Upper Highway Air NPC v Enviroserv Waste Management (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Koen J
• Judgment Date: 31 July 2018
• Docket Number: 3692 /2017
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 26 April 2018
• Citation: 2018 JDR 1212 (KZD)

Koen J:

Introduction

[1]

The Plaintiff has instituted action against Enviroserv Waste Mangement (Pty) Ltd., [1] its Managing Director, [2] its Technical Director, [3] the Minister of Environmental Affairs, [4] the Minister of Water and Sanitation, [5] the Member of the Executive Council: Economic Development, Tourism and Environmental Affairs [6] and the eThekwini Municipality. [7] It contends that it does so in its own interest, the public interest, and in the interests of protecting the environment, as contemplated in terms of s 32 of the National Environmental Management Act 107 of 1998 ('NEMA'). It further institutes the action on the basis that in terms of s 24M of NEMA, the Second and Third Defendants are jointly and severally liable for any negative impact on the environment, whether advertently or inadvertently caused by the First Defendant including damage, degradation or pollution. In this regard it relies on the definition of 'environment' contained in s 1 of NEMA which includes the surroundings within which humans exist and making up the land, water and atmosphere of the earth, micro-organisms, plants and animal life, any part or combination of the above and inter-relationships among and between them and the physical, chemical, aesthetic and cultural properties and conditions thereof that influence human health and well-being.

[2]

The Plaintiff further alleges that at all material times the First Defendant was in possession of:

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Koen J

(a)

a H:h waste management licence issued on 8 April 2014 [8] in terms of the provisions of the National Environmental Management: Waste Act 59 of 2008 ('NEMWA') pursuant to which it owns and operates a waste disposal facility known as the Showgweni landfill site ('the site') located at portion of the farm remainder of Kirkfalls 14227, Durban, eThekwini Municipality, KwaZulu-Natal; and

(b)

a class H:H storage licence [9] pursuant to which it operates a recovery and treatment of hazardous waste and effluent plant/facility at the site on portion 36 of the Farm remainder of Kirkfalls 14227, eThekwini Metropolitan Municipality, KwaZulu-Natal.

The site is situated within the geographical area of jurisdiction of this court.

[3]

The relief claimed against the First Defendant, alternatively the First to the Third Defendants, jointly and severally, ex facie the prayer to the particulars of claim is as follows:

'(i)

In the event of the Fourth Defendant as at the date of the hearing of this matter, not having suspended or revoked the First Defendant's waste management licences, or any period of suspension, and as at the date hereof, the odour/nuisance and/or associated health impacts are still being suffered by members of the public, the First Defendant is interdicted and restrained from conducting any further waste management activities pursuant to its waste management licences (Annexures "A" and "B" hereto) other than for those activities necessary for the mitigation and remediation of the pollution, degradation, odour/ nuisance and health impacts resulting from, or possibly resulting from, the operations of the First Defendants SLS and as directed by the Fourth to Seventh Defendants;

(ii)

The First Defendant is interdicted and restrained from conducting any of its Waste Management License activities at the SLS in contravention of its Waste Management Licence conditions (Both Annexures A & B) until duly varied by the Fourth Defendant in terms of s 54 of NEMWA;

(iii)

The First Defendant is directed to comply with its operational practices as contained in its Site Operational Control and Plan, including those obligations as set down in paragraph 12.6 above, save as is directed otherwise by the Fourth to Seventh Defendants;

(iv)

The First Defendant is directed to comply with the statutory regulatory obligations as set out in paragraph 13 above;

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(v)

It is hereby declared that the First Defendant, alternatively First to Third Defendants, are not fit and proper persons for the purposes of any licence applications, reviews or renewals thereof in respect of the operations conducted by the First Defendant at the Shongweni landfill site;

(vi)

The First Defendant is obliged and directed to account in respect of the advantages received by it as a consequence of its contraventions aforesaid; and thereafter to expend such an amount in the manner and on the conditions as the above Honourable Court deems meet;

(vii)

The First Defendant, and insofar as the Second and Third Defendant's oppose their relief sought the First to Third Defendant's jointly and severally, are directed to pay to the Plaintiff's costs of suite, including the reasonable costs incurred by the Plaintiff in the investigation of the matter and its preparation of these proceedings;

(viii)

Further and/or alternative relief.'

