By Siya Mkhize, Associate in the Environmental & Clean Energy Law department
The Supreme Court of Appeal (SCA) recently handed down judgment in Abbott v Overstrand Municipality (99/2015)  ZASCA 68 (20 May 2016). The case dealt with whether or not a municipality was under any legal obligation to take measures to prevent the flooding of a residential property that was situated on a floodplain, prompting the question as to whether or not municipalities can exercise an environmental management function in terms of the Constitution.
The appellant, Mr Abbott bought a property in 1982 which bordered on the Klein River in the District of Hermanus in the Western Cape. He subsequently built a house and some buildings on the banks of the river. The Klein River forms part of the Klein River Estuary, which is an estuarine lake that seasonally opens and closes on normal river flow regimes.
Mr Abbott claimed that for many years there had been an established practice by the Overstrand Municipality in respect of the breaching of the berm at the mouth of the lake whenever the river was flooded and the low-lying properties were threatened by flood damage. In 2010, however, the municipality departed from this established practice which resulted in the flooding of his property and subsequent structural damage to his house. He also claimed that in 2013, the municipality had informed him, in writing, that it was not under any legal obligation to protect his house from being flooded by the Klein River.
In 2014 Mr Abbott approached the Western Cape High Court alleging that his house had been damaged by the flooding of the Klein River in circumstances where the municipality was obliged to take certain steps to prevent damage to his property, yet failed to do so. The main relief sought by Mr Abbott was the review and setting aside of the municipality's decision to refuse to take any steps to prevent damage being caused to his house by the flooding of the Klein River in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and alternatively, in terms of the common law.
The High Court dismissed Mr Abbott's claim on the basis that he failed to prove as a starting point that the conduct of the municipality was the resultant cause of the damage to his house.
The SCA’s decision
Although agreeing with the trial court decision to dismiss Mr Abbott's claim, the SCA provided different reasons in reaching this conclusion.
Was there a legal obligation?
In order to succeed with his claim on appeal, Mr Abbott had to establish that the municipality was under a legal obligation to take steps to prevent damage to his house by the flooding of the Klein River. In terms of Section 156(1) of the Constitution, municipalities have executive authority in respect of, and have the right to administer:
The local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and
Any other matter assigned to it by national or provincial legislation.
In this regard, the Court held that in terms of the Constitution, the local government matters listed in Part B of Schedules 4 and 5 did not give any authority to the municipality to breach the berm in the estuary or to protect riparian property owners against flooding. The SCA found that these are matters that fall under environment and nature conservation, which are functional areas of concurrent national and provincial legislative competence (and NOT municipal competence) in terms of Part A of schedule 4 in the Constitution.
In light of this, the only other point that had to be determined in terms of Section 156 of the Constitution, was whether or not the municipality was assigned any powers by national / provincial legislation. Mr Abbott sought to rely on a 1991 pre-constitution council resolution of the erstwhile Hermanus Municipality purporting to take full control of the management of the estuary as requested by the then Chief Director of Nature and Environmental Conservation (which was a provincial nature conservation body). The Court, however, found that there was no evidence of the Chief Director defining these powers and responsibilities.
Mr Abbott also sought to rely on certain regulations published in 1994 under the Sea-shore Act 21 of 1935, which he contended gave powers to the municipality to control the sea shore and the estuary. The Court found that Mr Abbott's reliance on the 1994 regulations was factually incorrect and misplaced, as these regulations contained a prohibition on the opening of the mouth of a river where a bar of sand has developed between the mouth of the river and the sea blocking tidal interchange. The Court further pointed out that the submissions made by Mr Abbott did not take into account the re-allocation of public powers and responsibilities by the Constitution since 1996.
The Court held that under the circumstances, neither national nor provincial legislation had assigned any powers related to the management of the estuary to the municipality. Accordingly, the municipality could not lawfully assume powers it did not have, and neither could it be compelled to take steps it had no authority to take.
NOTE: Schedules 4 and 5 B of the Constitution allocates to municipalities many matters that have an indirect impact or are relative to the environment. These include matters such as air pollution, refuse removal, refuse dumps, solid waste disposal, water and sanitation services, and domestic waste-water and sewage disposal systems. Despite having executive authority to manage and legislate on these matters, a municipality must be specifically assigned powers by either national or provincial legislation in respect of any matter concerning the environment and nature conservation, as this falls outside their area of competence in terms of the Constitution.
For any queries on the above, please contact:
Associate in the Environmental & Clean Energy Law department
Shepstone & Wylie Attorneys
+27 82 562 3674