesses and their
reports (the
facta probantia
) could then be adduced. As much
as it is bad pleading, it does not in my view introduce vagueness and
embarrassment justifying
a successful exception. More has been
pleaded than required, but this can be responded to meaningfully.
[33]
As regards paragraph 2.8 of the exception the objection relates to
the minimum requirements alleged in paragraphs 12.9(i),
12.13 and
12.14 published by the Fifth Defendants department (or any successor
of such minimum requirements). Specifically
in paragraph 12.14
the allegation is that despite the draft of a successor to the
‘Minimum Requirements 1998’, during
or about 2005, those
minimum requirements have not been succeeded by any new Minimum
Requirements. The exception raises the point
that the ‘handling,
classification and disposal of hazardous waste has been governed
since 23 August 2013 by the successor
to the Minimum Requirements,
the 2013 Waste Classification and Management Regulations, and not the
minimum requirements.’
This is not what the particulars allege.
The Plaintiff has based its claim on the 1998 minimum requirements
and not the Minimum
Requirements of 2013. Whether the 2013 Waste
Classification and Management Regulations have replaced or amended
the minimum requirements
pleaded by the Plaintiff in any way, and if
so, what impact it would have, is an issue for determination which
can be pleaded.
It does not give rise to vagueness to found an
exception.
No
valid cause of action
[34]
Paragraphs 3.1 and 3.2 of the exception refer to and rely on the
First Defendant’s ‘Site Operational Control Plan’
and it’s ‘Environmental Impact Control Report’. The
complaint is that there is no reference anywhere in NEMA,
NEMWA or
the relevant regulations to an obligation on a licensee to prepare
plans such as the Site Operational Control Plan and
the Environmental
Impact Control Report. The Site Operational Control Plan is referred
to simply as one of the ‘documents
considered’ by the
Department of Environmental Affairs when issuing the licence. It is
however contended that the licence
does not incorporate the
provisions of the Site Operational Control Plan into the licence and
that nowhere else in the licence
is any obligations arising from
either document expressly imposed as a legal obligation. Accordingly,
the objection is that neither
the legislation nor the licence imposes
an obligation on the excipients to prepare and/or comply with the
Site Operational Control
Plan and/or Environmental Impact Control
Report (paragraph 12.6 of the particulars of claim).
[35]
Paragraph 12.7 of the particulars of claim refers to the
Environmental Impact Control Report in which the First Defendant
allegedly recognised the key mitigating measures necessary in respect
of operations at the site. It was apparently not a document
considered and on the strength on which the licence was issued. As
much as one would expect the recognition of necessary mitigating
measures detailed in an environmental impact control report to give
rise to obligations on the part of an operator of a landfill
site
where activities might necessitate such mitigatory measures, the
particulars of claim are capable of a construction that the
recognition of such measures might be relevant only to a
determination of any cause of action based on paragraph 14.3 of the
particulars
of claim. It is significant in that regard that paragraph
14.2 is confined to the Site Operational Control Plan and that the
relief
claimed in prayer (iii) is likewise confined to the Site
Operational Control Plan. No specific relief in a separate prayer
seems
to be claimed in respect of the Environmental Impact Control
Report. This exception in paragraph 3.1 accordingly cannot be
sustained.
[36]
Paragraph 3.3 of the exception raises, as I understand it, the same
point, but now pursuant to the cause of vagueness and embarrassment
not having been removed, as was raised in paragraph 2.8 of the
exception. I have already dealt with that aspect above. This
exception
is in my view not well taken and falls to be dismissed.
[37]
As regards paragraph 3.4 of the exception, this exception likewise
raises the complaint first detailed in paragraph 2.5 of
the exception
on the basis that the cause of vagueness and embarrassment relating
to any ‘direction’ by the Fourth
Defendant on which the
Plaintiff might rely, not having been removed. As indicated
above, that exception is well taken and
is upheld.
