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[2010] ZAFSHC 32
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Kruger and Another v Mangaung Plaaslike Munisipaliteit (5001/2008) [2010] ZAFSHC 32 (11 March 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 5001/2008
In
the case between:
MARTHINUS
CHRISTOFFEL KRUGER
1
st
Applicant
EDNA WILHELMINA
KRUGER
2
nd
Applicant
and
MANGAUNG PLAASLIKE
MUNISIPALITEIT
Respondent
_____________________________________________________
JUDGEMENT:
RAMPAI, J
HEARD ON:
22 FEBRUARY 2010
_____________________________________________________
DELIVERED ON:
11 MARCH 2010
_____________________________________________________
[1] The matter came by
way of an application for leave to appeal. The judgment in respect
of which leave to appeal is sought was
delivered on the 19
th
December 2008. In this application the parties are cited as they
were in the main application. These proceedings were initiated
on
the 4
th
January 2009.
[2] The applicants sought
a two pronged relief. Firstly, they sought a mandatory interdict
against the respondent whereby the respondent
was directed to
commission a traffic impact study within 60 days of the court order.
Secondly, they sought an interim order whereby
the respondent was
also directed to erect a protective concrete wall on the pavement in
the street in front of their residential
property within seven days
of the court order.
[3] I found against the
applicants and dismissed the original application with costs. They
were aggrieved – hence the current
application for leave to
appeal against my judgment.
[4] The notice of appeal
is a six-page document. Apart from nine sub-paragraphs, seventeen
grounds of appeal are relied upon.
Among others, it is contended
that I erred in finding: that there were adequate traffic measures
in Wildeals Avenue to safely
regulate the traffic; that the
respondent did not create any hazard in the street concerned; that
the frequent occurrence of the
incidents was exclusively occasioned
by human behaviour; that there was no real connection between the
driving incidents and lack
of traffic measures; that no legal duty
rests on the respondents to protect the particular residents against
the criminal actions
of the thirds; that a reasonable person or local
governor could not have foreseen the driving harm complained of and
that the offensive
driving incidents were a relatively new phenomenon
in the street associated with the recent opening of the liquor bar
down the
street.
[5] As regards the
adequacy or otherwise of the existing traffic measures, it must be
stressed that the peak traffic hours in
the street are around 07:00
and 14:00 during week days when parents drop and pick up their
children or learners of the two schools
situated in that street; that
no single driving incident is reported to have taken place during
daytime which is alleged to have
adversely affected the applicants.
On their own version all those reported offensive acts of driving
occurred during night time.
[6] The aforegoing is
indicative of one logical deduction, namely that if the existent
traffic measures can efficiently regulate
high traffic volumes during
daytime they should do so even better at night when traffic volumes
are comparatively low. If this
is so then a traffic study impact
will serve no useful practical purpose.
[7] I am not certain
whether an intoxicated or a speeding motorist who, on account of his
impaired mental faculties, cannot see
the end of the road, the
reflective chevron board at the T-intersection ahead and the huge
object, in other words, the house, beyond
the intersection - is
likely to see any reflective speed walls, let alone warning traffic
signs on the side of the street to adjust
the vehicle’s speed
accordingly and avoid crashing into the boundary wall of the
residential property of the applicants.
[8] It is difficult to
see how the commissioning of traffic impact study or the erection of
traffic signboards or the construction
of traffic speed walls would
absolutely prevent damage to the residential property of the
plaintiff. The contention that the failure
of the respondent to
commission a traffic impact study or to put in place such physical
traffic measures constituted a breach of
legal duty which the
respondent owes to the applicant is flawed. I am still of the firm
view that there existed no special relationship
between the
applicants as the victims of the offensive acts of driving and the
passive respondent.
[9] Moreover the
relationship between between the actual wrongdoers and the passive
respondent sued for their misdeeds is too distant
or remote to be
regarded as a special relationship. No connective particular duty
existed from which a binding legal duty arose
to ground delictual
liability -
SAAIMAN
AND OTHERS v MINISTER OF SAFETY AND SECURITY
2003 (3) SA 496
(O) at 506E – F para [14] and 506G – I.
[10] If the aforegoing
finding is correct, then the enquiry should end right here and now.
The rest of the grounds of misdirection
relied upon automatically
fall by the wayside. This is so because the very foundation of the
entire application is the alleged
legal duty of care which, as the
applicants contended, the respondent owes to them. I am not
convinced that the contention has
merits.
[11] Mr Coetzer contended
that the applicants, on account of the geographical situation of
their house in the same street as a liquor
bar, were exposed to a
particular risk. In developing this argument further, counsel also
contended that in terms of section 152(1)
of the constitution the
respondent was obliged to protect its residents from dangers of this
sort.
