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VICTOR KHANYE LOCAL MUNICIPALITY Tenth Respondent
GOVAN MBEKI LOCAL MUNICIPALITY Eleventh Respondent
JUDGMENT
MODISA AJ
[1] This is an opposed interlocutory application in terms of Rule 30A(2) of the
Uniform Rules of Court.
[2] The main application is a Rule 53 review application to bring under review the
decision(s) by Rand Water to restrict and reduce the water flow and supply to
various towns situated within the areas of the Respondent municipalities.
[3] AfriForum seeks an order that Rand Water is ordered to comply with the Rule
53(1)(b) notice and to provide specific documents, and to further provide reasons
impugned decisions . In the alternative , AfriForum seeks an order that Rand
Water’s notice of intention to oppose the review application be struck -out and
that the order is granted as sought in Part B of the main application.
[4] On 11 March 2024, AfriForum issued a review application in terms of Rule 53 of
the Uniform Rules of Court. Rand Water delivered a notice of intention to oppose
the review application on 14 March 2024.
[5] Part A of the Review application was heard on 26 March 2024, in the urgent
Court seeking interim rel ief. The application for interim relief was dismissed by
Potteril J.
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[6] Following the institution of the review application, Rand Water delivered an initial
Rule 53 Record on 26 April 2024. A paginated version of that record was
subsequently delivered on 07 May 2024.
[7] On 21 June 2024, AfriForum served a notice in terms of Rule 53 (1)(b) calling
upon Rand Water to provide the documents detailed in the Rule 53(1)(b) notice
and reasons. Rand Water thereafter delivered the supplementary Rule 53 record
on 15 July 2024.
[8] AfriForum served a notice in terms of Rule 30 A on 12 August 2024, alleging that
Rand Water has not complied with Rule 53 (1)(b).
[9] On 07 October 2024, Rand Water delivered a response in which it contended
that no reviewable decision existed and that the Rule 30A process constituted
ab abuse.
[10] AfriForum thereafter issued an interlocutory application in terms of Rule 30A(2)
on 03 December 2024. Rand Water delivered its answering affidavit in the Rule
30A(2) application on 03 February 2025, and AfriForum delivered its replying
affidavit on 17 March 2025.
[11] Rand Water admits restriction were imposed on Merafong City and Ngwathe
Municipalities but asserts that it has since lifted them and restarted lawful debt
recovery. It denies restrictions of other municipalities and argues the review is
moot, as the decisions have been reversed.
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[12] AfriForum contends Rand Water failed to comply with Rule 53(1)(b) by not
providing a complete record or reasons for the decisions, hindering a fair review
and infringing constitutional rights to lawful and fair administrative action and
access to Court. AfriForum disputes Rand Water’s versions and alleges on going
prejudice due to the absence of formal withdrawal of decisions. It seeks an order
compelling full compliance of striking out Rand Water’s opposition.
[13] Rand Water contends that the review is moot, with no live dispute. Having
reversed decisions and restored the water supply. It claims to have furnished all
documents in its possession and denies holding the requested records. Rand
Water seeks dismissal with costs.
[14] The following issues have to be determined by this Court:
15.1 Whether Rand Water had complied with Rule 53(1)(b);
15.2 Whether the application is moot;
15.3 Whether the Court should compel compliance or strike our Rand Water’s
opposition to Part B of the application and
15.4 Which party should pay the costs of the application.
[15] At the time when Potteril J dismissed the Application in terms of Part A, AfriForum
was also granted leave to supplement its papers. The order of Potteril J which
was issued on 26 March 2024 reads as follows:
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“ 1. The application is dismissed.
2. The Applicant is granted permission to, on the same papers
supplemented if it so wishes, apply to this Court again if any of the
transgressions as set out in the founding affidavit and in the notice of
motion is executed by Rand Water.
3. Each party is to pay their own costs.”
[16] Rand Water argues that this is fatal to the Applicant’s case and they should have
supplemented. If there are no further transgressions executed by Rand Water
then the question of mootness comes into play. If there were further
transgressions executed by Rand Water then those facts should have been
canvassed in the supplementary affidavit as suggested by Potteril J in order
number 2 of the Court order. The decision to restrict water supply was revoked.
I therefore agree with Rand Water’s argument.
[17] This interlocutory application requires the Court to consider whether the rule 53
record delivered by Rand Water in a review application that w as moot from
inception is sufficient. Rand Water contends that the record is sufficient and that
the interlocutory application stands to be dismissed with costs for two reasons,
being:
17.1 The review is moot as the impugned decision was reversed by Rand Water;
and
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17.2 The rule 53 record delivered is sufficient.
