IN THE HIGH COURT OF SOUTH AFRICA 
[WESTERN CAPE HIGH COURT, CAPE TOWN]

Case number: 7860/2010

In the matter between:
ANTHONY TERENCE SAYERS					Applicant
and
THE MINISTER OF LOCAL GOVERNMENT, 
ENVIRONMENTAL AFFAIRS & 
DEVELOPMENT PLANNING				First Respondent

THE CITY MANAGER OF 
THE CITY OF CAPE TOWN					Second Respondent

THE DIRECTOR OF SOLID WASTE 
MANAGEMENT OF THE CITY OF CAPE TOWN		Third Respondent

JUDGMENT DELIVERED ON 19 JULY 2011

Le Grange, J:-

[1] This is an application for a final interdict that is opposed. The Applicant is an owner of a residential property situated at 5 Castleview Road, Meadowridge, Cape Town. He contends that the Second and Third Respondents ("the City"), operate a recycling and drop-off facility ("the facility") on a portion of Erf 4724 Constantia, which is situated on the Western side of his property and on the other side of a double carriage Highway ("the M3"), in contravention of the Environmental Conservation Act 73 of 1989 (ECA) as amended. The Applicant also contends that the City has unlawfully constructed a shed directly in view of his property.

[3] Mr. j F H Smith, an attorney with rights of appearance in this court, appeared on behalf of the Applicant. Adv. E A De Villiers Oansen appeared on behalf of the City.

[5] The requirements for a final interdict are well settled in our law. An applicant must establish a clear right, an injury actually committed or reasonably apprehended and the absence of any other satisfactory remedy available to it.
[6] The Applicant's clear right is primarily premised on the contention that the City is operating the facility unlawfully. The Applicant relies on certain sections of ECA, and the National Environmental Management: Waste Act 59 of 2008 ("the Waste Act") in support for its belief that the facility is being operated unlawfully.

[7] Adv. De Villiers- Jansen's primary contention was the Applicant's reliance on the provisions of ECA and the Waste Act is flawed. According to him, ECA, which came into effect in June of 1989, does not have retrospective effect and as the facility has been operational since the early 1980's the Act is not applicable. Moreover, the Waste Act commenced on the 1 June 2009 and the City had been operating the facility lawfully prior to its commencement.

[8] In order to establish whether the City is operating the facility unlawfully, it is important to consider the background to the facility, including the applicable laws past and present regulating waste disposal.

[9] It is not in dispute that the City has made use of the facility for a considerable period of time. Mr. Carroll, who deposed to the answering affidavit on behalf of the City, stated that it has been in use since the late 1970's. The City's Manager of Planning, Mr Van Vuuren, in a letter dated 4 June 2009 to the Acting Head of Department: Environmental and Land Planning of the City CAS 29"), puts the date as 1984.

[10] The Applicant states he noticed in the mid 1990's that the facility was used as a dumping site and upon further enquiry ascertained that the area is known to the local authorities as the Ladies Mile Drop Off site. The Applicant further states that despite his numerous complaints about the site to his local councillors he only recently became aware after his attorney of record investigated the matter that the City is operating the facility illegally. Correspondence since 2001 to date between the Applicant, certain local councillors and the City were attached to the founding papers. For the present purposes I deem it unnecessary to record all the information contained therein. The Applicant's view that the City has been operating the facility illegally appears to have been fortified by some of the contents of "AS 29" wherein the City states that it is in the process of appointing an Environmental consultant to assist with the permitting of the site.

[11] It cannot be disputed that the City has operated the facility either before or at least since 1984. The legislation relied upon by the Applicant for its contention that the City is operating the facility unlawfully came into effect on 9 June 1989.

[16] On 9 June 1989, the ECA came into operation. It repealed the whole of the 1982 Act. The Applicant's reliance on the provisions of ECA in support of its contention that the City is operating the facility unlawfully needs closer scrutiny. Section 20(1) of ECA, which has subsequently been repealed by section 80(1) of the Water Act, prohibited any person from establishing, providing or operating a disposal site without a permit, whilst subsection (4) authorised the Minister of Environmental Affairs and Tourism to exempt any person or category of persons from having to obtain a permit. Section 28A entitles a local authority to apply for exemption from any provision of a regulation passed in terms of ECA. The Applicant's main complaint is, in the absence of either a permit or an exemption, the operation of the facility is unlawful.

[18] The Ladies Mile facility has been in operation at least since 1984 and the provisions of ECA only commenced on 9 June 1989. The City can only be in breach of operating the facility unlawfully if the relevant provisions of such Act operate retrospectively.

enpin an approach to the interpretation of statutes which would be mindful of society's distaste for retroactive legislation and which would be characterised by a reluctance to accept that accrued and vested rights are intended to be retroactively set at nought unless the legislation in question makes that plain."

[23] In casu, the legislation in question is silent about retrospectivity. In fact, the provisions of the Waste Act that repealed section 20 of ECA fortify the view against retrospectivity. Section 81(6) of the Waste Act provides that in the event of an application made in terms of section 20 of ECA not having been decided when section 81 takes effect, the application simply proceeds as if that application were an application for a waste management licence in terms of the Waste Act.

