Mafube Municipality and Another v Agritans CC and Another (A248/2008) [2009] ZAFSHC 130 (5 November 2009)

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[2009] ZAFSHC 130
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Mafube Municipality and Another v Agritans CC and Another (A248/2008) [2009] ZAFSHC 130 (5 November 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No.: A248/2008
In
the appeal of:
MAFUBE
MUNICIPALITY
1
st
Appellant
MAHLAKU,
BRUTUS
2
nd
Appellant
and
AGRITANS CC
1
st
Respondent
ANDRIES SWART
2
nd
Respondent
_____________________________________________________
CORAM:
WRIGHT, J
et
VAN ZYL, J
et
MOLOI, J
JUDGMENT:
WRIGHT, J
_____________________________________________________
HEARD
ON:
19 OCTOBER 2009
_____________________________________________________
DELIVERED
ON:
5 NOVEMBER 2009
_____________________________________________________
[1] The 1
st
appellant in this appeal is the Mafube Municipality while 2
nd
appellant is Mr Brutus Mahlaku, the municipal manager of the 1
st
appellant. The appellants were the respondents in an application
lodged in the Free State High Court by Agritrans CC and Andries
Swart
who are now the respondents in the present appeal. The court will
refer to the parties as they were referred to in the court
below.
[2] The applicants
brought an urgent application against the respondents (the present
appellants) for a declaration that the 1
st
respondent was in contempt of the court order under case number
2365/04 and seeking the imprisonment of the 2
nd
respondent for 90 days in the event of non-compliance with certain
parts of the proposed court order. In the alternative certain
mandatory orders were sought against 1
st
respondent. These prayers demanded that 1
st
respondent prepare and make operational two sewerage pumps and
maintain and operate these pumps situated in the Namahadi Pump House,
as well as an order for costs on the attorney and client scale
against both respondents, alternatively only the 1
st
respondent. The orders were clothed in the form of interim relief
but it is common cause that when the application was heard the
applicants requested final relief.
[3] In the application it
was alleged that the 1
st
respondent neglected to maintain the Namahadi Sewerage Works which
were erected on a portion of the property owned by 1
st
applicant with the consequence that, as stated in the application:
“
5.2.1 raw sewerage is currently and
continues to flow into the Wilge River, which is one of the principal
feeder rivers to the Vaal
Dam;
5.2.2 no effluent is being made
available by the 1
st
respondent to the 1
st
applicant which is used for irrigation purposes; and
5.2.3 a nuisance is being caused.”
This application was not
the first to be lodged in this court as the applicants had already
obtained an order on the 20
th
of June 2004 from Lombard J with more or less the same effect as the
alternative prayers in the present notice of motion. The precise
orders that were granted are set out in the judgement of the court
a
quo
which also gives details of further proceedings when the court was
approached under case number 5349/2005 for relief couched in similar
terms when the same problems that existed prior to 2004 had
resurfaced. The outcome of the 2005 proceedings is not relevant to
the
present application or appeal.
[4] It can be mentioned
that when it appeared that the pumps were no longer operational as a
result of which the raw sewerage flowed
directly into the Wilge
River, a letter of demand was send to the respondents requesting them
to rectify the situation. According
to respondents, one of the pumps
was already repaired and re-installed on the 4
th
of February 2008. This is denied by applicants who allege that this
took place only on a later date, namely on the 18
th
of February 2008. According to the applicants, the repair of the one
pump was also insufficient to process the sewerage produced
by the
Namahadi settlement as even when one pump is operational raw sewerage
(or be it a lesser amount) continues to flow into the
Wilge River.
If none of the pumps are operational all the sewerage produced by the
Namahadi settlement flows directly into the Wilge
River. Colour
photographs were attached to the founding affidavit to demonstrate
the applicants’ allegations, and which clearly
illustrate the
problems complained about.
[5] In the court
a
quo
the
main relief was dismissed, but alternative orders were granted
virtually in the form and context sought, save that costs were
granted on the ordinary scale. The respondents now appeal against
this order, and there is no cross-appeal.
[6] Mr Kemp’s (who
appeared for the respondents) main argument was that there was a
factual dispute between the parties and that
the court should have,
in terms of the rules applying to the adjudication of motion
proceedings, dismissed the application for this
reason, alternatively
should have referred the matter for oral evidence in this regard. He
also had a few other arguments, and attacked
certain parts of the
order relating to the payment of an Eskom account, and ordering the
2
nd
respondent to pay costs. These latter aspects of his argument will
be dealt with at a later stage.