[18] The Applicant, AfriForum, launched an unmeritorious application, in two parts.
Part A being an application for an interim interdict pending the finalization of a
review application in Part B.
[19] The Applicant alleged that Rand Water failed to comply with the requirements of
procedural fairness in terms of the provisions of PAJA and in terms of
sections 4(3) and 4(5) of the Water Services Act before implementing water
reduction measures in the respondent municipalities.1
[20] Rand Water in its answering affidavit confirmed that all water restrictions it had
placed, which were only in respect of two municipalities the Fifth and Ninth
Respondents have been lifted. The other five municipalities cited were never
placed on water restrictions and the application is not based on facts but on false
third party statements and rumours.2 Rand Water stated that, "owing to a lack of
full of compliance, these debt recovery processes in relation to the two
municipalities have been aborted, so that the processes may be reinstituted, as
it has been to the applicant's knowledge."3
1 001-54, para 10.1 of the Founding Affidavit in the urgent application.
2 See paras 6 and 9 of the answering affidavit in the rule 30 A application.
3 Paras 4.1, 11 and 12 of the answering affidavit in the rule 30 A application.
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[21] Rand Water began debt recovery processes afresh and no decision exists to limit
water supply to the respondent municipalities.4
[22] When Rand Water reversed the decision t o implement water restrictions and
water flow was restored, Rand Water removed the possibility of any live dispute
between the parties. 5 The Applicant in the replying affidavit accepts that the
matter is only of academic interest.6 This issue is fatal to the Applicant’s case.
[23] In fact, the Applicant fully participated in the recommenced debt recovery
process and as such it cannot now claim ignorance or that there is still some
remaining live issues. There is none. It also did not object to the
recommencement of the process.
[24] Stephanus Paulus Kruger Blignault deposed to a confirmatory affidavit, which
affidavit is attached to the replying affidavit 7 in his affidavit Mr Blignault states
that the water pressure in respect of Lesedi, Local Municipality, Emfuleni, Rand
West City Municipality, Merafong City Local Municipality has been restored.8
[25] In light of the aforegoing the urgent application was dismissed on 26 March 2024
for a failure to meet the requirements for an interim interdict. Since the impugned
decision has been reversed there is no useful purpose for the Court to determine
4 Paras 4.4 and 13 of the answering affidavit in the rule 30A Application.
5 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 7.
6 005-17 para 22 of the Replying Affidavit.
7 005-22 Confirmatory Affidavit of Stephanus Paulus Kruger Blignault.
8 005 – 55 para 3.7.1 -3.7.4 of the affidavit deposed to by Stephanus Paulus Kruger Blignault.
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the review application. 9 Part B is bound to face a similar fate as the urgent
application as no controversy exists on the papers and t he issues presented by
the Applicant are not justiciable.10
[26] In this interlocutory application the Applicant contends that Rand Water has failed
to provide it with a full and complete record 11 to allow it to prosecute the review
application. Accordingly, the Applicant approaches the Court in terms of
rule 53(1)(b) for an order that Rand Water supplement the record it has delivered
notwithstanding that there is no decision for the Court to set aside.
[27] Rand Water has furnished the Applicant with documents in relation to all the
municipal respondents bar the Seventh Respondent.12 On 15 July 2024 Rand
Water delivered a supplementary record. The documents delivered were in
respect of the municipalities which were affected by Rand Water 's decision to
Water to restrict or reduce the supply of water to the respondent municipalities
namely the Fifth and Ninth Respondents.13
[28] On 7 October 2024 Rand Water informed the Applicant that it did not ha ve
possession of the requested documents and accordingly it could not furnish the
Applicant with a supplementary record. 14 The Applicant does not accept that
Rand Water does not have these documents and relies on the fact that its
9 President, Ordinary Court Martial v Freedom of Expression Institute 1999 (4) SA 682 (CC) para 8.
10 Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29 (CC) para 9.
11 Para 4.2 of the Founding Affidavit in the rule 30 A application.
12 Para 5.10 of the Founding Affidavit in the rule 30 A application.
13 Paras 5.19 – 5.21 of the Founding Affidavit in the rule 30 A application.
14 Paras 6.8 – 6.12 of the Founding Affidavit in the rule 30 A application.
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rule 53(1)(b) notice is 'specific' and also attacks Rand Water's answer in respect
of the request for a supplementary record in a form over substance fashion.15
[29] The issues that this interlocutory application raises are:
29.1 Whether it is prudent for the Court to reconsider a decision which has been
reversed and no rights were infringed; and
29.2 Whether it is in the public interest for the Court to entertain this moot
application.
