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[2014] ZAGPPHC 428
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Federation For Sustainable Environment and Another v Minister of Water Affairs and Others (35672/12) [2014] ZAGPPHC 428 (9 June 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
35672/12
DATE: 9 JUNE 2014
In the matter
between:
In the matter
between:
THE FEDERATION FOR
SUSTAINABLE
............................................................................
1
st
APPLICANT
ENVIRONMENT
THE SILOBELA
CONCERNED
COMMUNITY
...................................................................
2
nd
APPLICANT
And
THE MINISTER OF
WATER
AFFAIRS
.............................................................................
1
st
RESPONDENT
THE DIRECTOR
GENERAL: WATER
AFFAIRS
............................................................
2ND
RESPONDENT
ACTING CHIEF
DIRECTOR GENERAL
OF
....................................................................
3
rd
RESPONDENT
WATER AFFAIRS
MPUMALANGA
DIRECTOR OF WATER
AFFAIRS:
MPUMALANGA WATER
SECTOR
..................................................................................
4
th
RESPONDENT
REGULATION AND USE
MEC CO-OPERATIVE
GORVANCE
AND
.......................................................................
5
th
RESPONDENT
TRADITIONAL AFFAIRS,
MPUMALANGA
ACTING EXECUTIVE
MAYOR:
THE GERT SIBANDA
DISTRICT
MUNICIPALITY
........................................................
6
th
RESPONDENT
MUNICIPAL MANAGER:
THE
GERT
..............................................................................
7
th
RESPONDENT
SIBANDA DISTRICT
MUNICIPALITY
MAYOR: THE
ALBERT
......................................................................................................
8
th
RESPONDENT
LUTHULI LOCAL
MUNICIPALITY
MUNICIPAL MANAGER:
THE
ALBERT
.........................................................................
9
th
RESPONDENT
LUTHULI LOCAL
MUNICIPALITY
KOMATI CATCHMENT
AGENCY
.................................................................................
10
th
RESPONDENT
JUDGMENT
MAVUNDLA, J.
[1] This is an
application condonation and leave to cross appeal against part of the
judgment of this court, delivered on the 10
July 2012.
[2] The following
facts are common cause:
2.1 Judgment in the
main trial was delivered on the 10
th
July 2012. The court
ordered sixth and seventh respondents (The Gert Sibande District
Municipality) to take steps to provide temporary
emergency drinking
water to the residents of Carolina, grant a structural interdict
requiring the District to engage with the residents
and report to
court, and ordered the District Municipality and Chief Albert Luthuli
Municipality to pay the costs of the matter
2.3 On the 26
th
July 2012, the court granted to the two municipalities leave to
appeal and also made an order in terms of rule 49 directing that
the
order be immediately executable pending the appeal proceedings. On
the 3
rd
August 2013, the court varied its order of the
26
th
July 2012 to correct and a patent typographical
error.
2.4 On the 14
th
August 2012 the present applicants filed a notice to cross-appeal in
terms of Rule 49(4), without seeking leave to cross appeal.
2.5 The appeal was
set down for hearing on the 12 February 2014.
2.6 The sixth to
ninth respondents filed and served their heads of argument on the
23
rd
January 2013, in which for the first time raised the
issue of the need to seek leave to cross -appeal.
2.7
On the 12 February 2014 the appeal was postponed
sine
die
because
the Full Court held that the leave to cross-appeal and application
for condonation must serve before the court a quo. The
appeal was
postponed sine die and no costs were ordered for the postponement.
2.8 The applicant
subsequently lodged before this court the present application on the
14
th
April 2014.
[3]
The grant of an application for condonation is a matter of the
discretion of the court. The application in an application for
condonation, must establish good cause it is meant that he must
furnish a satisfactory and acceptable explanation for the delay,
covering the entire period of the delay.
1
Upon becoming aware of the non-compliance, the applicant must
promptly approach the court to explain the delay.
2
Secondly, he or she must show that there are reasonable prospects of
success on the merits of the appeal.
[4]
In
Melane
v Santam Insurance Co. Ltd
3
it
was held that:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation”
[5] The explanation
proffered by the applicants in respect of the failure to seek in good
time the court’s leave to cross-appeal
was that:
5.1 Various
interlocutory hearings to the application for leave to appeal were
conducted on urgent basis;
5.2 Rule 49(4) does
not specifically state that a separate application for leave to
cross-appeal must be sought;
5.3
The respondents, who are organs of state, failed to timeoulsy alert
them of the defective procedure which the applicants were
following
in not seeking leave to cross-appeal
4
.
