Federation for Sustainable Environment and Others v Minister of Water Affairs and Others

Water in Silobela, Carolina Town and Caropark neighbourhoods in the town of Carolina, South Africa was contamintaed by acid mines severaly rendering it unfit for consumption. Water tanks were brought in from neighboring towns to supply drinking water to the town’s residents, but some of the tanks were not refilled, and some were not refilled on time. Access to the tanks was on a “first come first served” basis, and residents who lived further away were less likely to get water. The general supply of water for the communities was inadequate.

The applicants claimed that 25 liters per day per household was not sufficient. The two alleged that the government failed to provide reliable potable water for more than seven days as required by regulations relating to compulsory national standards of water conservation and that was an infringement of their constitutional right to access to water.

Section 27 of the South African Constitution provides that “[e]veryone has a right to have access to – . . . [s]ufficient food and water,” and that “[t]he State must take reasonable steps legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”

The Court first held that its analysis of the case must take into account the realities of the aftermath of the apartheid era. In particular, the disparities in resources and the provision of services between black and white neighbourhoods remained despite the abolishment of apartheid. The Court held that the matter was urgent because it concerned a violation of a “Constitutionally entrenched fundamental right” and excused the applicants lack of adherence to procedural rules.

The Court ordered the local government to provide potable water within seventy-two hours of the court’s order. The Court further ordered the local government to make a plan to ensure an adequate temporary supply of water would be provided and for the return of potable water supply through the towns’ water supply services. The Court also required the local government to report its progress to the Court in one month. The Court held the local government officials were responsible for the costs of the case.

The Court agreed with the contention of the national government comply with the order. That was that required of the local government which were directed to report back to the court in one month. However, the national government was required to provide necessary financial assistance to local government, which they provided. Further, they were not allowed to interfere with the administration of the local government.

“This case relates to Constitutionally entrenched fundamental right to access to water. I am of the view that, when fundamentally entrenched rights are violated or compromised or restoration to normality the enjoinment of those rights, the matter intrinsically becomes urgent.” (Para 18).

“The[] [local government officials] further contend that the Department has made immense progress towards improving the water problem. They further contend that the cause of the water problem is not on their part but the mines. They have however not stated what steps they have taken against the mines towards coming with a permanent solution to this problem.” (Para 21).

“The applicant contended that 25 liters per day per household is not sufficient. The sixth to the ninth respondents refuted this, however, in my view, without placing necessary data upon which this refutation is made.” (Para 22).