Bankenveld Homeowners Association v Elmir Property Projects (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 14 November 2022
• Docket Number: 1523/2020
• Hearing Date: 14 April 2022
• Citation: 2022 JDR 3431 (MN)

Langa J:

Introduction

[1]

This application concerns the provisioning of proper sewage services to the Bankenveld residential estates in the eMalahleni Local Municipality. In addition to other relief, the Applicant, ("Bankenveld Homeowners Association NPC or Bankenveld HOA") seeks an order to compel the First Respondent, Elmir Property Projects (Pty) Ltd, ("Elmir"), a developer of the two private residential estates and/or the Second Respondent, the eMalahleni Local Municipal Council ("the Municipality"), to properly maintain the two wastewater treatment plants, ("the plants"), erected by Elmir and which serve the Applicant and the Eighth Respondent ("the Bankenveld Golf Estate Property

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Owners' Association) also referred to as the Bankenveld Golf Estate HOA. In this matter "Estates" will be used with reference to the two Estates. As will be evident from the relief sought as tabulated below, the Applicant in the main seeks to compel Elmir and/or the Municipality, to properly maintain the two reclamation plants in the estates.

The Parties

[2]

The parties in this matters are the following:

2.1

The Applicant is Bankenveld HOA which controls the Bankenveld Estate.

2.2

The First Respondent is Elmir, a developer of two the two private residential estates involved in this matter;

2.3

The Second Respondent, the Municipality, is a local Municipal Council as contemplated in the Local Government: Municipal Structures Act 117 of 1998;

2.4

The Third Respondent is the Minister of Water and Sanitation;

2.5

The Fourth Respondent is the Department of Water and Sanitation: Compliance Division, Mpumalanga;

2.6

The Fifth Respondent is the MEC: Mpumalanga Provincial Department of Economic Development, Environment and Tourism; and

2.7

The Sixth Respondent is the Golf Club Bankenveld (Pty) Ltd;

2.8

The Seventh Respondent is the Registrar of Deeds, Nelspruit.

2.9

The Eighth Respondent is the Bankenveld Golf Estate Property Owner's Association (Pty) Ltd.

[3]

Elmir and the Municipality are the only respondents opposing the application. Elmir in turn also launched a counter-application against the Municipality. The Applicant was represented by Advocate FJ Erasmus SC whereas Advocate L Putter SC represented Elmir. The Municipality was represented by Advocate O Ben Zeev.

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Relief sought in the Notice of Motion

[4]

For completeness of the record, the relief sought in the notice of motion by the applicant is as follows:

1.

That the First Respondent be interdicted and restrained from developing, alternatively selling and further alternatively subdividing any of properties in the Township known as Bankenveld Extensions 12 to 33, Witbank, ("hereinafter the Townships"), listed in Annexure "A" attached hereto, until it has: -

1.1

complied with all conditions of establishment of the Township;

1.2

obtained Water Use Licences as prescribed in terms of the National Water Act of 1998;

1.3

Complied with the conditions, if any, of any Directives issues in terms of the National Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998;

1.4

obtained environmental authorizations for the existing and future sewer plants located on the Township; and

1.5

obtained consent from the Second Respondents in terms of the Spatial Planning and Land Use Management Act 16 of 2013.

2.

That the First, alternatively the Second Respondent and further alternatively the First and Second Respondents, jointly and severally, be directed to provide sanitation services, namely sewer services which are compliant to all legislation - including but not limited to the Water Services Act 108 of 1997 and the National Water Act 36 of 1998 - to the Township including but not limited to: -

2.1

Budgeting, implementation, monitoring, upgrading and maintenance of such sewer services;

2.2

The payment of all or any operational costs on a daily basis and the capital

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payment of structural or any other maintenance for the first and second sewer reclaiming plants.

3.

That the First, alternatively the Second Respondent and further alternatively the First and Second Respondents, jointly and severally, be directed to remediate and rehabilitate the environmental damage caused by the ongoing sewer spillage at the Township;

4.

That the First, alternatively the Second Respondent and further alternatively the First and Second Respondents, jointly and severally, be directed to mitigate and prevent future environmental damage caused by the ongoing sewer spillage at the Township;

5.

