Oppenheimer Park Golf Club v Matjhabeng Local Municipality and Another (137/2019) [2020] ZAFSHC 78; [2020] 2 All SA 574 (FB) (26 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Application number: 137/2019

In the application between:

OPPENHEIMER PARK GOLF CLUB

Applicant

and

MATJHABENG LOCAL MUNICIPALITY

First Respondent

THE MUNICIPAL MANAGER, MATJHABENG

LOCAL MUNICIPALITY

Second Respondent

CORAM: VAN ZYL, J

DELIVERED ON: 26 FEBRUARY 2020

[1] The applicant is seeking a structural interdict in the following terms:

“1. That first respondent be ordered to take all necessary steps, within thirty (30) days of date of an order being granted by this Honourable Court:

1.1 to ensure that the pumps and appurtenances installed at the Klippan Pump Station situated at the Witpan, be reinstated and/or repaired and/or restored to optimal operating capacity as was envisaged in terms of the order of the above Honourable Court issued on 26 February 2015 under case number 3461/2015, which is appended hereto as annexure ‘FA3’ (the 2015 Order);

1.2 to ensure that the pump station at the Witpan, together with the pumps and appurtenances at the Klippan Pump Station associated therewith, are properly secured and guarded in order to prevent theft and/or vandalism thereof;

1.3 to ensure that all breather valve stations, pipes, ducts, valves and appurtenances associated with, surrounding, and attached to the Witpan and Klippan Pump Station be repaired, replaced and/or restored to fully operational and functional capacity so as to prevent spillage, leakage and overflow or other irregular discharge of water and/or effluent water and/or sewerage which would detract from the effectiveness of the relevant infrastructure;

1.4 to ensure that the sewerage– and/or reticulation systems and infrastructure in and about the area of the Witpan, the Klippan Pump Station and the Witpan Waste Water Treatment Plant are repaired and/or reinstated to fully optimal and operational capacity in order to ensure that no spillage, irregular discharge or overflow of sewerage and effluent water occurs over or onto the land in the surrounding area;

2. That second respondent be ordered to take all necessary steps to ensure compliance with the above obligations emanating from paragraphs 1.1 – 1.4 above, within thirty (30) days of such order has been granted;

3. That on the granting of the aforesaid relief (in paragraphs 1 and 2 above), the application be postponed to a date determined by the above Honourable Court on the following terms:

3.1 first respondent shall, on a date determined by the above Honourable Court (before the aforesaid date of postponement), file an affidavit deposed to by second respondent or his appointed substitute/delegate, supported by a technical report compiled by responsible officials of the first respondent’s technical department, specifying what steps were taken to give effect to the above orders and in the event of compliance therewith not having been obtained, the steps proposed to be taken and the timeframes within which such steps will be taken;

3.2 on consideration of the affidavit referred to in paragraph 3.1, the above Honourable Court shall make further orders and/or directives as need be, regarding compliance with the orders contained in paragraphs 1 and 2.

4. That first respondent pay the costs of this application on an attorney and client scale.”

Founding affidavit:

[2] The first respondent (“the Municipality”) is responsible for governing the Local Government Affairs of the local community and municipal district of, inter alia, Welkom. The second respondent is the Municipal Manager of the Municipality (“the MM”) and is, inter alia, accountable for the implementation of National and Provincial legislation and is also tasked with overseeing the implementation of Court orders issued against the Municipality.

[3] The applicant is a voluntary association of persons, having legal capacity in accordance with its Constitution. The applicant is the occupier of land and property in the municipal district of the Municipality located alongside- and borders on the Witpan (“the Land”). The applicant operates a golf course on the Land. The applicant has over a number of years leased the Land from Harmony Gold Mining Company Limited or its legal predecessors. Notwithstanding the expiry of the lease agreement, the applicant continues to lawfully occupy the Land indefinitely with the consent of Harmony and as bona fide occupier. In terms of clause 9.5 of the lease agreement, the applicant is obliged to return the Land to Harmony in the condition

it was at the time of commencement of the lease. In the event of the applicant’s right of occupation of the Land coming to an end, it will therefore be obliged to make good damages to the Land.

