Concerned Citizen of Tswaing/SIBU and Another v Local Municipality of Tswaing and Others (1498/09) [2009] ZANWHC 17 (26 June 2009)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1498/09

In the matter between:

CONCERNED CITIZENS OF TSWAING/SIBU 1ST APPLICANT

CARIEN VISSER 2ND APPLICANT

and

THE LOCAL MUNICIPALITY OF TSWAING 1ST RESPONDENT

MAKENTSI TLHAPE 2ND RESPONDENT

DAKOTA LEGOETE 3RD RESPONDENT

HENNIE BREYTENBACH 4TH RESPONDENT

DATE OF HEARING : 23 JUNE 2009

DATE OF JUDGMENT : 26 JUNE 2009

FOR THE APPLICANTS : ADV M OLIVIER

FOR THE RESPONDENTS : ADV NGD MARITZ SC WITH HIM

ADV N LAUBSCHER

JUDGMENT

LANDMAN J:

[1] This is an application brought by the Concerned Citizens of Tswaing/Sannieshof Inwoners Belastingbetalers Unie, the first applicant and Carien Visser, the second applicant against the Local Municipality of Tswaing the first respondent, Manketsi Tlhape the second respondent, Dakota Legoete the third respondent and Hennie Breytenbach the fourth respondent.

[2] The applicants seek the following relief in their Notice of Motion, namely an order:

1. That the application be heard on an urgent basis.

2. That the respondents be ordered in terms of sections 152 and 153 of the Constitution of the Republic of South Africa of 1996 (the Constitution), to devise and structure a plan to provide services and basis needs to the community in a sustainable manner, to manage its administration and budgeting and planning processes to the satisfaction of the Member of the Executive Council of the North West Province.

3. That the respondents be ordered to submit the plan to the Member of the Executive Council of the North West Province and to the applicants by no later than 22 February 2010.

4. That the respondents allow the applicants to proceed with the restoration of the infrastructure and cleaning up process in Tswaing pending the implementation of the plan.

5. That the respondents be ordered to pay the costs of this application jointly and severally.

6. Alternative or further relief.

[3] The applicants are represented by Adv M Olivier and the respondents by Adv N G D Maritz SC (with him Adv N Laubscher).

[4] The notice of motion is supported by a founding affidavit to which various documents and photographs are attached. The respondents oppose the application and have filed an answering affidavit. The applicants have replied to this.

[5] The respondents do not dispute the urgency of the matter. However, the respondents have raised a number of other preliminary points which must be decided on at the outset.

[6] The first point relates to non-joinder. It is a fundamental principle of our law that a person with a legal interest in a matter or who may be affected by an order must be given an opportunity to be heard before an order is made. Ms Olivier concedes that the Premier, MEC for Development Local Government and Housing and the District Municipality must be joined in this matter.

[7] The next point also touches on the question of joinder. It was not incorrect for the applicant to have given notice of the application to the second, third and fourth respondents who are the Mayor, Municipal Manager and Chief Technical Advisor respectively. But no order is sought against them save that they and the Tswaing Municipality should pay the costs jointly and severally. It is not proper to seek costs against the Mayor and employees or consultants against whom no substantive relief is sought.

[8] The next objection to the application is akin to an exception. In other words it is alleged that even if I only have regard to the applicants’ founding affidavit, which must be read with the notice of motion, no case has been made out.

[9] LTC Harms Civil Procedure in the Superior Court, paragraph B6.23 to B6.25 explains:

“The applicant must in the founding affidavit set out sufficient facts to disclose a cause of action, which, as a general rule, should exist at the time of the initiation of the proceedings. Whereas in pleadings a party may generally not plead evidence, the nature of applications is such that the application forms not only the pleadings but also provides all the evidence upon which the applicant relies. It follows that the founding affidavit, being the equivalent of plaintiff’s pleadings and plaintiff’s case on trial, must in itself contain sufficient facts upon which a Court may find in his favour. . . . The applicant must set the facts necessary to establish a prima facie case in as complete a way as the circumstances demand. . . . On the other hand, the applicant is not entitled ‘to throw a mass of material’ at his opponent and expect the latter to discover for himself some cause of action lurking therein.”

[10] The founding affidavit must of course set out the law and facts in support of the notice of motion. It is to the notice of motion which I now turn. The second and third prayers make it clear that the applicants wish to enforce sections 152 and 153 of the Constitution. These sections read:

“152(1) The object of local government are –

(a) to provide democratic and accountable government for local communities;

(b) to ensure the provision of services to communities in a sustainable manner;

(c) to promote social and economic development;

(d) to promote a safe and healthy environment; and

(e) to encourage the involvement of communities and community organizations in the matters of local government.

(2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).”

“153. A municipality must –

(a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and

(b) participate in national and provincial development programmes.”

