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[2012] ZAGPPHC 128
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Federation for Sustainable Environment and Others v Minister of Water Affairs and Others (35672/12) [2012] ZAGPPHC 128 (10 July 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No:35672/12
Date:10/07/2012
In
the matter between:
THE
FEDERATION FOR
SUSTAINABLE
..................................................
1
st
APPLICANT
ENVIRONMENT
THE
SILOBELA CONCERNED
COMMUNITY
............................................
2
nd
APPLICANT
And
THE
MINISTER OF WATER
AFFAIRS
.........................................................
1
st
RESPONDENT
THE
DIRECTOR GENERAL: WATER
AFFAIRS
.........................................
2
nd
RESPONDENT
ACTING
CHIEF DIRECTOR GENERAL OF WATER AFFAIRS
...............
3rd
RESPONDENT
MPUMALANGA
DIRECTOR
OF WATER AFFAIRS: MPUMALANGA
................................
4
th
RESPONDENT
WATER
SECTOR REGULATION AND USE
MEC
CO-OPERATIVE GORVANCE
AND
..................................................
5
th
RESPONDENT
TRADITIONAL
AFFAIRS, MPUMALANGA
ACTING
EXECUTIVE MAYOR: THE
GERT
.................................................
6
th
RESPONDENT
SIBANDA
DISTRICT MUNICIPALITY
MUNICIPAL
MANAGER: THE
GERT
...........................................................
7
th
RESPONDENT
SIBANDA
DISTRICT MUNICIPALITY
THE
MAYOR: THE
ALBERT
..........................................................................
8
th
RESPONDENT
LUTHULI
LOCAL MUNICIPALITY
MUNICIPAL
MANAGER: THE
ALBERT
........................................................
9
th
RESPONDENT
LUTHULI
LOCAL MUNICIPALITY
KOMATI
CATCHMENT
AGENCY
…...........................................................
10
th
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The applicants approached this Court by way of urgency in terms of
Rule 6(12) of the Uniform Court Rules of the High Court of
South
Africa, seeking an order as follows:
"1.
Enrolling the application as an urgent application condoning the
Applicants' non- compliance with the forms and service
provided for
in the rules of court, to the extent necessary;
2.
Declaring that the failure of the First to Seventh Respondents to
provide access to effective/ reliable potable water for more
than
seven full days, as prescribed by regulations 3(b) of the regulations
relating to compulsory national standards and measures
to conserve
water (GN 509 in GG 22355 (8 June 2001)) to the residents of
Silobela. Caropark and Carolina Town in Carolina, Mpumalanga,
is
unlawful;
3.
Directing the First to Seventh Respondents to provide temporary
potable water in line with regulations 3(b) of the regulations
relating to compulsory national standards and measures to conserve
water (GN 509 in GG 22355 (8
June
2001)) to the residents of Silobela, Caropark and Carolina Town in
Carolina, Mpumalanga within 24 hours of the order of this
court,
4.
Directing the First to Seventh Respondents to engage actively and
meaningfully with the First and Second Applicants regarding:
4.1
the steps being taken to ensure that potable water can once again be
supplied through the water supply services in Silobela,
Caropark and
Carolina Town in Carolina, Mpumalanga; and
4.2
where, when, what volume, and how regularly temporary water will be
made available in the interim;
5.
Directing the First to Seventh Respondents to report to this court
within one month of this court order as to the measures that
have
been taken to ensure that portable water is supplied through the
water services in Silobela, Caropark and Carolina Town in
Carolina,
Mpumalanga;
6.
Permitting any party subsequently to re-enroll the application for
hearing on the same papers, duly supplemented, on reasonable
notice
to the other parties;
7.
Ordering the costs occasioned by this application to be paid by
whomsoever of the Respondents who oppose this application, jointly
and severally, the one paying the order to be absolved;
8.
Further and / or alternative relief."
[2]
The first applicant (the FSE) is a duly registered Non-Profit
Organization incorporated in terms of the Non-Profit Organization
Act
71 of 1977, and brings this application in terms of s38 (c), (d) and
(e) of the Constitution of the Republic of South Africa,
Act 108 of
1996..
[3]
The second applicant is the Silobela Concerned Community, a voluntary
association consisting of 150 members, all of whom are
residents of
Silobela which is a residential area predominated by Africans
situated in the outskirts of Carolina in Mpumalanga.