[4] It is the applicant’s case that in accordance with various prescripts contained in the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and various other National legislation, the Municipality is, inter alia, responsible to “promote a safe and healthy environment”, to “strive to ensure that municipal services are provided to the local community in a financially and environmentally sustainable manner” and to ensure that the management of waste, sewerage, waste disposal, water and sewerage management is done in a safe and environmentally safe manner. It is obliged to prevent sewerage and/or waste water from causing damage to the environment and surrounding properties. Where pollution or degradation of the environment has been caused by it or its activities, it must take all reasonable measures to ensure that such pollution and/or degradation or recurrence thereof is avoided or stopped.

[5] During or about May 2008 until December 2011 the level of the Witpan increased to such an extent that the Klippan Pump Station at Witpan was flooded and no longer operated or functioned properly, which caused the fairways and greens of five holes of the golf course on the Land to be damaged beyond repair. This resulted in the Municipality being obliged to pay damages amounting to R8 250 000.00 to the applicant in terms of an order granted by this Court under case number 345/2010. The Municipality however persisted in failing to comply with its various Constitutional- and other statutory duties, deficiencies occurred in its systems and resulted in the recurring rising of water levels of the Witpan early in 2013. Because of the Municipality’s persistent failure to comply with its obligations to maintain the Klippan Pump Station, including the pumps and appurtenances and the infrastructure surrounding the Witpan, the applicant approached this Court for a structural interdict under case number 2241/2015. It obtained an order (“the 2015 Order”), attached to the founding affidavit as annexure “FA3.1”, in the following terms:

“1. The Municipal Manager shall make a decision by not later than 13 March 2015 regarding the procurement of suitable dewatering pumps (X2) with a minimum capacity of 200 L/S to a head of 47m per pump, to be installed at the Klippan Pump Station, …

2. …

3. … the Municipal Manager shall make every endeavour to ensure that the procurement and installation of the said pumps in fully operational status is finalised by not later than 30 August 2015.

4. The Municipal Manager shall ensure that the construction and commissioning of the Witpan Waste Water Treatment Plant shall be finalised in accordance with the decisions taken at site meetings and any contact variations.

5. Respondent shall keep applicant updated on progress with construction of the Witpan Waste Water Treatment Plant by providing applicant’s attorney with copies of minutes of all site meetings and contract variations within seven days of such site meetings and variations.

6. In the event that there appears to be any insurmountable problems to the completion, the parties may approach the Court and report thereon. …”

[6] Prior to the 2015 Order there were only two pumps installed at the Klippan Pump Station. After the granting of the order and by the date for compliance, there should have been four pumps in full- and optimal operation at the said Pump Station.

[7] Initially the Municipality only partially complied with its obligations contained in the 2015 Order. The applicant therefore brought an application to enforce 2015 Order, also seeking an order of contempt of Court. The Court, however, found that the Municipality had made endeavours to comply with the 2015 Order and was subsequently not prepared to grant the relief claimed.

[8] The Municipality subsequently did comply with the 2015 Order in relation to the installing of the additional dewatering pumps at the Klippan Pump Station, although only at the end of 2017 or the beginning of 2018. This compliance resulted in the water

remaining constantly within an acceptable and/or safe level so that there was no harm or threat of overflow and/or flooding.

Although the Municipality was ordered in terms of the 2015 Order to ensure that the construction and commissioning of the Witpan Waste Water Treatment Plant should be finalised in accordance with specifications and site instructions, this was left unattended to.

[9] The water in the Witpan is extremely contaminated and polluted because of spillage of sewerage and effluent water into the Witpan

from the surrounding sewerage systems and infrastructure, as well as the old Witpan Waste Water Treatment Plant which are derelict and dysfunctional. In this regard the applicant points out that the Witpan Waste Water Treatment Plant referred to in the 2015 Order is a newly (partly) constructed wastewater treatment plant intended to replace the old flooded and dysfunctional plant.

