Mshengu and Others v. Msunduzi Local Municipality and Others

The applicants’ claim was based on s. 27(1)(b) of the Constitution – the right to sufficient food and water, which they submitted found further expression in the provisions of the Water Services Act 108 of 1997 (“WSA”). Their complaint argued that farm occupiers and labour tenants, especially the applicants, lacked “access to sufficient water, basic sanitation, refuse collection services and a clean environment in general on the farms where they reside.”  They submitted that the respondents had a constitution obligation to take reasonable legislative steps to uphold the applicants’ right to have access to those resources, which was the same as the other residents living in the respondents’ jurisdictions.

The first applicant, Zabalasa Mshengu, resided with his family on Edmore Farm within the jurisdiction of the first respondent. Mshengu died in August 2018 at age 104. Mshengu’s nearest water source was a shallow pool of stagnant water 100m away from his home that was not drinkable nor usable for any other purpose. His family relied on a communal tap from a neighbouring farm for water, which was located over 500 meters from their home at the bottom of a hill, which necessitated gruelling labour to collect drinkable water.

The second applicant, a farm occupier named Thabisile Ntombifuthi Ngema, lived on Greenbranch Farm within the jurisdiction of the second respondent. The fifth respondent owned Greenbranch Farm. The dilapidated homes on Greenbranch Farm, filled with poor occupiers, did not have ablutions or  communal toilets and the closest health facilities were located 10-11 km away. When settlement occupiers attempted to create sanitation facilities by digging pit toilets, the fifth respondent stopped them and directed them to use the sugarcane plantation as their toilets. The sugarcane plantation had no lights and became unhygienic, attracting flies and vermin. Women were subjected to particular hardship and indignity, and lack a proper place to dispose of their sanitary towels during mentsruation. Over 60 people relied on two water taps on the Greenbranch Farm settlement, and were required to queue to collect water. Occupiers of the farm were often unable to access water because the fifth respondent would turn it off without notice. Uncollected refuse was also left to accumulate on the settlement. The farm occupiers asked the second respondent’s ward councillor to provide these basic services, but were informed that the landowners prevented the second respondent from doing so.

The third applicant was a non-governmental organization that focused on agrarian reform and land rights with a mission “to redress past injustices and to improve the quality of life and livelihood of poor rural communities”, primarily in KwaZulu-Natal.

In July 2015, the applicants’ legal counsel sent letters to the first, second, third, sixth, seventh, and eighth respondents, requesting a written report outlining past and future steps “taken to provide basic sanitation, sufficient water, refuse removal, and electricity to the farm occupiers and labour tenants” of their jurisdiction, and a timeline for their completion. No adequate responses were received. Subsequent attempts to follow up also failed to elicit responses.

On May 5 2017, the applicants brought an application against the first, second, and third respondents as organs of the State, seeking relief in two parts. In the first part, the applicants sought a declaration that the first three respondents infringed multiple sections of the Constitution, particularly s. 27(1)(b), through their consistent, continuing “failure to provide the farm occupiers and labour tenants who are residing within areas of their jurisdiction with access to basic sanitation, sufficient water and refuse collection”. They also sought a mandamus that directed the first three respondents to install a sufficient number of water user connections according to compulsory national standards, supply a minimum quantity of potable water, provide access to basic sanitation, provide refuse collection services, provide access to basic municipal services, and prioritize the rights of farm occupiers and labour tenants in their Integrated Development Plans (“the IDPs”). In the second part, the applicants sought  structural relief that directed (1) the first three respondents to deliver reports on their IDPs detailing certain information, along with monthly progress reports, and (2) the court to enrol the applicants’ application for consideration and determination of the reports, plans, and submissions. Only the first and second respondents opposed the application.

The Court held that since farm occupiers were often marginalized and excluded from mainstream delivery of services, the applicants demanded specific plan as to how to respondents “would, within available resources, reasonably and progressively provide water, sanitation and refuse removal to farm occupiers and labour tenants.

