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2024
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[2024] ZAFSHC 280
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Clarens Ratepayers Association v Dihlabeng Local Municipality and Others (4379/2024) [2024] ZAFSHC 280 (3 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
4379/2024
In
the matter between:
CLARENS
RATEPAYERS ASSOCIATION
Applicant
[Registration
number:
NPO2022/693765/08
]
and
DIHLABENG
LOCAL MUNICIPALITY
First
Respondent
MUNICIPAL
MANAGER: DIHLABENG
LOCAL
MUNICIPALITY
Second
Respondent
THE
MINISTER OF WATER AND SANITATION
Third
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL:
Fourth
Respondent
FREE
STATE CO-OPERATIVE GOVERNANCE
&
TRADITIONAL AFFAIRS
Neutral
citation: XXX
Coram:
Cronjé, AJ
Heard:
02 September 2024
Delivered:
03 September 2024
Summary
:
Urgent application – condonation – periods severely
abridged – relief does not justify urgent hearing - application
to enroll the matter on an urgent basis dismissed - balancing
interests, rights and responsibilities of the respective parties
-
fair and in the interest of justice that each party pays its own
costs.
ORDER
1.
The application to enroll the matter on an
urgent basis is dismissed.
2.
Each party pays its own costs.
JUDGMENT
Cronje
AJ
Introduction:
[1]
The applicant brought an urgent
application, issued on 6 August 2024, and served on the first and
second respondents (the respondents)
on 7 August 2024. The
application was set down for hearing for 22 August 2024 and postponed
to 2 September 2024.
[2]
The respondents were informed that should
they intend to oppose the application, they should file their notice
of intention to oppose
on or before 14 August 2024 and an answering
affidavit, if any, on or before 21 August 2024. It is common cause
that the respondents
were only granted five days instead of ten days
to oppose and only five days to file an answering affidavit. The
Uniform Rules
provide that a respondent, unless the applicant makes
out a case for urgency, is entitled to file a notice of intention to
oppose
within ten days of service of the application and, after that,
file an answering affidavit within 15 days.
[3]
In para 21 of the founding affidavit it is
stated that the applicant’s purpose with the application is to
vindicate its members
and the residents’ constitutional right
to have access to sufficient water by compelling the respondents to
inform it, and
to keep it informed, of all steps the respondents
intend to take to ensure that the water supply will not be
interrupted from 1
October 2024.
[4]
In paras 97-99 of the founding affidavit,
the applicant, in addressing urgency, states that the matter needs
the urgent attention
of the court, or else any redress might be of no
value at all. It states two months are left before the shutdown of
the water supply
occurs.
[5]
Paragraph 98 states that the respondents
cannot be prejudiced by the shorter timeframes as it was their duty
to comply with the
prayers that the applicant seeks. It states that
it did not create urgency, and its right to information is
continuously infringed.
[6]
The respondents state that they are
extremely prejudiced by the abridged timeframes, given the many facts
that must be traversed.
The background facts have to be investigated
and consultations need to be held with the relevant interested
parties. Should the
court be inclined to rule that the application is
urgent, the respondents reserve their right to request an opportunity
to supplement
their answering affidavit.
[7]
They state that the applicant failed to set
out the circumstances that justified a deviation from the normal
periods. They argue
that there is no intervening
causa
.
The applicant should have approached the court when it believed its
rights were infringed. They argue that the applicant threatened
to
approach the court on numerous occasions for redress on an urgent
basis, yet never did so, and argue furthermore that the applicant
already knew in August 2023 that the tunnel would be shut down for
maintenance.
[8]
On 19 February 2024, the applicant’s
attorney addressed a letter to the municipal manager placing it on
record that it is
the final request for a meeting to discuss possible
solutions to the pending water crisis.
[9]
The respondents give an overview of
occurrences that took place from that date until the application was
issued.
[10]
During the argument, Mr Blom stated that
prayer 4 hinges on prayer 3, which has now been complied with. Prayer
3 reads:
‘
That
the first and second respondents be ordered to file reports, by
affidavit, with the registrar of this court, within 10 (TEN)
days of
this order, containing:
3.1
The relevant steps they are taking and/or intend to take to ensure
that the supply of water to the town
of Clarens will not be
interrupted and/or terminated and/or unreasonably reduced from 1
October 2024 by the closure of the Lesotho
Highlands tunnel;
3.2
The intended steps taken by them to drill and equip boreholes to
augment the water supply from the Little
Caledon river and/or
Townlands dam;
3.3
The intended steps taken by them to extract water from the Townlands
dam;
3.4
The First Respondent’s intended work program, with timelines,
and approved budget or allocated
budget pertaining to the steps
referred to in prayers 2 and 3.1 through 3.3;’
[11]
Prayer 4 reads:
‘
That
the Applicant be authorized to employ an expert to consider the
reports filed in terms of prayer 3, to monitor the works that
may be
contemplated in terms thereof 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
;’
[12]
It is apparent from prayer 4 that only
monitoring the works that ‘
may be
contemplated
’ is of concern at
this point. Bearing in mind that no reliance is placed on prayers 2
and 3 for urgency, I believe that the
relief in prayer 4 does not
justify entertaining the application on an urgent basis.
COSTS:
[13]
The record presently comprises 401 pages.
The applicant seeks an indulgence to deliver further affidavits. The
respondents submit
that they are prejudiced in that they could not
deal with all the averments within the short time allowed.
[14]
It can only be hoped that the parties will
find a mechanism to close the impasse between the interests they
serve, which appear
to be the same. Balancing the interests, rights
and responsibilities of the respective parties, I deem it fair and in
the interest
of justice that each party pays its own costs.
ORDER:
[15]
Wherefore I make the following order:
1.
The application to enroll the matter on an
urgent basis is dismissed.
2.
Each party pays its own costs
CRONJÉ,
AJ
Appearances:
For
the Applicant:
Mr.
J Bloem
Instructed
by:
UFS
Law Clinic
Bloemfontein
Instructed
by:
For
the Respondent:
Adv.
M C Louw
Instructed
by:
Peyper
Attorneys
Bloemfontein