Kamiesberg Local Municipality and Another v Koingnaas Belasting Betalersvereniging

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MC Mamosebo J
• Judgment Date: 31 December 2021
• Docket Number: 2609/2021
• Hearing Date: 20 December 2021
• Court: Northern Cape Division
• Citation: 2022 JDR 0337 (NCK)

Mamosebo J:

[1]

The first applicant (Kamiesberg Local Municipality or KLM) and the second applicant (the municipal manager) brought an urgent application that I heard on the afternoon of Monday 20 December 2021 calling upon the respondents to show cause why they should not be interdicted and restrained from performing certain acts and conduct set out in detail hereunder. The applicants are represented by Adv Van Tonder and the respondents by Adv Kriel.

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Mamosebo J

[2]

The applicants are seeking a rule nisi in these terms:

"1.

That the applicants' failure to adhere to this Court's rules relating to time periods and service be condoned, and the application be heard as an urgent application in terms of the provisions of Rule 6(12)(a) and (b);

2.

That a rule nisi be issued, returnable on Friday, 04 February 2022 at 09:30 alternatively upon such date as this Court deems meet, calling upon the respondents to show cause if any, why the following orders should not be made final:

2.1

That the first and second respondents are interdicted and prohibited from interfering with the rights of access of any member of the public to the municipal and public roads situated within the town of Koingnaas;

2.2

That the first and second respondents are interdicted and prohibited from conducting any roadworks, maintenance and/ or repairs to any municipal and public roads situated within the municipal district of the Kamiesberg Municipality;

2.3

That the first and second respondents are interdicted and prohibited from entering the first applicant's sewerage plant, water plant, and rubbish dump situated in the town of Koingnaas;

2.4

That the first and second respondents are interdicted and prohibited from interfering with any of the first applicant's infrastructure including water and sewerage systems within the municipal district of the first applicant;

2.5

That the first and second respondents are interdicted and prohibited from conducting any works, construction, maintenance and/or repairs to any of the first applicant's infrastructure, including water and sewerage systems, buildings, assets or property situated within the town of Koingnaas;

2.6

That the first and second respondents are interdicted and prohibited from interfering with the second applicant and/or any of the employees and staff of the first applicant;

2.7

That the first and second respondents are interdicted and prohibited from interfering with the administration and/or day to day running of the first applicant's functions at:

2.7.1

The Kamiesberg municipal service point at Koingnaas;

2.7.2

The Koingnaas sewerage plant and sewerage systems;

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Mamosebo J

2.7.3

The Koingnaas water system;

2.7.4

The Koingnaas municipal rubbish dump;

2.7.5

The Kamiesberg municipal offices situated at 22 Main Road, Garies;

2.8

That the first and second respondents be interdicted and prohibited from threatening the second applicant and/or any of the employees and staff of the first applicant;

2.9

That the South African Police Service be directed and authorised to take all reasonable and necessary steps to give effect to this order.

2.10

That the first and second respondents be ordered to pay the costs of this application jointly and severally, the one to pay the other to be absolved.

3.

The order contained in 2.1 to 2.9 above serve as an interim interdict with immediate effect, pending the finalisation of this application.

4.

That the rule nisi be served as follows:

4.1

Upon the first and second respondents in terms of the uniform rules of Court and per e-mail;

4.2

Upon the members of the first respondent by means of publication in the Plattelander [newspaper].

5.

Further and/or alternative relief."

[3]

The Notice of Motion, Founding Affidavit and Annexures "RCB1" to "RCB10" were served on the respondents on 15 December 2021 at 12:30 by email and by the sheriff personally on the second respondent, Johann G Grabe, as the chairperson of the first respondent, the Ratepayers' Association. The respondents had until 15 December 2021at 16:30 to file their notice of intention to oppose and their opposing papers by 17 December 2021. No notice of intention to oppose was filed. Mr Van Tonder explained that he only received the opposing papers at 11:30 on the day of the hearing. The filing sheet bears the heading "filing sheet respondents replying affidavit" signed by JC Kidson, of Stupel & Berman Inc. for the respondents. It was not signed by Engelsman Magabane, the local correspondent attorneys. It is therefore unclear who the attorneys are in respect of the filing sheet.

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Mamosebo J

Points in limine:

[4]

It was on that basis that Mr Van Tonder submitted that:

4.1

The respondents' papers are not properly before Court and should be disregarded. However, should the Court decide to accept the papers, it should find that the opposing affidavit is not clear and legible. I must indicate at this early stage that the opposing affidavit is indeed not legible and counsel was alerted thereto.

4.2

That whereas the second respondent deposed to the opposing affidavit which was signed by him on 17 December 2021 and commissioned on the same day, it is inexplicable why it was only served on the applicants less than three hours before the hearing (on 20 December 2021) and describe it as a hearing by ambush.

4.3

That there has not been full compliance with the regulations governing the administration of an oath or affirmation issued under s 10 of the Justices of the Peace and Commissioner of Oaths Act [1] in that the purported Commissioner of Oaths failed to print his or her names and surname in full. Regulation 3 stipulates:

"(2) The commissioner of oaths shall -

(a)

sign the declaration and print his full name and business address below his signature; and

(b)

state his designation and the area for which he holds his appointment or the office held by him if he holds his appointment ex officio."

Undoubtedly, the Commissioner of Oaths has not complied with Regulation 3(2)(a) above. Counsel for the respondents has nonetheless indicated that the respondents wish to argue urgency of the matter contending that the application is not urgent.

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Mamosebo J

The historical background.

[5]

Mr Rufus Comarco Beukes is the Municipal Manager of the first applicant, Kamiesberg Local Municipality. KLM is responsible for the provision of municipal services in 16 small towns in the Namakwa District. Koingnaas is one of the 16. Koingnaas was a mining town established, owned and controlled by De Beers Consolidated Mines (Pty) Ltd who provided services to its residents. In 2010 De Beers partially transferred municipal services of Koingnaas to the Kamiesberg Local Municipality in terms of an agreement relating to the transfer of Municipal Services. In 2016 De Beers transferred the remainder of the services to the Municipality. The applicants concede that rendering services to the small towns is impaired by the distances involved. For example, in order to provide water to Koingnaas it has to be pumped over a distance of about 20km's from Hondeklipbaai.

[6]

About a year ago, the residents of Koingnaas established a ratepayers' association in Koingnaas. The chairperson of the association, Mr Grabe, directed correspondence on behalf of the association making certain demands from the Municipality and setting ultimatums pertaining to issues of service delivery. The ratepayers maintain that their services have deteriorated since the transfer from De Beers to the Municipality. They therefore demand that:

(i)

The Municipality should furnish them with the information pertaining to the amounts collected from the Koingnaas residents monthly;

(ii)

The residents take control of the said monthly accounts;

(iii)

The applicants furnish them with a monthly statement of income and expenses on or before the 7th of each month; and

(iv)

they be furnished with the founding documents of KLM to enable an independent monthly audit of the finances of

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Mamosebo J

Koingnaas to be conducted. The applicants maintain that it is impossible to furnish such information as its responsibility covers 16 municipalities.

[7]

On 06 December 2021 Mr Ceril Cook, one of KLM's general workers, telephonically contacted Mr Beukes informing him about construction work being performed on the Koingnaas roads by the first and/or second respondent and/or any of the first respondent's members. The Municipal Manager contacted the South African Police Services (SAPS) whose members reportedly later confronted the respondents...