[4]

After the dies for the filing of a plea expired, the Plaintiff issued a notice of bar. During the 5 day period afforded by the notice of bar to plead, the First Defendant's filed a rule 23(1) notice in which it raised various grounds on which the Plaintiff's particulars of claim were alleged to be vague and embarrassing.

[5]

On 20 June 2017 after the expiration of the 5 day period envisaged by the notice of bar but within the period allowed in this rule 23(1) notice for removing any complaint of vagueness and embarrassment the First to Third Defendants ('the Excipients') filed an 'Exception and rule 30A(2) application' in which they take exception to the Plaintiff's particulars of claim and apply for relief in terms of rule 30A(2) on the grounds that the particulars of claim are vague and embarrassing and do not comply with rule 18 in a number of respects (as contained in paragraph 2 of that notice) and that the particulars of claim do not disclose a cause of action for various reasons (set out in paragraph 3 of that notice). The contents of that notice will be referred to in more detail below.

[6]

That notice gives rise to a notice which was filed by the Plaintiff in terms of rule 30(2)(b) affording the First to Third Defendants 10 days within which to withdraw, alternatively abandon the exception and its application in terms of rule 30A(2), failing which the Plaintiff would apply to have the Defendant's notice set aside in certain parts. This notice was delivered on 3 July 2017.

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[7]

When the notice was not withdrawn the Plaintiff followed up with an application in terms of rule 30(2)(c) ('the irregular step proceedings') for an order in the following terms:

'1.

Paragraph 3 of the First to Third (Excipients) Notice of Exception delivered on 20 June 2017 be and is hereby struck out as an irregular step;

2.

The First to Third (Excipients), jointly and severally, pay the costs of the application;

3.

Further and/or alternative relief.'

In brief, this application was based on the following. The First Defendant was not obliged to file a rule 23(1) notice to remove causes of complaint in respect of its argument that the particulars of claim disclose no cause of action. However it could not wait until the Plaintiff had responded to the rule 23(1) notice in respect of the complaints relating to vagueness and embarrassment, before noting the exception on the grounds that the particulars did not disclose a cause of action. The exception on both grounds namely that the particulars of claim were vague and embarrassing and that did not disclose a cause of action was noted after the expiration of the 5 day period envisaged by the notice of bar. Therefore, the argument went, the exception based on the particulars of claim allegedly not disclosing the cause of action, was out of time and constituted an irregular step.

[8]

In addition the Plaintiff also brought an application for early discovery ('the rule 35(12) application') in which it seeks the following order:

'1.

The First (Defendant) is directed to comply with the (Plaintiff's) Notice in terms of Rule 35 (12) delivered on 18 December 2017, within 10 days of the date of this Order;

2.

In the event of the First (Defendant) failing to comply with the order in para. 1 above, the (Plaintiff) is given leave to apply on the same papers, supplemented insofar as may be necessary, for an order striking out the First (Defendants) defence to the application;

3.

The period provided for delivery of the (Plaintiff's) replying affidavit in the order of court of 8 May 2017 and is varied and substituted with an order that the (Plaintiff ) is given leave to file its replying affidavit within 10 days of the First (Defendants) compliance with the (Plaintiffs) Rule 35(12) Notice alternatively complies with para. 1 above, further alternatively within 10 days of any order granted in terms of para. 2 above;

4.

The First Respondent is directed to pay the costs of this application;

5.

Further and alternative relief.'

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[9]

The following matters came before me as an opposed motion on 26 April 2018:

(a)

The Irregular step proceedings;

(b)

The rule 35(12) application; and

(c)

The exception.

[10]

The rule 35(12) application was disposed of in terms of a consent order granted on that day, granted in the following terms:

'1.

The period for delivery of the Applicant's replying affidavit per the court order of 8 May 2017, is varied and substituted with an order that the Applicant is given leave to file its replying affidavit or any supplementary replying affidavit, within 10 days of the 23rd of April 2018;

2.

The First Respondent is directed to pay the costs of the application, and it is further directed that the person or persons entitled to practice as advocates or attorneys in the Republic who have provided free legal assistance or representation to the Applicant in the conduct of this...