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[2024] ZANCHC 14
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Kamiesberg Local Municipality and Another v Koingnaas Belastingbetalersvereniging and Another (2609/2021) [2024] ZANCHC 14 (16 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CIVIL LAW – Negotiorum gestio – Municipal functions –
Alleges
municipality failed to maintain roads infrastructure and render
water and sanitation services – Respondent undertook
repairs
without formal procurement processes – Billed costs to
municipality – Conflict with provisions of Constitution
–
Conduct amounts to self-help – Services not sanctioned by
municipal council – Conduct impermissible –
Applicant
established breaches of rights sufficient to interdict respondent.
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
2609/2021
Heard:
13 &
14/09/2023
Date available:
16/02/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
KAMIESBERG
LOCAL
MUNICIPALITY
1
st
Applicant
THE
MUNICIPAL MANAGER OF KAMIESBERG
LOCAL
MUNICIPALITY
2
nd
Applicant
and
KOINGNAAS
BELASTINGBETALERSVERENIGING
1
st
Respondent
JOHAN
G GRÄBE
2
nd
Respondent
And
in the counter application of:
KOINGNAAS
BELASTINGBETALERSVERENIGING
Applicant
and
KAMIESBERG
LOCAL
MUNICIPALITY
1
st
Respondent
RUFUS
CORMARCO
BEUKES
2
nd
Respondent
NAMAKWA
DISTRICT
MUNICIPALITY
3
rd
Respondent
MEC
FOR ENVIRONMENTAL AFFAIRS
NORTHERN
CAPE
4
th
Respondent
MINISTER
OF HUMAN SETTLEMENT, WATER
AND
SANITATION
5
th
Respondent
MINISTER
OF ENVIRONMENTAL AFFAIRS
6
th
Respondent
MEC
FOR LOCAL GOVERNMENT NORTHERN CAPE
7
th
Respondent
MINISTER
OF
COGHSTA
8
th
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
9
th
Respondent
JUDGMENT
Mamosebo J
[1]
On 31 December 2021 I granted a rule
nisi
in favour of the
first and second applicants (Kamiesberg Local Municipality or KLM)
and Rufus Cormarco Beukes (the Municipal Manager)
which was extended
from time to time. This application was opposed by the first
and second respondents, the Koingnaas Belastingbetalersvereniging
(KBBV) and Johan G Gräbe and was finally argued on the return
dates of 13 and 14 September 2023. The relief sought by
the
applicants is the confirmation of the rule.
[2]
The order granted on 31 December 2021 interdicting and prohibiting
KBBV
and Gräbe from:
2.1
Interfering with the rights of access of any member of the public to
the municipal
and public roads situated within the town of Koingnaas;
2.2
conducting any road works, maintenance and/or repairs to any
municipal and public
roads situated within the municipal district of
the Kamiesberg Municipality;
2.3
Entering the Kamiesberg Municipality’s sewerage plant, water
plant and
rubbish dump for purposes of conducting work in the town of
Koingnaas;
2.4
Interfering with any of the Kamiesberg Municipality’s
infrastructure including
water and sewerage systems within the
municipal district of Koingnaas;
2.5
Conducting any works, construction, maintenance and/or repairs to any
of the
Kamiesberg Municipality’s infrastructure, including
water and sewerage systems,
buildings, assets or property situated within the town of Koingnaas;
2.6
Interfering with the Municipal Manager and/or any of the employees
and staff
of Kamiesberg Municipality;
2.7
Interfering with the administration and/or day to day running of
Kamiesberg
Municipality’s functions at:
2.7.1
the Kamiesberg municipal service point at Koingnaas.
2.7.2
the Koingnaas sewerage plant and sewerage systems.
2.7.3
the Koingnaas water system.
2.7.4
the Koingnaas municipal rubbish dump.
2.7.5
the Kamiesberg municipal offices situated at 2[...]
M[...] Road, Garies.
2.8
Threatening the Municipal Manager and/or any of the Municipality’s
employees
and staff members.
[3]
KBBV launched a counter-application against KLM seeking this order as
reflected in the Notice of Motion:
1.1
to repair and restore the water supply and sewage systems of
Koingnaas to full
functionality within 2 (two) weeks of the granting
of this order;
1.2
to repair and restore the reverse osmosis water purification system
of Koingnaas
to full functionality within 2 (two) weeks of the
granting of this order;
1.3
to immediately stop the pollution of ground water in Koingnaas, and
to perform
regular water tests, to the satisfaction of the 9
th
respondent [Minister of Justice and Constitutional Development, Dr
Ronald Lamola]
1.4
repair all potholes in the streets in Koingnaas not yet repaired by
KLM within
4 (four) weeks of the granting of this order;
1.5
to restore the landfill operations at the Koingnaas municipal rubbish
dump within
4 (four) weeks of the granting of this order;
1.6
to repair and maintain municipal infrastructure in Koingnaas to a
reasonably
acceptable standard of functionality.
2.
In the event of failure by KLM to comply with 1.1 – 1.6 above
within the specified periods of two and four weeks of the granting of
the order, the ratepayers association sought authorisation
to take
over control and the repairs of all the infrastructure and municipal
services of Koingnaas until such time as KLM was able
to show its
ability to fulfil and resume its duties in that regard.
3.
Should prayer 2 become operative KLM is to be ordered to pay all the
costs occasioned by such services within 7 (seven) days of invoice.
4.
