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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 4018/2021
Reportable
JUDGMENT
In the matter between:
LULAMILE DAVEYTON KHETSHEMIYA First Applicant
MENTANI MKALITSHI Second Applicant
HARVEY NTSHOKO Third Applicant
TRUSTEES OF THE MASIFUNDISE Fourth Applicant
DEVELOPMENT TRUST
and
MINISTER OF WATER AND SANITATION First Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Second Respondent
PREMIER OF THE EASTERN CAPE PROVINCIAL
GOVERNMENT Third Respondent
AMATHOLE DISTRICT MUNICIPALITY Fourth Respondent
AMATOLA WATER BOARD Fifth Respondent
Neutral citation: Khetshemiya And Others v Minister Of Water And
Sanitation And Others (Case no 4018/21) [2026]
ZAECM (15 May 2026).
Coram: NHLANGULELA, AJP
Heard (Virtually): 25 NOVEMBER 2025
Delivered: 15 MAY 2026
Summary: Constitutional Law, breach of Sections 3, 62, and 63 of the
Water Services Act, 1997 -Subsidiary legislation promulgated to enforce the
right to supply of basic water in terms of s 27 of the Constitution -
Application granted with costs - First, third and fourth respondents obliged
to provide access to basic water supply to the applicants - Structural remedy
in terms of s 38 of the Constitution applied.
ORDER
The first, third and fourth respondents have breached their constitutional and
statutory obligations to the residents of Ward 28 as follows:
1.1 the fourth respondent has failed to provide the residents of Ward 28
with access to basic water supply in terms of section 3 of the Water
Services Act, 1997;
1.2 the fourth respondent has failed to comply with the basic minimum
standards for basic water supply services in terms of regulation 3 of
the Regulations published in GNR 509 of 8 June 2001;
1.3 the first and third respondents have failed in their duty to intervene to
remedy the failures of the fourth respondent in paragraphs 1.1 and 1.2;
1.4 the first, third and fourth respondents have failed to ensure that the
residents of Ward 28 have adequate access to water, in terms of
section 27 (1)(b) and (2), section 24 and section 10 of the Constitution
of the Republic of South Africa, 1996;
2. The first respondent is ordered to convene a task team on his/her own
direction(s), and including representatives of the second, third, fourth
and fifth respondents, to devise and implement a long -term,
sustainable plan to ensure that access to water and basic water supply
services, in accordance with the Constitution and the Water Services
Act and the regulations thereunder, are provided to the residents of
Ward 28.
3. The first to fifth respondents are ordered to provide a copy of that plan
to this Court and to the applicants within two months of the date of
this order.
4. The first to fifth respondents are ordered to report on affidavit to this
Court, with a copy to the Applicants, not later than three months after
the date of this order, and thereafter at periods of every three months,
as to:
4.1 What they have done to give effect to paragraph 2 above;
4.2 To what extent this has achieved or facilitated the outcome
required by paragraph 2 above;
4.3 What further steps they will take to achieve the outcome
required by paragraph 2;
4.4 When they will take each such further step; and to continue to
file such reports until this order is discharged or varied by this
Court, or by agreement of the applicants and the first to fifth
respondents.
5. The applicants may approach the Court for further relief, on these
papers as supplemented to the extent necessary.
6. The costs of this application to be paid by the first, third and fourth
respondents on Scale C, and to do so jointly and severally, the one
paying and the others to be absolved from liability.
7. The order in paragraph 6 above shall include the costs of Senior
Counsel.
JUDGMENT
NHLANGULELA, AJP
Introduction:
[1] The first applicant is Lulamile Daveyton Khetshemiya, an adult male
residing in Nombanjana Village, in Ward 28 in the Mnquma Local
Municipality ("MLM"). The MLM falls in the area of jurisdiction of the
Amathole District Municipality ("ADM"). The second applicant is Mentani
Mkalitshi, an adult female residing in Nxaxo Village, in Ward 28 in the
MLM. The third applicant is Harvey Ntshoko, an adult male residing in
Nombanjana Village, in Ward 28 in the MLM. The first to third applicants
bring this application in their own interests i n terms of section 38 (a) of the
Constitution; in the interests of the group of persons consisting of the
residents of the Ward 28 villages, in terms of section 38 (c) of the
Constitution; and in the public interest in terms of section 38 (d) of the
Constitution. The fourth applicant is The Masifundise Development Trust, a
non-profit trust registered in terms of the Trust Property Control Act 57 of
1988, with its head office at [...] S[...] Road, Mowbray, Cape Town. It
brings this application in its own interests in terms of section 38(a) of the
Constitution; and in the public interest in terms of section 38(d) of the
Constitution1.
