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[2024] ZAMPMBHC 28
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Komatipoort Despondent Residents Association v Nkomazi Local Municipality and Others (2832/2023) [2024] ZAMPMBHC 28 (19 April 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE NO: 2832/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
DATE: 19/4/2024
SIGNATURE
In the matter between:
KOMATIPOORT
DESPONDENT RESIDENTS ASSOCIATION
APPLICANT
And
NKOMAZI LOCAL
MUNICIPALITY
FIRST RESPONDENT
MUNICIPAL MANAGER
NKOMAZI LOCAL
MUNICIPALITY
SECOND RESPONDENT
EXECUTIVE MAYOR
EHLANZENI DISTRICT
MUNICIPALITY
THIRD RESPONDENT
MEC ENVIRONMENTAL
AFFAIRS, MPUMALANGA FOURTH
RESPONDENT
MEC CO-OPERATIVE
GOVERNANCE &
TRADITIONAL
AFFAIRS
FIFTH RESPONDENT
MINISTER OF HUMAN
SETTLEMENTS,
WATER AND
SANITATION
SIXTH RESPONDENT
MINISTER OF
ENVIRONMENTAL AFFAIRS
SEVENTH
RESPONDENT
JUDGMENT
Vukeya J
Introduction
[1]
This application was first brought as an urgent application on 21
July 2023 after which
it was case managed and enrolled for hearing in
the normal cause on 25 January 2024. It served before me as an
opposed application.
Only the first, second and the seventh
respondents opposed the application, the fifth respondent filed a
notice to abide and the
others did not oppose the application.
Although the relief sought was in two parts, namely Part A and Part
B, this court was only
called upon to grant the relief sought in
terms of Part A of the application.
[2]
The relief sought by the applicant in terms of Part A of the notice
of motion is for an
order in the following terms:
2.
Declaring that raw sewerage works at Komatipoort and at the places of
spillage more comprehensively described at paragraph 11.3
of the
founding affidavit, are flowing into and contaminating the Crocodile
River.
(For ease of reference: Para
11.3 reads as follows: ‘
Raw
sewerage are flowing from inter alia the town’s sewerage works
to the Crocodile River. The sewage is spilling across Komatipoort
Town, at inter alia the Transnet Building, Hotchkiss Street at the
circle by Engen Garage, [...] L[...] Street, Spar Complex, the
sewage
pump at the corner of Krokodil and Hartebees Streets, [...] G[...]
Street and the sewerage plant in Krokodil Street’)
3. Declaring that the
Nkomazi Local Municipality represented by the first and second
respondents, is in breach of its obligation
to prevent contamination
of the environment whilst allowing raw sewerage spills;
4. Declaring that the
MEC for Environmental Affairs, fourth respondent, despite being
informed of the problem, has not resolved
the raw sewage spills;
5. The first, second
and third respondents, representing the Municipalities involved, are
compelled and ordered to urgently take
remedial steps to stop the raw
sewerage spills by immediately fixing the causes to the spillages and
to remedy the effects of the
pollution caused, and to rehabilitate
the affected areas;
6. The first, second
and third respondents, namely the Municipalities of Nkomazi and
Ehlanzeni, are to report to court within ten
(10) days of the order
on the steps taken by them to give effect to prayer 5;
7. Authorising the
applicant to employ an expert(s) to monitor the sewerage works from
date of this order for a period of ten (10)
weeks and to compile a
comprehensive report for the court, with the first respondent being
liable to pay all such reasonable costs
of the said expert. To the
extent that costs are disputed, the taxing master is to be approached
for resolution thereof;
8. Ordering the
Municipal Manager of the Nkomazi Local Municipality to imprisonment
for 90 days, suspended on the following terms:
a) That the spillage
of raw sewerage into the Crocodile River be cleared up within ten
(10) calendar days from the date of the order
and that the Nkomazi
Local Municipality, represented by the First and/or second
respondents duly assisted by the third to seventh
respondents, be
ordered to take all necessary steps to ensure that raw sewage is not
discharged into the aforesaid river or onto
land surrounding the
respective sewerage works at Komatipoort and that spillage of raw
sewage be resolved at the areas described
*in paragraph 11.3 of the
Founding Affidavit;
b) that the Municipal
Manager of the Nkomazi Local Municipality take immediate steps to
ensure that the Municipality complies with
its Constitutional
obligations to provide potable water on a daily basis to the citizens
within its resort;
c) The Municipal
Manager of the Nkomazi Local Municipality to file a report at Court
11 calendar days from the date of this order
on steps taken to
resolve the spillage of raw sewage and the prevention of similar
incidents in the near future and of the sustainable
provision of
potable water to all citizens in the resort of the Municipality.
9. That in the event
that spills are not resolved within ten (10) days of this order and
the Municipality fails to sustain the supply
of potable water in
terms of the Municipality’s Constitutional obligation:
a)
the order in 8 above be put into effect;
b) the Applicant be
authorised to approach the court on the papers duly amplified for the
relief set out in Part B.
10.
Costs of suit of Part A, alternatively to be ordered on the return
date.
11. To the extent that
the court does not grant the final order as aforesaid under
Part A, that:
a) the prayers as per
part A to serve as interim order with immediate effect returnable on
17 November 2023 or such other date set
by the Court whereat the
respondents be called upon to show cause why the interim order should
not be made final.
12. The applicant be
granted leave to supplement the papers prior to the return date.”