[6] Rule 49(4)
provides as follows:
“
A
notice of cross-appeal shall be delivered within ten days after
delivery of the notice of appeal or within such longer period
as may
upon good cause shown be permitted and provisions of these rules with
regard to appeals shall mutatis apply to cross appeals”
It
would be noted that this rule clearly states that the rules with
regard to appeals shall mutatis mutandis apply. Therefore, a
party
who intends to cross-appeal must then read rule 49(4) together with
the rest of the rules applicable when noting an appeal.
Rule 49(1)
& (2) clearly state when an application for leave to appeal,
implicitly, also a leave to cross-appeal, should
be applied for.
[7]
In my view, the application for leave to cross-appeal ought to have
been sought on the 26
th
July 2012, which was not done,
in
casu,
at
the time when leave to appeal was granted to the two municipalities.
The fact that the main application was brought under urgent
circumstances, is in my view, not a satisfactory excuse for not
having complied with the rules. In my view, the ignorance on the
part
of the legal representatives of the applicants is not a good excuse;
vide herein below.
[8] The legal
representatives of the applicants have quite correctly conceded that
they were remiss, in so far as not having appreciated
that a leave to
cross appeal was required.
[9]
In the matter of
Regal
v African Superlate (Pty) Ltd
5
the
Appellate Court held that
“
The
attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason why, in regard
to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from normal consequences of such a
relationship,
no matter what the circumstances of the failure are”.
[10]
The fact that the applicants themselves are not to blame for the
failure to comply with the rules, nor to apply for condonation
much
earlier, but their legal representatives were, although it is an
important fact to be considered, does not necessarily entitle
them as
of right to be granted condonation. The court in the exercise of its
discretion will also have regard to the delay
6
.
In the matter of
Immelman
v Loubser
7
the
Appellate Court refused to grant condonation where the attorneys of
the appellant were remiss in filing the record of appeal.
[11]
In casu,
the
applicants were alerted of the incorrect procedure they followed, at
the time when the respondents filed their heads of argument
on the 23
January 2013. Instead of remedying the position then, the applicants
chose a supine stance and proceeded to place the
appeal for hearing.
In my view, the delay was from July 2012 to May 2014, when this
matter came before this court. The applicants,
in my view, have not
furnished a satisfactory explanation covering the entire period of
the delay; including the time when they
were alerted of the incorrect
procedure they were following.
[12]
There is no doubt in my mind that the matter is of importance to all
the parties concerned. It deals,
inter
alia,
with
a fundamental right of the community of Caroline to a basic priceless
commodity, water
8
.
In the matter of
Van
Wyk v Unitas Hospital
9
the
Constitutional Court held that:
“
[20]
This Court held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case.
Factors
that are relevant to this inquiry include but are not limited to the
nature of the relief sought, the extent and cause of
the delay, the
effect of the delay on the administration of justice and other
litigants, the reasonableness of the explanation
for the delay, the
importance of the issue to be raised in the intended appeal and the
prospects of success.” Of course,
in addition to these factors
mentioned in the quoted passage, the prospects of success are also
one of the factors to be considered
10
.
[13] This court in
the judgment delivered on the 26 July 2012 in refusing to make any
order against the first to fourth respondents,
held as follows: “In
my view, to expect of the national government to interfere with
administrative issues that resort in
the sphere of local government,
would negate the very separation of spheres created by the
constitution.”
[14]
In the matter of
Mazibuko
v City of Johannesburg
11
the
Constitutional Court held that
“
...s27
(l)(b), the right to access to sufficient water, coupled with s27(2),
it is clear that the right does not require the State
upon demand to
provide every person with sufficient water without much more; rather
It requires the State to take reasonable legislative
and other
measures progressively to realize the achievement of the right of
access to sufficient .water, within available resources.”
[15]
The issue relating to the provision of water in the affected area, at
a practical level is according, to the
Mazubuko
matter
(supra),
not
within the domain of the first to the fifth respondents. There are no
reasonable prospects that on appeal, a decision contrary
to what is
expressed in the
Mazibuko
decision
and by the court a quo may be reached. I therefore conclude that
there are no prospects of success on appeal on this point.
It is my
considered view that, to have the national government dragged to
participate in the appeal, as is sought through the envisaged
cross-appeal, would be an exercise in futility and not in the
interest of justice but unfair to the relevant respondents
12
.
[16] The applicants
in the main trial never sought any order against the eighth and ninth
respondents. With the envisaged cross-appeal
they seek to have an
order made against these respondents. They also have added the tenth
respondent who was not cited as a party
in the main application.
