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[2012] ZAGPPHC 170
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Federation for Sustainable Environment and Others v Minister of Water Affairs and Others (35672/12) [2012] ZAGPPHC 170 (15 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No:35672/12
DATE:15/08/2012
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 GOVERNANCE
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
................................................................
10
th
RESPONDENT
JUDGMENT
[1]
The sixth to ninth respondents brought an application for leave to
appeal against an interim execution order granted against
them in
terms of Rule 49(11). The application was opposed by the applicants.
On the 7 August 2012, after hearing submissions o
behalf of the
respective parties, I held the view that it is not in the interest of
justice that the application sought, should
be granted and proceeded
to dismiss the application with costs, inclusive costs of 2 (two)
counsel, and indicated that reasons
for this order will follow. I
proceed to set out the reasons herein below.
[2]
in the main application, on 10 July 2012 this Court granted an order
in terms of which the sixth and seventh respondents were
ordered,
inter
alia,
to
provide potable water to the residents of Carolina, with
ancillary
relief, and that the sixth to ninth respondents jointly and severally
pay the costs.
[3]
The sixth to the ninth respondents then brought an application for
leave to appeal against the aforesaid judgment. It is trite
that the
application for leave to appeal automatically suspends the execution
of the main order, unless the court orders otherwise
on application;
vide South Cape Corporation (Pty) Ltd v Enginerreing Management
Services (Pty ) Ltd.
1
Indeed the applicants also brought an application in terms of Rule
49(11) for an order that the operation and execution of paragraphs
2
to 5 of the main order are not suspended.
[4]
Both the application for leave to appeal and the application in terms
of Rule 49 (11) were heard simultaneously and a judgment
dealing with
both applications was handed down on 26 July 2012. Leave to appeal
was granted. In respect of Rule 49(11) application,
the Court
ordered, inter alia:
"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;".
[5]
The order as it was, was superfluous, as it seemed to reaffirm the
automatic incident of noting of an application for leave
to appeal,
namely the execution of the order of 10 July 2012, which was not the
intention of the Court, but to suspended that very
incident so that
the main order can be executed. However, the word "not" had
been erroneously omitted in this order.
The Court on 3 August 2012
mero motu corrected this order without inviting the parties by
varying it in terms of Rule 42(1 )(b)
2
by inserting the word "not" so that the order would reflect
the true intention of the Court, such that the order reads
as
follows:
"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;" Full reasons for this verification are contained in the
Court's judgment delivered on 3 August 2012, and need no repetition,
for purposes of this judgment.
[6]
The central issue, in the totality of the whole case, resulting in
the litigation between the parties, culminating to the respondents
seeking leave to appeal against the interim order, relates to the
provision or lack of potable water, which is a Constitutionally
enshrined right
3
,
to the Silobela residents in Carolina. The case therefore relates to
a fundamental right to be provided with water, and is therefore
of
importance and demands, in my view, that the process of finalizing
the dispute should be expedited. This equally entails, in
my view,
that the order of the Court, where there is an error or ambiguity,
should be expeditiously corrected so that there can
be certainty and
clarity to enable the parties to execute whatever appeal, in respect
of which leave to appeal is granted
4
.
[7]
The chagrin of the respondents against the judgment and order of 26
July 2012 is that just like the judgment and order of 10
July 2012,
is unenforceable because the orders direct the sixth and seventh
respondents to encroach in the domain of the eighth
and ninth
respondents, who are the local municipality seized with the function
of providing water services, whereas the sixth and
seventh
respondents are not water service authority in terms of Water Service
Act 108 of 1997 and are not tasked to provide the
service directed to
provide. The respondents have raised various other issues in
assailing the flaws in the judgment and order
of the 10 July 2012. Of
course leave to appeal has since been granted and indeed respondents
have noted an appeal against it, raising
the very points they assail
the judgment of 26 July 2012.
[8]
The respondents, further bemoan the fact that the Court mero motu
corrected its judgment, firstly without inviting the parties
and
secondly after they had already noted an appeal. They submitted that
the Court, in those circumstances was not at liberty to
correct the
order. They further rely on this ground, inter alia, why leave to
appeal against the interim execution order should
be granted,
contending that another court would find that the Court erred in
effecting the correction in the circumstances. There
is, in my view,
no substance in this submission for the reasons set out herein below.
[9]
The main judgment was delivered on 26 July 2012. It would seem that
the application for leave to appeal as well as the notice
of appeal
were delivered on 1 August 2012. This Court varied its judgment on 3
August 2012. In my view, the Court has inherent
power to correct an
ambiguity, patent error or omission in its judgment, immediately it
became aware thereof. In this regard vide,
Thomson v South African
Broadcasting Corporation;
5
Traditional and Local Government Affairs
6
.
The fact that there is an appeal noted, in casu, it cannot be said
that the correction of a patent error or omission, was not
necessary,
nor that the court was not at liberty to do so; vide Mostert NO v Old
Mutual Life Assurance Co (SA) Ltd;
7
First National Bank of SA v Van Rensburg NO and Others.