Brief Background
[3]
The applicant is the Komatipoort Despondent Residents Association. It
is alleged in the
founding affidavit that this association is a
voluntary organisation which consists of paying consumers mainly of
the town of Komatipoort
and has about fifty (50) members. According
to Lene Roux, a member of the applicant who avers that she is duly
authorised to depose
to the affidavit on behalf of the applicant, the
members of the association act in concert to stop the violation of
the applicant’s
rights to a safe environment as contained in
section 24 of the Constitution. In the applicant’s founding
affidavit Lene Roux
explains that the purpose of the application is
to address a sewerage crisis experienced in Komatipoort, to protect
the residents’
Constitutional rights, to deal with the supply
or lack of supply of potable water and to obtain appropriate relief
to address the
existing crisis.
[4]
The bone of contention between the parties has to do with the
shortage of potable water
leading to appalling sewerage conditions
and sewage spillages which, according to the applicant has some
hazardous consequences
to the citizens of Komatipoort and surrounding
areas. This affects particularly the Komatipoort town and the
Crocodile River, which,
as it is alleged, was aimed to supply
drinking water to the community yet raw sewage is dumped into that
same river. It is further
alleged that the situation is so out of
control that residents received drinking water from the municipality
on 06 May 2023 wherein
live fish came through the pipes into the
people’s houses. The water received could not even be used as
it contained many
impurities.
[5]
It is the applicant’s averment that the Municipality constantly
fails its constitutional
obligations. It avers that the spillage of
raw sewage into the Crocodile River threatens the livelihood of all
people dependant
on the river, namely, the tourism community,
residents, nature and natural resources in and around the river. The
poor supply and
the inadequate management of raw sewage steals the
dignity from the people, it impacts on the health of the citizens and
causes
fly infestations and infectious diseases such as chronic
diarrhoea.
[6]
The applicant avers that, on the strength of section 24 of the
Constitution the provision
of clean water and the treatment of sewage
is the responsibility of the Municipality. The Municipality is
obliged to provide services
of which the standard improves over time.
It submits that the pollution of water sources represents pollution
of the environment
and further that this pollution constitutes a
breach of the respondents’ constitutional obligations.
According to the applicant,
in spite of the obvious water shortages
in the area, the Municipality failed to provide water to the
residents by using water tankers,
it (the applicant) had to get water
from people with boreholes to make water available to those with no
water.
[7]
Aggrieved by all of these, the applicant resorted to writing to
various stakeholders of
government, including COGTA and the Municipal
Manager, complaining of the shortage of water and of the overflowing
of the raw sewage
into town and seeking intervention in terms of
section 139 of the Constitution. A response from COGTA was received
in which it
recognised the issues regarding service delivery and
associated some of the issues with the disastrous floods experienced
in December
2022. COGTA undertook to monitor the implementation of
plans by the Municipality. (See page 123).
[8]
The first and second respondents state, in their answering affidavit,
that they wrote to
the applicant’s attorneys suggesting that
the dispute be referred to the Inkomati-Usuthu Catchment Management
Agency (“IUCMA”)
formed in terms of the
National Water
Act 36 of 1998
. In this correspondence it is suggested to the
applicant to report these incidents to the agency for it to take
charge of the process
and to find a long-term solution. The applicant
has not accepted this approach. The first and second respondents
further denied
that the Komatipoort sewerage works is not maintained.
It denied any knowledge of the change of the colour of the water that
reaches
the households and that fish came out of the pipes as this
was not reported to the Municipality. The second respondent disputes
that he can be imprisoned without being charged and convicted of
committing a criminal offence and prays to court not to grant
an
order for his imprisonment.
[9]
Mr Grant Walters, the Director: Enforcement – Environmental
Impact and Pollution,
employed by the Department of Forestry,
Fisheries and the Environment (“DFFE”) also deposed to an
opposing affidavit
on behalf of the seventh respondent. He states in
the affidavit that the DFFE does not have the constitutional and
legislative
competence to prevent the flow of sewage that emanates
from a Municipal sewerage works into rivers. He avers that the relief
sought
is misplaced. Mr Walters also avers that through the office of
the State Attorney, it directed a letter to the applicant informing
it that the relief sought is incompetent for the abovementioned
reasons and advised the applicant to withdraw the application,
an
advice the applicant refused to heed to.
[10]
The seventh respondent further avers that the applicant has failed to
make out a case for the relief sought
because it is placing the
responsibility of the Municipality’s obligations on the DFFE, a
National government department,
in circumstances where it has failed
to make out an appropriate case for a National Intervention as
contemplated in section 139(7)
of the Constitution. It submits that
section 139 (7) does not provide for the National Executive to take
over all of the Municipality’s
functions. According to Mr.
Walters the duties and functions which the National Executive is
enjoined to perform in the event that
section 139 (7) becomes
applicable are limited to those set out in section 139 (4) and (5)
depending on which section has been
invoked by the provincial
executive.
Points in limine
[11]
Mr XT Mabila, the Municipal Manager (the “MM”) of the
first respondent, deposed to an opposing
affidavit on behalf of the
first and second respondents. In this affidavit, save for denying
that there is a spillage of raw sewage
into the Crocodile river and
that the first respondent has defaulted in its public duty to supply
potable water to the communities
forming part of the first
respondent, the MM does not deal with the issues raised in the
applicant’s founding affidavit,
but raises the following points
in limine:
11.1. The
applicant lacks the necessary
locus standi
to institute this
application as:
11.1.1.
The applicant institutes this application as a class action,
however,
it has not complied with the requirements of a class action as it has
not been certified as a class action;
11.1.2.