[11] It is clear that these objects and ideals are the objects and ideals which every citizen expects from local government. But they are not mere ideals. They constitute the basic principles upon which statutes, providing for local government, must be premised. These statutes have been put in place and they include the Local Government: Municipal Systems Act 32 of 2000 (“the Municipal Systems Act”).

[12] The long title and the preamble to the Municipal Systems Act makes it clear that the Act provides for the core principles, mechanisms and processes necessary to give effect to the constitutional principles stipulated in sections 152 and 153 of the Constitution. I do not intend to mention all the sections of the Municipal Systems Act. I will, however, mention a few of those which are most relevant to the circumstances of the citizens living in the area of the Municipality of Tswaing.

[13] Section 5(1)(a) specifically provides that members of the local community have the right “through mechanisms and in accordance with processes and procedures provided for in terms of this Act or other applicable legislation” to contribute to the decision-making processes of the municipality and submit written or oral recommendations, representations and complaints to the municipal council.

[14] Section 5(2) (a) provides that members of the local community have the duty when exercising their rights, to observe the mechanisms, processes and procedures of the municipality.

[15] Section 5(2)(b) provides that members of the local community have the duty to pay promptly service fees, rates on property and other taxes, levies and duties imposed by the municipality.

[16] Section 25 obliges each municipal council to adopt a single, inclusive and strategic plan for the development of the municipality. Section 25(1) provides as follows:

‘(1) Each municipal council must, within a prescribed period after the start of its elected term, adopt a single, inclusive and strategic plan for the development of the municipality which –

(a) links, integrates and coordinates plans and takes into account proposals for the development of the municipality;

(b) aligns the resources and capacity of the municipality with the implementation of the plan;

(c) forms the policy framework and general basis on which annual budgets must be based;

(d) complies with the provisions of this Chapter; and

(e) is compatible with national and provincial development plans and planning requirements binding on the municipality in terms of legislation.”

[17] Section 51 provides, inter alia, that a municipality must, within its administrative and financial capacity, establish and organize its administration in a manner that would enable the municipality “to be performance-orientated and focused on the objects of local government set out in section 152 of the Constitution and its development duties as required by section 153 of the Constitution.”

[18] Section 84(1) provides, inter alia, as follows:

“(1) A district municipality has the following functions and powers:

(a) integrated development planning for the district municipality as a whole, including a framework for integrated development plans of all municipalities in the area of the district municipality.

(b) potable water supply systems.

(c) bulk supply of electricity. . .

(d) domestic waste-water and sewage disposal systems.

(e) . . . “ (My emphasis.)

I interpose to point out that the district municipality has not been brought to court.

[19] Section 88 provides for co-operation between district and local municipalities.

[20] It is clear that the Tswaing Municipality is obliged to draft and present a plan to the MEC for Local Government within 10 days of the adoption of the plan. See section 32 of the Municipal Systems Act. If the Tswaing Municipality fails to comply with the obligations, imposed upon it through the Municipal System Act, then the applicants must identify the breaches and seek to have them remedied. Where legislation has been enacted to give effect to a constitutional right or duty, it is not permissible to seek to enforce that constitutional right or obligation directly in terms of the Constitution. The relief claimed must be sought in terms of the legislation which gives effect to that right. A litigant cannot circumvent the legislation enacted to give effect to a constitutional right or duty by attempting to rely directly on the constitutional right. In South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC) at paras 51 and 52 O’Regan J said:

“(W)here legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard.

To permit the litigant to ignore the legislation and rely directly on the constitutional provision would be to fail to recognise the important task conferred upon the Legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights.”

[21] In prayer 4 of the notice of motion the applicants seek an order against all four respondents that they allow the applicants “to assist with the restoration of the infrastructure and cleaning up process in Tswaing”. The citizens of a municipality are encouraged to be civil minded and to participate in the affairs of their local council. But where their participation is rejected by their council, they must point to the basis of their right to participate or assist and specify the exact nature of the right and the relief that they seek.

[22] The applicants have in the founding affidavit failed to establish any legal foundation for the entitlement to the relief sought in prayer 4 of the notice of motion,

[23] Mr Maritz submitted that, even if the applicants were able to defeat these preliminary objections, the applicants have approached the court with “dirty hands”. They were withholding rates and taxes and were not paying for municipal services (such as they are). Mr Maritz submitted that this point should be dealt with even before joinder as it would save costs if it were to be decided now. The difficulty, however, is that the rule relating to litigants who are in breach of their duty to obey and comply with the law (which may differ as between constitutional and other litigation) cannot be decided in isolation. The equity and public policy considerations underlying this rules requires that it be decided in the context of all relevant considerations; including the nature of the relief claimed and the rights which are sought to be vindicated. I am of the opinion that it would be premature to decide the point at this stage.