[24] In terms of the applicable law at present, section 80(4) of Waste Act, provides as follows :-

[26] It is not in dispute that the management activity contemplated by the Waste Act consists of the temporary storage of general waste at a facility, including a waste transfer facility, such as the facility at Ladies Mile. I am therefore in agreement with the argument of Mr De Villiers - Jansen that the provisions of the Waste Act do not assist the Applicant in this instance as the City had been operating the facility lawfully when the Waste Act commenced in July 2009.

[27] In considering the second requirement of injury actually committed or reasonably apprehended, the only harm which the Applicant contends he will suffer is a negative impact on the market value of his property. These allegations the City disputes. On the papers filed the Applicant did not adduce any evidence, expert or otherwise to prove that the continued operation of the facility will affect the market value of his property. The Applicant also failed to adduce any evidence to show what impact the operation of the facility for the past few years has had on his property. The City does, however, admit that the noise emanating from the wood chipping machine constitutes noise nuisance. The City constructed a berm on the east side of the facility, in an attempt to prevent any nuisance caused to residents living in close proximity to the facility. The berm did not have the desired effect and the City instructed the operator of the facility to construct a shed over the wood chipping machine. According to the City the shed, once completed, would result in the noise of the wood chipping machine not being discernable and not constituting a noise nuisance.

[28] The construction of the shed was, according to the Applicant, the last straw in this ongoing saga with the City. As such, the Applicant's further complaint is that the shed is in direct view of the outside living area of his garden which faces Table Mountain and Newlands Forest.

[29] During the course of constructing the shed, the Applicant launched these proceedings. Part of the relief sought by the Applicant is the cessation of the construction of the enclosure. The City held the view that the enclosure would benefit the residents living nearby and, in particular, the Applicant. The City agreed to halt the construction pending the finalization of these proceedings. According to the City, had the enclosure been completed, the noise would have abated, as reported in the affidavit by Terence Eric Mackenzie-Hoy, who conducted an independent noise assessment at the facility. On these facts, since the shed was not completed, I cannot find that there is an injury actually committed by the City or reasonably apprehended by the Applicant. Moreover, according to the notice of motion the Applicant does not seek to interdict any noise which emanates from the facility.

[30] In respect of the requirement of no alternative remedy, in a case of nuisance an interdict is the most satisfactory remedy. The Applicant does not seek final relief from any noise which emanates from the facility. In any event, the City undertook to implement the recommendation by an independent acoustic engineer. Furthermore, the City did not contravene any provisions of ECA or the Waste Act as alleged by the Applicant.

[31] It is not in dispute that the portion of land on which the Ladies Mile drop off facility is operated is subject to a land claim in terms of the Restitution of Lands Right Act 22 of 1994. The Regional Land Claims Commission recently approved the claim and, as such, the beneficiaries who lodged the claim are entitled to own the portion of land in question. Pursuant to the launch of these proceedings, the City's Mayoral Committee on 27 of October 2010 released the portion of land to the claimants. There is, however, still a process that needs to be completed before the subdivided land can be transferred to its new owners.

[32] According to Mr Carroll, who deposed to a supplementary affidavit on behalf of the City, the City is obliged in terms of section 28 of the National Environmental Management Act 107 of 1998 ("NEMA") to rehabilitate the portion of Erf 4742 on which the facility was operated. The rehabilitation can only take place once a waste licence has been issued in terms of the national Environmental Management Waste Act No. 59 of 2008 (NEMWA"). An environmental impact assessment will be performed by an external independent specialist. According to Carroll, the City may engage an external specialist only after it has called for tenders in this regard. It would therefore have to prepare a tender document setting out the specifications according to which tenderers would be required to tender. The City would then call for tenders, evaluate them and finally award the tender to the successful candidate.

[33] The successful tenderer would have to perform his environmental impact assessment in accordance with the provisions of NEMWA. The successful tenderer would have to lodge the application for a waste licence with the Department of Environmental Affairs & Development Planning ("the Department"). The City will have to comply with the conditions imposed by the waste licence. The subdivided erven may then be transferred to the beneficiaries after the rehabilitation process has been completed to the satisfaction of the Department.

[34] According to Carroll, it is anticipated that the tender process, the rehabilitation of portion 6, the subdivision Erf 4742 and the transfer of the subdivided erven to the individual beneficiaries could take between eighteen and twenty four months.

[35] Pursuant to the filing of the supplementary affidavit of Carroll, I requested the City to provide additional information as to the time frame within which the decommissioning process of the facility is likely to be completed. To this end Carroll filed a further supplementary affidavit detailing the process that the City has to follow and the statutory requirements it has to meet in this regard. The Applicant's attorney has filed an affidavit in response to Carroll's further supplementary affidavit. Having regard to the supplementary and further supplementary affidavits of Carroll, and taking into account the evidence on behalf of the Applicant in this regard, the most sensible approach would be to allow the City the time period of approximately fifteen months to decommission the facility.

[36] It follows that the Application for a final interdict cannot succeed. In respect of costs, the general rule is costs follow the event. In this instance the result favours the City but ultimately the facility must be closed as a result of the successful land restitution claim. Once this process has been completed the Applicant's complaints will in effect be addressed. In view of these circumstances, basic fairness and justice dictates that the Applicant should not be burdened with a costs order in bringing this application. In my view, the most equitable result would be that each party to pay its own costs.

[37]   In the result the following order is made.

The application is dismissed. Each party to pay its own costs.