About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 140
|
|
Federation for Sustainable Environment and Another v Minister of Water Affairs and Others (35672/12) [2012] ZAGPPHC 140 (26 July 2012)
REORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No:35672/12
DATE:26/07/2012
In
the matter between:
THE
FEDERATION FOR
SUSTAINABLE
............................................................
1st
APPLICANT
ENVIRONMENT
THE
SILOBELA CONCERNED
COMMUNITY
.....................................................
2nd
APPLICANT
And
THE
MINISTER OF WATER
AFFAIRS
.................................................................
1st
RESPONDENT
THE
DIRECTOR GENERAL: WATER
AFFAIRS
…............................................
2ND
RESPONDENT
ACTING
CHIEF DIRECTOR GENERAL OF WATER AFFAIRS
.........................
3rd
RESPONDENT
MPUMALANGA
DIRECTOR
OF WATER AFFAIRS:
MPUMALANGA
...........................................
4th
RESPONDENT
WATER
SECTOR REGULATION AND USE
MEC
CO-OPERATIVE GORVANCE
AND
...........................................................
5th
RESPONDENT
TRADITIONAL
AFFAIRS, MPUMALANGA
ACTING
EXECUTIVE MAYOR: THE
GERT
..........................................................
6th RESPONDENT
SIBANDA
DISTRICT MUNICIPALITY
MUNICIPAL
MANAGER: THE
GERT
....................................................................
7th RESPONDENT
SIBANDA
DISTRICT MUNICIPALITY
THE
MAYOR: THE ALBERT
…..............................................................................
8th
RESPONDENT
LUTHULI
LOCAL MUNICIPALITY
MUNICIPAL
MANAGER: THE
ALBERT
................................................................
9th
RESPONDENT
LUTHULI
LOCAL MUNICIPALITY
KOMATI
CATCHMENT AGENCY
…....................................................................
10th
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
On the 10 July 2012, consequent to an urgent application brought by
the applicants, I granted the following order:
"1.
That the application was urgent and the Applicants' non~ compliance
with the forms and service provided in terms of the
Rules of Court,
to the extent necessary is condoned;
2.
That the Sixth and Seventh Respondents are ordered to provide
temporary potable water in line with regulations 3(b) of the
regulations
relating to compulsory national standards and measures to
conserve water (GN 509 in GG 22355 (8 June 2001)) to the residents of
Silobela, Caropark and Carolina Town in Carolina, Mpumalanga within
72 hours of the order of this court;
3
That the Sixth and Seventh Respondents are directed to engage
actively and meaningfully with the First and Second Applicants
regarding:
3.1
the steps being taken to ensure that potable water can once again be
supplied through the water supply services in Silobela,
Caropark and
Carolina Town in Carolina, Mpumalanga; and
3.2
where, when, what volume, and how regularly temporary water will be
made available in the interim;
4.
That the Sixth and Seventh Respondents are ordered to report to this
court within one month of this court order as to the measures
that
have been taken to ensure that portable water is supplied through the
water services in Silobela, Caropark and Carolina Town
in Carolina,
Mpumalanga;
5.
That any party is permitted to subsequently re-enroll the application
for hearing on the same papers, duly supplemented, on reasonable
notice to the other parties;
6.That
the sixth to ninth Respondents are jointly and severally, the one
paying the other to be absolved; to pay the costs occasioned
by this
application, on party and party scale, which costs shall include the
costs of 2 (two) counsels.
7.
That no order is made against the other respondents not mentioned in
the orders herein above."
[2]
The sixth to ninth respondents in the main application, as first to
fourth applicants respectively, are now bringing an application
for
leave to appeal against this judgment to the Supreme Court of Appeal
alternatively to the Full Bench of this Division. The
applicants in
the main application, as first and second respondents respectively,
are opposing this application for leave to appeal.
[3]
On the other hand, the applicants in the main application, brought an
application in terms of Rule 49(11) to have paragraphs
2 up to 5 of
the above order of 10 July 2012 operational and executable and not
suspended, pending the finalization of:
(i)
any application for leave to appeal;
(ii)
if same is refused, pending any application to the Supreme Court of
Appeal and or the Constitutional Court,
(iii)
and or an appeal.