[4]
It is common cause that the water supply in Silobela and Carolina is
contaminated by "acid mine water" to an extent
that it is
not healthy for both human and animal consumption. It is also common
cause that, in an endeavor to alleviate the plight
of the community
in the affected locality around February 2012, water tanks were
brought to supply water to Carolina and Silobela
from the
neighbouring towns of Breyten and Chrissiesmeer. About 20 water tanks
were placed around Carolina and its surroundings,
including Silobela.
[5]
According to the applicant, seven tanks were placed around Silobela.
The applicants further averred that from early March 2012,
until
beginning of May 2012, the system of providing potable water through
the tanks proved inadequate. Sometimes some of the tanks
were not
refilled, some remained empty. The tanks were accessed on "first
come first served" basis. The end result was
that the water
supply in general was inadequate. Some of the residents have to walk
long distances to access the potable water
from the tanks.
[6]
The case of the applicants is that the residents of Carolina have not
had an effective or reliable supply of fresh drinking
water for an
extended period beyond the seven day period prescribed for this year,
in terms of the regulations relating to compulsory
national standards
measures to conserve water (GN509 in GG 22355(8June 2001)) (the
Regulations"). Their case is that every
day that the residents
of Carolina do not have access to an effective and reliable supply of
potable water constitutes a gross
infringement of the constitutional
right to have access to water.
[7]
The applicants further contend that the respondents need to put
measures in place in the medium and long term that will address
providing potable water to the residents as well as the mitigation
and prevention of water pollution by the mines in the area,
which
measures should be made in consultation with the residents and other
interested and affected parties.
[8]
The applicants contend that the water supply situation is now dire
and as the result this matter is urgent.
[9]
I must hasten to remark that Silobela, like many other such areas,
invariably still bears the brunt of the legacy of apartheid,
under
developed, under resourced. In the matter of Democratic Alliance and
Another v Masondo NO and Another
1
,
O'Regan J, with respect aptly put it as follows:
"[57]
The legacy of apartheid era therefore is that our towns are deeply
divided Eight years
2
after the dawn of the democratic era, this remains so. There is much
to be done to achieve the constitutional vision of a society
in which
the divisions of the past'
3
have to be healed. The unjust and unequal allocation of resources
over decades, indeed centuries, means that those who live in
formerly
white suburbs generally have better services and conditions of life
than those who live in the townships formerly reserved
for black
people, and still, as a matter of fact, largely occupied by black
people . These disparities were graphically captured
by Kriegler J in
his judgment in Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metropolitan Council
4
as follows:
The
apartheid city, although fragmented along racial lines, integrated an
urban economic logic that systematically favoured white
urban area at
the costs of black urban and per-urban area. The results are tragic
and absurd; sprawling black townships with hardly
a tree in sight,
flanked by a vanguard of informal settlements and guarded by towering
floodlights, out of stone throws reach Even
if only short distance
away, nestled amid trees and water and birds and tarred roads and
paved sidewalks and streetlit suburbs
and parks, and running water,
and convenient electrical amenities... we find white suburbia.'"
The present application must,
in my view, be seen in the backdrop of
the said realities eloquently captured herein above.
[10]
It is common cause that the first and second respondents are
responsible for the implementation and administration of the "the
Water Services Act") and its regulations and the National Water
Act 36 of 1998 ("
National Water Act"
;) and its regulations.
[11]
It is also not disputed that the Third to Tenth Respondents are
responsible for providing water resources in and around Carolina,
Mpumalanga in accordance with the provisions of the Water Services
Act.
[12]
It is common cause that the first to the ninth respondents, in
various tiers and spheres, are part of the National Government
which
is enjoined Constitutionally to provide to communities, basic
services, which entail, inter alia, basic water services vide
s2,
sub-ss (1) et (2) ofs3 Water Services Act of 108 of 1997 and
National
Water Act No. 36 of 1998
.
[13]
The first to fourth respondents are part of the National government
and provincial government enjoined to, inter alia, provide
"support
and strengthen the capacity of the municipalities to manage their own
affairs and, to exercise their powers and perform
their functions
5
without compromising or impeding a municipality's ability or right to
exercise or perform its functions
6
.