KLM and the Municipal Manager are within 30 (thirty) days of this
order to provide proof to the ratepayers’ association’s
legal representative of how an amount of R21,000,000.00 (Twenty-One
Million Rand) donated by De Beers Diamonds in 2016 was utilised to
the exclusive benefit of the town of Koingnaas.
5.
That a declarator be issued
5.1
that the conduct of the ratepayers’ association was not
unlawful and amounted
to a sui generis form of necessity.
5.2
that in future the conduct of the residents of Koingnaas will not be
regarded
as unlawful should they proceed to act in restoring their
Constitutional rights if:
(i)
the rights infringed upon, amount to the
infringement of a fundamental human right enshrined in Chapter 2 of
the Constitution of
the Republic of
South Africa 108 of 1996, and the conduct
of
proceeding to restore those human rights can be lawfully seen as
acting in necessity, such
as the right to life, human dignity or
access to drinking water;
(ii)
the municipality in question [KLM] has been given
at least 7 (seven) days written notice, served on the offices of the
Municipal
Manager personally, to restore those fundamental human
rights, and KLM and/or the Municipal Manager have failed to take any
action,
whatsoever in restoring those rights;
(iii)
in which instance it is declared that conduct of
the ratepayers’ association and its members shall be regarded
as lawful,
as far as it meets the requirements set out above.
6.
An order discharging the rule nisi granted on 31 December 2021 with
an order that KLM and the Municipal Manager pay costs of the main and
counter-application jointly and severally, which costs shall
include
costs consequent upon the employment of three advocates, including
senior counsel and two junior counsel”.
Only
KLM opposed the counter-application. Minister Lamola filed a
Notice to Abide the decision of the Court.
[4]
It is the counter-application that resulted in KLM raising a point
in
limine
challenging the ratepayers’ association’s lack
of standing to bring this application and contended that it may be
dispositive
of the counter-application. KLM was represented by
Adv AG Van Tonder and KBBV by Adv MD Du Preez SC assisted by Adv ZF
Kriel.
[5]
It is convenient to approach this matter in the following fashion.
First,
consider the point
in limine
raised by KLM,
namely, lack of
locus standi
in judicio
(lack of legal
standing) by KBBV and whether or not this point is dispositive of the
counter-application. Secondly, should
the finding not support
this challenge, to proceed to deal with the merits to determine
whether or not the rule must be confirmed
or discharged and dismiss
the counter-application.
Point
in limine
[6]
KLM, as argued by Mr Van Tonder, relied on the following to
substantiate
the contention of lack of standing in the
counter-application:
First,
that KBBV is a voluntary association founded on its own constitution.
It can litigate in its own name. Secondly,
Clause 2.3 of
its constitution empowers a management committee with legal capacity
to act on behalf of the association. Further,
that in terms of
Clause 7 the management committee must comprise not less than 5
members and not more than 11 members. More
importantly, and in
terms of Clause 10.1, such members are to be elected at KBBV’s
Annual General Meeting where members quorate.
[7]
KBBV has failed to comply with the constitution in that when they
launched
the counter-application there were only 4 (four) committee
members (Gräbe, Roxzaan Visser, Leon van den Berg and Jana
Johnson)
and the remainder of the positions were vacant. Mr Van
Tonder, invoked
Hyde
Construction CC
[1]
;
Parker
[2]
and
Lupacchini
[3]
maintaining
that KBBV had no legal standing to bring the counter-application and
its action could not be ratified. These were
the insightful
remarks by Rogers J, then, in
Hyde
Construction CC
[4]
“
[33]
Parker and Lupacchini do not bring this analysis of general agency
principles into question.
Those cases address the position which
arises where the trust deed requires that there should be no fewer
than a specified number
of trustees and where, at the time the act
which is sought to be attributed to the trust was performed, fewer
than that number
existed.
Where
that is the case the trust lacks the capacity to act; it is not a
problem of authority but capacity.
[36]
Nevertheless, one can understand that,
where a party does not have
the capacity to act, a purported act in its name is a nullity and
cannot be ratified.
That this is so appears to me to have been
confirmed in Lupacchini, to which I now turn.
[37]
Lupacchini was again a case where fewer than the specified number of
trustees existed
at the relevant time. Although this is not
specifically mentioned in the judgment of the Supreme Court of
Appeal, it appears clearly
from para 8 of the judgment of the trial
court ([2008] ZAFSHC 7) and para 2 of the judgment of the full bench
([2009] ZAFSHC 82)
that the trust deed required there to be not fewer
than two trustees. Nugent JA commenced his judgment in Lupacchini by
quoting
from paras 10 and 11 of Parker, where the point was made that
the existence of the specified
minimum number of trustees is a capacity-defining condition.
In para 13 he said that
the
true question in the case was 'not whether the trustees had a
sufficient interest, but instead whether they were capable of
suing
or being sued at all'
. And in
para 23 he said that
Parker made
it clear that 'legal proceedings commenced by persons who lack
capacity to act for the trust are a nullity'.”
(Own
emphasis added)
KLM,
on this basis alone, seeks the dismissal of the counter-application
since KBBV has not established and proved its legal standing
pertaining to its capacity in its founding papers.
[8]
It appears from Gräbe’s replying affidavit that in an
effort
to rectify the shortcoming of the required number of members
for purposes of litigation, the additional members were added during
a telephonic meeting held on 07 May 2022. This, so the argument
went, does not comply with its constitution and the
counter-application
falls to be dismissed for lack of standing.