8
[10]
The order in respect of which application for leave to appeal is
sought, is an interlocutory order of execution generally considered
not to be appealable, because granting leave to appeal will defeat
the very purpose of the order of execution; vide Minister of
Health v
Treatment Action Campaign (No1).
9
In motivating why, leave to appeal the Rule 49(11) order should be
granted, it was submitted, on behalf of the respondents, inter
alia,
that the Court erred in placing an onus on the respondents by holding
that the respondent who opposes the grant of such an
order, must show
why leave to execute should not be granted and in relying in the
Antares (Pty) Ltd v Hammond
10
decision.
[11]
In the matter of South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty ) Ltd
11
Corbett J A dealing with the issue of onus put it as follows:
"...
the word onus has often been used to denote, intert alia, two
distinct concepts: (i) the duty which is cast on a particular
litigant, in order to be successful, of finally satisfying the Court
that he is entitled to succeed on his claim or defence, as
the case
may be; and (ii) the duty that cast upon a litigant to adduce
evidence in order to combat a prima facie case made by his
opponent.
Only the first of these concepts represents onus in it true and
original sense. In Brand v Minister of Justice and Another,
1959 (4)
SA 712
(AD) at p 715, OGILVIE THOMPSON, JA. , called T it "the
overall onus". In this sense the onus can never shift from the
party upon whom it originally rested. The second concept may be
termed, in order to avoid confusion, the burden of adducing evidence
in rebuttal ("weerleggingslas"). This may shift or be
transferred in the course of the case, depending upon the measure
of
proof furnished by the one party or the other. (See also Tregea and
Another v Godart and Another,
1930 AD 16
at p. 38; Marine and Trade
Insurance Co. Ltd. V Van der Schyff, 2972
1) SA 26
(AD) at pp. 37-9.)
Applying these concepts to an application for leave to execute a
judgment pending an appeal, the onus proper
(or overall onus) rests,
as I have already indicated, upon the applicant. This is so, in my
view, irrespective of whether the judgment
in question is one
sounding in money only or is one granting other forms of relief."
[12]
In the light of the above authority, there is, in my view, no
substance in the contention made on behalf of the respondents
regarding this aspect of onus. The Court was quite conscious of the
fact that the true onus rested with the applicants who sought
to have
the automatic incidence of noting of appeal, namely the suspension of
the execution of the order, not to take place but
that the order be
executed by adducing evidence that on a balance of probability prove
a prima facie case. The onus referred to
in Antares (Pty) Ltd v
Hammond (supra) in respect of the respondent, is not "an onus
proper but merely a burden of adducing
evidence to rebut a prima
facie case", and the respondent was not required to establish
its case on a preponderance of probabilities
12
.
This as much is clear from paragraph 8 of the judgment of the 26 July
2012 and needs no repetition. In opposing the respondents'
application, the applicants adduced evidence in a form of affidavit
to show that even after the order of the 10 July 2012 and 26
July
2012, the cause of complaint regarding water was still persisting.
The respondents failed to adduce evidence to refute the
prima facie
case made by the applicants, as to why the order should not be
executed.
[13]
The other grounds of appeal raised by the respondents, are in my
view, the very grounds upon which the appeal has been noted.
Those
grounds, in my view, are not relevant in deciding the present
application for leave to appeal against the interim execution
order,
particularly because the prospect of success in the appeal are not
decisive in this application for leave to appeal against
an interim
execution order. But besides, to decide those issues would result in
a piecemeal determination of the matters that are
already a subject
of the appeal, which is, in my view, undesirable. I therefore decline
to deal with those issues for purpose of
this judgment.
[14]
The essential thrust of the respondents, is that the order cannot be
executed because they are district municipality and not
a water
service authority whereas the eighth and ninth respondents are a
local municipality and water service authority against
whom there is
no order. They contend that the court has not made any finding of
unlawfulness against any of these parties. The
sixth and seventh
respondents' further submission is that there would be irreparable
harm on their part because there is no mechanism
enabling them to
conclude the necessary contracts to enable them to comply with the
Court order.
[15]
The applicants essentially complain about the violation of a
fundamental right of the residents of Silobela and Carolina. They
have also presented evidence which shows that post the order of 26
July 2012 the cause complained of still persists. In as much
as the
general rule is that, the interim execution order is not appealable,
the Court may in certain circumstances grant leave
to appeal if it
would be in the interest of justice; vide Machete and Others v
Mailula and Others.
13
For the applicant to succeed in the application for leave to appeal,
he must demonstrate that there would be irreparable harm were
the
relief he seeks not to be granted; vide Minister of Health and Others
v Treatment Action Campaign and Others (No 1)
14
.
[16]
It brooks no argument that this case is in regard with violation of
Constitutionally entrenched s27 right. In the matter of
Minister of
Health v Treatment Action Campaign (No 1)
15
the Constitutional Court stated that: "Section 38 of the
Constitution empowers a court to grant appropriate relief when it
concludes that a breach or threatened breach of a person's rights
under the Bill of Rights has been established." The
Constitutional
Court further proceeded to point out that a Court is
also empowered, in those circumstances, of an individual case to
decide whether
it is in the interest of justice to grant leave to
appeal against an interim execution order
16
.