[10] After the Municipality had installed the two new dewatering pumps in terms of the 2015 Order, the water levels in the pan receded but has left the previously flooded ground to be contaminated and totally infertile.

[11] Over the weekend of 24/25 August 2018 the Klippan Pump Station was vandalised and theft of electrical cables occurred, causing both the operational pumps to stop working. The applicant points out that prior to the 2015 Order, there were two existing pumps at the Klippan Pump Station. Those were to be retained and two new pumps had been installed as indicated in the 2015 Order. Therefore there should have been four pumps in full- and optimal operation at the Klippan Pump Station. Although the two new dewatering pumps were procured and installed, there have never since been four pumps operating, but mainly two. On 25 August 2015 a service provider of the Municipality managed to reinstate the one pump, but this reinstatement did not better the situation, because of the fact that vandals had also vandalised the pipeline running from the Witpan to the Mostert Canal (into which water from the Witpan is pumped), having stolen all breather valves which caused the water flowing through the canal to overflow onto the Land surface and gravitate back into the Witpan.

[12] After the vandalism had occurred during August 2018, the owner of the service provider who provided the new dewatering pumps to the Municipality, Mr Karpakis, removed the one new but dysfunctional pump because of the fact that the Klippan Pump Station was not guarded and/or secured and was a target for vandals. He also provided a quotation for the supply and repairs in order to reinstate the pumps, but although he had been informed that his quotation had been accepted, he had not received written confirmation thereof.

[13] Consequently, although the Municipality did comply with the 2015 Order by installing two new dewatering pumps, the pump capacity at the Klippan Pump Station is entirely insufficient, because the pumps had not been maintained and because of vandalism, this being a new intervening cause.

[14] By 14 August 2018 the water levels of the Witpan had risen by 100mm, revealing that the pumps were not functioning optimally. This is due to the fact that the air valves had been vandalised and stolen. This is a critical issue, because no matter how the pumps function, due to the absence of the air valves, the water will continue flowing out of the Mostert Canal (through which it is supposed to flow to the Sand River) onto the Land surface and gravitate into the Witpan.

[15] n 19 September 2018, the applicant’s attorney addressed a letter to the MM, annexure “FA9”, pointing out the deficiencies and defects in the pumps and systems, emphasising the importance of ensuring that the two additional pumps be in place and fully operational as the pumping capacity at that stage was not sufficient to counter the inflow of raw sewerage and natural water into the Witpan. Reference was also made to the situation pertaining to the Witpan Waste Water Treatment Plant, namely that it has not yet been commissioned, emphasising that the Municipality’s non-compliance with the 2015 Order aggravates the already compromised situation. It was also emphasised that it is important that the Witpan Waste Water Treatment Plant be fully commissioned and operative in order to limit the inflow of effluent and sewerage directly into the Witpan. A request was made to the MM to intervene so that a plan of action could be implemented and he was also requested to convene a meeting with the applicant and the officials of the Municipality’s technical department to discuss such an action plan with the aim of ensuring that the pumps at the Witpan be reinstated to optimal effect and that the Witpan Waste Water Treatment Plant ultimately be commissioned.

[16] The only response to the aforesaid letter was a letter from the MM, annexure “FA10”, dated 22 October 2018, in which it is stated that the “situation at Klippan Pump Station has been given priority number one by the Municipality in that the Water and Effluent Department has gone so far as to source the required valves that are needed to get pumps in full operation”. It was further stated that assurance has been given by the Municipality’s technical department that the pumps would be in operation during the course of the following week. It was also stated that the water levels of the pump station “are low enough to afford” the “luxury of waiting until next week”.

[17] By the time this application was launched, the Municipality had not yet reinstated and/or replaced and/or remedied the defective pumps, had not repaired the defective breather valves and had also not repaired the derelict sewerage pipes/systems which emit and discharge raw sewerage and effluent water onto the Land surface. The Witpan Waste Water Treatment Plant was also still in limbo and was not anywhere near commissioning thereof.