1 Section 38 of the Constitution, 1996 reads: ‘Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court
may grant appropriate relief, including a declaration of rights. The persons who may approach the Court
are-(a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in
their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d)
anyone acting in the public interest; and (e) an association acting in the interest of its members.’
[2] The first respondent is the Minister of Water and Sanitation, with her
head office at Sedibeng Building, 1[...] F[...] B[...] Street, Pretoria. The
second respondent is the Minister of Cooperative Governance and
Traditional Affairs, with her head office at Union Buildings, G […] Avenue,
East Wing, […] Floor, Arcadia, Pretoria. The third respondent is the Premier
of the Province of the Eastern Cape with his head office at the Office of the
Premier Building, […] Floor, I[…] Avenue, Bhisho. The fourth respondent
is the Amathole District Municipality, with its head office situated at […]
W[…] Office Park, 3[…] P[…] F[…], Chiselhurst, East London. When the
applicants brought this application in 2021, the fourth respondent was under
the administration of the Executive Council of the Eastern Cape Government
in terms of section 139 (5) (a) of the Constitution of the Republic of South
Africa, 1996, with its Head Office at Office of the Premier Building, […]
Floor, I[…] Avenue, Bhisho.
[3] On 1 October 2024, this court granted interim relief 2, ordering the
fourth and fifth respondents to grant the applicants access to basic
water, and the first, second and third respondents to assist the fourth
respondent in procuring, distributing, and providing a minimum
quantity of potable water of 25 litres per person per day at a minimum
flow rate of not less than 10 litres per minute; within 200 metres of a
2 The order in relevant part reads as follows: ‘ 1. It is declared that the [ADM] is under a duty to provide the
residents of Ward 28 of the Mnquma Local Municipality ("Ward 28") with access to sufficient water. 2. It
is declared that the [Minister of Water], [the Minister of COGTA] and [the Premier] are under a duty to
assist the [ADM] to provide the residents of Ward 28 with access to sufficient water. 3.The [Minister of
Water], [the Minister of COGTA], [the Premier], [the ADM] and [the Chief Executive Officer of Rand
Water] are ordered, without delay, to engage with each other to discuss what interim steps they will take to
ensure that the residents of Ward 28 are without delay provided with access to potable water: 3.1. when they
will take each such step; 3.2 in what manner this will ensure that the residents of Ward 28 are without delay
provided with access to potable water, including the amount of water that will be provided, where it will be
provided, when it will be provided and how frequently it will be provided’
household; and with an effectiveness such that no consumer is without a
supply for more than seven full days in any year .3 However, the
respondents did not comply with such orders; hence, the need to
determine the order sought in Part B of the Notice of Motion, which reads
as follows:
‘1. It is declared that the respondents listed below have breached their constitutional and
statutory Obligations to the residents of Ward 28 as follows:
1.1 The fourth respondent has failed to provide the residents of
Ward 28 with access to basic water supply in terms of
section 3 of the Water Services Act, 1997;
1.2 The fourth respondent has failed to comply with the basic
minimum standards for basic water supply services in terms
of Regulation 3 of the Regulations published in GNR 509 of
8 June 2001;
1.3 the first, second and third respondents have failed in their
duty to intervene to remedy the failures of the fourth
respondent in paragraphs 1.1 and 1.2;
1.4 the first, second, third, fourth and fifth respondents have
failed to ensure that the residents of Ward 28 have adequate
access to water, in terms of section 27(1)(b) and (2), section
24 and section 10 of the Constitution of the Republic of
South Africa, 1996.
3 The prescript is contained in Regulation 3 of GNR 509 of 8 June 2001, which
stipulates the minimum standard for basic water supply services that must be
progressively provided to everyone at a minimum quantity of portable water of 25
litres per person per day, or 6 kilolitres per household per month - (i) at a minimum
flow of not less than 10 litres per minute; (ii) within 200 meters of a household; and
(iii) with an effectiveness such that no consumer is without a supply for more than 7
full days in any year.
2. The first respondent, alternatively the second respondent, is
ordered to convene a task team under the direction of the first
respondent (alternatively the second respondent) or her
representative, and including representatives of the second, third,
fourth and fifth respondents, to devise and implement a long -
term, sustainable plan to ensure that access to water and basic
water supply services, in accordance with the Constitution and the
Water Services Act and the regulations thereunder, are provided
to the residents of Ward 28.
