Clarens Ratepayers Association v Dihlabeng Local Municipality and Others (4379/2024) [2024] ZAFSHC 280 (3 September 2024)
- Citation
- [2024] ZAFSHC 280
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Cronjé, AJ
- Case number
- 4379/2024
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Cronjé, AJ
- Case number
- 4379/2024
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to establish sufficient grounds for urgency. The abridged timeframes for opposition and answering affidavits prejudiced the respondents, who required adequate time to investigate and consult on the complex factual background. The applicant had been aware of the impending water supply interruption since August 2023 and had delayed seeking relief. The relief sought, particularly in prayer 4, did not justify urgent intervention, as the immediate concern was limited to monitoring works that may be contemplated, and no reliance was placed on other prayers for urgency. Balancing the interests, rights, and responsibilities of the parties, the court held that it was fair and in the interest of justice for each party to pay its own costs.
Court disposition
Application to enroll the matter on an urgent basis dismissed. Each party to pay its own costs.
Orders
- The application to enroll the matter on an urgent basis is dismissed.
- Each party pays its own costs.
02
Material facts
Parties
Clarens Ratepayers Association
Applicant Counsel: Mr. J BloemDihlabeng Local Municipality
Respondent Counsel: Adv. M C LouwMunicipal Manager: Dihlabeng Local Municipality
RespondentThe Minister of Water and Sanitation
RespondentThe Member of the Executive Council: Free State Co-operative Governance & Traditional Affairs
Respondent03
Procedural history
Posture
Urgent Application / Application to Enroll Matter on Urgent Basis
04
Questions and positions
Legal issues
- 01
Whether the application should be enrolled and heard on an urgent basis.
- 02
Whether the abridged timeframes for opposition and answering affidavits were justified.
- 03
Whether the relief sought by the applicant warrants urgent intervention by the court.
- 04
Who should bear the costs of the application.
Party arguments
- Applicant
- The applicant argued that the matter was urgent because the constitutional right of residents to access sufficient water was at risk due to the impending shutdown of the Lesotho Highlands tunnel from 1 October 2024. The applicant contended that the respondents' duty to provide information and take steps to ensure uninterrupted water supply justified the abridged timeframes for opposition. It maintained that urgency was not self-created and that its right to information was continuously infringed, making immediate court intervention necessary.
- Respondent
- The respondents argued that the applicant failed to justify deviation from the normal procedural timeframes and that the abridged periods severely prejudiced their ability to respond, given the complexity and volume of facts requiring investigation and consultation. They asserted that the applicant had long been aware of the impending water shutdown and had delayed approaching the court. The respondents maintained that there was no intervening cause and that the application did not warrant urgent relief.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court
Urgent applications require the applicant to set out circumstances justifying deviation from the normal procedural periods.
- 02
South African case law on urgency
A party seeking urgent relief must demonstrate that the urgency is not self-created and that immediate intervention is necessary to prevent irreparable harm.
- 03
General principles of costs in South African civil procedure
Each party should bear its own costs where the interests served are similar and fairness dictates such an order.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to establish sufficient grounds for urgency. The abridged timeframes for opposition and answering affidavits prejudiced the respondents, who required adequate time to investigate and consult on the complex factual background. The applicant had been aware of the impending water supply interruption since August 2023 and had delayed seeking relief. The relief sought, particularly in prayer 4, did not justify urgent intervention, as the immediate concern was limited to monitoring works that may be contemplated, and no reliance was placed on other prayers for urgency. Balancing the interests, rights, and responsibilities of the parties, the court held that it was fair and in the interest of justice for each party to pay its own costs.
Obiter and limits
- The court expressed hope that the parties would find a mechanism to resolve the impasse between their respective interests, which appear to be aligned.
- The record comprised 401 pages, and the applicant sought an indulgence to deliver further affidavits, highlighting the complexity and volume of the matter.
Court disposition
Application to enroll the matter on an urgent basis dismissed. Each party to pay its own costs.
- The application to enroll the matter on an urgent basis is dismissed.
- Each party pays its own costs.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Order
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
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