6-month jail sentences wholly suspended pending compliance with the 2015 high court order
The Mayor and Municipal Manager have each been handed down a six-month jail sentence for contempt of court. The sentence is wholly suspended on condition they comply with a 2015 high court order relating to the municipal landfill at Makhanda. In addition, the Judge has also ordered the registrar to forward a copy of Municipal Manager Moppo Mene’s affidavit to the National Directorate of Prosecutions for investigation.
The sentence was handed down on 4 March 2020 by Judge Miki Mfenyana, who heard the application by the Makana Unity League (MUL) on 12 December 2019. The Judge found that the Mayor and the Municipal Manager were in wilful contempt of the court beyond any reasonable doubt and mala fide (bad faith) for failing to comply with Judge Jeremy Pickering’s September 2015 order..
The MUL brought the application because of ongoing burning at the dump and poor management of the facility.
In their answering affidavit to the December 2019 contempt of court application, points the respondents raised in their defence included that they had taken steps to comply with the court order: they had independent service provider (Mphele Engineering) whose technical expertise was necessary to carry out the steps required in the order.
In her judgment, Judge Mfenyana disagreed with this as a defence, saying the engineers had been appointed only three years after the original order was granted.
On the monthly reports required to be filed on the municipality’s progress on complying with the order, the Judge commented on those filed in July 2016, October 2016 and February 2017.
“What is striking about the three reports is that save for a few insignificant changes, they are identical,” the Judge said. “What this signifies is that little or no effort was made to comply until 10 months later.”
She described the reporting as inadequate and misleading.
The judge was scathing about Makana’s response to the 2015 order and ruled that the municipality had acted willfully and mala fide.
“They deliberately defied the order,” the Judge said. “Not only that. The absence of any documentary or tangible evidence to gainsay the evidence of the applicant leads to one conclusion: that the respondents were fully aware of their obligations and have no reasonable explanation for their non-compliance even in the face of overwhelming evidence by the applicant.
“They were fully aware oif the condition of the site, the recurrent fires… and the health risk it poses to the residents of Grahamstown…,” the Judge said.
The Judge also ordered the registrar to forward a copy of Mene’s affidavit to the National Directorate of Prosecutions for investigation.
The applicants alleged in court documents that not only had the respondents failed to comply with the terms of the court order; Mene had perjured himself in that he had provided false information to the court under oath in the affidavit he filed in those proceedings.
“The respondents’ affidavit leaves very much to be desired,” the Judge said.
Attorney for the Makana Unity League is Brin Brody of Wheeldon Rushmere and Cole and Senior Counsel Izak Smuts argued the matter in the Grahamstown High Court on 12 December 2019.
The Applicant was the Makana Unity League.
The First Respondent was Makana Municipality.
Second Respondent was the Mayor and Third the Municipal Manager. While the applicants sought to have them held accountable in both their official capacity as well as personal capacity, the Judge’s ruling against them was nomine officiao (in their official capacity).
A punitive costs order sees them ordered to pay costs of the application on a attorney and client basis, including the costs of two counsel.
Mayor Mzukisi Mpahlwa told Grocott’s Mail this morning, “We shall study the judgment and comment after we have been briefed by our lawyers.”
THE 2015 ORDER AND 2020 JUDGMENT
Grocott’s Mail reported at the time that in July 2015 the Makana Unity League filed an application in the high court in Grahamstown to compel Makana Municipality to undertake 10 actions to improve conditions at the dump, and their effects on the town. The facility is 3km outside the centre of Grahamstown on the Bedford/ Cradock Road, the R350.
Documents accompanying the application had detailed a saga beginning in January 2013 of efforts by various individuals to have security problems, litter that blows into surrounding areas, thick smoke from fires at the dump and other health concerns addressed, we reported.
The actions the application sought to have the court compel Makana Municipality to undertake at or concerning the dump included:
* To refurbish the perimeter fence;
* Develop and implement a waste screening mechanism;
* Develop and implement a stormwater management plan that includes arrangements for the correct treatment of waste water;
* Appoint an independent specialist to determine whether the site poses a threat to human or environmental health;
* Appoint an independent specialist to monitor the air quality of the site;
* Appoint an independent specialist to sample and test the ground and surface water in the area, and take remedial measures if it is contaminated;
* Appoint a specialist to monitor and analyse gas submissions and related air quality;
* Call a Council meeting to discuss the order and develop a management plan for the site.
Among the interventions had been an inspection by the Department of Economic Development, Environmental Affairs and Tourism’s Compliance and Enforcement section. A compliance notice was served by the Department on Makana Municipality on 9 March 2015.
In August 2015, the municipality announced its intention to oppose the Makana Unity League’s application to compel it to improve conditions at the rubbish dump.
Judge Jeremy Pickering ordered in the Grahamstown High Court on 8 September 2015 that Makana Municipality must comply with environmental legislation in managing the Makhanda landfill, in compliance with Environmental Affairs’ March 2015 compliance order.
This week’s judgment finds the Mayor and Municipal Manager in contempt of that 2015 order.