3. The first to fifth respondents are ordered to provide a copy of that
plan to this Court and to the applicants within two months of the
date of this order.
4. The first to fifth respondents are ordered to report on affidavit to
this Court, with a copy to the Applicants, not later than three
months after the date of this order, and thereafter at periods of
every three months, as to:
4.1 What they have done to give effect to paragraph 2 above;
4.2 To what extent this has achieved or facilitated the
outcome required by paragraph 2 above;
4.3 What further steps will they take to achieve the outcome
required by paragraph 2 above;
4.4 When will they take each such further step, and to continue to
file such reports until this Order is discharged or varied by
this Court, or by agreement of the applicants and the first to
fifth respondents.
5. The applicants may approach the Court for further relief, on these
papers as supplemented to the extent necessary;
6. Any party that opposes this application is to pay the costs of the
application, including the costs of two counsel, jointly and severally
with any other respondent that opposes, the one paying, the other to
be absolved.
7. Granting the applicants further and/or alternative relief.’
The facts:
[4] The applicants’ affidavit traces a history of water delivery crises in
Ward 28 Villages dating back to 2003, when ADM was formed, through
2021, when these proceedings were launched, and beyond. The ADM
became a Water Services Authority in 2003 and a provider in 2006. It has
not taken sufficient measures to supply basic water in a drought -affected,
COVID-stricken Ward 28. Only one water tank was provided in May 2020,
which ran out within a day. ADM’s Water Services Development Plan
(2017 – 2022) shows th at only 13% of households have piped water. The
district is under administration due to financial crises, affecting service
delivery. The ADM relies on the fifth respondent (AWB) for bulk water,
which faces management issues and was placed under legal administration
in 2020. The district’s infrastructure and management are inadequate, with
rural areas being more affected. No villages have access to potable water
within 200 meters of residences. Residents rely on distant rivers, taking 1.5
hours to fetc h water. Daily water collection is limited to 2030 litres per
person, often unsafe. Water tanks provided in 2020 were only filled once
and then stopped. There has been no water in the tanks since that stoppage.
The situation has been ongoing since at least 2017, with no effective
intervention. COVID 19 increased health risks due to the inability to
sanitise or wash hands.
[5] Community and NGO efforts to address water shortages have already
largely failed. Attempts by the fourth applicant (the Trust) to engage the
authorities have not been successful. Water tanks donated by NGOs were
not collected or installed by the authorities. Community meetings with the
local government resulted in promises that were not fulfilled. Letters of
demand from legal representatives went unanswered. The community
continues to rely on unsafe river water, risking health and dignity. COVID -
19 response measures, such as water tanks, were ineffective or not sustained.
The Eastern Cape was declared a drought disaster in August 2019. The
AWB received R50 million for drought intervention, but no effective relief
reached Ward 28. ADM received R64 million in 2018/2019 for drought -
related projects, but residents still lack reliable water. ADM faces sever
financial issues, is unable to pay salaries for four months, and relies on bank
overdrafts. A R180 million bailout requested from Treasury did not help, as
the ADM owes R173 million bailout to AWB and R50 million to the
Department of Water and Sanitation. The drought and financial crises have
hampered emergency water provision efforts.
[6] On 15 April 2020, the first respondent (Minister of Water) issued
directions under the Disaster Management Act for the purpose of mobilising
water authorities for emergency water and sanitation services, including
emergency procurement of water tanks, tankers, and related goods to combat
COVID-19. Despite these measures, the ADM and Rand Water have not
fully implemented the directives. The governance and management of water
services are inadequate. The AWB would later face management issues,
which led to it being placed under legal administration. The Eastern Cape
Provincial Government has struggled with intervention and recovery plans.
The ADM has not allocated sufficient resources or taken effective action.
The legal and institutional framework assigns responsibility but is not
effectively enforced. The failure to provide basic water services violates
constitutional rights and statutory duties. The existing water and sanitation
service data across the municipalities underscores ongoing service gaps,
especially in rural areas, and the need for infrastructure upgrades and the
reduction of service backlogs.