[4]
For purposes of convenience, I shall refer to the parties as they
were referred to in the main application. I shall deal simultaneously
with both respective applications, for leave to appeal and in terms
of rule 49(11). It needs to be noted that both applications
were
strongly opposed by the respective opponents to the relevant
application. I do not intend to chronicle in detail the respective
contention in support of and opposition of the relevant applications,
nor traverse all the submissions.
[5]
I shall also bear in mind the applicable principles in the respective
applications. Firstly it is trite that in an application
for leave to
appeal, the question to be asked is whether there are reasonable
prospects of success on appeal. The Court against
whose judgment
leave to appeal is sought, should disavow its mind of any bias and
objectively consider whether there are prospects
that another court
might decide otherwise. Even if the court believes of the correctness
of its judgment, it should nonetheless
grant leave to appeal, if
there is a possibility that a court of appeal might conclude
differently; vide R v Kuzwayo
1
;
Westinghouse Brake & Equip v Bilger Engineering
2
.
[6]
In the circumstances of this case, in my view, I should also have
regard to the importance of the matter to both parties, the
grounds
upon which leave to appeal is premised, and whether leave to appeal
is bona fide and not frivolously sought, in exercising
my discretion.
If the granting of leave to appeal would expedite the resolution of
the dispute between the parties, then I must
be inclined to grant
leave to appeal, bearing in mind whether there is a prospect of
success that another court minght find differently
to my decision
appealed against; vide New Clicks South Africa (Pty) Ltd v
Tshabalala-Msimang and Another; Pharmaceutical Society
of South
Africa v Minister of Health and Another
3
.
[7]
The grounds upon which the application for leave to appeal are
comprehensively set out in the relevant notice, as such I deem
it not
necessary to chronicle these, for purposes of this judgment.
[8]
It is trite that an application for leave to appeal automatically
suspends the operation of the order against which leave to
appeal is
sought. The party who seeks an order in terms of Rule 49(11) that the
operation and execution of such order be not suspended,
bears a
general onus to show why such relief should be granted. Such an onus
would be discharged on a balance of probability; vide
Tuckers Land
and Development Corporation v Soja
4
.
The respondent who opposes the grant of such an order, must show why
leave to execute should not be granted; vide Antares (Pty)
Ltd
5
.
[9]
The Court has a wide discretion to grant an order putting into effect
the operation and execution of the order against which
the leave to
appeal is sought The Court must determine what is just and equitable
in all the circumstances of that particular case.
The Court in doing
so, must have regard to the following factors, inter alia:
(a)
potentiality of irreparable harm or prejudice being sustained by:
(i)
the appellant on appeal if leave to execute were to be granted;
(ii)
the respondent if leave to execute were to be refused.
(b)
the prospect of success on appeal, including more particularly the
question as to whether or not the appeal noted is vexatious
or bona
fide;
(c)
whether there is a potentiality of harm irreparable harm or prejudice
to either the appellant or respondent, the balance of
hardship or
convenience to either of the parties.
AD
APPLICATION FOR LEAVE TO APPEAL
[10]
The crisp point, inter alia, forcefully taken by the sixth and
seventh respondents, is that:
(i)
the sixth and seventh respondents are not the water service authority
obligated to provide water services in the affected area
(Carolina),
and in particular tank water;
(ii)
the eighth and ninth respondents are the water service authority
obligated to provide bulk water and infrastructural services
as the
local authority, but there is no order against them to do so,
(iii)
regulation 3 does not obligate the respondents to provide potable
water, save for regulation 4 upon which the applicants
did not rely;
(iv)
the eighth and ninth respondent have been ordered to pay the costs,
jointly and or severally with the sixth and seventh respondent
without there being any adverse decision of unlawfulness conduct on
their part;
(v)
the applicants did not prove the general onus resting upon them, and
the case in terms of Plascon Evans principle should have
been decided
on the version of the respondents and the application should have
been dismissed with costs.
