Geldenhuys and Others v Ngaka Modiri Molema District Municipality and Others (673/2011) [2012] ZANWHC 47 (8 March 2012)

Geldenhuys and Others v Ngaka Modiri Molema District Municipality and Others (673/2011) [2012] ZANWHC 47 (8 March 2012)

The court found that the First Respondent failed to contest the factual allegations of breach of contract, non-compliance with water licence conditions, and statutory obligations. The defence of lis pendens was dismissed because the arbitration proceedings had been withdrawn and not all parties to the present application were parties to the arbitration agreement. The relief sought was interim in nature, pending compliance with contractual and statutory obligations and the outcome of any future arbitration. The court held that it retained jurisdiction and discretion to grant interim relief to prevent ongoing environmental harm and irreparable damage to the applicants' properties. The First...

Citation
[2012] ZANWHC 47
Parties
Applicant: Catharina Anna Johanna Geldenhuys; Applicant: Jacobus Muller Geldenhuys N.O.; Applicant: Catharina Anna Johanna Scott N.O.; Applicant: Gideon Petrus du Preez N.O.; Applicant: Cornelius Johannes du Rand N.O.; Applicant: Catharina Anna Johanna Geldenhuys N.O.; Applicant: Sanko Boerdery (Pty) Limited; Respondent: Ngaka Modiri Molema District Municipality; Respondent: Minister of Water Affairs and Forestry; Respondent: Ramotshere Moiloa Local Municipality; Respondent: Premier of the North West Province; Respondent: Member of the Executive Council for Economic Development, Environment, Conservation and Tourism, North West Province; Respondent: Member of the Executive Council for Local Government, North West Province; Respondent: Botshelo Water Supply Authority; Respondent: Gerhard Maree N.O.
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
8 March 2012
Case Number
673/2011
Procedural Posture
Civil Application / Judgment After Hearing on Merits and Point in Limine
Outcome
Application granted. First Respondent ordered to comply with contractual and statutory obligations within sixty days and to pay costs.
Judges
R D Hendricks
Legal Topics
Water Use Licence, Specific Performance, Interim Interdict, Breach of Contract, Environmental Impact Assessment, Arbitration Stay
Land and Property Environmental Law Civil Procedure Water Use Licence Specific Performance Interim Interdict Breach of Contract Environmental Impact Assessment +1 more

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Parties

Catharina Anna Johanna Geldenhuys

Applicant

Jacobus Muller Geldenhuys N.O.

Applicant

Catharina Anna Johanna Scott N.O.

Applicant

Gideon Petrus du Preez N.O.

Applicant

Cornelius Johannes du Rand N.O.

Applicant

Catharina Anna Johanna Geldenhuys N.O.

Applicant

Sanko Boerdery (Pty) Limited

Applicant

Ngaka Modiri Molema District Municipality

Respondent

Minister of Water Affairs and Forestry

Respondent

Ramotshere Moiloa Local Municipality

Respondent

Premier of the North West Province

Respondent

Member of the Executive Council for Economic Development, Environment, Conservation and Tourism, North West Province

Respondent

Member of the Executive Council for Local Government, North West Province

Respondent

Botshelo Water Supply Authority

Respondent

Gerhard Maree N.O.

Respondent

Procedural Posture

Civil Application / Judgment After Hearing on Merits and Point in Limine

Legal Issues

  1. 1 Whether the First Respondent breached contractual and statutory obligations regarding water abstraction from applicants' properties.
  2. 2 Whether the defence of lis pendens based on pending arbitration proceedings precludes the present application.
  3. 3 Whether interim relief pending arbitration is appropriate given the uncontested factual allegations and risk of environmental harm.

Ratio Decidendi

The court found that the First Respondent failed to contest the factual allegations of breach of contract, non-compliance with water licence conditions, and statutory obligations. The defence of lis pendens was dismissed because the arbitration proceedings had been withdrawn and not all parties to the present application were parties to the arbitration agreement. The relief sought was interim in nature, pending compliance with contractual and statutory obligations and the outcome of any future arbitration. The court held that it retained jurisdiction and discretion to grant interim relief to prevent ongoing environmental harm and irreparable damage to the applicants' properties. The First...

Court Disposition

Application granted. First Respondent ordered to comply with contractual and statutory obligations within sixty days and to pay costs.

Orders

  • The First Respondent must, within sixty (60) calendar days, file a complete copy of Scoping Report No. EIA 507/2005NW-Zeerust/KGC/DSR/0001 dated March 2006 and the Environmental Impact Assessment Report with the Registrar of Court and serve a complete copy on the attorney of record of the Applicants and the Second...
  • The First Respondent must provide the Applicants and Second Respondent with monthly reports, duly verified by the Department of Water Affairs and Forestry, stating the volumes of water abstracted from October 2008 to date of this application.