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[2012] ZANCHC 57
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Langberg Abattoir CC and Another v Gamagara Local Municipality and Others (1555/2012) [2012] ZANCHC 57 (14 December 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Saakno: / Case number:
1555 / 2012
Datum verhoor: / Date
heard:
07 / 12 / 2012
Datum gelewer: / Date
delivered:
14 / 12 / 2012
In
the matter between:-
LANGBERG
ABATTOIR CC
................................
First
Applicant
OLIFANTSHOEK
ABATTOIR t/a
MARDUS
VLEISMARK
...................................
Second
Applicant
and
THE
GAMAGARA LOCAL MUNICIPALITY
......
First
Respondent
THE
MUNICIPAL MANAGER : GAMAGARA
LOCAL
MUNICIPALITY
.............................
Second
Respondent
MEC:
DEPARTMENT OF PROVINCIAL
AND
LOCAL GOVERNMENT
.........................
Third
Respondent
Coram:
Lacock,
J
JUDGMENT
LACOCK, J
[1] The applicants
hereto applied for the following relief against the respondents:-
“
2. A rule
nisi be issued calling upon the Respondents to show cause at 10:00 on
Friday, 19 October 2012, why the following final
order should not be
made:-
2.1. Declaring that
the failure by the Respondents to drain and remove the Applicants’
water effluent is a violation by the
Respondents of its legislative
and constitutional duties to provide services to communities in a
sustainable manner, to promote
social and economic development and to
promote a safe and healthy environment.
2.2. Ordering the
Respondents to take all reasonable measures to drain and remove the
Applicants’ water effluent;
2.3. In the
alternative to prayer 2.2, directing the Respondents to enter into a
service level agreement with a service provider
to attend to the
draining and removal of the Applicants’ water effluent at the
same current rate the services are rendered
by the Respondents;
2.4. In the
alternative to prayer 2.2 and prayer 2.3, directing the Respondents
to allow the Applicants to drain and remove the
Applicants’
water effluent and to dump the water effluent in the First
Respondent’s sewerage plant.
3. The relief
requested in prayers 2 will have immediate effect, pending the
finalization of this application.
4. Costs of suit be
paid by the Respondents jointly and severally, the one paying the
other to be absolved.
”
[2] The issues on the
merits of the application were settled between the parties on the
date of hearing of the application. However,
no agreement could be
reached in regard to the costs of the application, and I had been
requested to determine same. Adv. Stanton
for the applicants
submitted that each party should pay its own costs, whilst Adv van
Aswegen for the respondents, submitted that
the applicants should be
ordered to pay the respondents’ costs.
[3] To my mind, Mr van
Aswegen is correct.
[4] There is nothing in
the papers to substantiate the applicants’ claim for the relief
sought in paragraph 2.1 of the notice
of motion. The respondents, and
more particularly the first and second respondents, had at all
relevant times appreciated and accepted
the statutory duties and
responsibilities of the first respondent to remove the applicants’
water effluent.
[5] The reasons
advanced by the respondents for not removing the applicants’
water effluent since May 2011, and which reasons
were conveyed to the
applicants even before the application was launched, are two-fold.
5.1. Firstly it was
contended that the effluent of both applicants contained
inter
alia
animal feaces, blood, fat, animal trimmings, paunch content
and urine, and which – if discharged into the first
respondent’s
sewerage plant – poses a potential health
and safety hazard.
5.2. Secondly it was
contended that the parties entered into an agreement in terms whereof
the applicants agreed to pre-treat its
water effluent by removing the
aforesaid pollutant substances before the effluent is drained into
their draining tanks. The applicants,
so the respondents alleged,
failed to properly pre-treat its water effluent as agreed.
[6] The applicants
acknowledged and admitted that an agreement as advanced on behalf of
the first respondent, had been concluded
between the parties. It is
further admitted by the applicants that the said agreement contained
a further provision i.e. that the
applicants were obliged to submit a
monthly certificate of compliance issued by a health expert
confirming the proper pre-treatment
of its water effluent. It is
common cause that the applicants failed to comply with its latter
contractual obligation. No certificate
of compliance had been
submitted to the first respondent since the first respondent
discontinued its services.
[7] By reason of the
aforesaid, the applicants were not entitled to the further relief
claimed in its notice of motion.
[8] The settlement
which was made an order of Court is in essence a mirror image of the
agreement concluded prior to the launching
of the agreements.
[9] For these reasons,
I conclude that the respondents are entitled to a cost order in their
favour, and that an order whereby each
party is to pay its own costs
is not justified.
[10] Wherefore, in
addition to the order made on 7 December 2012, the following order is
made:
THE APPLICANTS ARE
ORDERED TO PAY THE RESPONDENTS’ COSTS.
_________________
HJ LACOCK
JUDGE
For
the Applicants:
Adv. A Stanton oio Elliott, Maris, Wilmans &
Hay
For
the Respondents
:
Adv. Aswgen oio Haarhoffs Inc.