IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 4146 /2023
In the matter between:
KUNOGQALA LOCAL RESIDENTS 1ST APPLICANT
NOWANATHI MXUXUMBA 2ND APPLICANT
NOJIKILE MAKHAMBA 3RD APPLICANT
ASAKHE MAKHAMBA 4TH APPLICANT
NGCAWE NTSHEQANE 5TH APPLICANT
NOBUTNTI NTSHEQANE 6TH APPLICANT
LULAMILE TSHEQANE 7TH APPLICANT
and
AB XUMA LOCAL MUNICIPALITY 1ST RESPONDENT
THE MUNICIPAL MANAGER, AB XUMA
LOCAL MUNICIPALITY 2ND RESPONDENT
JUDGMENT
ZONO AJ:
Introduction
[1] The applicants seek to compel the respondents to construct Nogqala access
road and complete the incomplete Nogqala crossing bridge. As a
consequential relief, the applicants seek an order in terms of which the
respondents are ordered to commence with steps initiating the process of
construction within thirty (30) days from the date of the order ; and that the
construction must be finalized w ithin 120 days of the order sought to be
granted. In the event of failure to comply with the order of the court, the
applicants seek an order directing the respondents to fully explain to this court
and give the reasons for such failure and further report to this court the steps
they have taken to comply with the time limits set out above. The applica nts
seek costs of the application.
[2] The applicants describe the access road and the b ridge to be constructed as
one linking Nogqala location, Upper Mnyol o Administrati ve Area, Engcobo,
Eastern Cape to the towns of Engcobo and Ugie. The access road and
crossing bridge are respectively known as Nogqala road and Nogqala bridge.
[3] The applicants together with the community or res idents of Nogqala Village ,
Upper Mnyolo Administrative Area, Engcobo use Nogqala bridge to connect
to Engcobo and Ugie Towns . It is contended that Nogqala residents cannot
cross the river without the bridge as the situation becomes worse when it is
raining and the river becomes fu ll and resulting to overflow . The dire
consequences of the incomplete bridge are set out as follows: Firstly, school
pupils stay at home when the weather is bad for at least a month, that
sometimes result in the school drop outs in the location ; Secondly , during the
times of death of one of the residents , male members of the community carry
the casket crossing the river on foot and consequently walk long distances
because of the incomplete bridge to bury one of their own. The hardship of
walking a long distance to reach to the gravel road for transport is a general
struggle of ev ery resident of Nogqala Village . Their busines ses are
tremendously struggling as a result of bad and poor condition of the road and
the bridge.
[4] The applicants contend that during the year 2021 the bridge was c onstructed
for the first time since 1994 at the instance of the respondents and left
unfinished. The bridge then became a source of danger to animals and
Nogqala Village residen ts. Pursuant to countless requests by the community
to the respond ents, community members instructed legal representatives to
demand completion of the unfinished bridge, but to no avail.
[5] It is therefore contended that at the time of institution of the instant
proceedings the respondent had already appointed the construction company
to complete the uncompleted crossing bridge. The construction company is on
the site to undertake the work relating to the completion of the bridge.
However, no work relatin g to construction of the access road has been and
will be undertaken.
[6] About the access road the applicants contend that Nogqala Village community
never had access road since the advent of democracy. Pleas for the
construction of access road were made to the successive respondents ’
councillors. Nogqala Village residents are adversely affected by respondent’s
failure to take necessary steps to construct the access road.
[7] Previous and present Municipal Councillors were approached and complaints
were made about the road but to no avail. Municipal Councillors wo uld have
opportunities of visiting Nogqala Village c ommunity to hold meetings with
them, a nd they would be advised of the probl em of incomplete bridge and
dilapidated state of the access road. The Councillors are using the same road
when attending meetings with Nogqala Community. Their present ward
Councillor is an aborigin of Nogq ala Village . They all knew the extent of the
problem besetting the Nogqala road and bridge in the Village . The last
meeting between the applicants’ comm unity and respondents’ offi cials was in
March 2023 where the subject was the incomplete bridge and lack of access
road. Respo ndents’ officials left community with prom ises to revert back with
the date and time when the grievances would be attended to. That did not
happen. The respon dents promised to investigate the matter and resolve
same. The respondents, contrary to their promise did not revert back to the
applicants’ community. Instead, when a letter of demand was sent to the
respondents by applicants’ legal representatives, they opposed that letter.