[18] In terms of an expert report of CSV Water Consulting Engineers, dated July 2016, the Municipality was advised to bring the existing Pump Station back to optimal operation and to upgrade the security, maintain equipment and ensure that safety measures be taken and put in place. It was also advised that the construction of the Witpan Waste Water Treatment Plant be completed “to prevent further pollution of the Witpan lake”. The Municipality, however, failed to take the necessary remedial steps.

[19] Whilst the pumps are still not fully operational, there is a very real threat that the Witpan will again overflow onto the Land and again cause substantial damage to it, especially during the rainy season.

[20] The applicant has done everything it can in an attempt to persuade and jockey the Municipality into compliance with its obligations, but to no avail. The applicant therefore has no suitable and/or effective alternative remedy but to approach the Court for the relief claimed.

The answering affidavit:

[21] According to the respondents the applicant’s allegations pertaining to the Municipality’s failure to comply with its constitutional and statutory obligations, are “without substance” and “the Municipality has always complied with its constitutional obligations”.

[22] The Municipality complied with the 2015 Order.

[23] The relief claimed by the applicant is “incompetent” because the applicant conceded that the Municipality did take steps to ensure that the pumps at the Klippan Pump Station were operating optimally, but that the pumps ceased to operate because of an intervening factor, namely vandalism.

[24] It is denied that only two pumps instead of four pumps were functional prior to the Klippan Pump Station being vandalised.

In October 2016 the Municipality procured the services of Pump Shop Africa (Mr Karpakis), who installed four new pumps and also did additional work, which was completed in March 2017, which, according to the respondents, appears in a report of Pump Shop Africa, dated 11 March 2019.

[25] The Municipality has spent in excess of R100 million in the construction and commissioning of the Witpan Waste Water Treatment

Plant and a completion certificate was issued on 2 July 2018.

[26] In paragraph 17 of the answering affidavit the following is stated:

“The Municipality has however experienced challenges in the optimal functioning of the Plant and has taken action to mitigate same. The Municipality has identified the continued closing of sewer lines by illegal miners … as the main reason for the poor functioning of the Plant. These illegal miners are heavily armed and present a risk not only to the municipal staff who attend to the opening of the sewer lines, but also to the security personnel. As a result thereof, they regularly closed the sewer lines immediately after they have been fixed and attended to.”

[27] It is averred that the Municipality has consequently engaged with the South African Police Service on a joint plan to address the aforesaid problem. In addition, a private security firm tasked with patrolling the relevant sewer lines was appointed in October 2018. The security firm also provides protection to the municipal staff members who attend to the fixing of sewer lines. However, it is subsequently stated that the employment of the services of private security guards was in place only until September 2018.

[28] According to the respondents the issue of adequate guarding and protection of the Klippan Pump Station and the Plant is receiving

priority attention by the Municipality. The Municipality employs “Pump Attendants” whose sole responsibility is to guard and protect the Pump Station and to ensure that the pumps are functioning at all times.

[29] The respondents then stated in paragraphs 22 and 23 of the answering affidavit as follows:

“22. On 30 August 2018 the Municipal council resolved to take steps to strengthen and tighten the security and protection of the Municipality assets and its infrastructure as is evident from its resolution attached hereto annexure ‘TT6’. As is recorded in resolution, the council inter alia resolved:

22.1 to install electronic security/surveillance cameras at focal points;

22.2 to expedite recruitment and appointment of security officers;

22.3 to erect electric fencing where possible.

23. The process of recruiting and appointing additional security officers is at an advanced stage. Candidates for the positions have already been interviewed and suitable candidates have already been recommended for appointment, but the process is now being stalled by labour disputes within the Municipality.”

[30] It is ultimately stated that:

“The Municipality is in compliance with its constitutional obligations and is taking steps to ensure that the Pump Station is optimally functioning and that it is properly guarded and secured.”