[12] The Constitutional
issue was not previously raised on papers or the applicants’
heads of arguments or during the course
of legal argument. The
applicant did not assert that they had a fundamental right to be
protected by the respondent and that the
respondent had infringed
such a right. Mr Coetzer nonetheless argued the point for the first
time during the current proceedings.
Mr Els, did not argue that it
was too late to do so. I was not altogether sure whether Mr Coetzer
was free to do so. Be that
as it may, I allowed him to argue the
point. I therefore had to deal with it.
[13] The argument of
counsel in this connection was an attack upon my finding that the
applicant had made out no case for the grant
of a final interdict.
It seems to me that I am required to examine the constitutional
question. I say this because unless it
emerges that the applicants
are entitled to be protected, they have established no clear right
and accordingly they have no cause
of action.
[14] The aforesaid
section 152 of the Constitution provides:
“
152 Objects of local
government
(1) The objects of local government
are-
(a) to provide democratic and
accountable government for local communities;
(b) to ensure the provision of
services to communities in a sustainable manner;
(c) to promote social and economic
development;
(d) to promote a safe and healthy
environment; and
(e) to encourage the involvement of
communities and community organisations in the matters of local
government.
(2) A municipality must strive,
within its financial and administrative capacity, to achieve the
objects set out in subsection
(1).”
[15] The applicants
placed heavy reliance on section 152(1)(d) – to promote a safe
and healthy environment – for their
contention that there was a
legal duty on a municipality to prevent harm to resident members of
its community occasioned by unidentified
drivers who frequently crash
into the concrete security wall of their residential property.
[16] A municipality
promotes a safe and a healthy environment in many ways, for instance
by: eradicating or reducing pollution levels
in the environment;
removing refuse or garbage at regular intervals; preventing random
and illegal dumping of domestic industrial
or medial waste; repairing
broken sewerage pipes speedily; lighting of the streets; disposing of
solid waste; supplying water and
sanitation services; managing
stormwater drainage system; providing fighting services; rendering
cleaning services; controlling
of public nuisance; controlling of
food-selling outlets; controlling of municipal abattoirs; controlling
of street trading; constructing
municipal roads; regulating traffic
and parking; providing maintenance works of such roads; and rendering
municipal health services.
[17] As I see it, all of
these matters are concerned with public health. See Schedule 4 and 5
of the Constitution where the functions
of the local government are
specified.
[18] Our Constitution
says that everyone has the right to a safe and healthy environment.
Wherever we live, the quality of the
environment affects us all. The
environment is our shared habitat. We cannot be perfectly healthy,
well and alive unless our
environment is also healthy. The aforesaid
functions of the respondent as a local government are certainly aimed
at improving
the quality of the general health of people through a
safe and a healthy environment. It is a constitutional imperative of
a local
government to promote a safe and a healthy environment in
order to give effect to the fundamental right.
[19] The environmental
right referred to in section 152(1)(d) is violated and the general
community health threatened when people
abuse the environment. The
following activities demonstrate human abuses that have adverse
impact on the environment and make
it unsafe and unhealthy:
uncontrolled waste dumps; dumping of medical and chemical waste;
industrial pollution of air, rivers,
dams and water supplies; use of
banned pesticides on agricultural farmlands; unhygienic and squalid
human settlement; unhygienic
slaughtering of animals for selling to
the public; broken and leaking sewerage piping systems; trashing
streets and recreation
parks by disgruntled strikers during protest
marches; and the flow of human waste into drinking water sources such
as dams and
rivers. In my view these unsafe and unhealthy activities
are matters of health.
[20] I was at pains to
write about the environmental right. On the one hand I have
endeavoured to highlight what residents can
do to violate that right.
On the other hand I have tried to unpack the functions of a local
government in executing its constitutional
obligation to promote a
safe and a healthy environment in order to give effect to that
fundamental right. Simply put, the section,
in my view, requires a
municipality to ensure that the area of its jurisdiction is free from
the health risk of dangers inherent
in the environmental abuses I
have referred to in the preceding paragraph. It is about the
promotion of good public health and
not the bodily protection of the
general public or rather a few specified members of the public. See
the guide
Governmental
programmes and Policies Environmental Health and Safety
.
[21] That section
152(1)(d) is concerned with matters of health and not security
becomes even clearer when it is read in conjunction
with section
205(3) of the Constitution which provides that the objects of the
police service are to prevent, combat and investigate
crime, to
maintain public order,
to
protect and secure the inhabitants of the country and their property
and to uphold and enforce the law. By the words “to protect
and secure the inhabitants of the Republic of South Africa and
their
property”, in this section, is contemplated the protection and
security of the public in general and not specific individual(s)
thereof. By analogy compare
S
v HARTMAN
,
S v
JACOBS
1968 (1) SA 281
(T).