That the First and Second Respondents be directed to provide comprehensive written feedback to the Applicant every 2 (two) months on the implementation of prayers 1 (1.1 to 1.5) for both reclaiming sewer plants constructed in the Township;

6.

That the First Respondent be directed to make application for the necessary environmental authorizations as prescribed by the National Water Act 36 of 1998 and the National Environmental Act 107 of 1998, including but not limited to a Water Use License, within 4 (four) months from the date of the order;

7.

That the Sixth Respondent be prohibited to extract water in any format from the existing reclamation plants for irrigation purposes of the Bankenveld Golf Course pending compliance with prayers 1 and 2 hereof by First and Second Respondents;

8.

That the Seventh Respondent be instructed to register a Caveat on the properties listed in Annexure A attached hereto, with the wording:

"The First Respondent is interdicted and restrained from developing alternatively selling and subdividing any of the following properties in the

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Township known as Bankenveld Extensions 12 to 33, Witbank (the Township), listed in annexure "A' attached hereto until it has: -

8.1

complied with all conditions of establishment of Township;

8.2

Obtained Water Use Licences in terms of the National Water Act 36 of 1988;

8.3

complied with the conditions, if any, of any Directive issued in terms of the National Water Act 107 of 1998;

8.4

obtained environmental authorizations for the existing and future private sewer plants located on the Township;

8.5

obtained consent from the First (sic) Respondent in terms of the Spatial Planning and Land Use Management Act 16 of 2013.

9.

Costs against the First, Second and Sixth Respondents on attorney and own client scale, jointly and severally;

10.

Costs against the remaining Respondents on attorney and own client scale only in the event of opposition.

The Factual matrix

[5]

Although only Elmir and the Municipality opposed this application, the Eighth Respondent (Golf Club Bankenveld), which is represented by the Bankenveld Golf Estate HOA, supports the relief sought by the Applicant. When the initial application was launched during June 2020, Elmir and the Municipality both filed answering affidavits followed by the replying affidavits by the Applicant. However, subsequent thereto, the Municipality launched an urgent application and obtained an order in this court on 06 November 2020 compelling Elmir, pending the finalization of the main application, and to the satisfaction of the Municipality, to operate and maintain the wastewater treatment plants and to rehabilitate the environmental damage caused by raw sewage discharged from the plants.

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[6]

Pursuant to the urgent court order referred to above, the Municipality unsuccessfully launched a contempt application against Elmir and its two directors which application was struck off due to lack of urgency. However, Elmir in response thereafter launched a counter-application relating to the main application, the urgent application and the contempt application. In the counter-application Elmir sought to assign the obligation to operate the reclamation plants to the Municipality. The thrust of its argument in the counter-application is that the Township Establishment Conditions imposed on it (Elmir) fell away as the proclamation of the Bankenveld Extension 11, including the said conditions, were not published in a Provincial Gazette in accordance with Section 103 of the Town-Planning and Townships Ordinance 15 of 1986 "the Ordinance".

[7]

It is common cause that from about around 2001 Elmir developed the "Bankenveld Extension 1-10", also known as "Bankenveld Estate", which is controlled by the Applicant. This was Phase I of the development which was later followed from 2006 by Phase II, also known as Extension 11. Extension 11 was later subdivided into Extension 12 to 33. The second estate, the Golf Estate, is situated on Extension 12 to 14.

[8]

It is further common cause that prior to the erection of the reclamation plants at the centre of this litigation, the Bankenveld Estate had up to 2010 been serviced by the Sewage Works belonging to the Municipality. However, when Phase II development came about, the reclamation plants were constructed by Elmir as authorized by the Municipality and they were to serve the two Estates. The first plant is situated on property belonging to the Applicant and serves about 387 stands, while the second one is located adjacent to the Golf Estate on the property belonging to Elmir and serves about 55 households. After the construction thereof, the two plants were handed over to Elmir by its engineers on 29

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October 2009 and 15 April 2010 respectively according to the Completion certificates by the engineers Strydom & Malan Consulting Engineers.

[9]

It further common cause that on 25 September 2007 the Land Use Committee of the Municipality considered Elmir's application for the establishment of township Bankenveld Extension 11 in terms of section 96 of the Ordinance. The committee...