[9]
In as far as opposition by KBBV to the main application is concerned,
it was also not compliant with its constitution on the same basis.
However, Gräbe in his personal capacity has the required
locus standi
to oppose the main application
.
Of
significance is that Gräbe is not a party to the
counter-application.
[10]
In countering the lack of standing attack, Mr du Preez, for KBBV and
Gräbe,
made the following submissions:
First,
that KBBV and Gräbe accepted their citation as the respondents
in the main application. Invoking
Van
Staden N.O. & Others v Pro-Wiz Group (Pty) Ltd
[5]
where
Wallis JA said:
“
[13]
Furthermore,
as
a matter of principle, when a party is cited in legal proceedings it
is entitled without more to participate in those proceedings.
The
fact that it was cited as a party gives it that right. Here the
liquidators were cited and decided to resist the application.
They
were entitled to do so by the mere fact of their joinder as parties.
It is not open to an applicant who has joined
a respondent to
contend thereafter that this was a misjoinder and on that footing to
resist an adverse order for costs. Were
that the case a party
who took the point that it had been wrongly joined would not be
entitled to recover its costs, when that
argument succeeded. On
this simple ground the liquidators were entitled to oppose the
application and, as a matter of general
principle, were entitled to
their costs when it was withdrawn.” (
Emphasis
added)
[11]
KBBV also relied on s 38(e) of the Constitution of the Republic of
South Africa (the
Constitution)
[6]
contending that it was entitled to approach any competent court for
appropriate relief, acting in the interests of its members.
[12]
It was further argued on behalf of KBBV that it followed the process
prescribed in
Rule 7(1) of the Uniform Rules of Court on 11 May 2022
and has rectified the flaw of not meeting its constitutional
requirements
relating to the purported lack of
locus standi
by
adding the requisite number of members to the committee
.
A
further contention was that KLM is raising an opportunistic defensive
point in an endeavour to block KBBV and its members
from dealing with
the merits of the case.
[13]
After argument, but before judgment was handed down, KBBV’s
counsel filed supplementary
heads, drawing attention to a recent
Supreme Court of Appeal’s (SCA’s) judgment handed down on
15 November 2023 in
Forestry
South Africa v Minister of Human Settlements, Water and Sanitation
and Others (777/2022) and Minister of Human Settlements,
Water and
Sanitation and Others v Forestry South Africa
[7]
addressing
locus
standi.
It
is submitted that following the Forestry SA judgment, the point
in
limine
should
be dismissed. In it the pronouncements by Unterhalter AJA,
writing for the majority on the issue of standing are salutary:
“
[19]
Forestry SA represents timber growers in South Africa. Its
application was not only brought in its own interests, but on behalf
of its members. Section 38 of the Constitution has considerably
extended the common law’s recognition of standing. Section
38(e) of the Constitution permits an association, acting in the
interests of its members, to approach a competent court to seek
appropriate relief, including a declaration of rights, on the basis
that members’ rights in the Bill of Rights are threatened.
Forestry SA and the Statutory Authorities have opposed
interpretations of provisions of the Act that bear upon the rights
of
members, including their existing use rights to water. These
rights fall within the ambit of property rights protected
by s 25 of
the Constitution. In my view, Forestry SA has standing, on
behalf of its members, to approach a court to seek
an authoritative
declaration as to the correct interpretation of the Act, and thereby
determine the scope of the property rights
of its members. That
is precisely what s 38(e) recognises. There is no constitutional
challenge to the Act. But I can
see no reason why, in a case of
this kind, which seeks an authoritative interpretation of legislation
that affects important rights,
an association such as Forestry SA
should not enjoy standing on behalf of its members. It is a
warranted extension of the
standing recognised in s 38(e) of the
Constitution.”
[14]
The challenge to standing, in my view, is not levelled at KBBV not
enjoying the extension
of the standing recognised in s 38(e) of the
Constitution but to its failure to meet its own constitution’s
requirements
to form a quorum to enable it to litigate on its behalf
as well as those members having been appropriately appointed
following
an Annual General Meeting. The association attempted
to correct the flaw by conducting a telephonic meeting to add the
number
of members. This, in my view, does not comply with its
constitutional requirement because not all members of the association
were present at the AGM.
[15]
I am neither persuaded that the shortcoming was rectified nor
rectifiable. Had
this constitutional impediment not presented,
nothing would have stopped KBBV from enjoying the standing on behalf
of its members
based on s 38(e) of the Constitution.
It is
on this basis that I find that KBBV has no standing to bring the
counter-application or even to oppose the main application.
In
as far as Gräbe is concerned, he is not a party to the
counter-application. Therefore, the counter-application
stands
to be dismissed. In the event that I am wrong in this finding,
I now proceed to consider the main application and
the
counter-application.
The historical
background.
[16]
Koingnaas was a mining town established, owned and controlled by De
Beers Consolidated
Mines (Pty) Ltd and provided services to its
residents. In 2010 De Beers partially transferred municipal
services of Koingnaas
to the Kamiesberg Local Municipality (KLM) in
terms of an agreement relating to the transfer of Municipal Services.