[22] It can, therefore,
be clearly seen that the function of protecting the inhabitants and
their property from acts of lawlessness
is not the constitutional
imperative of the respondent. It follows that the applicants had
pursued the incorrect party to obtain
the legal relief that they
sought. Their reliance on section 152(1)(d) was misplaced. The
decision in
McINTOSH
v PREMIER, KWAZULU-NATAL AND ANOTHER
2008 (6) SA 1
(SCA) does not assist the applicants at all. In that
case, unlike in the instant case, the court was concerned with the
question
as to whether the respondent’s undisputed statutory
duty to maintain a provincial public road encompassed a legal duty to
repair a pothole on such a road. Here there is no pothole in the
street. Here the issue is not about the respondent’s legal
duty to maintain a public road but rather the respondent’s
alleged legal duty to protect particular residents and their
property. The distinction between the two cases is evident.
[23] The aforegoing
indicates that the applicants have not established a clear right
which must be protected by a final interdict
of mandamus. Their
contention that the respondent is obliged by the Constitution to
protect them and their property, is plainly
untenable.
[24] The applicants also
relied on the case of
VON
ABO v THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
2009 (2) SA 526
(T). Briefly stated the facts of the case were as
follows: The applicant was a citizen of the RSA and an eminent farmer
of Bothaville
in the Free State Province. He acquired farming
interests in Zimbabwe. Over the years he built a considerable
farming empire.
From 1997 the government of Zimbabwe persisted to
violate his rights by destroying his proprietary interest on a number
of his
commercial farms in Zimbabwe or contributing to their
destruction. This destruction was part of a political scheme or
policy of
the Zimbabwe government to expropriate land owned by white
farmers without payment of compensation. He attempted through
litigation
but failed to protect his interest with the aid of the
civil justice system over there. He exhausted, to no avail, all
legal remedies
available to him in that foreign country.
[25] Ultimately he
approached the above Provincial High Court. The relief he sought was
a declarator. The court made an order
declaring that the applicant
has a right to diplomatic protection against the Zimbabwe government
which violated his rights; that
the respondents have a constitutional
obligation to provide diplomatic protection to the applicant in
respect of such violations
by the Zimbabwe government; that the
failure of the respondents to deal with the applicants’
application for diplomatic protection
was inconsistent with the RSA
Constitution.
[26] The facts in the
instant case are distinguishable from those in that case in many
material respects. There the court had to
grapple with a wrong
committed by a known wrongdoer. The active or instrumental injurer
was a foreign state. The relationship
between the active or actual
wrongdoer was, in other words, the Zimbabwe government and the
passive or careless wrongdoer, in other
words, the RSA government, is
not distant. The two countries have close diplomatic ties. On the
contrary,
in
casu
, I
had to grapple with municipal and not international law. The actual
perpetrators are unknown. No special relationship exists
between the
actual wrongdoers, in other words, motorists and the alleged passive
or careless wrongdoer, in other words, the respondent.
Moreover,
there is no specific constitutional provision which obliges the
respondent to protect and secure residents of its city
and their
property from injury or destruction occasioned by reckless or
negligent acts of driving which have some strong criminal
connotations. I am of the opinion that the
VON
ABO
-decision
does not assist the applicants in any way.
[27] Elsewhere in my
judgment I found that the applicants had failed to discharge the onus
of establishing that they were entitled
to the relief they sought.
In essence what they really want is a court order directing the
respondent to help them make out a
case which they, on their papers,
have failed to make out. They have no expert evidence on which the
proposition is based. They
merely suppose that the physical traffic
measures in place are not adequate to regulate the traffic safely.
They hope that the
traffic impact study, which they want but are not
prepared to pay for, will somehow be in their favour. They should
first have
investigated the matter, obtained the necessary evidence
and sued the party responsible in law to protect and secure them and
their
property. They have dismally failed to do so.
[28] In the light of the
aforegoing reasons, I am not persuaded that I misdirected myself, as
the applicant contended or in any
other way on matters of fact or
questions of law. The submission of Mr. Els that no other reasonable
court is likely to come to
a different conclusion, has substance. I
am satisfied that there is no single reasonable prospect of success
on appeal. I would
therefore refuse leave to appeal.
[29] Accordingly I make
the following order:
29.1 The application for
leave to appeal is refused.
29.2 The applicants are
ordered to pay the costs.
______________
M. H. RAMPAI, J
On behalf of
applicants : Adv. J.K. Coetzer
Instructed by:
L & V Attorneys
BLOEMFONTEIN
On behalf of
respondent: Adv. J. Els
Instructed by:
E G Cooper Majiedt
Inc
BLOEMFONTEIN
/sp