Rule 16A of the Uniform Rules of Court requires that a party
raising
a Constitutional issue should issue a notice to that effect. The
applicant has failed to comply with Rule 16A as required.
11.2. The
applicant seeks a declaratory order on an interim basis. The first
and second respondents argue that a declaratory
order is a final
relief and cannot be granted on an interim basis; and
11.3. The
applicant should have exhausted all internal remedies before
approaching the court for the relief it seeks.
Class Action
[12]
With regard to the first point
in
limine,
the respondent contends that
the applicant institutes this application as a class action while it
has not complied with the requirements
of a class action one of which
is to be certified as a class action by the court. I
n
Trustees for the time being of the
Children’s Resource Centre Trust v
Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae)
2013 (1) All SA 648
(SCA) at para 16 Wallis JA defines a class action as follows:
“
In
class actions the party bringing the action does so, on behalf of the
entire class, every member of which is bound by the outcome
of the
action, so that a separate action by a member of the class after
judgment can be met with a plea of res judicata.
15
The
concept is most fully defined, by Professor Mulheron (Professor
Rachael Mulheron, The Class Action in Common Law
Legal Systems:
A Comparative Perspective 3), in the following terms:
‘
A
class action is a legal procedure which enables the claims (or parts
of the claims) of a number of persons against the same defendant
to
be determined in the one suit. In a class action, one or more persons
(‘representative plaintiff’) may sue on his
or her own
behalf and on behalf of a number of other persons (‘the class’)
who have a claim to a remedy for the same
or a similar alleged wrong
to that alleged by the representative plaintiff, and who have claims
that share questions of law or
fact in common with those of the
representative plaintiff (‘common issues’). Only the
representative plaintiff is a
party to the action. The class members
are not usually identified as individual parties but are merely
described. The class members
are bound by the outcome of the
litigation on the common issues, whether favorable or adverse to the
class, although they do not,
for the most part, take any active part
in that litigation.’
[13]
In class actions a preliminary application should be brought before
court requesting leave to institute
or defend an action as a class
action proceedings and to ask for directions as to procedure. An
application for certification as
a class action may be granted by the
court where: (a) there is an identifiable class of persons; (b) a
cause of action is disclosed;
(c) there are issues of fact or law
which are common to the class; (d) a suitable representative is
available; (e) the interests
of justice so requires; and (f) the
class action is the appropriate method of proceeding with the action.
The list is not exhaustive,
depending on the circumstances of each
case. (See
CRC Trust v Pioneer Food
(Supra))
[14]
The applicant stated as follows in its founding affidavit: “
To
the extent that the first respondent or anyone else may wish to take
issue with the applicant, I ask the court to authorize /
certify the
members of the applicant as a class with locus standi, albeit that
they act herein in concert styled as the applicant.
To stop violation
of rights as contained in inter alia section 24 of the Constitution,
to a safe environment and to have it protected
and breached
provisions of various environmental legislation”.
It avers
that it is not a class action and therefore it is not necessary to
comply with the requirements of a class action. It submitted
that it
stated the above in its affidavit to deal with any nature of any
opposition challenging its
locus standi,
so it avers in its
submissions.
[15]
It was submitted by the applicant that, apart from
the possibility of it being a class action, it also relies
on section
24 and section 38 of the Constitution to show that it has a right to
launch this application and to approach this court
for the relief it
seeks. Section 24 of the Constitution states that
everyone
has the right (a) to an environment that is not harmful to their
health or well-being; and (b) to have the environment
protected, for
the benefit of present and future generations, through reasonable
legislative and other measures that (i) prevent
pollution and
ecological degradation; (ii) promote conservation; and (iii) secure
ecologically sustainable development and use
of natural resources
while promoting justifiable economic and social development. It is on
the basis of this section that the applicant
finds
locus
standi
and also relies on section 38
to seek the relief it prays for in the Notice of motion on the
grounds as stated under section 38
(d) of the Constitution.
[16]
The purpose of section 38 of the Constitution is to broaden the
standing in constitutional litigation since
the constitutional era.
As a result, anyone acting in the interest of others or public
interest may, since the Constitution came
into operation, approach
the court for relief where there is an alleged infringement of a
constitutional right and not only those
with direct vested interest
in litigation. Section 38 opened the doors for people acting in their
own interests, on behalf of others
who cannot act on their own,
anyone acting in public interest, etc. Section 38 of the Constitution
Act of the Republic of South
Africa 108 of 1996 provides that:
Anyone listed in this
section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are-
(a) Anyone acting in
their own interest;
(b) Anyone acting on
behalf of another person who cannot act in their own name;
(c) Anyone acting as a
member of, or in the interest of, a group or class of persons;
(d) Anyone acting in
the public interest; and
(e) An association
acting in the interest of its members.
[17]
In this constitutional democracy, the role of Section 38 of the
Constitution is to actually cover a wide
range of wavelengths which
includes class actions. In
Ferreira v Levin and Vryenhoek v Powell
1996 1 BCLR 1
(CC) the following was stated regarding the
role of section 38: “
This role requires
that access to courts in constitutional matters should not be
precluded by rules of standing developed in a different
constitutional environment in which a different model of adjudication
predominated. In particular, it is important that it is not
only
those with vested interests who should be afforded standing in
constitutional challenges, where remedies may have a wide impact.”
[18]
In
Ngxuza and others v Permanent Secretary, Department of Welfare,
Eastern Cape and others
2001 (2) SA 609
(E) it was held
that
Section 38 of the Constitution of the
Republic of South Africa Act provides for the enforcement of the
rights protected by
the Bill of Rights not only by persons acting in
their own interests but also, inter alia, by '(b) anyone
acting on behalf
of another person who cannot act in their own name;
[and] (c) anyone acting as a member of, or in the interest
of, a
group or class of persons'.