[17]
The respondents in casu are obliged to respond positively to
ameliorating the water crisis in the affected area and to take
adequate measure in that regard the Court, in its discretion may
order them to do so
17
.
[18]
It was conceded on behalf of the respondents, quite correctly so, in
my view, that the solution to their difficulty in complying
with the
Court's order is a political one. It was quite correctly pointed out
on behalf of the applicants that, the first to fourth
respondents in
the main application placed it on record that they are willing to
advance necessary funds to the respondents to
resolve the plight of
the affected residents in casu. Any difficulty to comply with the
order, if any, can therefore be resolved
at political level by the
respondents and this would therefore remove any harm whatsoever, if
any, on the part of the respondents.
[19]
On the other hand, the water crisis has a potential of destabilizing
the tranquility in the particular affected area, which
would lead to
untold damages. I am of the view that the Court is at liberty, to
take note of the fact that many a times in the
Country, when
communities register their dissatisfaction over service delivery,
they resort to a chaotic and uncontrolled destructive
frenzy. Good
governance requires that such possibilities should be averted and the
Courts should not refrain in ordering those
structures of governance
in taking positive steps aimed at achieving this, inter alia, and the
progressive realization of the ethos
enshrined in the Constitution;
18
Vide also Linvestment CC v Hammersley and Another.
19
[20]
As already indicated earlier, the applicants have placed evidence, in
a form of an affidavit, demonstrating that potable water
is not
provided regularly, but intermittently, and the water is not as yet
suitable for human consumption, post the judgments of
10 and 26 July
2012. Having regard to all these factors and the authorities referred
to herein above, it is my considered view
that it is not in the
interest of justice that the relief sought by the respondents should
be granted. I therefore conclude that
the application should be
dismissed as already ordered.
[21]
I was invited to grant a punitive cost order against the respondents,
in the event the application were to be dismissed. The
reason
advanced in that regard was that the respondents have not at any
stage complied with the Court's orders and have not acted
in good
faith because, notwithstanding the patent omission and the fact that
the order has since been corrected, they still persist
with their
stance in this regard.
[22]
The award of costs is a matter of the discretion of the Court. A
punitive costs order, in my view, should only be meted against
the
Government when it is clear that the litigation is vexatious,
otherwise, those tasked with the obligation to assist the government
in its broad form, to seek clarity in courts, would then trod with
trepidation and without vigor for fear of incurring costs against
the
government. This matter has, in my view, intriguing aspects of the
law and therefore, I do not think that the litigation on
the part of
the respondents was not bona fide. In the circumstances, after proper
reflection, I deem it not necessary to grant
a punitive costs order.
[22]
These are therefore the reasons for the order which I granted
dismissing the application with costs, inclusive costs of 2 (two)
counsel. I therefore hand down the reasons.
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE : 08 /AUGUST / 2012
DATE
OF JUDGEMENT : 15/ AUGUST / 2012
DATE
OF VARIATION : 03 / AUGUST / 2012
1ST&
2nd APPLICANTS' ATT : LEGAL RESOURCES CENTRE
1ST&2ND
APPLICANTS'ADV : ADV J.R. BRICKHILL
With
ADV : ADV G. SNYMAN (MS.)
6th
-9th RESPONDET'S' ATT : TWALA ATTORNEYS
6th-9th
RESPONDET'S ADV : ADV L.P. MKHIZE
1
1
977 (3) SA 534(A)
at 545.
2
Uniform Court Rules of High Court.
3
Section
27 (1)(b) of the Constitution of Republic of South Africa, Act No
108 of 1996.
4
Vide
para
[9]
infra.
5
[2000] ZASCA 76
;
2001
(3) SA 746
(SCA) at 748H-749C para [5]
6
2006
(3) SA 1
(CC) at 12F-14G.
7
2002
(1) SA 82
(SCA) at 86D para [5].
8
1994
(1) SA 677
(TPD) at 681D-G.
9
[2002] ZACC 16
;
2002
(5) SA 703
at 707F para [5].
10
1977
(4) SA (WLD) 29 at 30H, Elloff J. (as he then was) said: "As
far as merits of application is concerned, it is now I
think well
settled, in view of decision of the Full Bench of the Transvaal in
the case of
Engineering
Management
Services
{Pty)
Ltd v South Cape Corporation (Pty) Ltd
1977
(2) SA 64
(T),
that
onus
is
on the respondent to show reasons why leave to execute should not be
granted."
11
Supra
at 548A-D.
12
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd supra at 548 F-G.
13
2009
(8) CLR766 para [18]
14
[2002] ZACC 16
;
2002
(5) SA 703
(CC) 707E-710D in particular paras [5] et [12].
15
Supra
at
708D para [7]
16
Supra
at
708G para [8].
17
Vide
Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA
721
(CC) at 736B-D.
18
Vide
sl73
of the Constitution of The Republic of South Africa, Act No. 108 of
1996.
19
[2008] ZASCA 1
;
2008
(3) SA 283
(SCA) at 291B-C para [25].