[7] Ms Amanda Sizani, the deponent to the answering affidavit filed on
behalf of the Minister of Water, disputes the fact that she, the second
respondent (Minister of Cogta) and third respondent (the Premier) have
failed in their duty to intervene to remedy the failure of ADM to deliver
potable water to the residents of Ward 28 as envisaged in terms of s 27
(1)(b) and (2), read with s 10 of the Constitution; and ss 3,62 and 63 of the
Water Services Act No. 108 of 1997 (the Act). In amplification, she
contends that the Minister of Water cannot intervene unless the Premier has
unjustifiably failed to intervene, or has unsuccessfully intervened. In this
case, such a failure was not brought to the attention of or made known to the
first respondent. She alleges that, in this matter, the Department of Water
never received any information that the ADM and the Prov ince had failed in
their constitutional and statutory duties to provide the residents of Ward 28
with access to water until the papers were served upon the Department in
September 2021. She alleges further that, in any event, the Minister of
Water did initiate some intervention by providing water tankers to ADM for
the period from November 2021 to February 2022, with a long - term
solution intended to be the supply of water through the Ngqamakwe
Regional Water Supply Scheme. Further, a proposal was made to drill
boreholes at Thokazi Administrative Area for the supply of water to the
residents of Ward 28, but this was thwarted by objections from the people of
Thokazi.
[8] The Minister of Water also relies on the principle of subsidiarity,
contending that insofar as the applicant’s case stems directly from the
provisions of s 27 of the Constitution, instead of the provisions of the Act,
the application falls to be dismissed.
[9] Mr Thembisile Nkadimeng, deposed to an answering affidavit on
behalf of the Minister of Cogta. He denies that the Minister has a statutory
obligation to intervene on ADM's behalf to remedy ADM's failure to comply
with the basic minimum standards for water supply. However, the Minister
would not object to being part of a task team convened by the first
respondent to devise and implement a long -term, sustainable plan for the
supply of water in Ward 28. He contends that since the applicants rely on s
27 (1) of the Constitution, not the provisions of the subsidiary Water
Services Act, none of the relief set out in Part B of the Notice of Motion can
competently be granted against the Minister.
[10] The Premier states on affidavit that the applicants’ reliance on s 27 of
the Constitution violates the principle of subsidiarity and, for that reason,
they are not entitled to any relief under the Act. By and large, the Premier
joins hands with his co -respondents on the issues of denial of the duty to
monitor and intervene to stop the water crisis in Ward 28, and each organ of
state passes its obligation to comply with the other. The respondents also
allege resource constraints as the factor that should influence the court not to
grant the relief sought.
Disputed facts:
[11] There are two disputed matters in this matter. The first is raised by
the Minister of Water, which is that she could not intervene on behalf of
ADM because she was informed at the time of service of the application
papers in September 2021 that the people of Ward 28 were in need of a
water supply intervention. The second is a dispute of law raised by all the
respondents that the principle of subsidiarity prevents the granting of any of
the relief sought by the applicants under Part B of the Notice of Motion.
[12] In application proceedings, where a dispute of fact has arisen from the
papers, the court may nevertheless grant the relief sought. In terms of the
rule formulated in Plascon–Evans Paints (Pty) Ltd 4, the relief sought by the
applicant may be granted if the facts stated by the applicant, which are not in
dispute, and the facts stated by the respondent, justify such a relief. Further,
in an instance where the facts stated by the respondent are so far -fetched or
clearly untenable, the court may be justified in merely rejecting those facts
and granting the relief sought by the applicant. In this case, allegation by the
Minister of Water alleged that she had not been informed in 2020 that the
residents of Ward 28 were in need of potable water, but did nothing after
September 2021 to assist ADM in supplying water. In any event, the
Minister's version may well be rejected because the founding affidavit
contains evidence that the South African Caucus and the NGOs sent written
4 Plascon–Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C. National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), para 26.
notifications to the first respondent between April and December 2020,
which is not controverted in the answering affidavits. Therefore, the case of
Plascon–Evans Paints (Pty) Ltd is applicable, thereby paving the way for the
consideration of a dispute of law.
The arguments:
[13] The submissions made by Mr. Budlender SC, appearing on behalf of the
applicants, highlight the constitutional and statutory scheme for the
establishment of the ADM, the ADM's accountability and responsibility as
the services authority, and the respondents' legal obligations to provide the
residents of Ward 28 with access to basic water supply, the failure by ADM
to provide water, obligations of the first, second and third respondents to
intervene on behalf of ADM when confronted with a difficulty in supplying
basic water to the residents of Ward 28.