In 2016
De Beers transferred the remainder of the services to
KLM. KLM is responsible for delivering services to 16 towns
including
Koingnaas with their main municipal offices situated at
Garies, about 108 kilometres southeast of Koingnaas. In his
founding
affidavit the Municipal Manager explained that Koingnaas is
not treated as a separate entity with its separate income, budget,
and expenses but all 16 towns are administered and managed as a
cohesive unit. According to KBBV, between 2010 and 2016 they
noticed a service delivery decline. Since 2016 their small town
has degenerated to the point of the community receiving little
or no
municipal services. The residents consequently established a
ratepayers association with Gräbe as its chairperson.
[17]
KBBV maintains that De Beers donated an amount of R21 million in 2016
solely for
the upgrading of the infrastructure of Koingnaas. KBBV
also established that among themselves, as property owners, they
contribute
an amount of R166,000.00 monthly and they demand an
account of where and how their money is utilised. The
ratepayers maintain
that their services have deteriorated since the
transfer from De Beers to the Municipality, hence they took over some
of the services
which constrained them to bring this litigation.
KBBV appended photographs to the founding affidavit to
substantiate their
allegations. It claims that KLM is failing
to maintain the roads infrastructure and to render water and
sanitation services.
It alleges that test results revealed that
the quality of water supplied is not fit for human consumption. The
residents
were, so the complaint went, left without running water for
up to 35 consecutive days.
[18]
On 01 December 2021 KBBV members approached Mr Cyril Cook, a general
worker ostensibly
managing the technical services in Koingnaas, and
informed him that KBBV has skilled artisans with more than four
decades of experience
who could fix the water problem within a few
days, but the offer was rebuffed. Gräbe says the following
in the replying
affidavit:
“
77.2
Many of the former employees of De Beers still live in Koingnaas, for
instance, Rudi Raath, the former
mine manager, with extensive
experience in managing sewerage works and also Jan Liebenberg, and
then Gielie Botha, the former electrician
for the town, who was also
employed by De Beers.
77.3
These former employees of De Beers have all the necessary skill set
to carry on performing the
management tasks they attended to for many
years, under the ownership and management of De Beers.”
[19]
In the circumstances, and from 06 December 2021, KBBV and its members
started repairing
the potholes. This led to confrontation with
members of the South African Police Service set upon them by KLM.
[20]
In an email dated 08 December 2021 addressed to the Municipal
Manager, KBBV wrote:
“
Verder
stel die KBBS die Kamiesberg Munisipaliteit in kennis dat sodra die
KBBV klaar is met die paaie einde van Desember 2021 gaan
ons ook
beheer vat oor die water, riool, geboue en vullis werke van Koingnaas
onder die regsbeginsel “negotorum gestio”.(loosely
translated: (Furthermore, the KBBV notifies the Kamiesberg
Municipality that as soon as the KBBV has completed the road repairs
at the end of December 2021, we will also take control of the water,
sewerage, buildings and refuse works of Koingnaas under the
legal
principle "negotiorum gestio”.)
KBBV also indicated in
the same email that the cost of the repairs to the road amounted to
R120,000.00 for which the Municipality
will be billed or invoiced for
payment.
[21]
The doctrine of
negotiorum
gestio
is
described or defined in these terms: If X commits an act which
infringes the interests of another (Y), and X's act thereby
accords
with the definitional elements of a crime, her conduct is justified
if she acts in defence of, or in the furthering of,
Y's interests, in
circumstances in which Y's consent to the act is not obtainable but
there are, nevertheless, at the time of X's
conduct reasonable
grounds for assuming that Y would indeed have consented to X's
conduct had she been in a position to make a
decision about it.
[8]
[22]
If, for instance, Y loses consciousness in a motor accident. X1, an
ambulance driver
and paramedic summoned to the scene of the accident,
transports Y to a hospital where X2 performs an operation on her in
order
to save her life. Although X1's conduct conforms to the
definitional elements of kidnapping (deprivation of a person's
freedom
of movement), her conduct is justified by the present ground
of justification and she can accordingly not be found guilty of this
crime. As far as X2 is concerned, although her conduct conforms
to the definitional elements of assault, she is not guilty
of this
crime because her conduct is justified by the present ground of
justification.
[23]
These are the requirements for successfully relying on this ground of
justification:
[9]
(a)
It must not be possible for X to obtain Y's consent in advance.
If it
is possible, X must obtain Y's consent, in which case X may
rely on consent as justification.
(b)
There must be reasonable grounds for assuming that, had Y been aware
of the
material facts, she would not have objected to X's conduct.
The test to ascertain the existence of reasonable grounds is
objective.
(c)
The reasonable grounds for assuming that Y would not have objected to
X's conduct must exist at the time that X performs her act.
(d)
At the time of performing her act X must know that there are
reasonable grounds
for assuming that Y would not object to her (X's)
acts.
(e)
X must intend to protect or further Y's interests.
(f)
X's intrusion into Y's interests must not go beyond conduct to which
Y
would presumably have given consent.
(g)
It is not required that X's act should indeed have succeeded in
protecting or
furthering Y's interests.
[24]
This defence will be available only where X could not have obtained
Y's consent beforehand
hence the name ‘presumed consent’.
Negotiorum gestio
is one of those cases where the motive
of the person who intervenes is an important determinant of the
lawfulness or unlawfulness
of his or her conduct.