In essence, section 38 of
the Constitution is not restrictive. It is in fact flexible and
generous as it allows for an easy approach
towards the litigation of
public issues that may even affect some of the indigent members of
our society who may not afford to
bring their own issues to court. In
this particular case, the applicant consists of citizens of Nkomazi
Local Municipality who
are acting in their own interests and the
applicant also states that it is an association acting in the
interests of its members
who are affected by the alleged conditions
in the Municipal area concerned. Closing the doors of litigation in
the face of the
applicant will therefore be contrary to the
objectives of section 38 of our Constitution.
[19]
On the basis of the above, my view is that there is no justification
for a finding that the applicant has
no
locus standi
to bring
this application. Whether the applicant applies as a class action is
irrelevant, the applicant’s reliance on sections
24 and 38 of
the Constitution is sufficient to find
locus standi.
It is my
considered view that the point
in limine
has no merit and that
it falls to be dismissed. It is accordingly dismissed.
Rule 16A of the
Uniform Rules
[20]
It is further contended by the first and second
respondents that, the applicant does not have
locus
standi
because it has not complied with
Rule 16A of the Uniform Rules of Court
which requires that a party raising a Constitutional issue should
issue a notice to
the registrar at the time
of filing the relevant affidavit or pleading and therefore the
application ought to be dismissed for non-compliance.
Rule
16A
(1) (a) provides that:
“
Any
person raising a constitutional issue in an application or action
shall give notice thereof (b) Such notice shall contain a
clear and
succinct description of the constitutional issue concerned. (c) The
registrar shall, upon receipt of such notice, forthwith
place it on a
notice board designated for that purpose. (d) The notice shall be
stamped by the registrar to indicate the date upon
which it was
placed on the notice board and shall remain on the notice board for a
period of 20 days”.
[21]
The first and second respondents took issue with the applicant’s
failure to file a notice with the
registrar as required in terms of
Rule 16A (1) (a) and in replying to this issue, the applicant states
in its replying affidavit
that although it speaks about the trampling
of Constitutional rights, it does not raise a constitutional issue
per se which requires
a rule 16A notice and therefore this point
in
limine
cannot be allowed to stand. The applicant’s
submission is that it is not calling upon the court to interpret the
constitution
or to declare any law unconstitutional. It is actually
calling upon the court to apply the constitution and to give effect
to the
constitutional rights of the applicant.
[22]
Counsel for the applicant submitted that when one
relies on rights entrenched in the constitution but does
not ask the
court to consider or to declare a specific portion of an act or
regulation unconstitutional, there is no requisite
that a rule 16A
notice be given to the registrar. He relied on the case of
Kenton-on-sea Ratepayers Association and
Others v Ndlambe Local Municipality and Others
2017 (2) SA 86
(ECG) to support this submission. On the
basis of these arguments the applicant prays to the court to dismiss
the point
in limine.
[23]
Although rule 16A seems
to be peremptory, it still gives the court discretion to dispense
with the notice requirement if it is in
the interests of justice to
do so. This is provided for in sub-rule 9 of Rule 16A which reads
thus: “
The court may dispense with
any of the requirements of this rule if it is in the interests of
justice to do so.”
In
Rates
Action Group v City of Cape Town
2004
(5) SA 545
(C) the court remarked as
follows:
“
One
can conceive of many reasons why, in a particular case, it may be in
the interests of justice to dispense with this requirement
of Rule
16A. Here, two are relevant. First, this application has received
very wide notice in the public media. The public attention which
it has received is considerably greater than would have been
occasioned by placing a notice on a notice board at this Court. That
being so, the fundamental purpose sought to be achieved by the Rule
has, in fact, been achieved, namely, that the existence of
this
litigation has been brought to the attention of persons who might
wish to intervene. Secondly, there is an element of urgency
in the
proceedings, as it is in the public interest that this dispute should
be resolved one way or the other, so that members
of the public and
the City will know where they stand. The case affects the budget and
operations of a major city, and the monthly
liabilities of a very
large number of people who live in Cape Town. It is in the
interests of justice that the matter be disposed
of as soon as is
reasonably possible.”
[24]
Firstly, the issues complained about in
casu
affects the Komatipoort community in
general and if the allegations are found to be true, it is a health
hazard that has to be attended
to as a matter of urgency. Secondly,
the purpose of the application is to encourage service delivery in a
form of providing drinkable
water to the affected communities and
ensuring that they live in an
environment that is not harmful to their
health or well-being; and to prevent pollution and ecological
degradation. This is a call
for the court to defend their
constitutional rights and to deal with a breach of a Constitutional
right rather than a constitutional
challenge. It is therefore my
respectful view that it is in the interests of justice that the
giving of the 16A notice be dispensed
with. The point
in
limine
is dismissed.
A
final Order or an Interim order
[25]
The second point
in
limine
relates to t
he
fact that the applicant seeks a declaratory order on an interim
basis. Counsel for the first and second respondents argued that
a
declaratory order is a final relief and cannot be granted on an
interim basis. He contends that the applicant’s Notice
of
Motion is irregular and that on the basis of this point, the
application falls to be dismissed. Counsel for the applicant made
submissions and referred the court again to
Kenton-on-sea
(supra) and to
Agri
Eastern Cape and Others v MEC, Department of Roads and Public Works
and Others
2017
(3) SA 383
(ECG) to argue that there is
no irregularity in the manner in which the Notice of Motion was
drafted by the applicant and that
the court ought to dismiss this
point
in limine.
