Brief Summary

Constitutional Law — Right to basic services — Failure of municipalities to provide water, sanitation, and refuse removal — Applicants, representing farm occupiers and labour tenants, sought a declaration and mandamus against local municipalities for their persistent failure to provide basic services as mandated by the Constitution. The court found that the municipalities' ongoing neglect was inconsistent with constitutional obligations and ordered them to implement measures to ensure access to these essential services, including the installation of water connections and sanitation facilities, and to report on their progress.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were brought as a constitutional and statutory enforcement application seeking declaratory, mandatory, and structural relief to compel the provision of basic municipal services to a vulnerable group of residents, namely farm occupiers and labour tenants living on privately owned farmland. The relief was primarily directed at the relevant municipalities alleged to be failing to meet their obligations concerning water, sanitation, and refuse removal.

The parties were three applicants and eight respondents. The first applicant, Zabalaza Mshengu, and the second applicant, Thabisile Ntombifuthi Ngema, brought the application both in their own interests and in a representative capacity. The third applicant, the Association for Rural Advancement, is a non-governmental organisation working in KwaZulu-Natal on land rights and agrarian reform. The core respondents were the Msunduzi Local Municipality (first respondent), the Umshwathi Local Municipality (second respondent), and the uMgungundlovu District Municipality (third respondent). The fourth and fifth respondents were landowning entities connected to the farms where the individual applicants lived, while the sixth to eighth respondents were national and provincial executive authorities joined because of their interest in the subject-matter. No substantive relief was sought against the fourth to eighth respondents unless they opposed the application.

The procedural history reflected prolonged attempts to secure municipal engagement. The applicants’ attorneys addressed correspondence to relevant state organs in July 2015, followed by further letters in April 2016, requesting detailed reports and plans for the delivery of basic services to farm occupiers and labour tenants. The correspondence produced either no response or responses that did not address the substance of the demands. In the absence of meaningful engagement, the applicants instituted the application on 5 May 2017. The application was opposed by the first and second respondents. The matter was heard on 2 November 2018, and judgment was delivered on 29 July 2019.

The general subject-matter of the dispute concerned the progressive realisation of the rights of access to sufficient water and basic sanitation, and the provision of refuse removal, in the context of rural farm residents who were alleged to be persistently excluded from mainstream municipal service delivery. The applicants sought to enforce the minimum standards set by the national regulatory scheme and to obtain a court-supervised planning and reporting process.

2. Material Facts

The court relied on a factual premise that was largely common cause at a general level: many farm occupiers and labour tenants within the jurisdictions of the first, second, and third respondents, including the communities represented by the first and second applicants, did not have access to adequate water, sanitation, or refuse removal. The respondents did not materially dispute that the provision of these services on farms posed practical difficulties, nor did they dispute the broader marginalisation of farm dwellers acknowledged in national policy material referred to in argument.

The first applicant, Zabalaza Mshengu, resided on Edmore Farm, within the jurisdiction of the first respondent, and the farm was owned by the fourth respondent. He lived in dilapidated housing and faced severe barriers to accessing water. The nearest water source was described as shallow pools in a dried stream near his home, with water that was stagnant and unsuitable for use. His household relied on a communal tap on a neighbouring farm more than 500 metres away, requiring strenuous physical effort to transport water uphill. These conditions were relied upon as illustrative of the absence of meaningful access to potable water and basic services.

The second applicant, Thabisile Ntombifuthi Ngema, lived on a settlement at Greenbranch Farm, within the jurisdiction of the second respondent, and the farm was owned by the fifth respondent. The settlement comprised approximately 12 households, with impoverished residents in old and leaking structures. The settlement had no ablution facilities or communal toilets. Residents attempted to dig pit toilets, but were stopped by a representative of the landowner, who instructed them to use a sugarcane plantation for sanitation purposes. The court relied on these facts to demonstrate the absence of basic sanitation and the resulting indignity and unhygienic conditions, particularly affecting women.

The Greenbranch settlement had only two water taps servicing more than 60 people, causing queues and inconsistent access. It was alleged that the water supply was sometimes switched off without notice by the landowner’s representative. Refuse was not collected, and litter accumulated around the settlement. These facts were treated as showing ongoing deprivation of basic municipal services and the negative consequences for health and dignity.