The replying affidavit:

[31] In its reply the applicant states that at the time of the filing of the applicant’s replying affidavit, there is an absence of any security at the Klippan Pump Station, there are no pumps installed any longer and there is much prevailing sewerage spillage all over in the vicinity, which is confirmed by the Municipality’s service provider, Mr Karpakis.

[32] On 1 April 2019 Mr Karpakis addressed an e-mail to the applicant’s attorney of first instance in which he stated the following:

“I hereby confirm that the pump station is no longer in operation, the central reasons for this are as follows:

· The rising main (discharged pipeline) has been vandalised and the air release valves have been stolen.

· The electrical transformer at the pump station has been vandalised and damaged.

· The electrical supply cable and additional feed cables to the pump station and within, has been stolen.

· The MCC (Motor Control Centre) has been vandalised and damaged.”

[33] The applicant points out in its replying affidavit that the contents of annexure “TT6” makes it abundantly clear that the contract of the security company who was responsible for guarding the Klippan Pump Station was terminated as of 31 September 2018. There have been no guards at the Klippan Pump Station since about August 2018. The Municipality has not erected electric fencing, has not installed electronic security/surveillance cameras and has not taken any other measures to secure the premises as per its resolution of 30 August 2018.

Legal principles:

[34] Section 24 of the Constitution determines as follows:

“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 ecologically sustainable development and use of structural resources while promoting justifiable economic and social development.”

[35] Section 152(1)(b) and (d) of the Constitution determines that the objects of Local Government, inter alia, are to ensure the provision of services to communities in a sustainable manner and to promote a safe and healthy environment. In terms of section 152(2) “a municipality must strive, within its financial and administrative capacity, to achieve the objects set out in (1)”.

[36] Part B of Schedule 4 to the Constitution places the obligation in respect of water and sanitation services, potable water supply

systems and domestic waste water and sewerage disposal systems on a local municipality.

[37] In Kenton on Sea Ratepayers Association v Ndlambe Local Municipality 2017 (2) SA 86 (ECG) the following was stated with regard to structural interdicts at paras [95] – [96]:

“[95] In 4 LAWSA, para 59 it is pointed out that …. the Constitutional Court has also held that a structural interdict may be an appropriate remedy when a breach of the Constitution has been alleged and proven.

[96] As its name suggests, a structural interdict is one in which the violator is instructed to take steps to comply with its constitutional

obligations and then report back to the court on the extent to which it has complied with the court’s order. It does involves the continued participation of the court in the implementation of its orders.”

[38] In Kenton on Sea Ratepayers Association, supra, at para [98] the court described the nature of a structural interdict as follows:

“A structural interdict consists of five elements. First, the court declares the respects in which the violator’s conduct fall short of it constitutional obligations; second, the court orders the violator to comply with its constitutional obligations; third, the court orders the violator to produce a report within a specified period of time setting out the steps it has taken; fourth, the applicant is afforded an opportunity to respond to the report; and finally, the matter is enrolled for a hearing and, if satisfactory, the report is made an order of court.”

[39] In Okitrans CC v Mafube Local Municipality, (1360/2008) [2008] ZAFCHC 102 (7 August 2008) the Court found as follows at para [13]:

“The gravamen of the applicant’s case is that the respondent is not maintaining the sewerage system as it is obliged to do. …,”

whereupon the Court held as follows at para [24]:

“[24] It is not refuted that the respondent installed new pumps in 2006 which were operational for some time. However what is crisply clear is that the respondent is not maintaining the sewerage pumps as a responsible body and its functionaries ought to. …

[25] The respondent’s unsubstantiated averments around the Eskom load-shedding is farfetched and cannot be an excuse to have an unhealthy situation persist while the respondent simply shrugs its shoulders and claim to be waiting for the pump parts. The respondent has not even refuted the fact that the unhealthy and hazardous situation depicted in the photographs and deposed to by the applicant exists.”