[25]
The fact that KBBV is effecting repairs to the roads and was in the
process of rendering
an invoice or has already rendered an invoice of
R120,000.00 to the Municipality, without any formal procurement
processes, renders
them in conflict with the provisions of section
217 of the Constitution of our country
[10]
which stipulates:
(1)
When an organ of state in the national, provincial, or local sphere
of government,
or any other institution identified in national
legislation, contracts for goods or services, it must do so in
accordance with
a system which is fair, equitable, transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred
to in that subsection from implementing a procurement policy
providing for –
(a)
categories of preference in the allocation of
contracts; and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred
to in subsection (2) must be implemented.”
[26]
When I granted the interim order I pronounced that allowing KBBV to
continue with
the works would, in my view, result in wasteful and
irregular expenditure. The conduct of KBBV amounts to
“self-help”
contrary to the spirit and purport of the
Constitution. KBBV has therefore arbitrarily arrogated to
itself a monopoly as
sole service provider. The services have
not been sanctioned by the municipal council and have closed the door
to fairness,
equity, transparency and competition.
[27]
In the counter-application KBBV relied on the unreported judgment of
Mafube
Business Forum and Another v Mafube Local Municipality and Others
[11]
in an
endeavour to persuade me to endorse its aforesaid conduct. In
Mafube
the
main issue before the Court was the interpretation of s 139(7)
[12]
of the Constitution and the question whether the jurisdictional facts
for mandatory national intervention as provided for in s
139(7), are
present. Section 139(7) stipulates:
“
If
a provincial executive cannot or does not adequately exercise the
powers or perform the functions referred to in subsection (4)
or (5),
the national executive must intervene in terms of subsection (4) or
(5) in the stead of the relevant provincial executive.”
[28]
Unlike in
Mahube
where
intervention by the Ministers of four national departments was sought
in terms of s 139(7), as well as a supervisory/structural
interdict
with the participation of the Mafube Business Forum,
in
casu
,
the relief sought by KBBV is for it to perform the tasks on its own
and for KLM to account directly to it with no municipal council,
provincial or national government’s involvement. This
will be an unprecedented and an unconstitutional route to follow
particularly bearing in mind that in terms of s 139 of the
Constitution
[13]
provision is
made for a hierarchical step of intervention should local government
(municipalities) fail to carry out their mandate.
[29]
Evidently, pre 2010 the town of Koingnaas was 100% controlled by De
Beers mining.
In 2010 Koingnaas and its services were partially
transferred to the Municipality and during 2016 there was a final
handing
over of the town and its services. Clearly, the
operational services changed post 2016 because the systems were no
longer
private-sector orientated but were governed by the
Constitution of the country and all other legal framework relating to
the governance
of municipalities. There was bound to be a
change in the administration. In terms of s 151(2) of the
Constitution the
executive and legislative authority of a
municipality is vested in its Municipal Council.
[30]
Moseneke J, then, in
City
of Cape Town and Another v Robertson and Another
[14]
remarked
:
“
[57]
The Court restated the principle of legality and, in particular, the
rule that an entity can
only act within the powers that are lawfully
conferred upon it. In the context of local government, the Court
stated that the powers
of local government are conferred upon it
either in terms of the Constitution or the laws of a competent
authority.
[58]
The advent of the Constitution has enhanced, rather than diminished,
the autonomy
and status of local government that obtained under the
interim Constitution. In the First Certification Judgment, this
Court
stated:
'[Local
Government] structures are given more autonomy in the [New Text] than
they have in the [interim Constitution] and this autonomy
is sourced
in the [New Text] and not derived from anything given to [Local
Government] structures by the provinces.’
[59]
Subsection 40(1) of the Constitution entrenches the institutions of
local government
as a sphere of government and pronounces all spheres
of government to be distinctive, interdependent and interrelated.
Subsections
41(e) and (g) articulate and preserve the
geographical, functional and institutional integrity of local
government.
In turn, ss
43(c) and 151(2) confer original legislative and executive authority
on municipal councils.
The
Constitution expressly precludes the national or a provincial
government from impeding the proper exercise of powers and functions
of municipalities. Thus a municipality has the right to govern
the local government affairs of its area and community.
However, the duties, powers and
rights of municipalities have to be exercised subject to national or
provincial legislation as provided
for in the Constitution.”
(own emphasis added)
[31]
Sections 105 and 106 of the Local Government: Municipal Systems
Act
[15]
(the Systems Act)
provides:
“
105.
Provincial
monitoring of municipalities
(1)
The MEC for local government in a province must establish mechanisms,
processes and procedures in terms
of section 155 (6) of the
Constitution to-
(a)
monitor municipalities in the province in managing their own affairs,
exercising their powers and performing
their functions;
(b)
monitor the development of local government capacity in the province;
and
(c)
assess the support needed by municipalities to strengthen their
capacity to manage their own affairs,
exercise their powers and
perform their functions.
(2)
The MEC for local government in a province may by notice in the
Provincial Gazette require municipalities
of any category or type
specified in the notice or of any other kind described in the notice,
to submit to a specified provincial
organ of state such information
as may be required in the notice, either at regular intervals or
within a period as may be specified.
(3)
When exercising their powers in terms of subsection (1) MECs for
local government-
(a)
must rely as far as is possible on annual reports in terms of section
46 and information submitted by
municipalities in terms of subsection
(2); and
(b)
may make reasonable requests to municipalities for additional
information after taking into account-
(i)
the administrative burden on municipalities to furnish the
information;
(ii)
the cost involved; and
(iii)
existing performance monitoring mechanisms, systems and processes in
the municipality.
106.