[8] In addition to the hardships set out above , faced by the Nogqala Village
Community, the applicants allege that members of that community cannot
connect or go to Engcobo and Ugie to do their banking services, shopping
and other nec essities of life. They are simple cut off from their towns where
they get their necessities of life.
[9] The applicants rely on the following legal and Constitutional provisions for the
relief th ey are seeking: section 152(1)(b ), 156, Part B of Schedule 5 of the
Constitution; Section 83(1), 84(1)(f) and 184(2) of Local Government:
Municipal Structures Act No 117 1998.
[10] The matter is opposed by the respondents , in so d oing the respondents have
filed their notice to oppose, a nswering affidavit and annexures.
[11] What immediately comes out of the papers is the common cause fact that the
contractor has been appointed and has commenced with the construction of
Nogqala bridge. The appointment was made on 17th July 2023 and the s ite
was handed over to the new contractor who commenced with the civil works
on or about 04th October 2023. The construction by the new contractor was
commenced with even before the institution of the inst ant proceedings .
Nothing more need be said about th e construction of Nogqala bridge except
the issue of costs. I will return to this later in this judgment.
[12] With regards to the construction of the access road the respondent s assail
applicants’ papers for being vague, embarrassing and confusing. They
criticised applicants’ papers for being unclear on whether access road implies
the construction of an entirely new road or whether the upgrade of an existing
road is intended. The substantial part of the answ ering affidavit is dedicated to
allegation relating to the construction of the bridge. On the subject of access
road applicants’ papers are assailed for they alleged ly fail to identify or
describe the location and/or the desc ription of the road to which they refer.
[13] About location of the Village the first applicant identifies the location in
paragraph 14 of the following affidavit a follows:
“The broader community affected by this application is situated
approximately 48 kilometres from Ngcobo at the foot of the mountain
that separates it from Gqaza and Zabaza Localities ” (all sic)
[14] Paragraph 8.1 of the founding affidavit alleges inter alia , that
“…. The applicants are members of a previously disadvantaged
community that had no crossing bridge linking the locality with the main
gravel road leading to Ngcobo and Ugie Town ”. (all sic).
The notice of motion refers to Nogqala access road. When referring to the
bridge the respective parties refer to Nogqala bridge. It goes without saying
that Nogqala bridge is on and part of Nogqala access road descr ibed as
linking Nogqala Village to the main road leading to Engcobo and Ugie.
[15] Lastly, it is the road that the respondents’ officials and Councillors have used
to visit them about the construct ion of the bridge and the road. This road is
well known to and by the respondents . The road therefore is sufficiently
described.
[16] The applicants allege in paragraph 26 of founding affidavit as follows :
“Due to the condition of Nogqala incomplete bridge and that there is no
access road the applicants experience great hardship in trying to
access Ngcobo and Ugie Towns where they do their shopping for daily
necessities, access banking services and to work. Their lives are
literally being cut off from their source of income and their amenities
which is unbearable.”
[17] Answering to paragraph 26 of the foundin g affidavit the respondents make the
following allegation:
“As stated above , the incomplete structure left behind by the previous
contractor will be demolished and the construction of an entirely new
bridge is in progress. It is not disputed that the access t o and from the
said village is currently substandard but steps have been taken by the
first respondent and the completion of the bridge and 500 meters of a
new road either side of the bridge will provide adequate access to and
from the village. In these circumstances no mandatory or supervisory
relief against the res pondents are warranted ” (all sic) .
These allegations buttress a point that both the road and the bridge are well
known by the respondents. The substandard nature of their condition is well
known by the respondents. The concerned road is well known to the
respondent s and it is sufficiently described in the parties papers . Accordingly,
I find the point to be unmeritor ious.
