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[2008] ZAFSHC 102
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Agritrans CC and Another v Mafube Municipality and Another (1360/2008) [2008] ZAFSHC 102 (7 August 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 1360/2008
In the case between:
AGRITRANS
CC
First
Applicant
SWART,
ANDRIES
Second
Applicant
and
MAFUBE
MUNI
CIPALITY
First
Respondent
MAHLAKU,
BRUTUS
Second
Respondent
JUDGEMENT
:
MOCUMIE, J
_______________________________________________________
HEARD
:
12 JUNE 2008
_______________________________________________________
DELIVERED:
7 AUGUST 2008
_______________________________________________________
JUDGMENT
_______________________________________________________
[1] The
first applicant is Agritrans CC
(
“Agritrans”
),
a close corporation duly registered in terms of the Close
Corporations Act 69 of 1984 (as amended), conducting business from
the remaining extent of the farm Paisley No 73 (“
the
property
”),
district Frankfort, Free State Province. Agritrans is the registered
owner of the property. The second applicant is
Mr Andries Swart, an
adult businessman residing at the property and the sole member of the
first applicant
(Henceforth
jointly referred to as
‘
the
applicant
’).
[2] The
first respondent is Mafube Municipality, a local authority
established in terms of the provisions of the Local Government
Municipal Structures Act, No 117 of 1998
(“Act
117 of 1998”
)
which conducts business from the Municipality Office Building,
Frankfort, Free State Province. The second respondent is Mr Brutus
Mahlaku, the Municipal Manager of the first respondent, who was
appointed in terms of section 82(1)(a) of Act 117 of 1998. He
is the
head of administration and the accounting officer of the first
respondent (
“the
Municipality or respondent ”
).
[
3] The
applicant seeks relief for:
“
2. An
order declaring the first respondent to be in contempt of the court
obtained by the first applicant against the first respondent
under
case number 2365/2004 (the
Court
order);
3. An order
directing the first respondent to comply with paragraphs A1.1.1,
A1.1.2 and A1.1.3 of the Court order within five days
of date of this
order failing which the second respondent be committed to prison for
a period of ninety days for contempt of court;
4. In the
alternative to paragraphs 2 and 3 above, an order directing the first
respondent to:
4.1 within five days of date of
this order repair and make operational the two sewerage pumps
situated in the sewerage pump house
(the Namahadi pump house) which
services the Namahadi settlement (the Namahadi sewerage works);
4.2 maintain and operate the pumps
at the Namahadi pump house and the Namahadi sewerage works situate on
the remaining extent of
the farm Paisley No 73, district Frankfort
(the property):
4.3 maintain and operate the pumps
situate on the property from which sewerage effluent is pumped from
the Namahadi sewerage works
to the pivot irrigation system;
4.4 make available to the first
applicant all effluent produced by the Namahadi sewerage works
situate on the property;
4.5 make payment of Eskom account
number 8145732273;
5. In the alternative to paragraph
4 above an interim order in the same terms as paragraph 4.1 –
4.5 above.
6. That the first and second
respondents pay the costs of this application on the scale as between
attorney and own client, jointly
and severally, the one paying the
other to be absolved.”
[
4] The
application has a long history. The legal battle started as far back
as 2004 when the applicant approached this Court seeking
an order in
terms similar to the present application.
Lombard
J
granted that order on 20 June 2004 which reads:
“
A1.1 That
the respondent be and is hereby ordered to:
1.1.1 within two
days of the date of this order, repair and make operational the
sewerage pump(s) situate in the pump house which
services the
Namahadi settlement, and
1.1.2 maintain and operate the
sewerage works situate on the remaining extent of the farm Paisley No
73, district Frankfort, and
1.1.3 to maintain the pump situate
on the property with which sewerage effluent is pumped from the
sewerage works to the pivot irrigation
system, and
1.1.4 to make available to the
applicant all effluent produced by the sewerage works situated on the
property.
A1.2 That the respondent pay the
costs of this application on the scale as between attorney and own
client;
A2. Paragraph
A1.1 read together with paragraphs A1.1 and A1.1.2 will operate with
immediate effect;
A.3. The costs
are reserved.
B. The court
notes that the respondent undertakes pending the finalization of this
application and without admitting that it is
obliged to do so, make
available to the applicant the effluent produced by the sewerage
works as it has been doing for at least
the last year until otherwise
directed by the Department of Water & Forestry.”