[24] Finally Mr Maritz sought an order for costs on an attorney and client scale, including the costs of two counsel, against the second applicant and the applicants, who specifically identified themselves with the application i.e. those persons whose names appear on the special resolution, annexure”A1” to “A7” of the founding affidavit. He relied upon the matter of Ernest & Young and Others v Beinash & Others 1999 (1) SA 1114 (W) at 1148C. There the court considered an award of attorney and client costs and held the following:

“The ordinary rule is that the successful party is awarded costs as between party and party. Attorney and client costs are not lightly granted, save where special grounds are present. Conduct which is vexatious or an abuse of the process of Court may form the basis for an order that costs be awarded on an attorney and client scale even though there may be no intention to be vexatious.”

See also Page v Absa Bank Ltd t/a Volkskas Bank & Another 2000 (2) SA 661 (E) at 667C. In Sabena Belgian World Airlines v Ver Elst & Another 1980 (2) SA 238 (W) at 244A–G the court, having found that the application was “ill advised and misconceived, so much so that the ground for the relief sought were changed during the course of argument”, held that an award of attorney and client costs should be made.

[25] I was also referred to Faulkner v Freeman 1985 (3) SA 555 (C) at 559 F-G where the court held that:

“Because the plaintiff’s cause of action is so thoroughly bad, he has occasioned costs for the respondent that she should not be called upon to bear.”

[26] Mr Maritz submitted that apart from the fact that the applicants fail to make out any case against the Tswaing Municipality entitling them to the relief claimed in the notice of motion, no semblance of any case whatsoever was made out against the second, third and fourth respondents. He submitted that the joinder of the last three parties to the application cannot be explained on any basis other that that it was with vexatious intent to embarrass these respondents.

[27] In deciding the question of costs it is important to take into consideration all the relevant circumstances including the factors which have been detailed in the judgments cited above. This application has most certainly been drafted extremely badly and has ignored some basic rules relating to the conduct of litigation. But this said, it must be remembered, as Mr Maritz conceded, the complaints of the applicants appear to relate to the interruption in the supply of potable water and deficiencies in the sewage disposal system. In essence these complaints relate to basic human rights.

[28] The basic human rights infringed include;

(a) human dignity. “Everyone has inherent dignity and the right to have their dignity respected and protected.” See section 10 of the Constitution.

(b) the environment. “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 ecological sustainable development and use natural resources while promoting justifiable economic and social development.”

See section 24 of the Constitution.

(c) Water. (1) Everyone has the right to have access to –

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance .

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.

(3) ….”

See section 27.

[29] The applicants are not litigating solely in their own interest. It is clear that all the inhabitants of the Tswaing Municipality are affected by the lack of basic resources and that their human rights are also infringed. The photographs attached to the papers show that there are many children who suffer the same infringement and who also live in conditions of degradation, neglect and in an unsanitary environment. They too do not apparently have drinking water of an acceptable standard. They live with bad sanitation which must constitute a health hazard. I also do not believe that the applicants are vexatious. They would be better described as desperate and despairing

[30] Finally, although the manner in which the applicants’ papers have been presented disentitles them to relief at this stage, the issues in dispute are not frivolous. They involve matter vital to human existence and are of interest to the general public.

[31] It is however true that the second, third and fourth respondents were unnecessarily brought before court with the request that they pay the costs of the application. The costs of these respondents will be borne by the Municipality and they will not personally be out of pocket.

[32] I must also point out that an integrated development plan (220 pages long) is attached to the respondents’ papers. The applicants were aware of this plan but did not bother to mention it in the founding affidavit. Ms Olivier’s submission, that it should be ignored because of certain alleged deficiencies, is not supported by the authorities recognizing the legal effect of such acts.

[33] But in the final analysis this application is about the denial of some basic human rights which are enshrined in the Constitution. It would be unthinkable to mulct the applicants with costs while the languish in what appears to be utterly deplorable conditions. An order to pay costs would also have an inhibiting or “chilling” effect on other potential litigants who experience similar living circumstances and a lack of basic amenities. Compare Motsepe v Commissioner for Inland Revenue [1997] ZACC 3; 1997 (2) SA 898 (CC) at para 30.

[32] I have considered whether I should dismiss the application out of hand or allow the notice of motion to be amended and give leave for a supplementary founding affidavit to be filed. This would not be advisable in this case. If the applicants wish to litigate, in the absence of another satisfactory remedy, they should start afresh. The applicants’ papers are beyond redemption.

[33] In the result I make the following order.

1. The application is dismissed.

2. There is no order as to costs.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANTS : BOTHA COETZER & SMITH (MAFIKENG)

JOUBERT ATTORNEYS (SANNIESHOF)

FOR THE RESPONDENTS : NIENABER & WISSING (MAFIKENG)

ERICH H LOUW (POTCHEFSTROOM)