Non-performance and maladministration
(1)
If an MEC has reason to believe that a municipality
in the province
cannot or does not fulfil a statutory obligation binding on that
municipality or that maladministration, fraud,
corruption or any
other serious malpractice has occurred or is occurring in a
municipality in the province, the MEC must-
(a)
by written notice to the municipality, request
the municipal council or municipal manager to provide the MEC with
information required
in the notice; or
(b)
if the MEC considers it necessary, designate a
person or persons to investigate the matter.
(1A)
The MEC must table a report detailing the outcome of the
investigation in the relevant provincial legislature within 90 days
from the date on which the MEC designated a person or persons
to
investigate the matter and must simultaneously send a copy of such
report to the Minister, the Minister of Finance and the National
Council of Provinces.
(2)
In the absence of applicable provincial legislation,
the provisions
of sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act 8 of
1947), and the regulations made in terms of
that Act apply, with the
necessary changes as the context may require, to an investigation in
terms of subsection (1) (b).
(3)(a)
An MEC issuing a notice in terms of subsection (1) (a) or designating
a person to conduct an investigation in terms of subsection (1) (b),
must within 14 days submit a written statement to the National
Council of Provinces motivating the action.
(b)
A copy of the statement contemplated in paragraph (a) must
simultaneously
be forwarded to the Minister and to the Minister of
Finance.
(4)(a)
The Minister may request the MEC to investigate maladministration,
fraud, corruption or any other serious malpractice which, in the
opinion of the Minister, has occurred or is occurring in a
municipality
in the province.
(b)
The MEC must table a report detailing the outcome of the
investigation
in the relevant provincial legislature within 90 days
from the date on which the Minister requested the investigation and
must
simultaneously send a copy of such report to the Minister, the
Minister of Finance and the National Council of Provinces.
(5)(a)
Where an MEC fails to conduct an investigation within 90 days,
notwithstanding
a request from the Minister in terms of subsection
(4) (a), the Minister may in terms of this section conduct such
investigation.
(b)
The Minister must send a report detailing the outcome of the
investigation
referred to in paragraph (a) to the President.
(6)
If an investigation warrants such a step, the municipality
must
institute disciplinary proceedings against the person or persons
implicated in the report in accordance with the systems and
procedures referred to in section 67, read with Schedule 2, and
report the outcome to the MEC or the Minister, as the case may
be,
within 14 days of finalisation.
”
[32]
KBBV’s case is not based on s 139 of the Constitution which
would have been
the appropriate instrument for intervening in the
local government sphere. The association, which in my view does
not differ
from any disgruntled citizen or any competing company for
providing services to the municipality, is presupposing that the
municipal
council or the provincial or national government will
inevitably fail to intervene, hence its request to this court to
grant the
order as formulated in its draft order attached to its
heads of argument. There is nothing in the papers that says
that there
is failure by other spheres of government to intervene
against the Kamiesberg Local Municipality which would entitle KBBV to
approach
Court for declaratory orders sought.
[33]
Predicated on the
Robertson
judgment by Moseneke J the court
cannot order the Municipality to step back and let KBBV take over all
its duties and responsibilities.
One of the reliefs sought is
to authorise KBBV to take control of and repair and maintain the
municipal service infrastructure
of Koingnaas until such time as the
Municipality is able to show its ability to fulfil and resume its
duties in this regard. KBBV
will be assuming a supervisory role
and imposing itself to perform such functions without having followed
any due process or itself
being assessed for its competencies or
capabilities. It is unclear how it will be shown that KLM has
reached a stage of resuming
its duties and responsibilities and who
KBBV will be accountable to. This, in my view, is a recipe for
disaster.
[34]
KLM pleads an impossibility of performance in respect of repairing
and restoring
the water supply and sewage systems within the two to
four weeks’ timeframe set by KBBV. KLM explains that it
is categorised
under long-term projects which are already underway.
It further maintains that the reverse osmosis water
purification system
is fully functional and denies the submission by
the ratepayers’ association that it is not functional. While
KLM admits
that from time to time it faces problems with pollution of
ground water which it tackles as and when it arises, it denies that
it is a permanent problem. KLM added that it conducts regular
water tests. Potholes are, in KLM’s response, not
prioritised because of financial constraints as funds are directed at
the rectification of the water supply and sewage systems
at
Koingnaas. KLM refutes the allegation that there are problems
with the landfill operations and maintains that they are
fully
functional. Clearly, there are disputes of fact in respect of
the contentions by the parties pertaining to the infrastructure
which
are not soluble on paper. Following the Plascon-Evans rule,
[16]
the ratepayers’ association would be entitled to the relief it
is seeking if the facts, as set out by the ratepayers’
association in its founding affidavit as admitted by KLM and the
municipal manager, together with the facts as set out by KLM entitles
the ratepayers’ association to the relief it is seeking. This
is not the case.
[35]
There are appropriate measures that aggrieved parties can embark upon
but usurping
the powers and functions of a Municipality is definitely
not one of them. As pointed out by Brand JA, writing for a unanimous
court
in
Premier,
Western Cape and Others v Overberg District Municipality and
Others
[17]
:
“…
.Broadly
stated for present purposes, however, s 139 of the Constitution
permits and requires provincial governments to supervise
the affairs
of local governments and to intervene when things go awry.”
I therefore cannot
support the contention that the conduct of KBBV and its members was
not unlawful or that it amounted to a
sui generis
form of
necessity.
It therefore follows
that the counter-application stands to fail.