[7] It is trite law that
three requisites for a final interdict are a clear right, a
reasonable apprehension of harm, or to put it
otherwise, an act of
interference, and the fact that no other remedy is available.
[8] With regard to the
clear right, the following can be mentioned:
(a) In terms of the
“gebruiksooreenkoms” attached as annexure “A15” to the
supporting affidavit, the 1
st
respondent had an obligation to conduct and maintain the operation of
the sewerage works and the pumping of effluent to the pivot
irrigation system on the property at it’s own cost. According to
this agreement if the 1
st
respondent was in breach of any of the terms of the agreement, the
1
st
applicant would be entitled to cancel the agreement after which all
improvements situated on the property would become the property
of
the owner (that is 1
st
applicant).
(b) The 1
st
respondent is enjoined in terms of section 152 of the Constitution of
the Republic of South Africa Act, no 108 of 1996 to ensure
the
provision of basic services to communities in a sustainable manner
and to promote a safe and healthy environment.
(c) It is common cause
that the 1
st
respondent is also enjoined in terms of section 21 of the Health Act,
no 63 of 1977 to prevent a nuisance on an unhygienic condition
(as
defined in the Heath Act) from occurring.
These obligations were
not denied by respondents, and it is therefore common cause that it
was the duty and obligation of 1
st
respondent to see to it that the Namahadi Sewerage Works were
operating at all times, and to such an extent that there was no
spillage
of sewerage into the Wilge River.
[9] Mr Kemp, however,
referred to the allegation of respondents as set out in paragraph 8
of the opposing affidavit that a stone caused
a break in the casing
of the pump which resulted in the pump room overflowing, and that
this was immediately rectified by respondents
to such an extent that
the one pump was installed on the 4
th
of February 2008. According to 1
st
respondent’s affidavit, deposed to by 2
nd
respondent, one pump was sufficient to operate the system, and if
there was further spillage, it was the result of load shedding,
or
some other reason, which may have caused the lack of electricity.
According to Mr Kemp, there is no reason for rejecting the
applicants’ allegation that load shedding could have caused the
spillage which persisted after the pump had been repaired. Even
if
the defendants’ version was less probable than that of the
applicants, this was not sufficient as the case could not be decided
on the probabilities, but should then be referred to oral evidence.
[10] The respondents’
argument is to therefore that no interference with the rights of the
applicants has been proven to the extent
required by law.
[11] In this respect it
is necessary to consider the following passage in the work by Prest,
The
Law & Practice of Interdicts
,
1996, page 44 to 45, where the following is said:
“
The injury must be a continuing
one: the court will not grant an interdict restraining an act
already committed for the object of
an interdict is the protection of
an existing right; it is not a remedy for the past invasion of
rights. A past infringement of
rights may, however, constitute
evidence upon which the court implies an intention to continue in the
same course.
Van der Linden, speaks of
een
gegronde vrees … dat ‘er eene zoodanige feitelijkheid …
gepleegd zal worden.
This
is usually rendered by the phrase ‘reasonable apprehension of
injury’ to the applicant’s right. A reasonable apprehension
of
injury is one which a reasonable man might entertain on being faced
with certain facts. The applicant for an interdict is not
required
to establish that, on a balance of probabilities flowing from the
undisputed facts, injury will follow: he is only to show
that it is
reasonable to apprehend that injury will result. It is clear that
there is a difference between proving on a preponderance
of
probabilities that ‘a reasonable apprehension of injury’ exists
and proving on that preponderance that ‘an injury will be
incurred’. A reasonable apprehension of injury is one which a
reasonable man might entertain on being faced with the facts which
the court finds to exist on a balance of probabilities. The test for
apprehension is an objective one. The applicant must therefore
show
objectively that his apprehensions are well grounded. Mere
assertions of his fears are insufficient. The facts grounding his
apprehension must be set out in the application to enable the court
to judge for itself whether the fears are indeed well grounded.”
[12] When the applicants’
deponent discovered that the pumps were not operational from the 28
th
of January 2008, he immediately instructed the attorneys to address a
letter to the 1
st
respondent calling up on the 1
st
respondent to repair the pumps. This letter is attached as annexure
“A3” to the founding affidavit. In this letter it was already
mentioned that if the pumps were not repaired, an application would
be brought. Because the 1
st
respondent failed to respond to annexure “A3”, a copy of this
letter was provided to the 1
st
respondent’s attorneys as appears from annexure “A4”. After
the work had been done by 1
st
respondent on the 18
th
of February 2008, it was discovered that only one pump was
operational, and that raw sewerage continued to flow into the Wilge
River.