[38]
Paragraph 3.5 of the exception also refers to some of the paragraphs
dealt with at the level of vagueness and embarrassment
in paragraph
2.1 of the exception, with the nuance that the Plaintiff claims these
various form of relief in the mistaken belief
that the Plaintiff is
in a similar position as certain organs of state. This theme is the
basis for the exceptions taken in paragraphs
3.6, 3.10 and 3.11 of
the exception.
[39]
Certain organs of state are under a duty to comply with the
requirements of s 2 of NEMA. These could extend to having the First
Defendant alternatively the First to Third Defendants declared to be
‘not fit and proper persons for the purposes of any
licence
applications, reviews or renewals thereof in respect of the
operations conducted by the First Defendant at the Shongweni
landfill
site’, interdicting the First Defendant ‘from conducting
any further waste management activities at the Shongweni
landfill
site other than mitigation and remedial measures as may be directed
by the Fourth to Seventh Defendants’,
and interdicting
the First Defendant from conducting any of its waste management
licence activities until duly varied by the Fourth
Defendant in terms
of s 54 of NEMWA.
[40]
The excipients maintain that the Plaintiff claims various forms of
relief that mistake the position of the Plaintiff with the
position
of these organs of state. They argue, with reliance on the
introductory provision to s 2(1) of NEMA and the various provisions
of s 2 of NEMA alleged in paragraphs 13.1 to 13.9 read with paragraph
14 of the particulars of claim, that these remedies are only
available to organs of state, not the Plaintiff, and accordingly that
for that reason alone, no valid cause of action is available
to the
Plaintiff.
[41]
Section 2 of NEMA provides:
‘
(1) The principles
set out in this section apply throughout the Republic to the actions
of
all organs of state
that may significantly affect the
environment and –
. . .
(e) guide the
interpretation, administration and implementation of this Act, and
any other law concerned with the protection or
management of the
environment.
(2) 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.’ (my emphasis)
[42]
The Plaintiff places particular emphasis on the wording of s 2(1)(e)
and maintains that the relevance and importance of pleading
these
principles given reliance on express breaches by the Excipients of
NEMA and NEMWA, is obvious.
[44]
On a proper interpretation of s 2, appearing as it does in Chapter 1
of NEMWA which deals with the ‘National Environmental
Management Principles’ the contention that these principles are
to be invoked only at the instance or organs of state, as
opposed to
an entity such as the Plaintiff, appears untenable. It is also a
matter of interpretation which I am loath to decide
on exception
where it will in any event, not be dispositive of the Plaintiff’s
action.
[45]
As regards the relief that the excipients are not fit and proper
persons for the purposes of any licence applications, reviews
or
renewals, regard must be had to s 48 of NEWWA read with s 32 of NEMA.
Section 32 specifically deals with the legal standing
to enforce
environmental laws and provides:
‘
(1) Any person or
group of persons may seek appropriate relief in respect of any breach
or threatened breach of any provision of
this Act, including a
principle contained in Chapter 1, or of any provision of a specific
Environmental Management Act, or of any
other statutory provision
concerned with the protection of the environment or the use of
natural resources –
(a) in that person’s
or group of person’s own interest;
(b) in the interest of,
or on behalf of, a person, who is, for practical reasons, unable to
institute such proceedings;
(c) in the interest of or
on behalf of a group or class of persons whose interests are
affected;
(d) in the public
interest; and
(e) in the interest of
protecting the environment.’
Section
48(f) of NEMWA provides that a licencing authority, when considering
an application for a licence must take into account
inter alia
whether an applicant is ‘a fit and proper person’.
Section 59 of NEMWA lists the criteria that the licensing
authority
must take into account when deciding that question. Section 55 of
NEMWA deals with the renewal of waste management licences.
It
renders s 48 applicable to renewal applications with such changes as
required by the context. Accordingly, a licensing
authority
must consider whether an Applicant is a fit and proper person on each
occasion when an application for a fresh licence
is made or an
application for a renewal is made.