[30] In my view, the First Respondent demonstrated successfully so that:
30.1 There is no point in dealing with this matter as there is no justiciable issue
between the parties;
30.2 It is not prudent for the Court to review the reversed decision;
30.3 Public interest dictates that the matter be dismissed as it a waste of judicial
resources; and
30.4 That Rand Water has furnished the Applicant with the record in its
possession.
15 Paras 6.13 – 6.14 and para 6.23 the Founding Affidavit in the rule 30 A application.
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[31] The question to be answered in this application is whether the interlocutory
application can be granted in spite of mootness. Mootness does not lessen the
burden for the Applicant, it compounds it.16
[32] The odds are all the more stacked against entertaining this interlocutory
application because the facts that gave rise to the main application have been
withdrawn by Rand Water. The reasons and the record whose disclosure were
supposed to facilitate are no longer necessary.
[33] The fact that a matter may be moot in relation to the parties before the Court is
not an absolute bar to the Court considering it. The Court retains a discretion,
and in exercising that discretion it must act acco rding to what is required by the
interest of justice. What is required for the exercise of this discretion is that any
order made by the Court has practical effect either on the parties or others. Other
relevant factors that could be considered include: th e nature and extent of the
practical effect the order may have; the importance of the issue; and the fullness
of the argument advanced. Another compelling factor could be the public
importance of an otherwise moot issue.17
[34] During argument, the Applicant has conceded that the Court has a discretion to
entertain a matter which is moot. This Court, in exercising its discretion, is
reluctant to entertain a matter which is moot.
16 President of the RSA v DA 2020 (1) SA 428 (CC) para 27.
17 Director-General Department of Home Affairs and Another v Mukhamadiwa 2014 (3) BCLR (CC) para 40.
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[35] Courts have been cautioned by the Constitutional Court to avoid giving advisory
opinions on abstract propositions of law.18 Matters that have become moot may
be heard by our Courts if any order that the Court may make will have some
practical effect either on the parties or on others. 19 The following factors ha ve
been held to be potentially relevant:
35.1 The nature and extent of the practical effect that any possible order might
have;20
35.2 The importance of the issue;21
35.3 The complexity of the issue;22
35.4 The fullness or otherwise of the argument advanced;23 and
35.5 Resolving disputes between different Courts.24
[36] Any possible order that a Court may make in the circumstances will have no
practical effect on any of the litigants or third parties. The impugned decision has
18 MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) para 32.
19 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 11.
20 Ibid.
21 Ibid.
22 Ibid.
23 Ibid.
24 AAA Investments Pty (Ltd) v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) para 27.
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been reversed by Rand Water and the respondent municipalities are all receiving
unrestricted water supply.
[37] Rand Water has repeatedly stated on oath that all water restrictions it had placed
on the Fifth and Ninth Respondents have been lifted.25 There is no practical effect
in determining the review application.26 The pending review application is not
even of academic interest as the law regulating compliance with legislation and
processes is settled and accepted by Courts.27
[38] The issues sought to be ventilated in the review application are important issues,
so important that Rand water took it upon itself to reverse the decision before the
issues were ventilated in Court. The importance of the issue is that the rule of
law and principles of natural justice require parties to follow due process before
decisions are made that have an adverse effect on others. The principles
pertaining to procedural fairness are well established and important in our law
and do not need another Court to develop the principles.
[39] The issues the Applicant seeks to have adjudica ted upon by the Court are not
complex issues at all. The issues are whether Rand Water complied with the
relevant legislative prescripts prior to commencing debt recovery processes.
Rand Water accepts that it has failed to comply with the legislative prescripts and
accordingly reversed its decision to restrict water supply. Rand Water has since
25 004-12 para 19 of the Answering Affidavit.
26 Netherburn Engineering v Mudau 2010 (2) SA 269 para 10.
27 Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA) para 13.
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restored the water supply and no harm was visited upon the residents of the
respondent municipalities.
[40] Notwithstanding the Applicant's own affidavits confirming that there are no water
restrictions the Applicant persists with the review application. The Applicant's
conduct amounts to an abuse of Court process and a waste of judicial resources
depriving litigants with real issues of their opportunity to have their iss ues to be
ventilated.
[41] This application stands to be dismissed as the issues sought to be ventilated in
this application are moot and accordingly not justiciable.
[42] This interlocutory application is nonsensical it has no practical effect. It is all
designed in an attempt to review and set aside a decision that has been reversed
by Rand Water.