[14] Mr Budlender submitted that s (27) (1) (b) of the Constitution gives the
residents of Ward 28 access rights to sufficient water, which, in terms of s
27 (2) of the Constitution, enjoins the state to make such rights realised
through reasonable legislative and other measures. The case of Mazibuko
and Others v City of Johannesburg 5 sets out the proper approach to the
application of s 27 in the following terms:
‘Applying this approach to section 27(1 )(b), the right of access to sufficient water
coupled with s 27 (2), it is clear that the right does not require the state upon
demand to provide every person with sufficient water without more; rather, it
requires the state to take reasonable legislative and other measures progressively to
5 Mazibuko and others v City of Johannesburg 2010 (4) SA 1 CC at para 50.
realise the achievement of the right of access to sufficient water, within available
resources.’
[15] The Act is the legislative measure that is referred to in s 27 of the
Constitution. The Act places obligations on the three spheres of government
to implement the right to water. It guarantees minimum standards for water
supply and incorporates protective measures against water deprivation.
[16] The Act contains provisions that regulate the monitoring and
intervention powers of the provincial and national governments in relation to
the provision of water services. Section 62 of the Act provides for the
monitoring of water services by the Minister of Water, Provinces, and local
organs of state, as follows:
‘(1) The Minister [of Water] and any relevant province must monitor the
performance of every water services institution in order to ensure-
(a) compliance with all applicable national standards prescribed under this
Act;
(b) compliance with all norms and standards for tariffs prescribed under this
Act; and
(c) compliance with every applicable development plan, policy statement or
business plan adopted in terms of this Act.
(2) Every water services institution must-
(a) furnish such information as may be required by the Minister after
consultation with the Minister for Provincial Affairs and Constitutional
Development; and
(b) allow the Minister access to its books, records, and physical assets to the
extent necessary for the Minister to carry out the monitoring functions
contemplated in subsection.’
[17] In terms of s 63 of the Act, the Ministers and the Province are obliged
to intervene6 to remedy the ADM’s failure. It provides as follows.
‘(1) If a water services Authority has not effectively performed any function
imposed on it by or under this Act, the Minister [of Water] may, in consultation
with the Minister [of COGTA], request the Premier to intervene in terms of
section 139 of the Constitution.
(2) If within a reasonable time after the request, the province –
(a) has unjustifiably failed to intervene; or
(b) has intervened but has failed to do so effectively, the Minister [of Water]
may assume responsibility for that function to the extent necessary-
(i) to maintain essential national standards;
(ii) to meet established minimum standards for providing
services; or
(iii) to prevent that province from taking unreasonable action
that is prejudicial to the interests of another province or the country
as a whole.’
[18] On the consideration of the fact that the residents of Ward 28 have
been without a supply of basic water since at least 2017, a remedy anchored
in appropriate steps is sought that will ensure that the residents of Ward 28
obtain sufficient potable water, to which they have a right. Had the
respondents discharged their legal obligations, Ward 28's situation would not
have endured for eight years. In similar circumstances of non -interventions
in breach of s 63 (1) of the Act, an order was made in Mnquma Municipality
6 Section 63 underscores the provisions of s 139 (1) of the Constitution, which reads: ‘ When a municipality
cannot or does not fulfill an executive obligation in terms of the constitution or legislation, the relevant
provincial executive may intervene by taking any appropriate steps to ensure fulfillment of that
obligation…’
Local Municipality and Another v Premier of the Eastern Cape 7, where the
following was said at para 72:
‘… appropriate steps are to be construed as steps that are such as would be
suitable in the sense that it must fit the situation. The form of intervention must
accordingly address the particular circumstances of the case. This can only be
determined with due regard to the nature of the executive obligation that was not
fulfilled, the interests of those affected by the failure to fulfill an executive
obligation, and the interests of the community concerned with due regard to those
features that arise from the constitutional scheme as embodied in Chapters 3, 5, 6
and 7 of the Constitution. It requires a balancing of the constitutional imperative
to respect the integrity of local government as far as possible against the
constitutional requirement of effective government. A further consideration is the
purpose of the power. To intervene. It is clearly designed as a corrective measure
to ensure that such steps are taken that would resolve the problems that may be
experienced in a particular municipality. This necessitates the question whether
the form of intervention that is contemplated would be effective and
commensurate with the nature and/or the extent of the failure to fulfill the
obligation concerned.”
Also see: Fose v Minister of Safety and Security 8
[19] In dealing with the nature of the right infringed and the nature of the
infringement, the Constitutional Court stated in Minister of Health v
Treatment Action Campaign 9 that an appropriate remedy may include both
the issuing of a mandamus and the exercise of supervisory jurisdiction.