[
5] The
second phase of the battle was in December 2005 when the applicant
again approached this court under case No 5349/2005 for
relief
couched in similar terms as the 2004 order the basis whereof was
that the same crisis that existed prior to the 2004 court
order had
re-surfaced. The matter was opposed. Respondent filed opposing
papers on 10 February 2006. In paragraph 2.4 of the
Notice of
Motion, the applicant then sought an order:
“Die
doel van die aansoek is derhalwe om die eerste en tweede respondente
te verplig om die rioolwerke ten volle operasioneel
te maak en om die
nodige stappe te neem om die omgewingsbesoedeling uit die weg te
ruim.”
[6] In
January 2008, the Namahadi pumps were not operational and once again
caused the pump house to overflow and spilled raw sewerage
directly
into the Wilge River and the neighbouring Namahadi Settlement. In a
letter dated 11 February 2008 appended to the papers
as annexure “A3”
the applicant made the respondent aware of the sewerage spillage. On
18 February 2008 the respondent’s
workers managed to fix only
one pump.
[
7]
The applicant approached this Court on 13 March 2008 on an urgent
basis for the relief set out in paragraph [3] above. The
application
was considered not urgent and the respondent was granted leave to
file opposing papers.
[
8] In
its opposing affidavit respondent raised two points
in
limine:
lis
pendens
and
res
iudicata
.
Mr. Reinders for the respondent argued that there are proceedings
still pending between the parties under case no 5349/2005 and
as such
the Court cannot entertain this application as it is based on the
same cause of action, between the same parties and on
the same
subject matter. He contended that the 2005 application was not stale
or abandoned as submitted by the applicant. It is
common cause that
the applicant has applied for enrolment of the application and that
the application has been set down for hearing
for three days. Mr
Reinders argued further that the respondent has and is still
complying with the 2004 order and that this Court
can therefore not
entertain the same cause of action. See
RSA
Factors Bpk v Bloemfontein Township Developers (Edms) Beperk
1981 (2) SA 141
(O).
[9] Whilst
dealing with the merits, Mr Reinders argued that the applicant did
not prove the requirements of a final interdict as
required by law.
In particular he submitted that the applicant did not prove
inter
alia
that it had a clear right. See
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[10] In
its replying affidavit the applicant avers that
“
(T)his
relief relates to conduct of the first respondent at a different time
and not to the conduct of the first respondent upon
which the current
relief is based. The relief under case number 5349/2005 is much more
far reaching than the current relief.”
[11
] The
applicant had initially sought an interim interdict in this
application and its Heads of Argument. However, when arguing
in
court, Mr Ellis argued for a final interdict. He submitted that
applicant had set out and satisfied all the requirements of
a final
interdict in that:
(a) The
applicant had shown a clear right.
According
to Counsel the clear evidence is to be found in the contract in which
the parties agreed that the respondent will be responsible
to
maintain the sewerage pumps. (Annexure “A” of the
papers.);
(b) The
applicant had no other remedy;
(c) The
injury or damage was continuing and;
(d) It
will cause irreparable harm not only to the applicant but to the
community of Namahadi estimated at approximately 35 000.
[12] The
following facts are common cause or at least not challenged by the
respondent:
12
.1 That
the photographs appended to the papers as Annexure A5 to A11 are a
true reflection of the fact that the sewerage pumps were
out of
order;
12.2 That
the photographs depict that sewerage was flowing from the pump house
to the adjacent premises and into the Wilge river
on various dates,
including 29 February 2008, 06 March 2008, 07 March 2008, 08 March
2008, 10 March 2008 and 11 March 2008;
12
.3 That
since January 2008 until 3 February 2008 the pumps had not been fully
operational;
12
.4 That
from 4 February 2008 to date of this hearing only one pump was
operational.
12
.5 That
as a result of the despair state raw sewerage was still overflowing
and being discharged into the Wilge River.