[40] Mafube Local Municipality v Agritrans CC (A248/2008) [2009] ZAFSHC 130 (5 November 2009) is a judgment on appeal against the abovementioned judgment. The following was stated at para [8] of the judgment:

“[8] With regard to the clear right, the following can be mentioned:

(a) …

(b) The first respondent is enjoined in terms of section 152 of the Constitution of the Republic of South Africa, No. 108 of 1996, to ensure the provision of basic services to communities in a sustainable manner and to promote a safe and healthy environment.

(c) It is common cause that the first respondent is also enjoined in terms of section 21 of the Health Act, No. 63 of 1977 to prevent a nuisance on or unhygienic condition (as defined in the Health Act) from occurring.

These obligations were not denied by respondents, and it is therefore common cause that it was the duty and obligation of first respondent to see to it that the Namahadi sewerage works were operating at all times, and to such an extent that there was no spillage of sewerage into the Wilge Rivier.”

Application of legal principles in the present matter:

[41] The constitutional and other statutory obligations of the Municipality are not being denied. All that the Municipality

states is that it has always complied with its constitutional obligations. However, later in the answering affidavit it is

admitted that the Municipality experiences challenges in the optimal functioning of the Plant due to the activities of illegal miners and vandalism. The Municipality furthermore conceded that although the Witpan Waste Water Treatment Plant was commissioned on 2 July 2018, it has also experienced challenges with its functionality. In fact, at the outset of his oral argument Mr Ngcangisa, appearing on behalf of the respondents, conceded and placed on record that in terms of his instructions, there currently is no Pump Station as it has been submerged.

[42] Although the Municipality states that it has engaged with the South African Police Service on a joint plan to address the problem

regarding the illegal miners, it gives no particulars whatsoever thereof and does not say to what extent this initiative has been

successful or not.

[43] In addition the Municipality contradicts itself completely with regard to the allegation of the appointment of a private security

firm to secure the relevant pipelines as from October 2018. Two paragraphs later it states that the Municipality had employed the services of a private security firm only up to September 2018. In fact, from annexure “TT6” it is evident that the contracts of the private companies who previously guarded the Klippan Pump Station were terminated as of 31 September 2018. The Municipality subsequently states it is in the process of recruiting and appointing additional security officers (hence, employees, not private security firms), but that the process is being stalled by labour disputes within the Municipality, again without providing any details in this regard. (Own emphasis)

[44] Although the respondents attempt to escape their obligations by stating that they are unable to comply therewith because of the activities of illegal miners, it makes the following contradictory statement shortly thereafter in paragraph 19 of the answering

affidavit:

“The issue of adequate guarding and protection of the Pump Station and the Plant is receiving priority attention by the Municipality. The Municipality currently employs ‘Pump Attendants’ whose sole responsibility is to guard and protect the Pump Station, and further ensuring that the pumps are functioning at all times.”

[45] The Municipality also makes the allegation that it has since requested the intervention of the Provincial Government and the

National Police Ministry to assist in kerbing vandalism, but again without giving any particulars of the outcome of the request for intervention.

[46] The Municipality refers to a resolution which it took on 30 August 2018 whereby it was resolved that certain steps were to be taken to strengthen and tighten the security and protection of the Municipality assets and its infrastructure. However, at the date of filing of the replying affidavit, it is evident that no such steps have been implemented yet.

[47] In an attempt to deny the allegation that even before the vandalism only two pumps instead of four were functional, the respondents rely on a report of Pump Shop Africa, annexure “TT4”. However, from a reading of the said report it is evident that it does not deal with the allegation that only two pumps instead of four were functional prior to the vandalism. In addition, the Municipality did not even attempt to deal with the allegations and photographs, annexure “FA8”, which demonstrate that the water level rose more than 100mm between June 2018 and 14 August 2018.

[48] What is further insightful is that in the letter of demand, annexure “FA9”, the shortcomings at the Klippan Pump Station, the defective pumps, the absence of security and the like were fully recorded. In his response, annexure “FA10”, the MM did not deny that the pumps were not operating optimally, did not deny the vandalism and did not state that the vandalism would continue to pose a problem for the Municipality in complying with its obligations.

