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 145
|
|
Federation for Sustainable Environment and Another v Minister of Water Affairs and Others (35672/12) [2012] ZAGPPHC 145 (3 August 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No:35672/12
DATE:03/08/2012
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 26 July 2012 I handed down a judgment, the order of which
reads as follows:
"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 and 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
[2]
After having received the Notice for application for leave to appeal
against the judgment and order of 10 July 2012, and upon
reading the
order, it came to my attention that there was a patent error or
omission in order 3 which relates to the Rule 49(11)
application. The
order as it stands conflicts with paragraph "[24]" and
order "[4]" of the judgment thereof.
[3]
The provisions of Rule 49(11) of the Uniform Rules of Court provide
that:
"where
an appeal has been noted or an application for leave to appeal
against or rescind, correct, review or vary an order
of a court has
been made, the operation and execution of the order in question shall
be suspended, pending the decision of such
appeal or application,
unless the court which gave such order, on application of a party,
otherwise directs".(Mv emphasis.)
[4]
In paragraph "[23]" of the judgment it is pointed out that
there was evidence that the order of 10 July 2012 was not
being
complied with in that " some of the jojo tanks are not refilled
regularly and some remain empty."
[5]
In paragraph "24]" of the judgment it is stated, inter
alia, that: "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".
[6]
It is trite that an order is the executive part of the judgment. The
judgment contains, inter alia, the reasons upon which the
order is
informed. Where there is ambiguity or inconsistence in the order, the
reasons informing the order contained in the judgment
would reveal
the intention of the order.
[7]
On a proper reading of paragraphs "[23]", "[24]"
and order "4"of the judgment of 26 July 2012,
it is clear
that the intention of the order, was to suspend the incidence flowing
from the noting of the application for leave
to appeal its self, so
that the order should be complied with pending the finalization of
any appeal.
[8]
There was, however, a patent error or omission in order 3 in that the
word "not" was erroneously omitted. A court
may mero motu
in terms of rule 42(1 )(b) vary its order where there is an
ambiguity, or patent error or omission only to that extent;
vide
Firestone South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A)
at 306H-307H; West Rand Estates Ltd v New Zealand Insurance Co
LfcM926 AD 173 at 186-7;
[9]
The error or omission in order 3 of the relevant judgment was that
the word "not" was erroneously omitted and should
have been
typed in between the words "are suspended" so as to read
"are not suspended". I am of the view that
in terms of the
Rule 42(1 )(b) the order 3 should be corrected and varied by
insertion of the word "not", as indicated
herein above.
[10]
In the premises I make the following order
1.
That the order delivered on 26 July 2012 in particular order 3
thereof is varied to read as follows:
"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 not
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 event
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."
N
.M. MAVUNDLA
JUDGE
OF THE COURT
HEARD
ON THE : 23 / JULY / 2012
DATE
OF JUDGEMENT : 26/July/2012
DATE
OF VARIATION : 03 / AUGUST / 2012
1ST&
2ND APPLICANTS' ATT : LEGAL RESOURCES CENTRE
1st&2ND
APPLICANTS'ADV : ADV J.R. BRICKHILL
6th
-9th RESPONDET'S' ATT : TWALA ATTORNEYS
6th
-9th RESPONDET'S ADV : ADV L.P. MKHIZE