The applicants are 16 businesses conducting various operations in Markman Township, Gqeberha. They alleged that respondents engaged in transportation and stockpiling of manganese ore caused severe environmental nuisance. The complaints included: excessive heavy truck traffic (800-1090 trucks per day); severe damage to roads, stormwater systems, and infrastructure; manganese dust pollution causing health risks (manganism similar to Parkinson's disease); contamination of the Swartkops River flowing to Bluewater Bay; property devaluation; interference with rainwater harvesting and solar panels; and general environmental degradation. The problems had persisted for years and were featured on national television (Carte Blanche, August 2022). The municipality acknowledged the serious environmental concerns. The applicants brought motion proceedings seeking interdictory relief against various respondents (owners and operators) to halt manganese operations. The respondents filed extensive answering affidavits disputing many factual allegations and raising defenses including: selective citation of respondents; outdated expert reports; municipality's failure to maintain infrastructure; compliance with Environmental Management Programs (EMPs); and questioning causation.
The matter was referred to trial. The Notice of Motion, answering affidavits and replying affidavits are to stand as combined summons, pleas and replications respectively. The matter proceeds according to the Rules of Court as a defended trial. The applicants were ordered jointly and severally to pay the first, fifth, sixth and seventh respondents' costs of the main application on scale C including costs of two counsel where engaged. The applicants were ordered to pay those respondents' costs of the rule 6(5)(e) and (g) application on an unopposed basis on scale C including two counsel. The costs of qualifying fees of experts in the main application and costs of opposing the referral application were reserved for determination by the trial court.
Where motion proceedings have been instituted and material disputes of fact arise that cannot be resolved on affidavit, the court has a wide discretion under Rule 6(5)(g) to refer the matter to trial with appropriate directions. The test for whether disputes were foreseeable is objective - whether the applicant ought reasonably to have foreseen that material disputes would arise. An applicant who brings an 'omnibus challenge' against multiple respondents operating in divergent locations with differentiating operations ought reasonably to foresee factual disputes. However, where the matter involves serious environmental impacts and public health risks that are in the public interest, a court may properly exercise its discretion to refer the matter to trial rather than dismiss it, while penalizing the applicant through an appropriate costs order for the inappropriate use of motion proceedings. The costs order should reflect: (1) payment by applicants of costs on an unopposed basis for the abortive application proceedings; and (2) reservation of remaining costs including expert fees for determination by the trial court, as those issues may yet prove relevant at trial.
The court observed that the nuisance issues at Markman had been outstanding for years without resolution despite municipal involvement and legal instruction. The court noted that while testing was largely confined to Chrysler Street, this did not necessarily reflect conditions throughout the large Markman area. The court referenced the Constitutional Court's caution in Mamadi about discouraging use of motion proceedings as a waste of judicial resources where matters cannot be decided on papers. The court emphasized two basic principles: costs are in judicial discretion, and successful parties should generally recover costs. The court noted that parties were acting not strictly in their own interests but in the public interest, and that issues raised were neither frivolous nor vexatious. The judgment reflects concern about the cumulative health effects of manganese exposure and the contamination of water resources flowing to the ocean.
This case illustrates the proper application of Uniform Rule 6(5)(g) in environmental nuisance matters involving multiple parties and complex factual disputes. It establishes that courts will refer important public interest matters to trial even where disputes of fact may have been foreseeable, but will penalize applicants through costs orders for inappropriate use of motion proceedings. The judgment reinforces that an 'omnibus challenge' against multiple respondents in different locations with varying operations is inherently susceptible to factual disputes requiring trial. The case demonstrates the balancing exercise courts must perform between: (1) not dismissing important environmental cases outright; (2) penalizing procedural choices that waste judicial resources; and (3) ensuring fairness through appropriate costs orders. It confirms that where public interest environmental issues are at stake, courts will ensure substantive determination at trial rather than dismissal on procedural grounds, while still holding applicants accountable for foreseeable procedural difficulties through differentiated costs orders.