[49] In the replying affidavit, the applicant demonstrates that as at April 2019 there was substantial spillage in and around the Witpan Waste Water Treatment Plant.

[50] The applicant furthermore states that at the time of the filing of the applicant’s replying affidavit, there is a complete absence of any security at the Klippan Pump Station, there are no guards and there are no pumps installed any longer, which allegations are confirmed by the Municipality’s service provider, Mr Karpakis.

[51] I cannot agree with Mr Ngcangisa’s submission that the Municipality is striving to and in the process of discharging its constitutional obligations. I have to agree with the submissions of Mr Louw, appearing on behalf of the applicant, that

not only is the answering affidavit somewhat opaque and contains contradictory averments, but the Municipality also completely fails to come forward with any logical solution or workable suggestion with regard to remedying its failure to comply with its constitutional obligations.

[52] In the premises I am satisfied that the applicant is entitled to the relief claimed.

Costs:

[53] In paragraph 60 of its founding affidavit the applicant avers as follows:

“The applicant would have prefer to cause the respondents to comply with its obligations without having to approach the above Honourable Court, realising that litigation is not in the best interest of the parties and for this reason made every attempt to resolve the outstanding issues before approaching the court. For this reason and giving the pure lack of concern by the municipality as well as the second respondent for the Municipality’s obligations, I submit that this a proper case where the above Honourable Court will order the Municipality to pay the applicant’s costs on the scale as between attorney and client.”

[54] I completely agree with the aforesaid contention. It has now become evident that there is no Pump Station, no pumps and no security. Despite this flagrant disregard for its constitutional obligations and despite the absence of any practical suggestion from the side of the Municipality as to how it intends addressing the situation, it still persists with its attitude that it in fact is complying with its constitutional and other statutory obligations.

Order:

1. The first respondent is ordered to take all necessary steps, within thirty (30) days of date of this order:

1.1 to ensure that the pumps and appurtenances installed at the Klippan Pump Station situated at the Witpan, be reinstated and/or repaired and/or restored to optimal operating capacity as was envisaged in terms of the Court order issued on 26 February 2015 under case number 3461/2015;

1.4 to ensure that the sewerage– and/or reticulation systems and infrastructure in and about the area of the Witpan, the Klippan Pump Station and the Witpan Waste Water Treatment Plant are repaired and/or reinstated to fully optimal and operational capacity in order to ensure that no spillage, irregular discharge or overflow of sewerage and effluent water occurs over or onto the land in the surrounding area.

2. The second respondent is ordered to take all necessary steps to ensure compliance with the obligations emanating from paragraphs 1.1 – 1.4 above, within thirty (30) days of this order.

3. The application is postponed to a date to be agreed upon between the parties, on the following terms:

3.1 the first respondent shall, on a date to be agreed upon between the parties (before the aforesaid date of postponement), file an affidavit deposed to by second respondent or his appointed substitute/delegate, supported by a technical report compiled by

responsible officials of the first respondent’s technical department, specifying what steps were taken to give effect to the above orders and in the event of compliance therewith not having been obtained, the steps proposed to be taken and the timeframes within which such steps will be taken;

3.2 on consideration of the affidavit referred to in paragraph 3.1, the Court shall make further orders and/or directives as need be, regarding compliance with the orders contained in paragraphs 1 and 2.

4. The first respondent is to pay the costs of this application on an attorney and client scale.

5. For purposes of determination of the aforesaid two dates to be agreed upon between the parties, the attorneys of the parties are granted leave and instructed to convey the agreed dates in writing to the secretary of Van Zyl, J, within one week from date of this order, whereupon this order shall be amended to reflect the agreed dates.

________________

C. VAN ZYL, J

On behalf of applicant: Adv. MC Louw

Instructed by:

McIntyre & Van der Post

BLOEMFONTEIN

On behalf of respondents: Adv G Ngcangisa

Moroka Attorneys