[13]
The gravamen of the applicant’s case is that the respondent is
not maintaining the sewerage system as it is obliged
to in terms of
the contract between them
,
inter alia;
(a) to
prevent sewerage from spilling into the Wilge River which is the main
feeder of the Vaal River. Section 152 of the Constitution
of South
Africa, Act 108 of 1996
(“the
Constitution
”)
requires the State through its relevant organs to ensure the
provision of basic services in the communities in a sustainable
manner and to promote a safe and healthy environment to them; and
(b) to
prevent nuisance or unhygienic conditions from occurring. Section
20(1) of the Health Act, No 63 of 1977
(“the
Health Act”).
[1
4] Counsel
for the respondent sought to meet the applicant’s case as
follows:
“
The
system works on the basis that only one pump is operational at a
time. The other pump, at all times, serves only as a back-up.
Two
pumps never run
simultaneously and both can never be switched on at the same time.
Should one pump fail, it automatically switches to the other
pump.
However, in case of a power failure, both pumps would stop running
which could within hours lead to an overflow. Respondent
is not
liable therefore.”
[1
5] Counsel
further submitted that the respondent has never failed to comply with
the 2004 order as it at all relevant times complied
with the said
order in that it “
maintained,
and operated the sewerage system ..... and pumps situated on the
property with which sewerage effluent is pumped from
the sewerage
works.”
[1
6] In
a bold attempt to show that the respondent was not
mala
fide,
the
respondent stated that it even had two pumps replaced with new ones
in 2006. Concerning the discharge of raw effluent in January
2008,
respondent contended that it was due to a stone that got stuck in one
pump which forced it to rely on only one pump for the
entire period
complained of. The respondent maintained that the one pump has been
for repairs but the company responsible for the
repairs , Q & H
Water and Sewerage Services, Bethlehem, is still awaiting the
replacement parts.
[1
7] It
is trite that the onus of proving the requisites of a
lis
pendens
rests
on
the party that alleges it. Once the requisites have been established
the presumption arises that the second proceedings are
prima
facie
vexatious.
See
Loader
v Dursot Bros (Pty) Ltd
1948 (3) SA 136
(T) at 138.
[
18] On
perusal of the file in respect of Case No 5349/05 re-registered under
Case No 4338/06 it is evident that the applicant has
been allocated
three days for the hearing of the matter for the same cause of action
as the present application. This set down
is not for argument on the
question of costs only as applicant attempted to argue. It is correct
that the 2005 and 2008 applications
are substantively the same.
There is no doubt that the applicant approached the court in 2005
requesting it to order the respondent
to repair, make operational and
maintain the sewerage works situated at farm Paisley No 73,
Frankfort. The 2008 application seeks
that the Court orders the
respondent to comply with paragraphs A1.1.1, A1.1.2 and A1.1.3 of the
court order (2004) alternatively
to repair and make operational the
Namahadi pump house.
[
19] Applicants’
argument that the applications were not the same on the basis that in
2008 the applicant is asking the Court
to imprison the respondent in
the event that it finds the respondent in contempt of the 2004 court
order is untenable. I fail
to follow this reasoning because by the
very nature of contempt of court proceedings if a party is found to
be in contempt the
penalty would be a term of imprisonment as
sanctioned by law or other sanctions. In order to avoid imprisonment
or the imposed
sanction, such a party will have to purge its default
by complying with the court order. Thus the end result of the two
applications
will be the same.
[
20] As
I view it, the respondent’s contention which I share does not
concern contempt of court but the substance of the application.
The
substance of the application is that the respondent failed to repair,
make operational and maintain the sewerage works at the
farm Paisley
No 73 as ordered in 2004. Clearly this is essentially the same
relief which was sought in the 2005 application. I
therefore find
that the 2005 application is similar to that of the 2008 application
and it is still pending. However the striking
and significant
difference is that although the complaint is the same, it relates to
different time-periods. In other words it
is not one continuous
complaint. A new cause of action had arisen. The point
in
limine
taken in this respect must fail.
[21]
In
so far as the defence of
res
iudicata
is concerned the requirements are set out in
National
Sorghum reweries Ltd t/a Vivo African Breweries v International
Liquor Distributors (Pty) Ltd
2001(2) SA 232 (SCA) at 235i.The principle is founded on public
policy to avoid multiplicity of actions in order to conserve time,
energy and the resources of the courts and litigants. In each set of
facts the paramount or overriding consideration will be fairness
and
equity. See
Bafokeng
Tribe v Impala Platinum Ltd and Others
1999
(3) SA 517
(B) at 557F. To uphold the defence of
res
iudicata
in this matter will only lead to injustice and unfairness to the
applicant and the broader community.