[17]
In the matter of
Donnelly
v Barclays National Bank Ltd
13
it
was held that generally speaking, a Court of Appeal will not
entertain a point not raised in the court below and especially one
not raised on the pleadings in the court below. Thus in principle, a
court of appeal will decline to allow a new point to be raised
before
it unless (i) the point is covered by the pleadings; (ii) there would
be no unfairness to the other party; (iii) the facts
are a common
cause or well-nigh incontrovertible; and (iv) there is no ground to
thinking that the other or further evidence would
have to be produced
that could have affected the point.
14
[18] In my view, it
was quite correctly submitted on behalf of the first to fifth
respondents that the cross appeal is doomed to
fail because the
applicants intend to obtain an order against the first to fifth
respondents who are not parties to the appeal.
[19] In the
premises, taking into account what is stated herein above, I conclude
that in the exercise of my discretion the application
for condonation
and for the leave to cross appeal should be dismissed, as set down
herein below.
[20]
It is trite that the award of costs is a matter of the discretion of
the court. It is equally trite that, generally, the costs
follow the
event. The applicants,
in
casu
,
are not in my view pursuing a self serving private commercial
interest, but a public interest related issue, water service
provision
to the public in the affected area of Carolina. Their legal
representatives followed an incorrect procedure resulting in the
delay
in bringing timeously, the application for condonation and
leave to cross appeal. The applicants were therefore not to blame in
the failed application. Where the legal representative was remiss in
the prosecution of a matter on behalf of his / her client,
the costs
must be borne by the legal representative and not the client. Having
said that, however, the instructing attorneys for
the applicants are
also the public interest groups which generally assist indigent
litigants in bringing to court matters affecting
their constitutional
rights related matters. In these circumstances, it might discourage
such institutions in pursuing and assisting
in such matters, as
in
casu,
if
they do so well knowing that they are exposed to costs orders
15
.
In the exercise of my discretion, I shall therefore not mulct neither
the applicants, nor their legal representatives with a costs
order of
this failed application for condonation and leave to crossappeal. It
is therefore appropriate that no order as to costs
should be made.
[21] In the premises
the following order is made:
(i) The application
for condonation and leave to cross-appeal is dismissed.
(ii) No order as to
costs is made.
N.M.
MAVUNDLA
JUDGE
OF THE COURT
HEARD ON THE : 22
MAY 2014
DATE OF
JUDGEMENT: 09 JUNE 2014
1
st
APPLICANTS’ ATT: LAWYERS FOR HUMAN RIGHTS
2
nd
APPLICANTS' ATT: LEGAL RESOURCES CENTRE
1
st-
2
nd
APPLICANTS’ ADV: ADV J.R.
BRICKILL assisted by ADV G. SNYMAN
1
st
- 5
th
RESPONDENTS’ ATT : TWALA ATTORNEYS
1
ST-5TH
RESPONDENTS’ ADV : ADV A.M. JOZANA
6
th
-9
th
RESPONDENTS’ ATT : GUMEDE ATTORNEYS
6
th
-10
th
RESPONDENTS’ ADV: ADV M. NOWITZ
1
Vide
Mzizi
v S
2009
(3) ASS SA 246 (SCA) at 249 E paragraph [9];
Minister
of Agriculture and Land Affairs v CJ Ranee
2010
(4) SA 109
(SCA) at 117B-E.
2
Vide
Mzizi
v S
2009
(3) ASS SA
(supra)
at
249 E paragraph [9]; Minister
of
Agriculture and Land Affairs v CJ Ranee
(supra))
SA 109 (SCA) at 117D.
3
1962
(4) SA 531
(
AD
)
4
Phillips
v
SA
Reserve Bank and Others
2013
(6) SA 450
(SC A) para 50.
5
1962
(3) S.A. (A.D.) at 23
.
6
Vide
eThekwini
Municipality
v
Ingonyama Trust
2014 (3) (SA) 240 (CC)
paragraphs [24] et [28]
7
(2) SA 'nAnder
1974
(3) SA. 816
(AD) atpp 823-824.
8
S27
of the Constitution of The Republic of South Africa, Act 108 of 1996
9
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 477
10
Vide
Melarte
v
Santam
Insurance Co.
Ltd
(supra).
11
2010
(4) SA 1
(CC) at 18 para [50] et 19H.
12
Vide
eThekwini Municipality
v
Ingonyama
Trust
(supra)
at 248D.
13
1990
(1) SA 375
(W) 380H-381B.
14
Herbsen & Van Winsen The Civil Practice of the High Courts
of South Africa 5
th
ed (2009) 1248.
15
Vide
Institute for Democracy in South Africa
v
ANC
2005
(5) SA 39
(CPD) paragraphs [60] -