Discussion
[18] I have alluded to the fact that it is the common cause that the construction has
been commenced with on or about 04th October 2023 as the civil works have
been restarted. With regards to the construction of the bridge there is
accor dingly no live issue for adjudication. There is no justification to hear this
issue as it has become academic. Court s of law exist for the settlement of
concrete controversies and actual infringements of rights, not to abstract
questions or to advise upon differing contentions.1
[19] In the context of mootness of the issue on appeal Mogoeng CJ in the case of
the President of Republic of South Africa2 had the following to say:
“35. This Court is thus being asked to advise or guide the President.
That is the only real purpose to be served by entertaining this
appeal. And courts should be loath to fulfil an advisory role,
particularly for the benefit of those who have dependable advice
abundantly available to them and in circumstances w here no
actual purpose w ould be served by that decision now.
Entertaining this application requires that we expend judicial
resources that are already in short supply especially at this level.
Frugality is therefore called for here.”
[20] There’s no virtue of deciding an issue that has been resolved even before the
institution of this matter. The case is moot and therefore not justiciable if it no
longer presents an existing or live c ontroversy which should exists i f the court
is to avoid giving advis ory opinion on abstract propositions of law.3 I shall
accordingly make no order regarding the construction of the Nogqala bridge.
[21] On the issue of the construction of the access road the applicants rely on
section 156 which confer s on the Municipalities powers, functions and a right
to “administer the local government matters listed in Part B of Schedule 5 and
any other matter assigned to it by National or Provincial Legislation .” Part B of
Schedule 5 provides for Municipal Roads as a local government matter
administration of which is within the powers and functions conferred upon the
Municipalities.
1 Coin Security Group (Pty) Ltd v SA National Union for Security Officers 2001 (2) SA 872 (SCA)
at 875A -D; Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) at 246I -247A .
2 President of Republic of South Africa v Democratic Alliance 2020 (1) SA 428 (CC) Para 35 .
3 National Coalition for Gay and lesbian Equality v Minister of Home Affairs and others 2000(2)
SA 1; Minister of Tourism and others v Afri forum NPC and another 2023 (6) BCLR 752 (CC)
Para 23 .
[22] From the onset it is significant that the respondents accept that the
construction of the access roads is within their power a nd competency. More
so that the bridge that is part of that road w as built at the respondent s’
instance. It is without a doubt that the respondents are not denying that they
are responsible for the construction of road in question. To put this to bed, I
refer to paragraph 7 and 8 of respondents answering affidavit which reads as
follows:
“7. Whilst the need to upgrade, improve and mantain the first
respondents existing road and storm water network in many
rural areas is acknowledge d, budgetary constraints dictate that a
phased approach over several years must be followed….
8. In the context of these circumstances the first respondent
developed and adopted a three -year capital plan which inter
alia, focuses extensively on a road infrastructure upgrade
programme. This capital plan had been the subject of extensive
public participation and was subsequently incorporating into the
first respondents integrated development plan as contemplated
in section 25 of the Municipal Systems Act .”
This put paid to first respondents’ responsibility to construct roads.
[23] Section 84 of Municipal Systems Act4 provides:
“(2) 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.”
It suffices to mention that the f irst respondent is the local Municipality referred
to in this section.
4 Local Government: Municipal Structures Act No 117 of 1998 .
[24] Section 83(1) referred to in section 84(2) of the same Municipal Structures Act
provides:
“(1) A municipality has the functions and powers assigned to it in terms
of sections 156 and 229 of the Constitution ”.
It worths repetition that section 156(1) of the Constitution confer s power upon
the Municipality, i n this case Local Municipality5 to adminis ter local
government matters listed in Par t B of Schedule 5 of the Constitution . Part B
of Schedule 5 of the Constitution provides for inter alia, Municipality roads.
During the hearing of this matter the submission was made on behalf of the
applicant that Municipal roads are all roads or road network within the
geographical or territorial area of the Municipality . No contrary submission was
made on behalf of the respondents . In fact, as already observed above, the
respondents have patently accepted the responsibility to construct Nogqala
roads .