On the respondents’ version, there were further contextual facts about municipal capacity and the rural character of service delivery. The first respondent relied on census-based information indicating levels of service provision across its jurisdiction and claimed improvements since 2011 through its planning framework, including a Water Services Development Plan linked to its Integrated Development Plan. The first respondent also asserted that service delivery on farms required landowner consent and raised resource constraints. The second respondent asserted that it was not the water services authority for bulk water and sanitation, while acknowledging refuse removal responsibilities but describing its rural service arrangements as involving lower rates and lower service levels for landowners.

A further factual point relied on by the court was that, despite the respondents’ references to general planning documents, it was common cause that the first, second, and third respondents did not have plans specifically addressing farm occupiers and labour tenants in relation to the services at issue. This absence of targeted planning, coupled with the limited or absent responses to the applicants’ pre-litigation correspondence, formed part of the foundation for the supervisory remedy.

3. Legal Issues

The court was required to determine, first, preliminary procedural objections raised by the first respondent. These were whether the third applicant’s representative claims required certification as a class action, and whether the application was fatally defective for non-joinder of all landowners whose farms housed occupiers and labour tenants within the first respondent’s jurisdiction. These issues involved questions of law (standing and joinder) informed by the nature and consequences of the relief sought.

On the merits, the central legal questions concerned the existence and content of the constitutional and statutory duties of the first, second, and third respondents to ensure access to basic water supply, basic sanitation, and refuse removal for farm occupiers and labour tenants, and whether persistent failures amounted to unconstitutional and unlawful omissions. This required the court to address both legal interpretation (the interplay between the Constitution, the Water Services Act 108 of 1997, and the Local Government: Municipal Systems Act 32 of 2000) and the application of law to fact, particularly whether the respondents’ measures and planning frameworks were reasonable, and whether their approach improperly shifted obligations onto landowners or onto the affected communities.

The dispute also required an evaluative judgment about remedy: whether it was appropriate to grant structural relief (court-supervised reporting and planning) given the nature of the omissions, the vulnerability of the affected group, and the respondents’ prior conduct. This entailed a discretionary remedial assessment within a constitutional framework, including consideration of separation of powers and resource constraints as raised by the respondents.

4. Court’s Reasoning

The court approached the matter by first resolving the preliminary objections, then setting out the governing constitutional and statutory framework, and finally assessing whether the respondents’ conduct and planning met the standard of reasonableness and legality required of organs of state responsible for basic services.

On certification and standing, the court held that certification proceedings were not required in the circumstances. It treated the application as one seeking enforcement of rights in the Bill of Rights against organs of state, brought in part in terms of section 38(c) of the Constitution (persons acting as members of, or in the interest of, a group or class). Drawing on Constitutional Court authority, the court emphasised the breadth of constitutional standing and accepted that claims to enforce Bill of Rights rights may be brought in the public interest without certification. The court therefore rejected the contention that the third applicant had to seek prior certification before instituting the application.

On non-joinder, the court applied the principle that joinder is required only where a party has a direct and substantial interest that may be prejudicially affected by the court’s order. Although the first respondent argued that infrastructure installation would interfere with private property and affect landowners financially, the court accepted the applicants’ submission that the order did not authorise immediate entry onto private land and that implementation would necessarily require engagement and planning. The court treated the landowners’ interest as insufficient at that stage to amount to a direct and substantial interest requiring joinder, particularly given the public character of litigation against the state and the nature of the remedial process contemplated.

Turning to the merits, the court located the applicants’ claim primarily in section 27(1)(b) of the Constitution (access to sufficient food and water), read with section 27(2) (reasonable measures, within available resources, progressive realisation). It also relied on the constitutional objects and duties of local government, including service provision and prioritising basic needs in planning and budgeting. The court described the statutory framework in detail, highlighting the Water Services Act’s recognition of rights of access to basic water supply and basic sanitation, the duties on water services institutions and water services authorities to take reasonable measures to realise those rights, and the requirement that water services development planning be integrated into municipal planning structures.

The court treated the Regulations relating to compulsory national standards and measures to conserve water, GN R509, GG 22355, 8 June 2001, as providing concrete minimum standards for basic water supply and basic sanitation. In particular, the court noted the regulatory minimum for water supply as a minimum quantity of potable water (25 litres per person per day or 6 kilolitres per household per month), minimum flow rate, and maximum distance from a household. This regulatory scheme was treated as defining the content of the obligation the applicants sought to enforce, rather than inviting the court to set its own standard.

