Kenton on Sea Ratepayers Association, Bushman’s Kariega Estuary Care Management Forum and Nature’s Landing Homeowners Association v Ndlambe Local Municipality and Others

On 30 October 2014, KOSRA, Estuary Care and Nature’s Landing (‘the applicants’) applied to the High Court in Grahamstown for orders against Ndlambe municipality, the DEAET, the Department of Water Affairs, three municipal officials andthree others (‘the respondents’) regarding two main issues and three related issues:

  1. Ndlambe’s neglect of its sewerage reticulation, the condition of the Marselle sewerage works, and the impact this had on the Bushman’s River Estuary
  2. The unsatisfactory condition of the municipal dumpsite in Marselle: amongst others, it had been illegally established, it was overfull and the burning of rubbish polluted the air causing a hazardto the communities living around the dump
  3. An order declaring Ndlambe, its Mayor, its Municipal Manager and its Director of Community/Protection Services in contempt of court. The contempt of court arose from a court application launched by the Bushman’s River Residents Association in January 2009 regarding the flow of sewerage into the Bushman’s River from the pump station at Rivers Bend.At the end of January 2009Judge Froneman issueda detailedset of instructions about, amongst others, the construction of a permanent pump house. By the time this (October 2014) application was launched,Ndlambe had built the pump house and had installed a pump but the pump had not been supplied with electricity. As a result sewerage was still flowing into the Bushman’s River. Hence, the applicants sought an order declaring Ndlambe to be in contempt of court order and compelling Ndlambe to render ‘the pump station operational’ and to keep it ‘maintained’. Whenthis application was eventually heard, from 5thto 7thMay this year, the pump station had been upgraded and was operational.However, the applicants persisted with their relief based on contempt of court.
  4. The fourth issue related to Ndlambe’s failure to answer correspondence in compliance with its statutory duty under section 5(1)(b) of the Local Government: Municipal Systems Act 32 of 2000. Papers presented to the court showed that Ndlambe had failed to reply to correspondence from the applicantsduring the periodNovember 2011 to September 2014.
  5. Finally, the applicants sought an order for costs, either from the then Mayor, Sipho Tendani, the then Municipal Manager, Rolly Dumezweni and the present Director of Community/Protection Services, Nombulelo Booysen-Willy, jointly and severallyde propris bonis (ie of their own goods), or from Ndlambe municipality.

With regard to Ndlambe’s responsibilities, the applicants sought a ‘structural/supervisory interdict’ based on the breach of a constitutional right, in this case, section 24 of the Constitution which states that ‘Everyone has the right to an environment that is not harmful to their health or wellbeing and to have the environment protected, for the benefit of present and future generations’ through legislative and other measures that, amongst others, prevent pollution.

There were various postponements, and before the matter was heard, the applicants filed a further affidavit late in January 2016.The affidavit stated that Ndlambe had closed the dump on 23 November 2015. On 1 December the dumpsite was on fire and continued to burn on a daily basis through the Christmas holiday. It was finally extinguished on 7 January 2016. In addition, on 30 December 2015 and on other occasions Ndlambe’s sewage vacuum extraction truck 505 had been seen dumping sewage into an open water course near the waste water treatment works.

The High Court’s decision was handed down by Justice Lowe on 15 June 2016.

Having regard to all the relevant legislation governing municipalities and their duties, and the Constitutional rights of citizens regarding their environment, Judge Lowe concluded that it seemed clear to him that ‘the issues raised in this matter fall within the First Respondent’s discrete municipal powers and responsibilities”— a point which Ndlambe, the First Respondent, did not deny.

A structural interdict for temporary supervision for a defined period was ‘appropriate to certain of the relief sought by the applicants’. Ndlambe had breached its constitutional and statutory duties.

  1. With regard to the dumpsite, the court issued a ‘mandamus’ compelling Ndlambe to take reasonable steps to prevent the burning of rubbish; to extinguish any that was burning; to prevent plastic packets etc from leaving the dumpsite and to collect any that had dispersed within a radius of 1.5km form the dumpsite. Ndlambe was to ‘decommission’ the dumpsite and find an alternative. This was to take place within 18 months, ie, by January 2018. In addition, the court ordered Ndlambe to report to the court by 14 July 2014 on what steps it had taken to comply with this supervisory interdict. (Read more about this in the article on ‘Steps taken by Ndlambe thus far’.)
  2. With regard to the sewage issue, the matter was no longer ‘alive’ as the sewage treatment works was (and still is) operational.
  3. With regard to the declaration of contempt of court Judge Lowe considered Judge Froneman’s instructions to Ndlambe regarding the permanent solution. That order had only been finally complied with some four years later in December 2014. Having considered the defences raised by the Mayor, the municipal manager and the Director he concluded, inter alia: ‘In my view the explanationgiven both in respect of the pump house and the continued leakage, which goes mostly unanswered, is indeed inadequate. There is no detail as to when, where and how steps were taken to secure the pump house funding, what delays were occasioned and why.’ A further question arising from this failure was whether the applicants had shown beyond reasonable doubt that Ndlambe’s non-compliance (and that of the Municipal Manager) had been, amongst others, wilful and mala fide.Having dealt with the relevant facts, the Judge concludedthat the municipality’s explanation to justify the flow of waste into the Bushman’s river had been inadequate. This failure had been demonstrated beyond reasonable doubt and, in the context of the papers before the court, had been wilful and mala fide. In the final analysis, and after careful consideration of an extensive amount of case law on the matter, Justice Lowe found Ndlambe and the Municipal Manager to be in contempt of court even though they had complied fully with the orders regarding the sewage works.
  4. With regard to the failure to respond to correspondence the court held that in many instances, though not all — ‘several of the letters being extravagant’ — Ndlambe’s failure constituted an ‘egregious dereliction’ of its duty to reply to correspondence which required a reply.
  5. The sanction for the declaration of contempt of court was dealt with in the paragraphs on the order as to costs. The Judge held that an order for costs de propris bonis is unusual. There had to good reasons for such an order. There was only one part of the application that warranted serious consideration for the granting of such an order. This related to the contempt application and the manner in which the municipality ‘guided by’ its Mayor ‘failed to act’. Due to the passing of time, the Mayor ‘escaped with a warning’. Ndlambe and the Mayor personally were ordered to pay the costs related to the order regarding the dumpsite and the sewage works jointly and severally.

In a further, and hopefully final, application the applicants approached the High Court again for orders regarding the two skips that Kenton used to have: one at the entrance next to the Police Station for refuse and the other at the bowling end of the parking lot outside Spar. Justice Lowe ordered the reinstatement of these two skips with the following additional instructions:

  • Both skips are to be placed on concrete slabs (which are to be laid within 20 days) at the municipal site next to the library; one is for recyclables and the other is for refuse.
  • Ndlambe is to erect a barrier around the site, see that the skips are emptied regularly and the area around the skips is kept clear of debris;
  • Take steps to make clear plastic bags available to the residents of Kenton at the lowest possible price for the disposal of their ‘recyclables’;
  • Publicize this order regarding recycling and refuse removal in Talk of the Town, on the outer door of the municipal office, and by emailing it to KOSRA’s database of residents; and
  • Pay the costs of this order.

Judgment summary by Legal English SA