[26]
As
is apparent from the prayers in the applicant’s notice of
motion (Part A), the applicants are seeking to curtail the
respondents’
alleged unlawful conduct by means of declaratory
orders, alternatively, and to
the
extent that the court does not grant the final order that the prayers
as per part A to serve as interim order with immediate
effect
returnable on such a date set by the Court whereat the respondents be
called upon to show cause why the interim order should
not be made
final. Clearly, the applicant is aware of the fact that it prays for
a declaratory order which is final in its very
nature, however, it
also prays for an interim order, only in the alternative depending on
whether the court refuses to grant the
declaratory and the structural
orders. The first and second respondent’s point
in
limine
is
dismissed, it has no merit.
Internal remedies
[27]
Although this issue was not raised as a point
in limine
, it is
important that it be dealt with at this point for the sake of
completeness. The first and second respondents stated in their
founding papers that they wrote to the applicant’s attorneys
suggesting that the dispute be referred to the Inkomati-Usuthu
Catchment Management Agency (“IUCMA”) formed in terms of
the
National Water Act 36 of 1998
, suggesting to the applicant to
report these incidents to the agency for it to take charge of the
process and to find a long-term
solution. They averred that the
applicant did not accept this approach.
[28]
According to Counsel for the applicant, there is no statutory
provision that binds the applicant to exhaust
internal remedies.
Counsel submitted that the suggested remedy was not an internal
remedy available to the applicant. He basis
his submission on the
evidence of the applicant that the IUCMA is another example of a
complacent organ of the state that came
into movement after this
application was issued. Counsel referred the court to certain emails
and correspondences showing that
there has been no response on the
reported challenges from IUCMA. He submits that, despite the reported
challenges to IUCMA, no
problem is resolved sustainably.
[29]
Firstly, the IUCMA was established in terms of
section 78
of the
National Water Act 36 of 1998
to manage water resources and to
promote equal access to water and to promote the environment. Its
functions include, amongst others,
to investigate and advise
interested persons on the protection, use, development, conservation,
management and control of water
resources in its water management
areas and to prevent and remedy effects of pollution. This may be the
position with IUCMA, however,
it is not a requirement to first
approach this agency before one brings a matter to court. Even-so,
the applicant has shown that
it wrote several letters to IUCMA to
intervene but never received any responses to the requests it made.
This shows that this agency
totally ignores the pleas of the people
it was established to serve or that it is total dysfunctional.
This point
in limine
is also dismissed.
The merits
[30]
Having dismissed the respondent’s points
in limine
I now
proceed to deal with the application on its merits, taking cognisance
of the fact that the respondents based their opposition
of the
application only on the points
in limine
and ignored the
merits. In essence the application becomes unopposed and I only have
to determine whether the applicant has made
out a good case for the
granting of the prayers in the Notice of Motion and whether these
prayers are competent to grant.
[31]
Firstly, the applicant bases its application on the fundamental
constitutional rights as expressed in section
24 of the Constitution
which guarantees everyone a right to an environment that is not
harmful to their health or well-being and
to have the environment
protected, for the benefit of present and future generations, through
reasonable legislative and other
measures that prevent pollution and
ecological degradation; promote conservation and secure ecologically
sustainable development
and use of natural resources while promoting
justifiable economic and social development.
[32]
There is no doubt, when properly reading the Constitution under Part
B of Schedule 4 and 5, that water and
sanitation services limited to
potable water supply systems, domestic waste water and sewage
disposal systems responsibilities
and obligations are placed on the
Local and District Municipalities. These responsibilities are also
placed on Local and District
Municipalities by
sections 83
and
84
of
the
Local Government: Municipal Structures Act 117 of 1998
. Although
these responsibilities are divided between the two institutions by
these sections, it bestows the powers and functions
to these two
bodies.
[33]
In
Kenton-on-sea
(supra), Lowe J said the following at paragraphs
[19] – [22] regarding the responsibilities of the Local and
District Municipalities:
“
[19]
The constitutional imperatives that direct the duties of
organs of state must be read with ss 83 and 84 of the
Local
Government: Municipal Structures Act 117 of 1998 (the Structures Act)
which divides this responsibility between first and
second
respondents. Section 84 states as follows:
'Division
of functions and powers between district and local municipalities
(1)
A district municipality has the following functions and powers —
. . .
(d) Domestic
waste-water and sewage disposal systems.
(e) Solid
waste disposal sites, insofar as it relates to —
(i) the
determination of a waste disposal strategy;
(ii) the
regulation of waste disposal;
(iii) the
establishment, operation and control of waste disposal sites, bulk
waste transfer facilities and waste
disposal facilities for more than
one local municipality in the district.
. . .
(m)
Promotion
of local tourism for the area of the district municipality.
(n)
Municipal
public works relating to any of the above functions or any other
functions assigned to the district municipality
. . . .'
[20]
In terms of s 83 of the Structures Act:
'(1)
A municipality has the functions and powers assigned to it in terms
of sections 156 and 229 of the Constitution.
(2)
The functions and powers referred to in subsection (1) must
be divided in the case of a district municipality and the local
municipalities within the area of the district municipality, as set
out in this Chapter.