[36]
I now proceed to establish whether Kamiesberg Local Municipality has
met the requirements
for a final interdict as espoused in
Setlogelo
v Setlogelo
.
[18]
It is trite that an applicant that claims a final interdict must
establish (a) a clear right; (b) an injury actually committed
or
reasonably apprehended, and (c) the absence of an alternative remedy.
Once these three requisite elements are established,
the scope,
if any, for refusing the relief, is limited. There is no
general discretion to refuse relief, as succinctly pronounced
by
Wallis JA in
Hotz
and Others v University of Cape Town.
[19]
[37]
Legislatively, the responsibility to render municipal services lies
with the Municipalities.
They not only carry the mandate from
the Constitution but also from the subsidiary legislation. That
being said, KLM
and the Municipal Manager bear the right to carry out
their obligations as the accounting office and officer. Whether
there
stands to be apprehension of harm suffered by the applicants is
irrefutable. The intentions of KBBV may be well and good but
without following proper processes and ensuring that they are fair,
equitable, transparent, competitive and cost-effective, it
is
impermissible.
[38]
KBBV acknowledges that its members took over the repairs of the road
and intended
to take over all the infrastructure and buildings and
effect repairs or perform whatever function necessary, particularly
to the
sewage plant, the water treatment plant and rubbish dump. I
am satisfied that KLM and the Municipal Manager have established
breaches of the rights sufficient to interdict KBBV and its members
from taking control of the municipal infrastructure.
[39]
KBBV’s communication with the Municipal Manager is telling.
They did
not mince their words. Gräbe wrote an email
dated 08 December 2021 the wording of which is unambiguous and
already quoted
in full above. This signifies that KBBV intended
to continue with the said repairs and taking over of the
infrastructure
of KLM until it (KBBV) was satisfied that KLM was in a
position to take over its responsibilities. The threat or
injury is
ever present and will be persisted with by KBBV.
[40]
Resorting to the SAPS for intervention has proved futile and cannot
be argued as
an alternative remedy. This is what Wallis JA said
in Hotz
[20]
“
[36]
Firstly, the purpose of an interdict is to put an end to conduct in
breach of the applicant's
rights. The applicant invokes the aid
of the court to order the respondent to desist from such conduct and,
if the respondent
does not comply, to enforce its order by way of the
sanctions for contempt of court. Secondly, the existence of
another remedy
will only preclude the grant of an interdict where the
proposed alternative will afford the injured party a remedy that
gives it
similar protection to an interdict against the injury that
is occurring or is apprehended. That is why in many cases a
court
will weigh up whether an award of damages will be adequate to
compensate the injured party for any harm they may suffer. There
may also be instances where, in the case of a statutory breach, a
criminal prosecution, in appropriate circumstances, will provide
an
adequate remedy, but there are likely to be few instances where that
will be the case. Thirdly, the alternative remedy
must be a
legal remedy, that is, a remedy that a court may grant and, if need
be, enforce, either by the process of execution or
by way of
proceedings for contempt of court. The fact that one of the
parties, or even the judge, may think that the problem
would be
better resolved, or can ultimately only be resolved, by extra-curial
means, is not a justification for refusing to grant
an interdict.”
[41]
I am satisfied that KLM has established the three requisite elements
for the grant
of a final interdict and there is neither a scope for
refusing such relief nor a general discretion to refuse the relief.
I
therefore find that KLM and the Municipal Manager have made
out a proper case for the grant of a final interdict.
Costs
[42]
On a conspectus of the evidence it is evident that service delivery
is an intractable
malaise in Koingnaas and that KBBV resolved to do
something about it for the benefit of the community. Whereas
their
negotiorum gestio
justification that they invoked has
not succeeded, however, they meant well and it is apparent that KBBV
has dug deep into its
own pockets to fix the potholes and/or do some
road repairs. This is a cost that, it turns out, it is unlikely
to recoup.
To mulct it further with legal costs would be to add
insult to injury and amount to an injustice.
[43]
In the exercise of my discretion I am of the considered view that
KBBV’s conduct
does resort within the ambit of the
pronouncement by the Constitutional Court in
Biowatch
Trust v Registrar, Generic Resources and Others
[21]
.
It
would accordingly be fair and equitable that each party should bear
their own costs.
[44]
The following order is made:
1.
The rule
nisi
that
was granted on 31 December 2021 is confirmed.
2.
The counter-application is dismissed with no order
as to costs.
M.C. MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For
the Applicants:
Adv.
A.G. van Tonder
Instructed
by:
Van
de Wall Inc
For
the Respondents:
Adv.
MD du Preez SC assisted by Adv. Z.F. Kriel
Instructed
by:
JC
Kidson Attorneys.
c/o
Haarhoffs Inc
[1]
Hyde
Construction CC v Deuschar Family Trust and Another 2015 (5) SA 388
(WCC);
[2]
Land
and Agricultural Bank of South Africa v Parker and Others 2005 (2)
SA 77 (SCA); [2004] 4 All SA 261 (SCA)
[3]
Lupacchini
NO and Another v Minister of Safety and Security (16/2010)
[2010]
ZASCA 108
;
2010 (6) SA 457
(SCA) ;
[2011] 2 All SA 138
(SCA) (17
September 2010)
[4]
Ibid
at paras 33, 36 and 37
[5]
2019
(4) SA 532
(SCA) at para 13
[6]
The
Constitution of the Republic of South Africa, 108 of 1996
[7]
(824/2022)
[2023] ZASCA 153
(15 November 2023)
[8]
Snyman
1996 THRHR 106
107.