[46]
The excipients accordingly maintain that it is for the licensing
authority to decide whether an applicant is fit and proper,
and not
for this court to make such a determination. They maintain that it is
not open to the Plaintiff to have the First Defendant
alternatively
the First to the Third Defendants declared not fit and proper persons
for the purpose of any licence applications,
reviews or renewals
thereof, as claimed in prayer (v) to the particulars of claim, but
that such a determination is one to be made
by the licensing
authority, which if leaving the Plaintiff aggrieved, might then be
reviewable. It is not legally competent to
ask for such a finding to
be made before any application for a licence or renewal has been made
and before the licencing authority
has been given the opportunity to
consider the question.
[47]
I agree, having regard to the express wording of the statutory
provisions referred to above, that determinations of this nature
are
to be left to administrative bodies who operate and are
administrative experts in those fields. The only cause of
action
and remedy open to the Plaintiff, at best, is for a review of
such determination once made (or a failure to make such a
determination)
if found objectionable. This exception must
accordingly succeed in regard to the claim and relief set out in
prayer (v) to the
prayer to the particulars of claim.
[48]
Regarding the interdictory relief, the excipients claim that the
Plaintiff seeks to prevent them, the First Defendant, from
conducting
its waste management activities in certain circumstances, but that
this is not a remedy open to the Plaintiff.
They refer to the
provisions of s 31L of NEMA read with NEMWA which establishes a
procedure to permit the Department of Environmental
Affairs to police
non-compliance by a licensee with its licence firstly by a compliance
notice being issued. Only thereafter,
if the Department of
Environmental Affairs remains unsatisfied, may a licence be suspended
in terms of s 56 of NEMWA. In
the final stage the Department of
Environmental Affairs may revoke a licence in terms of s 56 of NEMWA.
Accordingly, the excipients
maintain, there is no basis in NEMA or
NEMWA for a third party such as the Plaintiff to seek the
interdictory relief that it seeks,
before the Department of
Environmental Affairs has exercised its statutory powers.
[49]
Although the relevant legislation envisages a procedure for
enforcement, having regard to the National Environmental Management
principles, which are provided in terms of the legislation, there is
no provision which ousts the jurisdiction of a court to declare
conduct in breach of such statutory provisions as unlawful. I am not
persuaded, particularly at the exception stage, that such
interdictory relief would not be available to the Plaintiff.
[50]
Regarding paragraph 3.7 of the exception, the objection is that
arising from paragraph 14.3 read with the remainder of paragraph
14
of the particulars of claim, the Plaintiff’s claim is based, in
part, on a breach of a common law duty of care alleged
to be owed by
the excipients to the Plaintiff’s members and an alleged
misrepresentation made by the First Defendant. The
excipients point
out correctly, that a statutory provision does not
per
se
give
rise to a common law duty of care.
[16]
They argue that this applies with even greater force to the
allegations made in paragraph 12 of the particulars of claim.
Their complaint is specifically that the reliance on a duty of care
amounts to a bald assertion that such a duty exists, without
an
explanation of why ‘the circumstances pleaded in para 12’
of the particulars of claim give rise to that duty. This,
it is
maintained, is insufficient to make out a cause of action.
[17]
[51]
Although no specific primary facts are alleged as giving rise to a
duty of care at common law, the alleged breaches of environmental
management in conflicts with the principles relating thereto, insofar
as they fall short of any statutory duties, and with reference
to the
consequences had it been alleged that these ‘circumstances
pleaded in para 12’ give rise to such a duty, are
sufficient.
The exception in this regard accordingly falls to be dismissed.
[52]
Regarding paragraph 3.8 of the exception, the complaint is not
clear. The exception reads that:
‘
The claim in para
14 (xix), read with paragraph 15, based on the first defendants
misrepresentation to the Plaintiff, members of
the public and the
fourth to seventh defendants.’