(3)
A district municipality must seek to achieve the integrated,
sustainable and equitable social and economic development of its
area
as a whole by —
(a)
ensuring
integrated development planning for the district as a
whole;
(b)
promoting
bulk infrastructural development and services for the district as
a whole;
(c)
building
the capacity of local municipalities in its area to perform their
functions and exercise their powers where such capacity
is lacking;
and
(d)
promoting
the equitable distribution of resources between the
local municipalities in its area to ensure appropriate
levels of
municipal services within the area.'
[21]
Section 84(2) of the Structures Act provides that:
'A
local municipality has the functions and powers referred to in
section 83(1), excluding those functions and powers vested
in
terms of subsection (1) of this section in the district municipality
in whose area it falls.'
[22]
In the result, the constitutional responsibility
of first respondent in this matter arises from the Bill
of Rights and
the provisions of s 156 of the Constitution as read with ss 83 and 84
of the Structures Act.”
[34]
The provision of services by the Municipality is
not merely a matter of defining competences. Rather it
is an issue
that defines and constitutes the very nature of this state
institution. Of all the three spheres of government, the
notion of a
government in service of its community is perhaps most
compelling with respect to local government. Not only is
the role of
the Municipality that of service provider, but also, very
distinctively that of developer of the community. The notion
of
developmental local government should therefore be the leitmotif in
interpreting the constitutional mandate with regard to municipal
services. (See Woolman & Bishop
Constitutional Law of
South Africa
2 ed vol 2 (Juta) at 22 – 63).
[35]
I conclude that the
constitutional obligations to ensure that these services are provided
to the communities rests on the Local
and District Municipalities and
that the applicants have proven on a balance of probabilities that
they have a clear right to the
relief sought in the Notice of motion
against first, second and third respondents.
[36]
The next question is whether the Minister of Environmental Affairs
(seventh respondent) has the same responsibilities
as the Local and
District Municipalities when it comes to solid waste, resolving
issues of raw sewage spills and ensuring that
raw sewage is not
discharged into the Crocodile river or onto land surrounding the
sewerage works at Komatipoort or anywhere in
the Republic of South
Africa for that matter. The National Environmental Management Act was
enacted to give effect to section 24
dealing with environmental
rights.
[37]
Perhaps one should start by visiting the preamble
of the National Environmental Management Act 107 of 1998
(“NEMA”)
in order to try and answer this question. NEMA was enacted to
acknowledge that the society has environmental
challenges by stating
that
many inhabitants of South Africa
live in an environment that is harmful to their health and
well-being. It also acknowledges the
basic human rights
to
an environment that is not harmful to the health or well-being of the
South African citizens and it bestows the responsibility
to respect,
protect, promote and fulfil the social, economic and environmental
rights of everyone and strive to meet the basic
needs of previously
disadvantaged communities to the state.
[38]
Furthermore, and amongst many other factors
mentioned in the preamble of NEMA, it acknowledges that everyone
has
the right to have the environment protected, for the benefit of
present and future generations, through reasonable legislative
and
other measures that prevent pollution and ecological degradation;
promote conservation; and secure ecologically sustainable
development
and use of natural resources while promoting justifiable economic and
social development. It is clear that the promulgation
of NEMA was
intended for all spheres of government and all organs of state to
co-operate with, consult and support one another
in protecting the
constitutional rights of the citizens to an environment that is not
harmful to their health and well-being.
[39]
Amongst other principles established by section
2(4)
(p)
of NEMA, it is even stated that, in the event
anyone is found to have polluted the environment, the costs of
remedying pollution,
environmental degradation and consequent adverse
health effects and of preventing, controlling or minimizing further
pollution,
environmental damage or adverse health effects must be
paid for by those responsible for harming the environment.
[40]
The seventh respondent, being a National
Government department, contends that the applicant has failed to
make
out a case for a National Intervention as contemplated in section 139
(7) of the Constitution which provides that, 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.
Section 139
(4) and (5) provide that:
(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.
[41]
My view, however, is that, as the issues in this
application relate to an environmental hazard, amongst
others, the
Provincial executive, the fourth respondent in
casu,
does have
a constitutional obligation to intervene as directed by section 139
(1) which provides that, 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, but not limited to, 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
and assuming responsibility for the relevant obligation in that
municipality to the extent necessary to maintain
essential national
standards or meet established minimum standards for the rendering of
a service.
[42]
The National Government Department, namely, the
seventh respondent can only intervene if the provincial
executive
cannot or does not adequately exercise its powers or perform the
functions referred to in section 139 (4) or (5) of the
Constitution.
I am inclined to agree with the seventh respondent that the applicant
has not made out a case for the relief sought
against it. The DFFE is
not necessarily exonerated from its constitutional obligations but
the different functional areas of the
National and Provincial bodies
have to be recognized. It is true, if one looks at section 139 of the
Constitution that it lacks
the competence and authority to interfere
in the prevention of sewage spillages in the flow of these spillages
into rivers.
The fourth respondent however, being the relevant
provincial executive responsible for matters of environmental health
hazards
such as the one complained about in this application, may
intervene if the municipality cannot or does not fulfil its
obligation
in terms of the Constitution.
[43]
Evidence of different water shortages and sewage
spillages as depicted under Annexures “RA 2” to “RA
4” is overwhelmingly shocking. Several Email correspondences
addressed to a number of state organs were sent about the raw
sewage
spillages in Komatipoort and the surrounding areas falling under the
first respondent, to no avail. Some of these correspondences
caught
the attention of the Human Rights Commission during 2019 and when the
HRC gave directives to the first respondent and such
were not
followed. The fifth respondent who elected to abide by the court
order, did respond to the cries of the residents of Komatipoort
and
recognized the issues but blamed these issues on the floods
experienced by the Municipality during December 2022. The fifth
respondent promised to intervene and respond to the residents’
concerns but it is clear that nothing has been done up to
the date of
this application.