[25] In conferring those powers and imposing these duties the Constitution and the
Municipal Structures Act were contemporaneously conferring rights to the
applicants and their Village community. Service delivery rights entail basic
Municipal services to all pe rsons living in the jurisdiction of that Municipality.6
Where a statute confers a right, that provision is imperative and its non -
observance is fatal.7
[26] Where there is a right, there is a remedy , “Ubi jus, ibi remedium” . Where the
right holder is i njured in the enjoyment of his r ight he must have means to
vindicate and mantain his right8. The Constitutional Court quoted with
approval the sentiments shared by Centlivires CJ9 as follows:
5 Section 84(2) of the Local Government: M unicipal Structures Act 117 of 1998 .
6 Joseph and Others v City of Johannesburg 2010 (4) SA 55 (cc) Para 47 .
7 G.M Cockram: Interpretation of Statute Page 161.
8 Masemola v Special Pensions Appeal Board and another 2020(2) SA 1 (CC) Para 51 .
9 Minister of Interior v Harris 1952 (4) SA 769 (A) 780H -781B .
“There can to my mind be no doubt that the authors of the Constitution
intended that those rights [that is, the rights entrenched in the
Constitution] should be enforceable by the courts of law. They could
never have intended to confer a right without a remedy. The remedy is,
indeed, part and parcel of the right. Ubi jus ibi remedium” .
Mandamus and /or mandatory interdict provides rem edy to maintain , protect
and restore the legal rights.
[27] Section 10 (1) of the Interpretation Act No 33 of 1957 provides:
“(1) W hen a law confers a power or imposes a duty then, unless the
contrary intention appears, the power may be exercised and the duty
be performed from time to time as occasion requires. ”
It is imperative that a duty imposed by the law or legislation must be
performed from time to time as the occasion requires.
[28] Public powers and functions are given for a purpose: they are intended to be
exercised in furtherance of the public interest. As a result, when officials fail to
exercise their powers or perform th eir function s, affected parties may require
defaulting officials to perform their duties.10Where a power deposited with a
public officer for the purpose of being used for the benefit of persons who are
specifically pointed out and with regard to whom a definition is supplied by the
legislature of the conditions upon which they are entitled to call for its
exercise that power ought to be exercised and the court will require it to be
exercised11.
[29] Even prior to the advent of the Constitutional dis pensation, powers conferred
on administrators were inevitably accompanied by an implied duty to exercise
10 Vumazonke and Others v MEC for Social Developmnet, EC 2005 (6) SA 229 (SE) Para 35 .
11 Julius v Lord Bish op of Oxford [1880] 5 AC 214 at 225.
the power12.The enactment of Promotion of Administrative Justice Act has
perpetuated the common law position by inter alia , rendering a failure to a
decision a ground of review13. Here we are concerned with a failure to act in
terms of the law.
[30] In Mc Gregor NO14 Greenberg J held that:
“I think therefore that it follows from these decisions that w here a
statute requires an official to give a decisio n within a reasonable time
and he fail to do so, the court will order him to carry out his duties.”
This applies with equal force where the state fails to perform duties imposed
on it or fails to exercise power s conferred upon it.
[31] The doctrin e of legality ensures in the sphere of public law that:
(a) The exercise of public power by the administration confo rms to
constitutional principle;
(b) public authorities comply with specific duties and obligations in
the exercise of their discretionary powers , and
(c) the state and its off icials obey the law to ensure good and fair
administration15.
[32] In addition to section 156 of the Constitution referred to above, it is apposite to
refer also to section 195 of the constitution which provides as follows:
“195. Basic values and principles governing public administration .
12 Chatabai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 at
31, Baxter L Administrative Law, Juta (1984) at 414 .
13 Section 6(2)(g) of PAJA .
14 Furniture Workers Union v Mc Gregor NO 1930 T PD 682 .
15 Lester v Ndlambe Municipality 2014 (1) ALL SA 102 (SCA); 2015 (6) SA 283 (SCA) Para 25 .
(I) Public administration must be governed by the democratic values
and principles enshrined in the Constitution, including the following
principles -
(a) A high standard of professional ethics must be promoted and
maintained.
(b) ………………….
(c ) Public administration must be development -oriented.