[43] Notwithstanding the fact that Rand Water had reversed the decision and had
restored water to the respondent municipalities and the Applicant in reply having
confirmed same the urgent Court was detained by this matter and full argument
was heard. Accordingly, this matter, which is moot should not detain another
Court as there is no need for this Court to determine the issues raised in the
review application.
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[44] The law reg ulating the issues in this application is clear and there are no
conflicting judgments that need to be settled. The matter is moot and the dictates
of public interest warrant against the matter being heard.
[45] Before a Court orders the production of a rule 53 record the Court must first
determine its competence to hear the review application. 28 This Court does not
have jurisdiction to entertain the review and accordingly is not competent to hear
this interlocutory application as there is no decision to review and set aside.
[46] As there is no dispute inter parties the Court, in law and in fact has no jurisdiction
to entertain the review application as Rand Water has self -corrected and
complied with the law. This application should be dismissed with costs.
[47] The objective of rule 53 is obvious. The rule serves as a tool to ensure that any
challenge to the proceedings sought to be reviewed is well considered and
properly pleaded.29
[48] Undeniably, a rule 53 record is an invaluable tool in the review process. It may
help: shed light on what happened and why; give a lie to unfounded ex post facto
(after the fact) justification of the decision under review; in the substantiation of
28 Competition Commission of South Africa v Standard Bank of South Africa; Competition Commission of
South Africa v Standard Bank of South Africa; Competition Commission of South Africa v Waco Africa (Pty)
Ltd and Others (CCT 158/18; CCT179/18; CT 218/18) [2020] ZACC 2; 2020 (4) BCLR 429 (CC) (20 FEBRUARY
2020 at para 121.
29 General Council of the Bar of South Africa v Jiba and Others 2017 (2) SA 122 (GP) at paras 111 -112.
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as yet not fully substantiated grounds of review; in giving support to the decision-
maker's stance; and in the performance of the reviewing Court's function.30
[49] Rule 53 is designed to enable an aggrieved party to get quick relief where his
rights or interests are prejudiced by wrongful administrative action and the
furnishing of the record of the proceedings is an important element in review
proceedings.31 The Applicant should not be deprived of the benefit of this
procedural right unless there is clear justification therefor. 32 As the decision has
been reversed the Court cannot perform its constitut ionally entrenched review
function as there is no justiciable dispute before the Court to be decided upon.33
This application is an abuse of rule 53.
[50] The Applicant has been furnished with a full record. The Applicant however, is
dissatisfied with the record and contends that the Court should order Rand Water
should deliver documents it does not have in a review application that has since
become moot.
[51] This application is a clear abuse of the rules of Court and Court processes. The
object of the rules is to secure the inexpensive and expeditious completion of
litigation before the Courts: they are not an end in themselves. 34 Consequently,
30 Turnbull – Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) para 37.
31 Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 660D -I; Helem Suzman Foundation v Judicial
Service Commission 2018 (4) SA 1 (CC) at 9 F-G.
32 Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and Others 1980 (3) SA 1093 at 1095
F-H.
33 Democatic Alliance and Others v Acting National Director of Public Prosecutions 2012 (3) SA 486 at para
37.
34 Centre for Child Law v Hoerskool, Fochville 2016(2) SA 121 (SCA) at 131G.
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the rules should be interpreted and applied in a spirit which will facilitate the work
of the Courts and enable litigants to resolve their disputes in as speedy and
inexpensive a manner as possible.35
[52] Thus, it has been held that the rules exist for the Court, not the Court for the
rules.36 Formalism in the application of the rules is not e ncouraged by the
Courts.37
[53] The Applicant has been furnished with all relevant matter and this interlocutory
application is frivolous and baseless especially when consideration is had to the
fact that the record is not going to assist the Court as the decision that is sought
to be challenged has been reversed.
[54] In the context of this case it would be unreasonable to entertain any further
litigation flowing from a decision that Rand Water reversed as the decision has
no adverse effects on rights and does not have a direct, external legal effect.
Notwithstanding the reversed decision this Court is now burdened with an
application to determine whether Rand Water has furnished the Applicant with
sufficient relevant matter to determine whether the decision that ha s been
reversed was well made by Rand Water.
35 African Development Bank v TN 2019 (2) SA 437 (GP) at 445 D-J.
36 Mukaddam v Pioneer Foods 2013 (5) SA 89 (CC) at 98F -99G.
37 Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 6 54; Rabie v De Wit 2013 (5) SA 219 (WCC) at 222E -
223 A.
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For the Applicant:
Adv AT Lamey
Adv C Van Schalkwyk
Instructed by: Hunter spies Inc
For the Respondent:
Adv Ngutshana SC
Adv L Nyangiwe
Instructed by: Mathopo Moshimane Mulangaphuma Inc