The respondents’ defences were assessed against this legal framework. The first respondent’s attempt to locate responsibility primarily in landowners, or to require landowner applications under municipal by-laws before services could be provided, was rejected as an impermissible shifting of constitutional and statutory responsibilities. The court reasoned that, as water services authority, the first respondent bore the duty to ensure access to water and sanitation in its jurisdiction. While landowners might play a role as intermediaries through agreements contemplated in the Water Services Act, the court did not accept that the municipality could treat landowner consent or applications as a precondition that effectively displaced the municipality’s obligations. The court also relied on the Extension of Security of Tenure Act 62 of 1997, noting that occupiers have rights not to be denied access to water and that landowners are obliged to act reasonably in reaching agreements that enable service provision.

In relation to the second respondent, the court rejected the argument that non-designation as a water services authority absolved the municipality of responsibility. The court regarded the Systems Act as imposing a duty to give effect to the Constitution and to ensure access to at least a minimum level of basic municipal services. It therefore treated the second respondent as bearing obligations to act to realise the relevant rights, rather than remaining passive on the basis of intergovernmental allocations of function.

The court also examined the respondents’ reliance on Integrated Development Plans and general policies. It found the first respondent’s argument that its IDP and related planning demonstrated reasonableness to be flawed on the evidence presented. In particular, it held that the documents did not demonstrate a completed and targeted plan addressing the needs of farm occupiers and labour tenants, and did not show prioritisation of this vulnerable group. The court similarly found the second respondent’s emphasis on IDP participation unpersuasive, holding that there was inadequate evidence that farm dwellers were proactively invited or enabled to participate, and stressing that vulnerability and lack of awareness of rights required more proactive conduct by municipalities.

The court addressed subsidiarity and the municipal by-laws argument by distinguishing between reliance on the Constitution in the abstract and the enforcement of content already given through legislation and regulation. It accepted that socio-economic rights acquire content through reasonable legislative and executive measures and treated the applicants’ case as one seeking to enforce that content, particularly the regulatory minimum standards, rather than one bypassing the statutory scheme. The court accepted that by-laws form part of the mechanism of implementation but did not accept that their existence, without actual plans and implementation directed at farm occupiers and labour tenants, constituted compliance with constitutional and statutory duties.

On budgetary constraints, the court applied Constitutional Court authority to the effect that reasonableness cannot be assessed solely by reference to budgets that may have been adopted on the basis of a mistaken view of obligations. The court considered that it was not imposing new obligations, but compelling performance of obligations already imposed by law. The need to develop and implement a reasonable plan within available resources was treated as central.

On separation of powers, the court acknowledged that courts must respect the functional domains of the executive and legislature, but emphasised that judicial intervention is mandated where state policy or omissions fail to meet constitutional obligations. The relief sought was framed as requiring compliance with existing obligations and the preparation and implementation of reasonable plans, rather than prescribing detailed policy choices. The court accepted that, given the respondents’ prior failures to engage and the acknowledged absence of targeted plans, supervisory relief was justified to cure omissions and ensure compliance.

Finally, on remedy, the court considered the appropriateness of declaratory relief combined with mandatory and supervisory orders. It regarded the respondents’ persistent non-responsiveness and lack of dedicated planning as justifying a remedy that required formal reporting, planning, public availability of reports, opportunities for comment, and further judicial oversight. Costs followed the result, and no special circumstances were identified to justify deviation.

5. Outcome and Relief

The court granted an order declaring that the ongoing and persistent failure by the first, second, and third respondents to provide farm occupiers and labour tenants with access to basic sanitation, sufficient water, and refuse collection was inconsistent with the Constitution, with particular reference to sections 9, 10, 24, 27(1)(b), 33, 152, 153, 195 and 237.

The court issued mandatory orders directing the first, second, and third respondents to comply with regulation 3 of the 2001 national regulations by installing sufficient water user connections meeting the minimum quantity, flow rate, and distance standards, and directing them to provide access to basic sanitation through the installation of Ventilated Improved Pit toilets conforming to SANS 10365-1: 2003 specifications. The first and second respondents were directed to provide refuse collection services to farm occupiers and labour tenants. The respondents were further directed to ensure access to these basic municipal services and to prioritise the rights of farm occupiers and labour tenants in their Integrated Development Plans.