(d) ……………….
(e) People’s needs must be responded to, and the public must be
encouraged to participate in policy-making……”
[33] Whilst the respondent s accepted that access to and from app licant’s village is
substandard, n othing is said to have been done to take steps to construct the
road in question. This happens at the happenstance of the Municipal
Councillors and officials visiting and seeing the dilapidated state of the road of
Nogqala residents from their village to Ngcobo, Ugie and back. I accordingly
come to a conclusion that the con duct of the responde nts is not development -
oriented16, and therefore unconstitutional.
[34] Notwithstanding countless meeting s with respondents’ Councillors and
officials about a need to construct the road in question, their need has not
been responded to and that failure constitutes an infraction to Constitution
provisions outlined above17.
[35] Given the amount of delay that has been occassioned by respondents’
inaction to take steps necessary to construct the road in question, I find
respondent’s fa ilure to promptly take the necessary step s to construct the
road in question to be unconstitu tional and unlawful. Section 23 7 of the
Constitution, provides for diligent performance of obligations, and it provides
thus:
16 Section 195(1) (c) of the Constitution .
17 Section 195(1) (e ) of the Constitution .
“Al1 constitutional obligations must be performed diligently and without
delay.” Performance of Constitutional obligation i n terms of section 156 and
195 o f the Constitution have been delayed without any explanation.
Accordingly, the delay is unjustifiable.
[36] The law cannot and does not countenance an ongoing illegality. Courts are
constrained by the doctrine of legality to enforce the law. The courts have a
duty to uphold the doctrine of legality, by refusing to countenance an ongoing
statutory contravention18. Courts are independent and subject only to the
Constitution and the law which they must apply impartially and without fear,
favour or prejudice19. The courts are enjoined to apply and enforce the
constitution and the law. It is a basic principle of o ur law that a court can neve r
lend its aid to the enforcement of an illegal act20. Failure to take steps
necessary to construct Nogqala road is an illegal act. If this court cannot
grant such a relief, it will be effectively lending its aid to the enforcement of an
illegal act. Such conduct would in effect be turn ing a blind eye to the
Constitutional p rovision relating to accountability21.
[37] An order of dismissal of this application would be an antithesis to these
provisions. Accordingly, an order compelli ng the respondents forthwith to take
steps necessary to construct the road in question; and an order directing the
respondent to periodically report to the applicants through their legal
representatives about the steps they have taken or steps to be taken to
construct the road is justified in the circumstances. Respondents’ lament
about budgetary constraints is well taken care of by this kind of order. In fact,
the respondents should have factored into t heir budgetary priorities the
construction of this road as a lot of consultation has been going on between
the parties for a long time . No explanation for respondents’ failure to have
included the construction of this road in its previous annual budget s.
18 Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) Para 26, 27 and 28 .
19 Section 165(2) of the Constitution .
20 Cools Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC) Para 77 and 99 .
21 Section 195(1)(f) provides that Public Administration must be accountable .
[38] It is apposite quote the words of Leach JA in Kalil NO22
“30 …… T he function of public servants and government officials at
national, provincial and municipal levels is to serve the public,
and the community at large has the right to insist upon them
acting lawfully and within the bounds of their authority. Thus
where, as here, the legality of their actions is at stake, it is
crucial for public servants to neither be coy nor to play fast and
loose with the truth. On the contrary, it is their duty to take the
court into their confidence and fully explain the facts so that an
informed decision can be taken in the interests of the public and
good governance. ”
The respondents failed to fully explain facts of this case and to take this court
into thei r confi dence. No explanation also why construction of the road has
not been commenced with up to this date.
[39] Section 165(4) of the Constitution provides:
“Organs of state, through legislative and other measures, must assist
and protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.”
The respondents failed dismally to assist this court to optimally and effectively
come to a right decision.
[40] It is apparent from the applicants ’ founding papers that there are other rights
that are affected by the respondents’ failure to construct the road in question.