7 Mnquma Municipality Local Municipality and Another v Premier of the Eastern Cape [2009]
ZAECBHC 14 at para 72.
8 Fose v Minister of Safety and Security 1997 (3) SA 786 at paras 96 and 97.
9 Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) para 106.
[20] The upshot of Mr Budlender’s submissions is that the applicants have
made up a case for the grant of declaratory orders that ADM has failed to
give the residents of Ward 28 access to basic water supply in breach of s 3 of
the Act; and the Minister of Water and Premier have failed to intervene in
the failures of ADM to supply basic water to the residents of Ward 28. To
that extent, the Minister of Water or Minister of Cogta, including the
representatives of the Premier, ADM, and the fifth respondent, s hould be
ordered to convene a task team to devise and implement a long -term
sustainable plan to ensure access to water and basic water supply services. In
the final analysis, a supervisory order may be issued requiring the first to
fifth respondents to report to this Court on the steps they will take to achieve
the outcome required under their plan.
[21] I agree that the breach by the ADM, the Ministers and Premier of the
right to water of the residents of what, 28 is egregious, despite being aware
since at least April 2020. Since ADM has failed to provide the residents of
Ward 28 with sufficient portable water, the Premier and the Minister of
Water have not intervened under section 139 of the Constitution and/or
section 63 of the Act. The facts of this case show that neither the Premier
nor the Minister intends to intervene to remedy the violation. The res idents
of Ward 28 are suffering.
[22] Mr Matebese SC, appearing for the Minister of Water, submitted that
the declaratory and consequent orders sought by the applicants are not
competent by reason that they are not consistent with the constitutionally
and legislatively ordained and acceptable framework. The orders sought
amount to interference with the affairs of separate organs of state, namely
the Premier and Cogta, which is not the intervention envisaged in ss 3 and
63 of the Act, read with s 139 of the Constitution. Further, the relief sought
by the applicants circumvents the operation of the subsidiarity principle.
[23] Counsel contended that the water rights of the residents of Ward 28
are limited by unavailable financial resources, and, in turn, the power of the
Minister of Water to intervene is circumscribed. These submissions are
made with reliance on Soobramoney v Minister of Health, (KwaZulu -
Natal)10 where the following was stated at para 11:
“What is apparent from these provisions is that the obligations imposed on the state by ss
26 and 27 in regard to access to housing, health, care, food, water and social security, are
dependent upon available resources by reason of the lack of resources.”
[24] Counsel argued that even if intervention was not restricted, the
Minister would still not be able to intervene because ADM had not been
shown to have failed to provide the water required by the residents of Ward
28. He contended that, in any event, the unchallenged evidence that the
Minister had made arrangements for the supply under the Ngqamakwe
Regional Water Supply Scheme , and made proposals for the delivery of
water tankers and tanks for the residents of Ward 28 ought to excuse the
Minister from making any further compliance.
[25] It was submitted by Mr Moerane SC, appearing for the Minister of
Cogta and Premier, that the relief sought against the Minister is
impermissible because the Act read with s 139 of the Court vests monitoring
and intervention powers for water services in the Minister of Water and
10 Soobramoney v Minister of Health, (KwaZulu-Natal)1988 (1) SA 756 (CC).
Premier, not in the Minster of Cogta; jurisdictional factors for intervention
under s 63 of the Act and s 139 of the Constitution are absent; and, therefore,
the relief sought against the Minister violates the separation of powers and
municipal autonomy. However, the Minister abides by the relief that may be
competently sought against the empowered functionaries.
[26] Mr Moerane’s submissions that are relevant to the Minister for Cogta
would be abbreviated by the consideration that s 63 of the Act reveal that the
Minister has no primary duty to initiate the process of intervention at the
instance of the Minister for Water; the concession made by the Minister of
Cogta that he is willing to participate in a team that the Minister of Water
may establish as well as the concession made on behalf of the applicants that
a substantive relief sought by the applicants cannot competently be gra nted
against the Minister for Cogta. I am in agreement with these submissions,
which, at the national level, call for the court to focus attention on the
breaches committed by the Minister of Water.
[27] In the final determination of the issues of this matter, the questions
that have emerged call for answers. I list the questions below:
(a) Does the applicants’ case violate the principle of subsidiarity?
(b) Do the applicants still experience shortage of water?
(c) Are they entitled to access to basic water supply in terms of s 27
(1)(b) of the Constitution?