In addition to these substantive orders, the court granted structural relief. It required the first, second, and third respondents, within six months, to file under oath reports and plans identifying all farm occupiers and labour tenants within their jurisdictions; indicating, for each, whether and what access exists to water, sanitation, and refuse collection, including quality, quantity, and distance; and, where access does not exist, indicating how long the deprivation has persisted. The plans were required to explain steps and criteria for implementation, set measurable deadlines, and provide for awareness of the litigation. The reports and plans had to be served on the applicants and published on the respondents’ websites. The applicants and interested parties were given opportunities to comment, and the respondents were required to file monthly progress reports, also open to comment. The court retained the power to issue further directions and required the matter to be re-enrolled for consideration of the reports, plans, and commentary.

On costs, the court ordered the first and second respondents to pay the costs of the application, including the costs of two counsel.

Cases Cited

Lawyers for Human Rights & another v Minister of Home Affairs & another [2004] ZACC 12; 2004 (4) SA 125 (CC).

Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC).

Kruger v President of Republic of South Africa & others [2008] ZACC 17; 2009 (1) SA 417 (CC).

Mukaddam v Pioneer Foods (Pty) Ltd & others 2013 (5) SA 89 (CC).

Judicial Service Commission & another v Cape Bar Council & another 2013 (1) SA 170 (SCA).

Minister of Health & others v Treatment Action Campaign & others (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC).

Mazibuko & others v City of Johannesburg & others 2010 (4) SA 1 (CC).

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another 2012 (2) SA 104 (CC).

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).

Rail Commuters Action Group & others v Transnet Ltd t/a Metrorail & others [2004] ZACC 20; 2005 (2) SA 359 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Water Services Act 108 of 1997.

Local Government: Municipal Systems Act 32 of 2000.

Local Government: Municipal Structures Act 117 of 1998.

Extension of Security of Tenure Act 62 of 1997.

Land Reform (Labour Tenants) Act 3 of 1996.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that certification was not required for this proceeding because it was an enforcement of rights in the Bill of Rights against organs of state brought in terms of section 38 of the Constitution, and that claims of this kind may proceed without class-action certification.

The court held that the non-joinder of all farm landowners was not fatal because the relief sought did not directly and prejudicially determine landowners’ rights in a manner requiring joinder, and any later implementation would require engagement rather than immediate compulsory intrusion onto private property.

On the merits, the court held that the first, second, and third respondents bore constitutional and statutory duties to take reasonable measures to ensure access to basic water supply, basic sanitation, and refuse removal for farm occupiers and labour tenants, and that their persistent failures, coupled with the absence of targeted and reasonable plans, were inconsistent with the Constitution and the statutory framework governing municipal service delivery.

The court held that the appropriate remedy included a declaration of unlawfulness, mandatory relief enforcing the regulatory minimum standards, and structural supervision requiring plans, reporting, public availability, opportunities for comment, and further judicial oversight.

LEGAL PRINCIPLES

The judgment applied the principle that standing under section 38 of the Constitution is broad and purposive, reflecting the need to ensure effective enforcement of constitutional rights, particularly for vulnerable groups who may be unable to litigate individually.

It applied the principle that certification is not a prerequisite in every case where litigation is brought in the interests of a group or class, particularly where the litigation is aimed at enforcing Bill of Rights rights against the state.

It applied the established rule that joinder is necessary only where a party has a direct and substantial interest that may be prejudicially affected by the order, and that the mere existence of an interest in the outcome is insufficient.

On socio-economic rights, the judgment applied the principle that the rights in sections 26 and 27 of the Constitution must be read with their internal limitation requiring reasonable measures within available resources and progressive realisation, and that the content of these rights is shaped by the legislative and executive measures adopted to give them effect.

The judgment treated national regulatory standards under the Water Services Act framework as providing enforceable content to the obligation, and applied the principle that courts may require the state to act where it has taken no steps or where measures are unreasonable, including where planning makes no provision for those most in need.

It applied the principle that budgetary allocations do not immunise non-compliance where budgeting decisions may reflect a mistaken view of constitutional or statutory obligations, and that enforcing existing legal duties is not the imposition of new obligations.

Finally, it applied the principle that courts may grant structural interdicts and other supervisory remedies where necessary to secure compliance with constitutional obligations, and that such orders, while they may affect policy, do not necessarily breach separation of powers where they require fulfilment of legally mandated duties rather than dictating detailed policy choices.

Mshengu and Others v Msunduzi Local Municipality and Others (11340/2017P) [2019] ZAKZPHC 52; [2019] 4 All SA 469 (KZP) (29 July 2019)