[11]
The nub of the point taken by the sixth and seventh respondents is
that, they are not accredited as water service providers
and
therefore cannot comply with the order. In my view, this type of
attitude is tantamount to dereliction on technical grounds
of the
statutory duties and responsibilities placed not only on a district
municipality, but also the local municipality, in casu,
also the
eighth and ninth respondents who say that the order does not direct
them to provide the services in issue.
[12]
Both the district municipality, of which the sixth and seventh
respondents are, and the local municipality, of which both eighth
and
ninth respondents are, are organ of State, both established in terms
of s155 of the Constitution,
6
within the local sphere of government, tasked with the exercise of
co-operative governance
7
within the broad mandate of providing basic necessities, such as
water to ensure healthy service to the communities within their
area.
They must co-operate with one another and enhance that co-operation
and assist one another to solve problems that arise in
their area.
Section 8
8
places an obligation on municipalities, both district and local, in
my view, "to do anything reasonably necessary, for, or
incidental to, the effective performance of its functions and
exercise of its powers."
[13]
Both district municipality and local municipality are obliged to
respect the rights of the communities in their area, that
are
enshrined in the Bill of Rights
9
.
The right in issue in casu is enshrined in s27(1)(b) of the
Constitution. The particular section does not only guarantee being
provided with basic water, but it is much profound. It deals with
health as well (27(1 )(b). This section also places, in my view,
an
obligation on all spheres of governance to ensure a healthy
environment to the communities. The State must take reasonable
legislative measures, within its available resources, to achieve the
progressive realization of these rights
10
.
[14]
It needs mention that the Water Service Act 108 of 1997 defines
"water service authority" to mean any municipality,
including a district or rural council as defined in the Local
Government Act 1993, responsible for ensuring access to water
services.
In my view, both the district and local municipalities are
included in this definition.
[15]
In Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA
1 at 8 para [21] stated that a water service institution
is defined
in the Water Service Act to include both a water authority and water
service provider. These institutions are tasked
with the obligation
of providing "basic water supply" that meets "minimum
standard of water supply service necessary
for the reliable supply of
a sufficient quantity and quality of water to households, including
informal households, to support
life and personal hygiene."
[16]
The Court in the Mazibuko matter (supra) at 22D at para 67 the court
held that:
"Thus
the positive obligations imposed upon government by the social and
economic rights in our constitution will bill be enforced
by the
courts in at least the following ways. If the government takes no
steps to realize the rights, the court will require the
government to
take steps..." in casu the sixth and seventh respondent were
ordered to provide the services. In my view, the
sixth to ninth
respondents cannot abdicate the responsibility of providing the basic
services encapsulated in the fundamental rights
to the Silobela
community.
11
[17]
It needs mention that s84(1)(b) of the Local Government Municipality
Structures Act provides that:
"1.
A district municipality has the following functions and powers: (b)
Potable water supply system."
The
respondents in their capacity as the third and lowest sphere of
government and closest to the communities, are expected to develop
service provision of basic needs, if need be, in my view, to be
innovative in order to progressively realize these constitutional
imperatives.
[18]
Taking all the above, I am therefore of the view that another court,
objectively interrogating the facts of this case, will
not find
otherwise than this court did.
[19]
However, the matter is of importance to both parties, in my view. In
the event I were not to grant the application for leave
to appeal,
the respondents, whose pocket is not limited, can still petition and
further prolong the matter. On the contrary were
I to grant leave to
appeal, it would avert the costly exercise of having to petition, and
facilitate in expeditiously bringing
the matter to finality. In the
premises, it would be prudent that I should incline towards granting
leave to appeal to the Full
Bench of this Division.
[20]
It is common cause that after the judgment of 10 July 2012, the water
in the relevant area still had high two exceptionally
high
substances,, a pH and aluminum which present health risk
12
which refutes the allegation that the water is safe for human
consumption.
[21]
In the Mazibuko matter supra at page 4A-B, O'Regan J stated that
"...Water is life. Without it, nothing organic grows.
Human
beings need water to drink, to cook, to wash and to grow their food.
Without it, we will die. It is not surprising that our
constitution
entrenched the right of access to water..."
[22]
The Committee on Economic, Social and Cultural Rights has adopted the
approach that:
"
The water supply for each person must be sufficient and continuous
for personal, domestic uses. These uses ordinarily include
drinking,
personal sanitation, washing of clothes, food preparation, persona
and household hygiene.