(d) What are the statutory duties of the respondents towards the plight of
the applicants?
(e) If (b) is answered in the affirmative, what steps did those respondents
plagues with statutory duty take to ensure that basic water is supplied
to the applicants?
(f) What relief are the applicants entitled to?
The subsidiarity principle:
[28] On the principle of subsidiarity, Mr Matebese placed reliance on the
case of Mazibuko v City of Johannesburg 11, where the following was stated
at para 73:
“…This court has repeatedly held that where legislation has been enacted to give effect to
a right, a litigant should rely on that legislation in order to give effect to the right or
alternatively challenge the legislation as being inconsistent with the Constitution.”
[29] As I understand the respondents’ argument on the subsidiary
principle, since the Minister for Water has not been proved to have breached
duties to monitor and intervene in terms of the Act, the direct reliance on s
27 (1)(b) of the Constitution, the provisions of which do not make reference
to mentoring and intervention obligations, is legally impermissible. In my
view, such a submission is unsustainable. Since water supply in Ward 28
has been cut off since 2017, and is ongoing, it is not open to the Minister of
Water to say that he did not know that the provisions of s 62 and 63 of the
Act place the monitoring and intervention obligations upon him. The
Minister’s promises for the water scheme and to drill boreholes have as yet
11 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) para 73
to come to fruition. Therefore, I reject the submission that the applicants’
application is a violation of the subsidiary principle.
[30] It was submitted by Mr. Moerane that since the Minister of Cogta is not
in an assigned sphere for water services, a declaratory order cannot be
granted against her. For present purposes, and for the reasons already
advanced on behalf of the Minister of Cogta, which are conceded by Mr
Budlender, the Minister of Cogta ought to be exonerated from any
declaratory order that may be granted in this matter. The same cannot be
said about the role of the Premier under the Act, who, acting in conjunction
with the Minister of Water, had to monitor and bring the situation in Ward
28 under control.
Relief:
[31] The summary of the proven facts of the matter are that the residents of
Nombanjana and Nxaxo villages of MLM, Ward 28 have been plagued with
water scarcity and a lack of supply of basic water for a considerable period
of time spanning eight years. The drought and financial crises have
hampered emergency water provision efforts. The promises of emergency
procurement water and sanitation services by the Minister of Water have yet
to be fulfilled. AWB and ADM are under legal administration. In the
circumstances I accept the applicants’ case that their constitutional right of
access to potable water were breached. The respondents did not take
appropriate steps to monitor and intervene as envisaged in ss 27 (1) (b) and
139 of the Constitution read with ss 3, 62 and 63 of the Act. The
constitutional relief sought in terms of s 38 of the Constitution is necessary.
Therefore, the answer to the questions in paragraphs (b) and (c) is the
affirmative. On paragraphs (d), the provisions of the Constitution and the
Act alluded to were breached by the respondents. The Ministers, Premier
and ADM did not take steps to end the water crises in Ward 28.
[32] The relief sought in the Notice of Motion, and appropriately amplified
on affidavits, is a constitutional law remedy because constitutional right
have been violated. I derive power to grant such a remedy is from the
provisions of s 38 of the Constitution. The power must be just and equitable
as envisaged in s 172 (1) (b) of the Constitution. Such a power affords the
Court the exercise of a wide discretion, because the purpose of the remedy
should effectively vindicate the constitutional rights of the applicants that
have been violated, and deter future infringements. The nature of the
infringement and its impact on the applicants should be taken into account.
The fact that the infringement of applicants’ rights is egregious should
provide guidance to determine the effectiveness of the relief that will be
made. The structural relief to be granted should be an appropriate one for
this case. The guidance for formulating such a relief may be sourced from
Agri Eastern Cape and others v MEC, Department of Roads and Public
Works and others12.
[33] I have examined the draft order that was filed of record together with
the heads of argument for the applicants. In doing so, I am satisfied that not
only does it reflects the relief prayed for in Part B of the Notice of Motion,
but it buttresses the debates on the issues that I have ventilated in this
12 Agri Eastern Cape and other v MEC, Department of Roads and Public Works and others 2017 (3) SA
383 (ECG) at 331 – 4
judgment. Further, I am satisfied that the principles of a declaratory relief
as applied in the cases of Cordiant Trading CC v Daimler Chrysler
Financial Services (Pty) Ltd 13, and Oakbay Investments and Others v
Director of the Financial Services Intelligence Centre 14 have been met by
the applicants15.