[14]
The sixth to ninth respondents are also enjoined, as local government
to, inter alia;.
"(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communities in a sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment;
(e)
to encourage the involvement of communities and community
organizations in the matters of local government." within its
financial services
7
.
This entails, inter alia, that within its resources, a municipality
should strive towards improving the quality of life of its
community
8
.
Municipalities are also duty bound to be responsive to the needs of
their communities.
9
[15]
I further take note of the fact the Constitution
10
provides, inter alia, as follows:
s27
Health care, food, water and social security—
(1)
Everyone has a right to have access to—
(a)
...
(b)
Sufficient food and water
(c)
...
(2)
The State must take reasonable steps legislative and other measures,
within
its available resources, to achieve the progressive
realization of each of these
rights.".
[16]
Whereas the applicants contend that the matter is urgent, thus their
approaching this Court on such basis, the protestation
of the fifth
to ninth respondents is to the contrary. They contend that the water
problem manifested itself as early as February
2012, if not even
earlier. They contended that they responded promptly by providing the
water tanks, some of which were burnt by
some of the community
members. They further contend that the matter is not urgent.
[17]
In my view, the State is enjoined to take measures
11
that are progressively geared towards eradicating the incongruity in
living areas of communities, structured on racial divide by
the
hitherto apartheid regime. If the legacy of apartheid is ever to be
eliminated, it requires that the Courts, must also strive
to
encourage the national government and all its structures, to boldly
and with haste march towards the cherished objective encapsulated
in
the preamble. In this regard, in my view, what was said by Yacoob J
in the matter of Government of the RSA and Others v Grootboom
and
Others
12
also applies in respect of s27 entrenched rights as well:
"E
Obligations imposed upon the State by s26
Approach
to interpretation
[21]
Like all other rights in chapter 2 of the Constitution (which
contains the Bill of Rights) s26 must be construed in its context.
The section was carefully crafted. It contains three subsections. The
first confers a general right of access to adequate housing.
The
second establishes and delimits the scope of the positive obligation
imposed upon the State to promote access to adequate housing
and has
three key elements. The State is obliged; (a) to take reasonable
legislative and other measures; (b) within its available
resources;
(c) to achieve the progressive realization of this right."
[18]
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.
I therefore do not agree with the submission made on behalf of the
fifth to sixth respondents that the matter is
not urgent. I therefore
find that the matter is urgent.
[19]
The first to the fourth respondents are not as such opposing the
application, save the costs order against them. They contend
that, in
as much as they nationally must provide water, however at local level
it is the function of the local government to provide
this service.
They are committed to provide the necessary financial assistance to
the Municipality, as they did previously when
they were alerted to
the water problem when it started. They are debarred from interfering
and imposing their will on the local
government. There was therefore
no need to join them in these proceedings, nor is there any need for
them to be involved in the
discussions and reporting back to court as
envisaged in orders 4 and 5 above.
[20]
In my view, to expect of the national government to interfere with
administrative issues that resort in the sphere of local
government,
would negate the very separation of spheres created by the
constitution. I am I am persuaded by these submissions made
on behalf
of the first to fourth respondents . I am equally persuaded that
there is no need to mulct these respondents wit costs.
I am also of
the view that there is no need to order the applicants to pay these
respondent's costs.
[21]
It is not disputed by the ninth respondents that water in the
relevant area, in cause, is polluted. These respondents contend
that
they have made big strides in solving the water pollution problem.
They anticipated that around 13 June 2012 water would have
been
declared safe for human consumption, which in not as yet the case.
They further contend that there is no water shortage in
Carolina and
Caropark and that the problem was only in Silobela. They further
contend that the local municipality has done the
best it could to
address the water problem by utilizing the Rapid Response Unit and
engaging a Process Engineer to look at the
water works and certain
changes were made to the treatment or process according to the
recommendations by the Process Engineer.
In this regard they have
expended a sum of R410 000. 00 for engaging a service provider for
water tanks and an amount of R2.4million
for the accelerated
Infrastructure Committee Program. They 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.
[22]
It is common cause that some of the residents in Silobela burnt some
of the water tanks. The failure to resolve the water problem
within
seven days, cannot be squarely placed in the door steps of the
respondents so as to warrant order 2 prayed for herein above.
It
would be different were it that the residents themselves were in no
way to blame to such a delay. I am therefore disinclined
to grant
prayer 2.