The
quantity of water available for each person should correspond to
World Health Organization (WHO) guidelines."
13
[23]
The quality of water provided must be hygienic. In my view, there is
no room for half measures in providing water. The respondents
contended that there are no people dying and that the situation is
exaggerated for political gain by the applicants but the water
is fit
for human consumption. We need not see people dying before we hold
the respondents to comply with their constitutional imperatives.
There is evidence placed before me that subsequent to the granting of
the order the 10 July 2012, there is still inadequate water
supply.
According to the evidence placed before me, which I do accept, some
of the jojo tanks are not refilled regularly and some
remain empty.
Cleary the respondents are not complying with the order. Besides,
their attitude is that the order is unenforceable.
[24]
The contention of the respondents that the order is unenforceable,
for the reasons that I detailed earlier herein above, is
unacceptable. The community stands to suffer more harm than the
respondents. The respondents, in my view, cannot suffer greater
harm
than that which will be suffered by the community in the form of
health risk, to say the least. I am of the view that in balancing
the
respective rights of the parties, I must incline towards protection
of the rights of the community and uplift the suspension
of the
operation of the order, pending finalization of an appeal and
exhaustion of any possible appeal to the Supreme Court of
Appeal and
or the Constitutional Court.
[25]
The applicants in regard to the Rule 49(11) confined themselves only
to orders 2 to 5. They do accept that order 6 which deals
with costs,
remain suspended pending the finalization of the appeal. This is in
my view a sensible approach.
[26]
The sixth to ninth respondents brought the application for leave to
appeal. These respondents opposed the application in terms
of Rule
49(11). In so far as the costs of the application for leave to appeal
these would be costs on the appeal. In so far as
the costs for the
Rule 49(11) these must be borne by the sixth to ninth respondents.
[27]
In the premises I make the following orders:
1.
That leave to appeal to the Full Bench of this Division against the
judgment and order of 10 July 2012 is granted;
2.
That costs of the application for leave to appeal be costs in the
appeal;
3.
That in terms of Rule 49(11) the operation and execution of
paragraphs 2 to 5 of the order granted on 10 July 2012 are suspended
pending finalization of any appeal to the Full Bench, and or to the
Supreme Court of Appeal, and or to the Constitutional Court;
4.
That the sixth to seventh respondents are ordered, pending the events
set out in order 3 hereof supra to comply with paragraphs
2 to 5 of
the order of 10 July 2012 from date of this order.
5.
That the sixth to ninth respondents are jointly and severally ordered
to pay the costs of the Rule 49(11) application
JUDGE
OF THE COURT
HEARD
ON THE : 23 / JULY / 2012
DATE
OF JUDGEMENT : 26/JULY/2012
1st8
2ND APPLICANTS'ATT : LEGAL RESOURCES CENTRE
1STa
2nd APPLICANTS'ADV : ADV J.R. BRICKHILL
6th
-9th RESPONDET'S' ATT : TWALA ATTORNEYS
6th
-9th RESPONDET'S ADV : ADV L.P. MKHIZE
1
1949
(3) 761 (AD) at 764-765
2
1986
(2) SA 555 (AD) at 564C-E.
3
2005
(3) SA 231 (CPD) at 236 H- 237A
4
1980
(1) SA WLD 691 at 696K
5
1977
(4) SA (WLD) 29 at 30H.
6
S155
of the Constitution of Republic of Soulh Africa, Act No 108 of 1966
7
S3
of Local Government; Municipal Systems Act no. 32 of 2000.
8
S8(2)of Local Government; Municipal Systems Act no. 32 of 2000
9
4(3)
of Local Government; Municipal Systems Act no. 32 of 2000.
10
Minister
of Heath & Others v Treatment Action Campaign & Others (NO:
2) 2002 (5| SA721 CCTAC
11
Vide
s6 (2)(a) of Local Government; Municipal Systems Act no. 32 of 2000
12
Paginated
page subparagraphs41.2 and 42.1
13
Socio-Economic Rights in South Africa, Danie Brand and Chnstof
Heyns, 2005 page 198.