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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

Case No:35672/12

DATE:03/08/2012

In the matter between:

THE FEDERATION FOR SUSTAINABLE............................................................1st APPLICANT

ENVIRONMENT

THE SILOBELA CONCERNED COMMUNITY....................................................2nd APPLICANT

And

THE MINISTER OF WATER AFFAIRS................................................................. 1st RESPONDENT

THE DIRECTOR GENERAL: WATER AFFAIRS …............................................2ND RESPONDENT

ACTING CHIEF DIRECTOR GENERAL OF WATER AFFAIRS........................3rd RESPONDENT

MPUMALANGA

DIRECTOR OF WATER AFFAIRS: MPUMALANGA..........................................4th RESPONDENT

WATER SECTOR REGULATION AND USE

MEC CO-OPERATIVE GORVANCE AND..........................................................5th RESPONDENT

TRADITIONAL AFFAIRS, MPUMALANGA

ACTING EXECUTIVE MAYOR: THE GERT......................................................... 6th RESPONDENT

SIBANDA DISTRICT MUNICIPALITY

MUNICIPAL MANAGER: THE GERT......................................................................7th RESPONDENT

SIBANDA DISTRICT MUNICIPALITY

THE MAYOR: THE ALBERT....................................................................................8th RESPONDENT

LUTHULI LOCAL MUNICIPALITY

MUNICIPAL MANAGER: THE ALBERT.................................................................9th RESPONDENT

LUTHULI LOCAL MUNICIPALITY

KOMATI CATCHMENT AGENCY...........................................................................10th RESPONDENT

JUDGMENT

MAVUNDLA, J.

[1] On the 26 July 2012 I handed down a judgment, the order of which reads as follows:

"1. That leave to appeal to the Full Bench of this Division against the judgment and order of 10 July 2012 is granted;

2. That costs of the application for leave to appeal be costs in the appeal;

3. That in terms of Rule 49(11) the operation and execution of paragraphs 2 to 5 of the order granted on 10 July 2012 are suspended pending finalization of any appeal to the Full Bench, and or to the Supreme Court of Appeal, and or to the Constitutional Court;

4. That the sixth and seventh respondents are ordered, pending the events set out in order 3 hereof supra to comply with paragraphs 2 to 5 of the order of 10 July 2012 from date of this order.

5. That the sixth to ninth respondents are jointly and severally ordered to pay the costs of the Rule 49(11) application

[2] After having received the Notice for application for leave to appeal against the judgment and order of 10 July 2012, and upon reading the order, it came to my attention that there was a patent error or omission in order 3 which relates to the Rule 49(11) application. The order as it stands conflicts with paragraph "[24]" and order "[4]" of the judgment thereof.

[3] The provisions of Rule 49(11) of the Uniform Rules of Court provide that:

"where an appeal has been noted or an application for leave to appeal against or rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on application of a party, otherwise directs".(Mv emphasis.)

[4] In paragraph "[23]" of the judgment it is pointed out that there was evidence that the order of 10 July 2012 was not being complied with in that " some of the jojo tanks are not refilled regularly and some remain empty."

[5] In paragraph "24]" of the judgment it is stated, inter alia, that: "I must incline towards protection of the rights of the community and uplift the suspension of the operation of the order, pending finalization of an appeal and exhaustion of any possible appeal to the Supreme Court of Appeal and or the Constitutional Court".

[6] It is trite that an order is the executive part of the judgment. The judgment contains, inter alia, the reasons upon which the order is informed. Where there is ambiguity or inconsistence in the order, the reasons informing the order contained in the judgment would reveal the intention of the order.

[7] On a proper reading of paragraphs "[23]", "[24]" and order "4"of the judgment of 26 July 2012, it is clear that the intention of the order, was to suspend the incidence flowing from the noting of the application for leave to appeal its self, so that the order should be complied with pending the finalization of any appeal.

[8] There was, however, a patent error or omission in order 3 in that the word "not" was erroneously omitted. A court may mero motu in terms of rule 42(1 )(b) vary its order where there is an ambiguity, or patent error or omission only to that extent; vide Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306H-307H; West Rand Estates Ltd v New Zealand Insurance Co LfcM926 AD 173 at 186-7;

[9] The error or omission in order 3 of the relevant judgment was that the word "not" was erroneously omitted and should have been typed in between the words "are suspended" so as to read "are not suspended". I am of the view that in terms of the Rule 42(1 )(b) the order 3 should be corrected and varied by insertion of the word "not", as indicated herein above.

[10] In the premises I make the following order

1. That the order delivered on 26 July 2012 in particular order 3 thereof is varied to read as follows:

"1. That leave to appeal to the Full Bench of this Division against the judgment and order of 10 July 2012 is granted;

2.That costs of the application for leave to appeal be costs in the appeal;

3. That in terms of Rule 49(11) the operation and execution of paragraphs 2 to 5 of the order granted on 10 July 2012 are not suspended pending finalization of any appeal to the Full Bench, and or to the Supreme Court of Appeal, and or to the Constitutional Court;

4. That the sixth to seventh respondents are ordered, pending the event set out in order 3 hereof supra to comply with paragraphs 2 to 5 of the order of 10 July 2012 from date of this order.

5. That the sixth to ninth respondents are jointly and severally ordered to pay the costs of the Rule 49(11) application."

N .M. MAVUNDLA

JUDGE OF THE COURT

HEARD ON THE : 23 / JULY / 2012

DATE OF JUDGEMENT : 26/July/2012

DATE OF VARIATION : 03 / AUGUST / 2012

1ST& 2ND APPLICANTS' ATT : LEGAL RESOURCES CENTRE

1st&2ND APPLICANTS'ADV : ADV J.R. BRICKHILL

6th -9th RESPONDET'S' ATT : TWALA ATTORNEYS

6th -9th RESPONDET'S ADV : ADV L.P. MKHIZE

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