[22] This
is however not the end of the enquiry. Although I am not inclined to
believe that the respondent is
mala
fide
in dealing with this matter, there are questions that still need to
be answered: What must the applicant do every time the respondent
fails to repair and properly maintain the sewerage pumps as it is
obliged? Is the applicant entitled to another order in the same
or
similar terms as the 2004 order? What effect will that order have?
[23] My
view is that despite my finding that the 2005 application is still
pending and that the respondent is not
mala
fide,
the
applicant is entitled to approach this Court as there is a crisis at
hand since January 2008 to date of this hearing which has
not been
remedied by the respondent. The situation which currently exists
cannot be regarded as beyond the control of the respondent.
During
this age of high technology it should take a couple of days if not
weeks to fix the problem. If the service provider is
engaged is
lethargic or incompetent or lacks the capacity a switch should be
made.
[24] It
is not refuted is that the respondent installed new pumps in 2006
which were operational for some time. However what is
crisply clear
is that the respondent is not maintaining the sewerage pumps as a
responsible body and its functionaries ought to.
This is evidenced by
the fact that:
24.1 The
respondent was not aware of the raw sewerage spillage in January 2008
until alerted by the applicant.
24.2
That the respondent’s work-force attended to the spillage only
when the respondent was sent a reminder by the applicant’s
attorney relating to the 2004 order.
[2
5]
The respondent’s 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.
[26]
There is clear evidence from Mr. EJ Van Zyl, an environmental health
practioner in the Northern Free State District Municipality,Mafube
area, that he continually identified failures on the part of the
respondent to properly maintain various sewerage works including
the
Namahadi works. His concerns were simply ignored by the respondent.
In these circumstances I find that the respondent has
failed to
properly maintain the two sewerage pumps housed at Namahadi sewerage
house. I am satisfied that the applicant has satisfied
the
requirements of a final interdict as set out in
Setlogelo
v Setlogelo
.
[
27]
In view of the conclusion reached I find it unnecessary to deal with
the respondent’s submission that the application
raised
constitutional issues and that there was no compliance with Rule 16A
of the Practice Rules in that no notice was filed by
te applicant to
that effect. Although the case raises some constitutional issues,
amongst others the right to a healthy environment
and adequate and
proper service delivery the matter can be disposed of without resort
thereto. It would also be unfair and inequitable
to deny the
applicant its immediate right of access to courts as envisaged in
section 34 of the Constitution.
[28] In
the result the applicant had no other recourse to ensure that the
respondent keeps to its constitutional mandate and responsibility
than to approach the court as it did. I accordingly make the
following order:
ORDER
1. The
application
to hold the respondents in contempt of the court order in respect of
Case no 2365/2004 is dismissed;
2. The
respondents are ordered:
2.1 W
ithin
twenty one (21) of date of this order to repair and make operational
the two sewerage pumps situated in the Namahadi pump
house
which
services the Namahadi settlement;
2
.2 To
properly maintain and operate the two pumps at the Namahadi pump
house and the Namahadi sewerage works situate on the remaining
extent
of the farm Paisley No 73, district Frankfort
by:
2
.2.1 Inspecting
the two sewerage pumps on a regular but frequent basis and as
stipulated in the Health Act 63 of 1977 in order to
avoid an
operational crisis;
2
.2.2 Attending
to operational crisis at the Namahadi pump house promptly and without
undue delay when it arises.
3
.
To properly maintain and operate the two pumps situate on the
property with which sewerage effluent is pumped from the Namahadi
sewerage works to the pivot irrigation system.
4. To
make available to the first applicant (Agritrans CC) all effluent
produced by the Namahadi sewerage works situate on the property
as
stipulated in the contract.
5. To
make
timeous payment to Eskom into account number 8145732273 as set out in
the contract between the parties.
6
. The
Respondents are ordered to pay applicant’s costs jointly and
severally, the one paying the other to be absolved.
________________
B.C. MOCUMIE, J
On
behal
f
of applicant: Adv. P Ellis
Instructed
by: DA Honiball
BLOEMFONTEIN
On
behal
f
of respondents: Adv. S Reinders
Instructed
by: Honey & Partners Inc.
BLOEMFONTEIN
/sp