[44]
These and factors such as the water shortages, the dirty water
provided to the communities, the
sewage spillages in the streets and
into the Crocodile river, are sufficient to conclude that the first,
second and third respondents
have failed in their constitutional
duties to ensure that they protect the citizens’ right to
an
environment that is not harmful to their health or well-being; and to
have the environment protected, for their benefit.
I therefore find that
the
Nkomazi Local Municipality
represented by the first and second respondents, is in breach of its
constitutional obligations to prevent
contamination of the
environment whilst allowing raw sewerage spills to flow in the town
and into the Crocodile River. Such could
have been prevented by
ensuring a continuous maintenance of the sewerage works in
Komatipoort and by providing potable water to
its communities.
Contempt
of Court
[45]
Under paragraph 8 of the Notice of Motion the applicant prays for an
order that the Municipal Manager of
the Nkomazi Local Municipality be
ordered to imprisonment for 90 days, an order which should be
suspended on condition that: a)
That the spillage of raw sewerage
into the Crocodile River be cleared up within ten (10) calendar days
from the date of the order
and that the Nkomazi Local Municipality,
represented by the First and/or second respondents duly assisted by
the third to seventh
respondents, be ordered to take all necessary
steps to ensure that raw sewage is not discharged into the aforesaid
river or onto
land surrounding the respective sewerage works at
Komatipoort and that spillage of raw sewage be resolved at the areas
described
in paragraph 11.3 of the Founding Affidavit; b) that the
Municipal Manager of the Nkomazi Local Municipality take immediate
steps
to ensure that the Municipality complies with its
Constitutional obligations to provide potable water on a daily basis
to the citizens
within its resort; and c) that the Municipal Manager
of the Nkomazi Local Municipality to file a report at Court eleven
(11) calendar
days from the date of this order on steps taken to
resolve the spillage of raw sewage and the prevention of similar
incidents in
the near future and of the sustainable provision of
potable water to all citizens in the resort of the Municipality.
[46]
The applicant further prays under paragraph 9 of it Notice of motion
that in the event that spills are not
resolved within ten (10) days
of the order and the Municipality fails to sustain the supply of
potable water in terms of the Municipality’s
Constitutional
obligation then the order referred to in paragraph 8 of its Notice of
Motion be put into effect. Counsel for the
applicant referred the
court to the case of
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) in support of the submission that the approach
the applicant wishes the court to follow is correct. This approach
requires
the court to make an order against the MM for imprisonment
for 90 days in the absence of a previous order directing the MM to
perform
certain acts. It seems the applicant wants to put the cart
before the horse and this is evident from a proper reading of
Fakie
(supra). In
Fakie
, Cameron JA summarised the requirements
for the granting of an order for Contempt of Court as follows at para
41 and 42:
[41]
Finally, as pointed out earlier (in para [23]), this development of
the common law does not require the applicant to lead evidence
as to
the respondent's state of mind or motive:
Once the applicant
proves the three requisites (order, service and non-compliance),
unless the respondent provides evidence
raising a reasonable doubt as
to whether non-compliance was wilful and mala fide, the
requisites of contempt will have been
established.
[My emphasis]
The sole change is that the respondent no longer bears a legal
burden to disprove wilfulness and mala fides on
a
balance of probabilities, but need only lead evidence that
establishes a reasonable doubt. It follows, in my view, that Froneman
J was correct in observing in Burchell (in para [24]) that,
in most cases, the change in the incidence and nature of
the onus will not make cases of this kind any more
difficult for the applicant to prove. In those cases where it will
make a difference, it seems to me right that the alleged
contemnor should have to raise only a reasonable doubt.
[42]
To sum up:
(a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements.
(b)
The
respondent in such proceedings is not an 'accused person', but is
entitled to analogous protections as are appropriate to motion
proceedings.
(c)
In
particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and mala fides) beyond reasonable doubt.
(d)
But,
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and mala fides: Should the respondent fail
to advance evidence that establishes a reasonable doubt
as to
whether non-compliance was wilful and mala fide, contempt
will have been established beyond reasonable doubt.
(e)
A declarator and
other appropriate remedies remain available to a civil applicant on
proof on a balance of probabilities.
[47]
In
Consolidated Fish Distributors (Pty) Ltd v Zive
1968 (2)
SA 517
(C) the court defined contempt of court as “
the
deliberate, intentional (i.e. wilful) disobedience of an order
granted by a court of competent jurisdiction”.
It is clear
from the above wording
(in Fakie, (supra))
that the applicant
must first obtain an order against the MM to perform certain duties;
that order must first be served on the
MM, and then there has to be
non-compliance with the order which non-compliance must be wilful and
mala fide
. The applicant therefore bears the onus to show that
these three requirements have been met and the respondent only has to
advance
evidence which establishes a reasonable doubt that
non-compliance was wilful and
mala fide.
What I see in this
application is an applicant who seeks an order for contempt of court
before any order has been granted and served
on the MM. The applicant
seeks an order for contempt of court simultaneously with an order
directing the MM to perform certain
duties. This prayer is for an
order for committal to prison suspended until it has been breached.
This approach is bad in law and
if the order is granted, it will
amount to a violation of a Constitutional right of the person to be
committed to prison.