Paragraph
15 refers to breaches resulting in members of the public including
vulnerable and disadvantaged members residing, working
and attending
schools in the vicinity of the landfill site, having been severely
impacted as a consequence of the fugitive gas
emissions and
particulates being omitted from the site, which have resulted in
thousands of odour/nuisance and health related complaints
during the
period November 2015 to date. As a basic statement of a complaint
founded on nuisance it might be terse, but not in
my view excipiable
as disclosing no cause of action, particularly if read with the
amplification of the associated health impacts
alleged in paragraph
16 of the particulars of claim. This exception must likewise be
dismissed.
[53]
The introductory relief sought is not precluded by the rights
accorded to the Minister to take administrative enforcement
steps.
[18]
[54]
I turn to paragraph 3.9 of the exception. Here the complaint relates
to paragraphs 22 and 23 of the particulars of claim read
with prayer
(vi), which requires that the First Defendant be obliged and directed
to account in respect of the advantages received
by it as a
consequence of its contraventions as alleged, and thereafter to
expend such amount in the manner and on the conditions
as this
Honourable Court deems met. This has been referred to as a
disgorgement. The excipients see it as the Plaintiff requiring
the
First Defendant to ‘account for and disgorge [its] profits…
akin to that contemplated by the provisions of s 34
of NEMA’.
They claim that s 34 however is a specific provision dealing with
orders that may be made in criminal proceedings
and where the
legislature has demarcated the circumstances in which disgorgement
may be ordered. It is the only provision in NEMA
dealing with
disgorgement of profits. They contend that it may be ordered in
criminal proceedings, but not in civil proceedings,
and accordingly
that it may not be claimed in a case such as the present one. They
indicate that the Plaintiff claims that such
relief is anticipated by
s 32 of NEMA, but point out that s 32 is a provision dealing with
standing and empowers any person to
seek ‘appropriate relief’
in respect of breaches of NEMA, and that the specific rule in s 34
cannot be trumped by a
general provision facilitating the granting of
‘appropriate relief’.
[19]
They accordingly contend that there is no legal basis to seek
disgorgement in civil proceedings under NEMA.
[55]
The Plaintiff’s retort simply is that what this prayer for
relief contemplates, are constitutional damages. It argues
that this
case is one of the first of its kind, that constitutional damages
ought to be awarded, and that such constitutional damages
ought to be
akin to that imposed in terms of s 34 of NEMA; not that it is a claim
in terms of s 34 but rather a claim to be developed
by this court in
developing the common law given the breach of constitutional rights
raised. The Plaintiff contends that this is
permissible under the
wide discretion to determine appropriate relief contained in s 32 of
NEMA, pointing out that there is no
reason why such relief cannot
include an appropriate measure of damages akin to that in a criminal
context in terms of s 34.
[56]
Without expressing a final view on the issue, it might be that the
common law must be developed to recognise a claim for damages
in
circumstances such as the present. It will however require
allegations beyond a mere conclusion based on general ‘breaches’
referred to generically. The Plaintiff’s particulars of claim
lack particularity in this regard to sustain a valid cause
of action.
The exception must be upheld and the Plaintiff be permitted to plead
the factual basis from which any such legal obligation
may be said to
arise fully.
Costs
[57]
In the exercise of my discretion on costs, I have taken into account
that the Excipients have been partially successful and
the Plaintiff
partially successful. Many problems relating to the formulation
of the causes of action and also the exceptions
thereto have been
exacerbated by the particulars of claim being drafted in narrative
form and not containing separate and distinctive
averments in
separately, consecutively, numbered paragraphs. The exceptions have
also often been formulated in the tersest terms,
acquiring true
meaning mainly when the points were amplified in argument. In those
circumstances the fairest order would be that
each party pay their
own costs. I accordingly do not intend making any order as to the
costs of the exception. Provision is however
made, in the event of my
order not being complied with and the particulars being amended in
respect of those claims successfully
excepted to but not remedied,
for the dismissal of those claims with costs.
Conclusion
[58]
In the circumstances then:
1. (a) Paragraph 12.8
(ii) of the plaintiff’s particulars of claim is vague and
embarrassing insofar as it alleges that it
was a condition of the
licence that the First Defendant would conduct its waste management
activities also in accordance with ‘other
written instructions
by the director and by adequate and competent staff’ but does
not identify and allege what these ‘written
instructions’
entailed.