[13] A series of
photographs were attached to the supporting affidavit taken from the
8
th
of February 2008 up to the 11
th
of March 2008. Each photograph is described in the supporting
affidavit, and show the spillage occurring on the dates in question.
[14] The respondents’
response to the photographs is unsatisfactory. They failed to deal
with the photographs at all, and merely
alleged that the copies
(which were not colour copies) which were attached to the application
served on the 1
st
respondent, were illegible. It is important to bear in mind that
colour copies were provided to the 1
st
respondent’s attorneys on 3rd April 2008 (four days prior to the
filing of the respondents’ answering affidavit). Up to the
date of
the hearing of the application on the 12
th
of June 2008 the respondents failed to deal with the photographs. Mr
South, who appeared for the respondents, argued that the respondents’
failure to dispute the evidence (which was properly placed before the
court) and constitutes admission thereof. Although there is
no
further evidence of what happened after the 11
th
of March 2008, there is also no reason to accept that the spillage
did not occur after these dates.
[15] Although the
well-known test as set out in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) from 634 to 635 is of course applicable, the
situation may be different if the respondents’ version consists of
bald or uncreditworthy
denials, or if they raise fictitious disputes
of fact, or give a version which is palpably impossible or so far
fetched or untenable
that the court is justified in affecting them
merely on the papers. See
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS v ZUMA
[2009] ZASCA 1
;
2009 (2) SA 277
SCA at paragraph [26]. The response of the
respondents to the photographs is merely one of the factors to be
taken into consideration.
[16] Other factors to be
considered, are the following:
(a) The photographs show
that the 1
st
respondent’s allegation that at least one pump was working from the
4
th
of February 2008, is not correct.
(b) The photographs also
show clearly that even when one pump is operational, raw sewerage
continues to flow in the Wilge River.
(c) Another factor to be
taken into consideration is the complete failure by 1
st
respondent to acknowledge receipt of the applicants’ letter, and to
respond to the content thereto even when the letter was sent
to the
attorneys.
(d) The version that when
one pump fails, the other automatically comes operational,
contradicts the version that when the stone caused
one of the pumps
to fail on 27 January 2008, it resulted in the pump station been
flooded in circumstances when the back-up pump
was allegedly
available and operational.
(e) The averment by the
respondents that an order was placed in respect of the pumps on the
28
th
of January 2009 in circumstances where it appears from the invoice
that an onder was only placed on 12th February 2009 (as can be
seen
clearly from annexure “C” to the opposing affidavit, p. 145 of
the papers).
(f) On the 2nd February
2008 a letter was written by applicants’ attorneys to 1
st
respondent which contains the following paragraph:
“
2. We have had an opportunity to
consult with Piet Schabort (who leases farmlands from our client
[Agritrans CC]). We are advised
that:
2.1 the two pumps which the sewerage
to the sewerage works servicing Namahadi ceased working on 26 January
2008;
2.2 the pumps never worked at any
stage until 18 February 2008 (presumably after receipt of our letter
referred to above);
2.3 for a period of approximately
three weeks
all
the sewerage produced by Namahadi flowed directly into the Wilge
River, which river flows into the Vaal Dam;
2.4 for the same period as mentioned
in clause 2.3 above Mr. Schabort has not had the benefit of the
“purified” sewerage water,
for irrigation of his crops and has
been obliged, as far as possible, and with the view to mitigating his
damages, to pump water
from the Wilge River to irrigate his crops;
2.5 since the 18
th
of February 2008 the pumps have been pumping sewerage, to the
sewerage farm, but very erratically on account of repeated blockages,
and the absence of a standby pump;
2.6 on the 20
th
of February 2008 the sewerage operated with only one pump, which is
inadequate. The sewerage works are designed to operate using
two
pumps with a standby pump, if required. As a result of only one pump
being functional, raw sewerage continued to flow into the
Wilge
River;
2.7 sometime in the afternoon or
evening of the 20
th
of February 2008, the solitary working pump became blocked up and
inoperational. When Mr. Schabort went to enquire on the morning
of
the 21
st
of February 2008 as to why no sewerage was being pumped to the
sewerage works he was advised by the supervisor “Koos” that the
Municipal staff (including Koos) were in training and unable to
attend to the problem.”
In the same letter
(written before the application was lodged) the respondents were
requested to maintain an operate sewerage system
properly, or further
steps will be taken, and an order for contempt of court requested.
Their only reply to this letter was a letter
from respondents
attorneys asking the applicants to serve any proceedings directly on
the attorneys.
[17] It cannot be denied
that many of the answers to all the allegations in the founding
affidavit are, to say the least, evasive.