These rights are predicated on the fact that school pupils or learners find it
difficult to attend school s, especially when it is raining. That implicates section
28(1) of the Constitution which reads as follows:
22 Kalil NO and others v Mangaung Metropolitan Municipality and Others 2014 (3) ALL SA 291
(SCA); 2014 (5) SA 123 (SCA) Para 30 .
“Everyone has a right -
(a) to a basic education, including adult basic education….”
[41] It is further plain that Nogqala Village resident do not enjoy the ir right to
dignity even after they have met their demise.23 The dilapidated state of the
road stripped Nogqala residents of their dignity. They carry coffins, with long
distance s, crossing rivers while at the same time they are mourning. While
their departed one is not handled in dignity because of the state of the road,
the mourners are not mourning in dignity for the same reason. This shows the
deep pain and suffering people of Nogqala Village are enduring at the hands
of the respondents.
[42] Multiple rights protected in the bill of rights can be violated by a single
action24. And those rights are not always squarely or perfectly correlative or
corresponding. What informs the need for their vindication is the fact of their
violation.25One can, in passing , imagine a number of rights protected in the
Bill of Ri ghts that are violated by the aforesaid state of the road, for example ,
right to health care services26. A sick ly person may altimately die for lack of
means to transport him or her . Accordingly, lack of proper road threatens the
life of Nogqala Village community27.
[43] The kinds of rights affected by the dilapidated state of Nogqala road are the
ones which, if not protect by the order this court is going to make, may cause
irreparable harm to ensue28.
[44] I need to deal with this simple issue: That the applicants are acting in their
own interest as well as members of Nogqala Village Community. Accordingly,
23 Section 10 of the Constitution .
24 Such to include failure to act.
25 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty)Ltd and others 2023 (5)
BCLR 527 (CC); 2023 (4) SA 325 (CC) Para 194 .
26 Section 27 of the Constitution .
27 Section 11 of the Constitution provides that everyone has a right to life.
28 National Treasury v Opposition to Urban Rolling Alliance 2012 (6) SA 223 (CC) Para 50 .
in that case they are acting in their own interest and in the public interest29.
Applicants have locus standi to approach this court.
[45] In the spirit of accountability, I feel constrained to explain the delay to deliver
this judgment. This matter was heard on 08th August 2024. On 16th August
2024, I was finalizing my proof reading of the judgment. On 16th August 2024 I
was furnished with respondent’s supplementary head s of argument. I took
time to consider respondent s’ heads of argument.
[46] When I was about to finish considering respondent’s supplementary heads,
applicant’s heads of argument were given to me on or about 29th August
2024 . I communicated through the office of registrar , especially to applicant’s
legal representatives, outlining my concern about and the inconvenience
brought about by the late filing of supplementary affidavit.
[47] In the interest of justice and in the interest of equity I decided to revisit my
judgment with a view to take into account applicant’s supplementary heads . I
had a lot of other reserved judgment s I had to deal with at the time.
[48] In essence, late filing of supplementary heads of argument contributed to the
delay.
Order
[49] In the result I make the following order:
49.1 The respondents are directed to forthwith take all steps necessary
to commence with and finis h Nogqala Road that connects
applicants ’ village to the road to Ngcobo and Ugie Towns.
49.2 The respondents are directed to report to the applicant s through
their legal representatives within one hundred and eighty (180)
29 Section 38 Constitution .
days hereof , of the steps already taken, and steps to be taken
within ninety (90) days after the lapse of one hundred and eighty
(180) days mentioned herein above .
49.3 The first respondent is hereby ordered to pay costs of the
application.
______________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicant : Mr Nkele
Instructed by : T.A NKELE & SONS INC
56 Wesley Street
MTHATHA
Ref:TAN*I01838/nm/H/C
TEL: 047 531 0721/2
Email: t.n.nkele@mweb.co.za
For the RESPONDENT : Adv Solik
Instructed by : NOLTE SMITH INC.
106 Park Drive, Office 2B, 2ND Floor
St Georges Park
Gqeberha
Ref: F-SMIT/DRA3/0004
C/O: MSOTYANA INC
45 Leeds Street
MTHATHA
TEL: 072 232 0073
Matter heard on : 08 August 2024
Delivered on : 06 February 2025