The Court first examined the legislative framework, stating that it was necessary to determine “what resources the farm occupiers and labour tenants are entitled to, and the State’s obligations in terms of providing these resources in relation to the Constitution, the WSA and the Systems Act.” The Court held that applicants’ right to have access to sufficient water under s. 27(1)(b) of the Constitution was limited by s. 27(2), which required the State “to ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights’.

The Court reviewed various Constitutional provisions, including s. 153(a), which stated that a “municipality must structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community” and s. 155(7), which gave the national government executive and legislative authority to guarantee that municipalities effectively performed their functions, including those related to water and sanitation services. The Court found that the sixth respondent, the Minister of Water and Sanitation, was the authority designated by s. 155(7) to ensure such effective performance, and that the WSA was enacted to give content to the Minister’s legislative and executive authority. On June 8, 2001, the Minister published Regulations relating to compulsory national standards and measures to collect water, regulation 3(b) of which detailed the minimum standard for basic water supply services.

The Court held that their was interplay between ss. 27(1)(b) and 27(2) of the Constitution and s. 3 of the WSA, which outlined the “right of access to basic water supply and basic sanitation." Section 3 stated, inter alia, that “[e]very water services authority must, in its water services development plan, provide for measures to realise” everyone’s right of access to basic water supply and basic sanitation. If the government’s measures are unreasonable the courts will require that the measures be reviewed to meet the constitutional standards of reasonableness. The Court cited jurisprudence from the Constitutional Court, which established that a “measure will be unreasonable if it makes no provision for those most desperately in need” and that "determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions.”

The Court found that a water service authority was defined as “any municipality, including a district or rural council as defined in the Local Government Transition Act…responsible for ensuring access to water services”. Sections 12(1)(a) and (b) of the WSA required water services authorities to develop water service developments plans which must form part of the IDP required under the Local Government: Municipal Systems Act 32 of 2000 (“Systems Act”). Section 4(2)(c) and (e) of the Systems Act required a municipal council to involve, engage and consult with members of a local community. Lastly, section 73(1) of the Systems Act stated that a "municipality must give effect to the provisions of the Constitution and (a) give priority to the basic needs of the local community’ and ‘(c) ensure that all members of the local community have access to at least the minimum level of basic municipal services’”, defined under s. 1 as those "necessary to ensure an acceptable and reasonable quality of life and, if not provided, would endanger public health or safety or the environment”. The Court held that the duties imposed by the Constitution, WSA, and Systems Act mirrored one another. Thus, municipalities’ constitutional duty to focus on the provision of those basic services prohibited them from prioritizing other services as their expense.

The Court held that the first respondent was a water service authority and were therefore obliged to provide water and sanitation for farm occupiers and labour tenants. The landowners were only statutorily obliged to do so if contracted by the water services authority as an intermediary pursuant to s. 19 of the WSA; if they failed to fulfil their contractual obligations, s. 26(3) of the WSA authorized the water services authority to assume their relevant functions. Furthermore, the Basic Sanitation Implementation Strategy stated that the water service authority has the final obligation to provide sanitation services. The Court thus held that first respondent had a duty to ensure that landowners or other intermediaries “provide access to a basic level of sanitation service to those living legally on their land” and was prohibited from shifting that duty to the landowners by necessitating that they make applications. The Court further held that because landowners had a secondary obligation under s. 27 of the Constitution and s. 8 of the WSA, they were prohibited from unreasonably denying the municiplatity access to their farms "to install necessary infrastructure to ensure the provision of the services.”

The Court found that because the farm occupiers and labour tenants lived on private lands, the respondent municipality would have to obtain the landowners’ consent to provide water and sanitation services. However, the first respondent had not obtained the cooperation or consent of the landowners to install sanitation and water services in order to fulfill their duty. Citing s. 6(2)(e) and (f) of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”), which provided that occupiers had the rights “not to be denied or deprived of access to water” and “to educational or health services,” the Court held that the first respondent was required to “take reasonable steps to meet its obligations to all its residents” and that the landowner has an obligation to co-operate.”