(b) Paragraph 12.4 of the
particulars of claim is vague and embarrassing insofar as it fails to
identify ‘the further relevant
statutory and regulatory
provisions governing the conduct of the waste management operations,
the by-laws promulgated by the Seventh
Defendant from time to time,
and the instructions issued by the Fourth Defendant or her delegates
or her designated environmental
management inspectors’
with reference to the contents thereof and/or in a manner making them
clearly identifiable,
including the relevant provisions thereof upon
which reliance would be placed.
(c) Paragraph 12.15 of
the particulars of claim is vague and embarrassing insofar as it
alleges that the First Defendant was directed
to ‘classify,
treat and dispose of waste in a more restrictive manner’ but
without identifying the direction by the
Fourth Defendant, the date
thereof and the full ambit and details of any such direction.
(d) Paragraph 14.3 of the
particulars of claim alleging a common law duty of care is vague and
embarrassing insofar as the extent
or ambit of that duty has not been
pleaded.
(e) Paragraphs 13.15 and
13.16 and prayer (v) to the particulars of claim are set aside as
disclosing no valid cause of action.
(f) Paragraphs 13.15 and
13.16 and prayer (vi) to the particulars of claim are set aside as
disclosing no valid cause of action.
2. The Plaintiff is given
leave to cure the aforesaid defects in its particulars of claim by
filing a notice of amendment delivered
within 15 days of the date of
this order;
3. If the Plaintiff fails
to give such notice of amendment, its claims in those paragraphs of
its particulars of claim and the prayers
thereto are dismissed with
costs, including the costs of two counsel where so employed.
4. All other exceptions
are dismissed.
Appearances
For
the Plaintiff: Mr A Lamplough
Ms
C Nel
Instructed
by: Macgregor Erasmus Attorneys
Ref.:
UPP1/0001/C Nel/pn
Tel.:
031 201 8955
For
the First to Third Defendants: Mr W Trengrove SC
Mr
A Coutsoudis
Instructed
by: Shepstone & Wylie
Ref.:
(I Sampson)
Tel.:
031 575 7000
[1]
The First Defendant.
[2]
The
Second Defendant.
[3]
The
Third Defendant.
[4]
The
Fourth Defendant.
[5]
The
Fifth Defendant.
[6]
The
Sixth Defendant.
[7]
The Seventh Defendant.
[8]
Annexure
‘A’ to the particulars of claim.
[9]
Annexure
‘B’ to the particulars of claim.
[10]
The
reader of this judgment is referred to the full text of the
particulars of claim, which should be read with this judgment.
[11]
Imprefed
(Pty) Limited v National Transport Commission
1993
(3) SA 94
(A) at 107C;
MN
v AJ
2013
(3) SA 26
(WCC) para 20.
[12]
Venter
and others NNO v Barrit (Pty) Ltd; Venter and others NNO v Wolfsberg
Arch Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) para 12;
General
Commercial and Industrial Finance Corporation Limited
v
Pretoria
Port and Cement Co Limited
1944 AD 444
at 454.
[13]
Trope v
South African Reserve Bank
1992
(3) SA 208
(T) at 210F-H.
[14]
Francis
v Sharp and others
2004 (3) SA 230
(C) at 240F-E.
[15]
Published
in Notice No 614 of 2012 in
GG
35527.
[16]
Minister
van Polisie v Ewels
1975
(3) SA 590
(A) at 598B.
[17]
See
Cilliers
v Steenkamp
2015
JDR 2564 (WCC) at para 36.
[18]
Hichange
Investments (Pty) Ltd v Cape Produce Co. (Pty) Limited t/a Pelts
Products and others
2004 (2) SA 393 (E).
[19]
Doctors
for Life International v Speaker of National Assembly and others
2008 (6) SA 416
(CC) see para 49 and
Pharmaceutical
Society of SA v Tshabalala –Msimang
2005
(3) SA 238
(SCA) para 73.