[48]
My view is that, it is premature at this stage to grant an order for
contempt of court as no order has been
granted against the MM yet and
therefore no order has been breached by the MM at this point. The
relief sought in prayer 8 of the
Notice of Motion is in my view
inappropriate because of the reasons stated above. Therefore I find
that the applicant has failed
to show that there was an order granted
against the MM, which was served and not complied with, wilfully.
Conclusion
[49] I
am satisfied that the applicant has, made out a good case for the
relief they seek in terms of the Notice
of motion, in summary,
showing that there are water shortages and sewage spillages flowing
in the town of Komatipoort and surrounding
areas which spill into the
Crocodile river thereby causing a health hazard to the communities.
The waste disposal sites and sewerage
works in Komatipoort are not
well managed and therefore need urgent attention as these are the
causes of the sewage spillages encountered.
The applicant has
also proven that the first respondent, represented by the second and
third respondent is in breach of its constitutional
obligations to
prevent contamination of the environment by allowing raw sewerage
spills.
Order
[50]
In the result I make the following order:
50.1.
It is declared that raw sewerage works at
Komatipoort and at the places of spillage namely, the Transnet
Building, Hotchkiss Street
at the circle by Engen Garage, [...]
L[...] Street, Spar Complex, the sewage pump at the corner of
Krokodil and Hartebees Streets,
[...] G[...] Street and the sewerage
plant in Krokodil Street are flowing into and contaminating the
Crocodile River.
50.2.
It is declared that the Nkomazi Local Municipality
represented by the first and second respondents, is in breach of its
constitutional
obligation to prevent contamination of the environment
by allowing raw sewerage spills;
50.3.
The first, second and third respondents,
representing the Municipalities involved, are compelled and ordered
to urgently take remedial
steps to stop the raw sewerage spills by
immediately fixing the causes to the spillages and to remedy the
effects of the pollution
caused, and to rehabilitate the affected
areas;
50.4.
The first, second and third respondents, namely
the Municipalities of Nkomazi and Ehlanzeni and the Municipal Manager
of Nkomazi
Municipality, are to file a report to the Registrar of
this court within twenty one (21) days of this order on the steps
taken
by them to give effect to prayer 50.3;
50.5.
The applicant is authorised to employ an expert to
monitor the sewerage works from date of this order for a period of
twelve (12)
weeks and to compile a comprehensive report to be filed
with the registrar of this court, with the first respondent being
liable
to pay all such reasonable costs of the said expert. To the
extent that costs are disputed, the taxing master is to be approached
for resolution thereof;
50.6.
The Municipal Manager of the Nkomazi Local
Municipality is ordered to:
50.6.1
ensure that the spillage of raw sewerage into the Crocodile
River be
cleared up within twenty one (21) calendar days from the date of the
order;
50.6.2.
ensure that the Nkomazi Local Municipality, represented by the
second
respondents duly assisted by the third to sixth respondents, be
ordered to take all necessary steps to ensure that raw sewage
is not
discharged into the aforesaid river or onto land surrounding the
respective sewerage works at Komatipoort and that spillage
of raw
sewage be resolved at the areas described in paragraph 50.1 of this
order.
50.6.3.
take immediate steps to ensure that the Municipality complies
with
its Constitutional obligations to provide potable water on a daily
basis to the citizens within its resort;
50.6.4.
file a report with the registrar of this Court, 21 calendar
days from the date of this order on steps taken to resolve the
spillage of raw sewage and the prevention of similar incidents in
the
near future and of the sustainable provision of potable water to all
citizens in the resort of the Municipality.
50.7.
Costs to be paid by the first respondent on
a party and party scale, such costs to include costs of Counsel.
VUKEYA J
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION
Appearances:
For
the Applicant:
Adv
D H Wijnbeek
Attorney
for the Applicant:
KOTZE
AND ROUX ATTORNEY INC
PRETORIA
C/O:
DU TOIT-SMUTS & PARTNERS
NELSPRUIT
REF:
S
TOWNSEND/mg/kg/23(KOT121/1)
Email:
vidette@krlaw.co.za
Email:
stonsend@dtsmp.co.za
For
the first and second Respondents:
Adv
T Mlambo
Attorneys
for the first and second Respondents:
NTULI
INC
NELSPRUIT
REF:
OM NTULI
Email:OBERT@NTULIINC.CO.ZA
For
the Seventh respondent:
Adv
Ngomane
Attorneys
for the seventh respondent:
STATE
ATTORNEY
NELSPRUIT
REF:
MP/789/23/HC-MBB
Email:DFMAKAMU@JUSTICE.GOV.ZA
THIRD
RESPONDENT:
NKOMAZI
LOCAL MUNICIPALITY EXECUTIVE MAYOR
MALELANE
Email:ywitbooi@ledc.co.za;adept.mnisi@nkomazi.gov.za
Fourth
respondent:
MEMBER
OF THE EXECUTIVE COUNCIL FOR ENVIRONMENTAL AFFAIRS, MPUMALANGA
MBOMBELA
Email:sibanyonipc@mpg.gov.za;nmbedu@mpg.gov.za;mushwanaki@gmail.com
FIFTH
RESPONDENT
MEMBERS
OF THE EXECUTIVE COUNCIL FOR CO-OPERATIONAL GOVERNANCE &
TRADITIONAL AFFAIRS, MPUMALANGA
MBOMBELA
SIXTH
RESPONDENT
MINISTER
OF HUMAN SETTLEMENTS, WATER AND SANITATION
PRETORIA
Email:Ndivhuyo.mabaya@dhs.gov.za
Heard
on:
25
January 2024
Delivered
on:
19
April 2024 (
TRANSMITTED BY E-MAIL TO THE PARTIES
)