The Court accepted that the second and third respondents were not water service authorities. However, it noted that s. 73(1)(c) of the Systems Act required them as municipalities to “give effect to the provisions of the Constitution and to ensure that all members of the local community have access to at least the minimum level of basic municipal services”, including providing bulk water and sanitation within their jurisdiction. The Court therefore held that the second and third respondents’ argument that they were not water service authorities did not free them from the obligation imposed upon them by s. 73(1)(c).

The Court held that the three respondents did not have plans that address the issues raised by the applicant farm occupiers and labour tenants. The first respondent had a general policy and legislative for providing water and sanitation, but no plan that focused on farm occupiers and labour tenants. The fact that the first respondent had not budgeted for resources to provide water and sanitisation services was irrelevant, as the applicants were asking for the creation and implementation of a plan to provide these services, which would consider the respondents budgetary resources. While the first respondent had an IDP that recognized providing water and sanitation for all residents as a strategic priority, because it did not provide an actual plan outlining how the rights of the particuarly vulnerable and neglected farm occupiers and labour tenants would be realized, it failed to prioritize them. The Court found that the first respondent's IDP did not provide a basis to conclude that it had a reasonable plan to progressively realize their rights. The second respondent did not have any plan whatsoever to provide water and sanitation services to the labour tenants and farm occupiers at all, since it was their contention that they did not need a plan because they are not a water service authority.  There was no evidence that the farm occupiers and labour tenants were ever invited to participate in the second respondent’s IDP programme.

The Court held that the three respondents were required to be proactive in ensuring farm occupier and labour tenants had access to water and sanitation services, because they were vulnerable, poor, and largely ignorant of their Constitutional rights. The first respondent had failed to fulfill its statutory duty to provide water, sanitation, and refuse removal to the farm occupiers and labour tenants within its available resources. The second and third respondents failed to fulfil their statutory obligations to prepare a reasonable plan and reasonably implement it.

The Court granted the declarations, mandamus, and structural relief requested by the applicants and directed the first and second respondents to pay the costs of the application.

“It is not disputed by the two opposing respondents that many farm occupiers and labour tenants, including the first and second applicants and their communities, do not currently have access to water, sanitation or refuse collection. It is further not disputed by the two opposing respondents that providing water and sanitation to the farm occupiers and labour tenants poses particular difficulties. In the Free Basic Sanitation Implementation Strategy, the Department of Water Affairs and Forestry pointed out that farm occupiers ‘are often marginalised and excluded from the mainstream service delivery support from local authorities’. In light of this the applicants are demanding a specific approach or a plan as to how the first, second and third respondents would, within available resources, reasonably and progressively provide water, sanitation and refuse removal to farm occupiers and labour tenants” (para 55).

“Under the WSA and the Regulations, the water service authorities have an obligation to provide water and sanitation services to farm occupiers and labour tenants. The applicants are not asking the court to set the proper standard for the provision of water or sanitation. Regulation 3 has already determined the basic content of that obligation. What the applicants seek is to enforce the standard imposed by the legislative and executive branches. It is not disputed that a disproportionate percentage of farm occupiers and labour tenants do not currently have access to water and sanitation services. They are particularly poor and vulnerable and require special consideration. It is therefore important that the first respondent must adopt and implement a plan or policy that makes special provision for them and must provide a reasonable plan for progressively realising their rights as set out in reg 3 in order to comply with its obligation” (para 69).

“It needs to be emphasised that the farm occupiers and labour tenants are vulnerable and poor, the majority of them are ignorant of their rights enshrined in the Constitution. It therefore behoves of the first, second and third respondents to be proactive in ensuring that the farm occupiers and labour tenants have access to these services” (para 75)

“[T]he first, second and third respondents ongoing and persistent failure to provide the farm occupiers and labour tenants who are residing within areas of their jurisdiction with access to basic sanitation, sufficient. water and collection of refuse is inconsistent with the Constitution of the Republic of South Africa, 1996, particularly with ss. 9, 10, 24, 27(1)(b), 33, 152, 153, 195 and 237” (para 86).