Makana appeal over ‘stinking, burning’ landfill site fails

The high court in Makhanda has dismissed an application from Makana mayor Mzukisi Mpahlwa and administration boss Moppo Mene for leave to appeal a ruling that they wilfully ignored a court order to improve catastrophic management of the municipal landfill site.

In a scathing judgment in early March, judge Mickey Mfenyana sentenced Mene and Mpahlwa to six months’ imprisonment for contempt of court.

She said this would be wholly suspended provided that within 30 working days they met each and every requirement  imposed on them by a 2015 judgment to improve the landfill site.

If they failed to do so, she said they would have to personally come to court to explain why they should not go directly to jail.

Instead the municipality sought leave to appeal the judgment.

On Thursday, Mfenyana said there were no prospects of success on appeal and dismissed the application.

The two men had argued that Mfenyana had been incorrect in finding the municipality had failed to gainsay photographic and other evidence that suggested the landfill site, some 5km north of Makhanda, was every bit as bad as it had been prior to a 2015 judgment.

That judgment had ordered them to bring the stinking, burning, unsightly landfill site into line with the requirements of the constitution, environmental legislation and the conditions of the permit in terms of which the municipality runs the site. 

Mfenyana said the municipality’s claim that they had complied with the order was not borne out by the evidence.

The photographs showed a collapsed perimeter fence and unhindered access to the landfill site with photos showing dozens of people, dogs and donkeys scavenging on it.

She dismissed the claim that their contempt of court was not deliberate.

She said they could not simultaneously claim that they had complied with the court order and that their noncompliance was inadvertent.

“While the applicants [Mene and Moppo] deny that they are in contempt they fail dismally to illustrate why they are not.”

In her March judgment, Mfenyana also directed the court registrar to forward a copy of Mene’s affidavit to the office of the national director of public prosecutions to consider perjury charges against him.

Mene contended in his affidavit that they had met most of the terms of the 2015 court order and had appointed a private contractor to manage the landfill site.

Just days after he signed his affidavit, civil society organisation Makana Unity League (MUL) submitted current photographic evidence that the landfill site perimeter fence remained collapsed, access control and waste screening mechanisms were non-existent, rubbish was not covered daily as required and there were persistent fires on the dump.

Dozens of people, donkeys and dogs were photographed picking their way through the rubbish.

Mfenyana said MUL had shown in great detail how the municipality had consistently failed to comply with the order over an extended four-year period during which devastating fires emanating from the landfill site had destroyed property, polluted the air and been an ongoing threat to the environment and inhabitants of Makhanda. The mayor and municipal manager had acted willfully and in bad faith in ignoring the court order, she concluded.

MUL’s attorney, Brin Brody, said Mfenyana’s judgment left no doubt that the judgment was not appealable.

“Once again the municipality has wasted taxpayers’ money on unnecessary litigation.”

Mpahlwa said he would comment after he had been briefed about the judgment.

The municipality still has the option of petitioning the Supreme Court of Appeal in Bloemfontein for leave to appeal.