Costs:
[34] Mr Budlender seeks an order of costs against the Minister of Water,
Minister of Cogta and the Premier. Mr Moerane argued strenuously against
the cost being visited the Minister of Cogta. The debate that arises from the
divergent submissions need not to be engaged fully because Mr Budlender
conceded that the Minister did not oppose the relief sought in Part A of the
Notice of Motion. But, as the application progressed to Part B of the matter,
the Minister happened to be dragged into the substantive issues relevant to
breach of the applicants’ constitutionals rights, and on occasions being also
included in the interlocutory orders. Save that the continued involvement of
a party that did not oppose the relief sought cannot be erroneous in the case
of this nature, mulcting the Minister with costs will be unjust in my view.
As to what will happen in the future that is going to be regulated in terms of
the structural order be issued, the involvement of the Minister of Cogta will
be decided by the circumstances obtaining then. In brief, the costs of the
13 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA)
(Cordiant)
14 Oakbay Investments and Others v Director of the Financial Services Intelligence Centre [2017]
ZAGPPHC 576; [2017] 4 All SA 150 (GP); 2018 (3) SA 515 (GP), para 56 to 63
15 The principles are that the applicants must be interested parties on whom the declaratory order
would be binding; and that the case must be a proper one for the exercise of discretion by the
court.
application on Part B will be borne by ADM, the Minister of Water and
Premier.
The Order:
[34] The first, third and fourth respondents have breached their
constitutional and statutory obligations to the residents of Ward 28 as
follows:
1.5 the fourth respondent has failed to provide the residents of Ward 28
with access to basic water supply in terms of section 3 of the Water
Services Act, 1997;
1.6 the fourth respondent has failed to comply with the basic minimum
standards for basic water supply services in terms of regulation 3 of
the Regulations published in GNR 509 of 8 June 2001;
1.7 the first and third respondents have failed in their duty to intervene to
remedy the failures of the fourth respondent in paragraphs 1.1 and 1.2;
1.8 the first third and fourth respondents have failed to ensure that the
residents of Ward 28 have adequate access to water, in terms of
section 27 (1)(b) and (2), section 24 and section 10 of the Constitution
of the Republic of South Africa, 1996;
2. The first respondent is ordered to convene a task team on his/her own
direction(s), and including representatives of the second, third, fourth
and fifth respondents, to devise and implement a long -term,
sustainable plan to ensure that access to water and basic water supply
services, in accordance with the Constitution and the Water Services
Act and the regulations thereunder, are provided to the residents of
Ward 28.
3. The first to fifth respondents are ordered to provide a copy of that plan
to this Court and to the applicants within two months of the date of
this order.
4. The first to fifth respondents are ordered to report on affidavit to this
Court, with a copy to the Applicants, not later than three months after
the date of this order, and thereafter at periods of every three months,
as to:
4.1 What they have done to give effect to paragraph 2 above;
4.2 To what extent this has achieved or facilitated the outcome
required by paragraph 2 above;
4.3 What further steps they will take to achieve the outcome
required by paragraph 2;
4.4 When they will take each such further step; and to continue to
file such reports until this order is discharged or varied by this
Court, or by agreement of the applicants and the first to fifth
respondents.
5. The applicants may approach the Court for further relief, on these
papers as supplemented to the extent necessary.
6. The costs of this application to be paid by the first, third and fourth
respondents on Scale C, and to do so jointly and severally, the one
paying and the others to be absolved from liability.
7. The order in paragraph 6 above shall include the costs of Senior
Counsel.
___________________
Z. M. NHLANGULELA
ACTING JUDGE PRESIDENT OF HIGH COURT
EASTERN CAPE DIVISION
Counsel for the applicants: Adv. Budlender SC
Instructed by : WEBBER WENTZEL
SANDTON
c/o DRAKE FLEMMER &
ORSMOND ATTORNEYS
EAST LONDON
Counsel for 1st respondent : Adv Matebese SC
Instructed by : STATE ATTORNEY
MTHATHA
Counsel for the 2nd and 3rd
respondents : Adv Moerane SC, appearing
with Ms Brauns
Instructed by : STATE ATTORNEY
MTHATHA
Legal representatives
for 4th respondent : Y TSIPA ATTORNEYS
BUTTERWORTH
c/o MAJALI GWABENI ATT. INC
MTHATHA
Legal representatives
for 5th respondent : RS SIYILA ATT. INC
EAST LONDON
c/o MGCOTYELWA KREWU
INC.
MTHATHA