CR
Snyman,
Snyman’s Criminal Law
,
7th Edition,
Updated
by
SV
Hoctor (LexisNexis, 2020) at 107
[9]
See
Snyman
1996 THRHR 106
for a more detailed discussion of these
requirements
[10]
Act
108 of 1996
[11]
2022
JDR 1236 (FB)
[12]
Section
139(7) stipulates: If a provincial executive cannot or does not or
does not adequately exercise the powers or perform
the functions
referred to in subsection (4) or (5), the national executive must
intervene in terms of subsection (4) or (5) in
the stead of the
relevant provincial executive.
[13]
139
Provincial intervention in local government
(1) When a municipality
cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation, the relevant
provincial executive may
intervene by taking any appropriate steps to ensure fulfilment of
that obligation, including-
(a) issuing
a directive to the Municipal Council, describing the extent of the
failure to fulfil its obligations and
stating any steps required to
meet its obligations;
(b) assuming
responsibility for the relevant obligation in that municipality to
the extent necessary to-
(i) maintain
essential national standards or meet established minimum standards
for the rendering of a service;
(ii) prevent
that Municipal Council from taking unreasonable action that is
prejudicial to the interests of another
municipality or to the
province as a whole; or
(iii)
maintain economic unity; or
(c)
dissolving the Municipal Council and appointing an administrator
until a newly elected Municipal Council has been
declared elected,
if exceptional circumstances warrant such a step.
(2) If a provincial
executive intervenes in a municipality in terms of subsection (1)
(b)-
(a)
it must submit a written notice of the intervention to-
(i)
the Cabinet member responsible for local government affairs; and
(ii)
the relevant provincial legislature and the National Council of
Provinces,
within 14 days after the
intervention began;
(b)
the intervention must end if-
(i)
the Cabinet member responsible for local government affairs
disapproves the intervention within 28 days after
the intervention
began or by the end of that period has not approved the
intervention; or
(ii)
the Council disapproves the intervention within 180 days after the
intervention began or by the end of that period
has not approved the
intervention; and
(c)
the Council must, while the intervention continues, review the
intervention regularly and may make any appropriate
recommendations
to the provincial executive.
(3) If a Municipal
Council is dissolved in terms of subsection (1) (c)-
(a)
the provincial executive must immediately submit a written notice of
the dissolution to-
(i)
the Cabinet member responsible for local government affairs; and
(ii)
the relevant provincial legislature and the National Council of
Provinces; and
(b)
the dissolution takes effect 14 days from the date of receipt of the
notice by the Council unless set aside by
that Cabinet member or the
Council before the expiry of those 14 days.
(4) If a municipality
cannot or does not fulfil an obligation in terms of the Constitution
or legislation to approve a budget
or any revenue-raising measures
necessary to give effect to the budget, the relevant provincial
executive must intervene by taking
any appropriate steps to ensure
that the budget or those revenue-raising measures are approved,
including dissolving the Municipal
Council and-
(a)
appointing an administrator until a newly elected Municipal Council
has been declared elected; and
(b)
approving a temporary budget or revenue-raising measures to provide
for the continued functioning of the municipality.
(5) If a municipality,
as a result of a crisis in its financial affairs, is in serious or
persistent material breach of its obligations
to provide basic
services or to meet its financial commitments, or admits that it is
unable to meet its obligations or financial
commitments, the
relevant provincial executive must-
(a)
impose a recovery plan aimed at securing the municipality's ability
to meet its obligations to provide basic services
or its financial
commitments, which-
(i)
is to be prepared in accordance with national legislation; and
(ii)
binds the municipality in the exercise of its legislative and
executive authority, but only to the extent necessary
to solve the
crisis in its financial affairs; and
(b)
dissolve the Municipal Council, if the municipality cannot or does
not approve legislative measures, including
a budget or any
revenue-raising measures, necessary to give effect to the recovery
plan, and-
(i)
appoint an administrator until a newly elected Municipal Council has
been declared elected; and
(ii)
approve a temporary budget or revenue-raising measures or any other
measures giving effect to the recovery plan
to provide for the
continued functioning of the municipality; or
(c)
if the Municipal Council is not dissolved in terms of paragraph (b),
assume responsibility for the implementation
of the recovery plan to
the extent that the municipality cannot or does not otherwise
implement the recovery plan.
(6) If a provincial
executive intervenes in a municipality in terms of subsection (4) or
(5), it must submit a written notice
of the intervention to-
(a)
the Cabinet member responsible for local government affairs; and
(b)
the relevant provincial legislature and the National Council of
Provinces,
within seven days after
the intervention began.
(7) If a provincial
executive cannot or does not or does not adequately exercise the
powers or perform the functions referred
to in subsection (4) or
(5), the national executive must intervene in terms of subsection
(4) or (5) in the stead of the relevant
provincial executive.
(8) National legislation
may regulate the implementation of this section, including the
processes established by this section.
[14]
[2004] ZACC 21
;
2005
(2) SA 323
(CC) at paras 57, 58 and 59
[15]
32 of
2000
[16]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
[17]
2011
(4) SA 441
(SCA) para 1
[18]
1914 AD 221
at 227
[19]
2017
(2) SA 485
(SCA) para 29
[20]
Ibid
footnote 19 at para 36
[21]
2009
(6) SA 232
(CC)