The Constitutional Court softened the blow for three residents of Malamulele who complained about bad service rendered by the Vhembe District Municipality (VDM). The Limpopo High Court previously dismissed their application to force the municipality to fix a broken sewage pipe and also awarded a punitive cost order against them.
The case stems from an incident that appeared to have happened in 2016. Three Malamulele residents, Sannie Tintswalo Maluleke, Sindile Chavane and Sarah Matodzi Maponyani, were apparently at their wits' end battling with a burst sewage pipeline in Section B, Malamulele. They complained to the Thulamela Municipality (TM) on at least two occasions, where they were told that a team would be dispatched to fix the problem. This did not happen and they were left to endure what the court stated as "the noxious, foul-smelling, health-threatening mess the sewage spillage inflicted on them."
With the assistance of an NGO, Limpopo Legal Solutions, the residents then turned to the courts, hoping to obtain an interdict to force the authorities to fix the pipeline. This did not end well for them, as the High Court judge in Thohoyandou had little empathy for their attempt to use litigation to try and sort out a problem that could have been sorted out via other forums.
The first problem that the applicants experienced was that they had knocked on the wrong doors to address the matter. The municipality responsible for water and sewage services in the area is the VDM. Why the TM never referred them to Vhembe is not clear. The respondents in the case were the VDM, the TM and the Minister of Environmental Affairs.
VDM opposed the application and said that they had only been made aware of the problem when court papers had been served on them. They argued that, had the applicants bothered to call them, the problem could have been attended to within 48 hours. They also said that the residents had had other remedies, such as reporting the matter to the ward councillor.
Acting Judge Ms Antolize Lamminga dismissed the application and found that it was inappropriate for the applicants to rush to court without first notifying VDM of the problem. She then ordered each of the applicants to pay VDM's cost, jointly and severally, on a punitive scale as between attorney and client.
The applicants then took the matter to the Constitutional Court (ConCourt), both on the merits of the case and the cost award. The application was again opposed by VDM.
The ConCourt handed down judgement on 18 May 2017. The eleven judges on the bench, in a unanimous decision, found that the High Court judge had been correct to dismiss the application. "Although the applicants made a brave face of seeking to challenge that order, they had no basis for doing so," the ConCourt found. It was again emphasized that the government and citizens should engage, if at all possible, before litigating.
The question of whether the punitive cost order was justified, took a lot more consideration. The ConCourt found that the High Court had not applied the Biowatch principle. This principle, established in 2009, states that when a private party seeking to enforce constitutional rights against the State loses the case, it should not be ordered to pay the State's cost unless the litigation was vexatious or improper.
The Biowatch principle is important because a cost order "may have a chilling effect on litigants who might wish to raise constitutional issues," the ConCourt stated. They found that there was enough reason to believe that the action of the applicants was not frivolous, vexatious or improper.
The ConCourt ruled that the cost order of the High Court be set aside and that no order be made as to who should pay the legal bills. As far as the cost of bringing the application to the Constitutional Court went, the judges ruled in favour of the applicants and awarded them costs.
As far as the broken sewage pipe is concerned, it was not clear whether the problem was ever sorted out. In the application to the ConCourt, the Malamulele residents stated that the sewage was still spilling over, but the Court did not regard this as central to the issues at hand.