They show no clear
intention to set the matter right, and merely advance an opinion that
there is nothing further to set right after
the pump was in operation
again, (according to the respondents on the 4
th
February 2008).
[18] It is trite law that
the court can look at the founding affidavit, as well as the replying
affidavit, insofar as it merely answers
allegations or denials raised
in the opposing affidavit. There was no request by respondents to
file a further affidavit, or an
application to strike-out anything in
the replying affidavit.
[19] In the result the
only conclusion is that the court
a
quo
was
correct when it decided that the respondents had failed to properly
maintain the two sewerage pumps housed at Namahadi Sewerage
Pump
House. The following paragraph in the judgement can also not be
faulted:
“
[25] The respondents
unsubstantiated averments around the Eskom load-shedding is
far-fetched and cannot be an excuse to have an unhealthy
situation
persist while the respondent simply shrugs its shoulders and claim to
be waiting for the pump parts. The respondent has
not even refuted
the fact that the unhealthy and hazardous situation depicted in the
photographs and deposed to by the applicant
exists.”
These conclusions can be
arrived at without even taking into consideration the evidence from
Mr E J van Zyl, the environmental health
practitioner (whose report
are attached to the replying affidavit).
[20] As far as the
so-called defences of
lis
pendens
and
res
iudicata
are concerned, the court dealt with this matter in paragraphs [20]
and [21] and [23] of the judgment. These issues were raised before
the court
a
quo
,
but Mr Kemp did not rely on them, and merely remarked that it is
strange that the same relief can be claimed in later proceedings
when
there is a court order to that effect. We think Mr Kemp quite
correctly did not take this point, and that the court’s conclusion
in paragraph [20] of the judgment is correct, namely that a new act
of interference with applicants’ rights had taken place. In
any
case, it must be remembered that the prime relief sought was one of
contempt of court. The court merely came to the conclusion
that the
respondents were not
mala
fide
and dismissed prayer 1, but if one looks at the position from the
beginning of February, and especially after the 18
th
of February 2008, and at the way in which applicants’ requests were
answered, there was ample justification to ask for this prayer.

Because there is no counter appeal it is not necessary to decide
whether the prayer should have been granted, but in view of it’s
dismissal there is no doubt that the court was entirely correct to
grand the alternative relief.
[21] Mr Kemp only raised
two further issues should the appeal be dismissed, namely that prayer
5 should have not been granted and
that as far as prayer 6 is
concerned, costs should only have been ordered against the first
respondent.
[22] Argument was
addressed to us with regard to the question whether a court is
entitled to say how an order should be implemented,
in other words,
how the respondents must maintain and operate the pumps, and if the
court can grant such an order that the account
must be paid. As this
is academic at this stage, this court is prepared to delete that
paragraph in the order, and we agree with
Mr South’s submission
that if this should be done, it should not effect the order as to
costs.
[23] With regard to the
costs order against 2
nd
respondent, this aspect is more debateable. The applicants were
entirely right to cite Mr Mahlaku, as he is the person who is at
the
head of the administration of the 1
st
respondent, and also the accounting officer of the 1
st
respondent, and as such is the person responsible to ensure that the
1
st
respondent carries out it’s constitutional and other statutory
duties. He was therefore sited in his capacity as municipal manager,
and the court accepts the 1
st
respondent would in any case be liable for any costs incurred by him.
We do think, however, the correct order should have been to
merely
order the 1
st
respondent to pay the costs, but this does not entitle 2
nd
respondent to any costs of the opposition, or any costs which may
have been incurred by him. Compare
SWARTBOOI
AND OTHERS v BRINK AND OTHERS
2006 (1) SA
203
at paragraph [25]. On the contrary, it seems probable that the
1
st
respondents lack of taking the proper steps can to a considerable
extent be laid at his door. There is also no suggestion whatsoever
that any extra costs were incurred by him personally.
[24] Accordingly the
following order is made:
24.1 The court
a
quo
’s
order is varied in the following respects:
(a) Paragraph 5 of the
order is deleted;
(b) Paragraph 6 is varied
to the extent that only the 1
st
respondent is ordered to pay the applicants’ costs.
24.2 Save for the
aforesaid variation of the order, the appeal is dismissed.
24.3 The 1
st
appellant is ordered to pay respondents’ costs of appeal.
______________
G. F. WRIGHT, J
I concur.
______________
C. VAN ZYL, J
I concur.
______________
K. J. MOLOI, J
On behalf of the
appellant: Adv. K. J. Kemp SC
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. A. G. South
Instructed by:
Matsepes
BLOEMFONTEIN
/EM