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Featherbrooke Homeowners Association NPC v Mogale City Local Municipality & Others (25 January 2021)

25 January 2021

Case Number: 11292/2020

High Court: Gauteng Local Division, Johannesburg

Date of  judgment: 25 January 2021

Judge: Mahalelo

Judgment.

Parties: Featherbrooke Homeowners Association NPC v Mogale City Local Municipality, City of Johannesburg Local Municipality, Minister of the Department of Water Affairs and Sanitation, MEC: Gauteng Department of Agriculture and Rural Development, Johannesburg Roads Agency (Pty) Ltd and the West Rand District Municipality.

Case summary:

In this application for Part A of an interim structured supervisory interdict, a homeowners association (Featherbrooke) sought relief against several state entities in all three spheres of government (two local and one district municipality, the National Minister responsible for water and sanitation, the Gauteng MEC responsible for agriculture and rural development, and the Joahnnesburg Roads Agency) based on the state entities’ “chronic  dereleliction of duty … regarding the overall storm water management” of a river which ran adjacent to the housing estate.

The court found that Featherbrooke had been experiencing flooding for over a decade and that this had exposed infrastructure which presented an ongoing risk of pollution, contamination and electric shock. The court found that there was significant risk of further harm should interventions not be made in the affected stormwater system. The local municipalities were found to be responsible for having caused an increase in the flow of the storm water.

The government respondents had failed to take any measures to prevent or remedy harm caused by ongoing flooding and erosion to private properties as well as public sewage lines and electricity infrastructure – despite repeated requests and the legislated and constitutional duty on all spheres of government to mitigate and prevent future “disaster type situations.”

Judge Mahalelo held that the homeowner association’s constitutional right to a healthy and safe environment contained in section 24 of the Constitution had been infringed on.

The City of Mogale Local Municipality was ordered to rehabilitate the storm water system so as to properly manage the river beds adjacent to Fetaherbrooke’s fencing. It was also ordered to draft a stormwater management plan for the area and fix public infrastructure (including sewer lines and power transmission infrastructure) near to the housing estate which had been exposed over a decade of chronic flooding. The court ordered that the City of Mogale Local Municipality report back to court with feedback on implementation of this interdict within 30 days, and subsequently every three months.

The Applicant was not successful in seeking an order which allowed it to effect the necessary rehabilitation itself and claim the costs from the respondents because of concerns that this may lead to an abuse of process.

 

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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