[23]
The applicants have complained about the quantity of the water
provided. They have contended that in some instances the tanks
were
not refilled and other instances were empty. 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.
[24]
The sixth to ninth respondents are enjoined by the Local Government
Act to strive to achieve and develop the objectives referred
to in
s152 of the Constitution
13
.
They are equally enjoined to have a strategic plan to achieve these
aforesaid objectives. In my view, within these obligations,
the
municipality must strive to resolve as speedily as possible the water
problem in Silobela and Carolina. It must equally have
a progressive
plan to achieve this objective and must engage and inform the
community of the steps and progress of doing so. It
is in this
context that I understand the reason for the applicants to seek
prayers 3 to 6. These respondents are accountable to
the communities.
In my view, the orders sought re reasonable and should therefore be
granted, notwithstanding their fierce objective
to these reliefs
being granted.
[25]
I take note of the fact that the fifth respondent did not oppose the
application. In the result there is no reason to grant
a costs order
against this respondent.
[26]
In the premises I make the following order:
1.
That the application was urgent and the Applicants' non-compliance
with the forms and service provided in terms of the Rules
of Court,
to the extent necessary is condoned;
2.
That the Sixth and Seventh Respondents are ordered to provide
temporary potable water in line with regulations 3(b) of the
regulations
relating to compulsory national standards and measures to
conserve water (GN 509 in GG 22355 (8 June 2001)) to the residents of
Silobela, Caropark and Carolina Town in Carolina, Mpumalanga within
72 hours of the order of this court;
3.
That the Sixth and Seventh Respondents are directed to engage
actively and meaningfully with the First and Second Applicants
regarding:
3.1
the steps being taken to ensure that potable water can once again be
supplied through the water supply services in Silobela,
Caropark and
Carolina Town in Carolina, Mpumalanga; and
3.2
where, when, what volume, and how regularly temporary water will be
made available in the interim;
4.
That the Sixth and Seventh Respondents are ordered to report to this
court within one month of this court order as to the measures
that
have been taken to ensure that portable water is supplied through the
water services in Silobela, Caropark and Carolina Town
in Carolina,
Mpumalanga;
5.
That any party is permitted to subsequently re-enroll the
application
for hearing on the same papers, duly supplemented, on reasonable
notice to the other parties;
6.
That the sixth to ninth Respondents are jointly and severally, the
one paying the other to be absolved; to pay the costs occasioned
by
this application, on party and party scale, which costs shall include
the costs of 2 (two) counsels.
7.
That no order is made against the other respondents not mentioned in
the orders herein above.
N.
M. MAVUNDLA
JUDGE
OF THE COURT
HEARD
ON THE : 03 / JULY / 2012
DATE
OF JUDGEMENT : 10 / JULY / 2012
1st
APPLICANT'S ATT : LAWYERS FOR HUMAN RIGHTS
2ND
APPLICANT'S ATT : LEGAL RESOURCES CENTRE
1st
2nd APPLICANT'S ADV : ADV J.R. BRICKILL et ADV G. SNYMAN
1st-4th
RESPONDENTS' ATT : TWALA ATTORNEYS
1ST^TH
RESPONDENT'S ADV : ADV N. DUKADA SC
6™-9™
RESPONDET'S ATT : GUMEDE ATTORNEYS
6th-9th
RESPONDET'S ADV : ADV L.P. MKHIZE
1
2003
(2) SA413
2
Now
eighteen years (my comment)
3
Preamble
the to the Constitution.
4
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at 417 B-C.
5
5154
of the Constitution of the Republic of South Africa, Act 108 of
1996.
6
S151(4)
of the Constitution of the Republic of South Africa, Act 108 of
1996.
7
S152(l)(d)
of the Constitution of the Republic of South Africa, Act 108 of
1996.
8
Vide
definition of "development"
Local Government: Municipal
Systems Act. 32 of 2000
.
9
Vide
s6{2)(a)
of Local Government. Municipal Systems Act 32 of 2000.
10
The
Constitution of the Republic of South Africa, Act 108 of 1996.
11
S26(2)
of the Constitution, Act 108 of 1986
12
2001
(1) SA 46
(CC) at 61F-G et p69-70B.
13
S23
of Act 32 of 2000.