Services case set down for hearing in Pietermaritzburg High Court on the 2 November 2018

The Legal Resources Centre (LRC) is in Pietermaritzburg High Court on the 2 November 2018 representing two farm occupiers and the Association for Rural Advancement (AFRA) who are acting in terms of Section 38 of the Constitution on behalf of the class of farm occupiers and labour tenants residing under the jurisdiction of Mshwathi, Msunduzi and uMgungundlovu municipalities in Kwa-Zulu Natal.  This case is against Mshwathi, Msunduzi and Mgungundlovu municipalities.

The municipalities have failed to take reasonable measures to achieve progressive realisation of the farm occupiers and labour tenants’ right to water, in breach of Section 27 (1) (b) of the Constitution.  Moreover, the municipality has failed to meet its obligations under Sections 152 (1) (a) and 153 (1) of the Constitution to promote social and economic development and to manage their administration and planning processes to give priority to the basic needs of communities, and to promote the social and economic development of the communities.  The municipalities are also in breach of the Water Services Act, Regulations Relating to Compulsory National Standards and Measures to Conserve Water (Government Notice R509 in Government Gazette 22355 of 8 June 2001) (“the Regulations”),  White Paper on Water Supply and Sanitation Policy 1994 (“White Paper”), the Extension of Security of Tenure Act as well as the Promotion of Administrative Justice Act No. 3 of 2000, in that the municipality failed to take an action of providing the farm occupiers and labour tenants with access to sufficient water, basic sanitation and collection of refuse.

On behalf of the farm dwellers and AFRA, the LRC will argue that the municipalities’ administrative action or failure to provide the farm occupiers and labour tenants with access to sufficient water and basic sanitation and collection of refuse on the grounds that this is unlawful, unreasonable and procedurally unfair.

LRC will ask the Court to grant the following order:

1. Declaring that the municipalities 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 Sections 9, 10, 24, 27(1)(b), 33, 152, 153, 195 and 237;
2. Directing the municipalities, forthwith, to comply with Regulation 3 of the Regulations Relating to Compulsory National Standards and Measures to Conserve Water (GN R509 in GG 22355 of 8 June 2001) by:-
   • Installing a sufficient number of water user connections to supply a minimum quantity of portable water of 25 litres per person per day or 6 kilolitres per household per month to farm occupiers and labour tenants residing within areas of their jurisdiction;

• Ensuring that the water user connections supply water at a minimum flow rate of not less than 10 litres per minute; and
• Ensuring that the water user connections supplied are within 200 meters of the farm dwellers’ households;

3. Directing the municipalities to provide farm occupiers and/or labour tenants with access to basic sanitation by:-
   • Installing Ventilation Improved Pit (“the VIP”) toilets per each household. (The VIP toilets should conform to SANS 10365-1: 2003 specifications);
4. Directing the municipalities to provide the farm occupiers and/or labour tenants with refuse collection services;
5. Directing the municipalities to ensure that the farm occupiers and labour tenants have access to basic municipal services, more specifically water, sanitation and refuse removal; and
6. Directing the municipalities to prioritise the rights of farm occupiers and labour tenants in their Integrated Development Plans (“the IDP’s”).
7. Within one (1) month of the date of the order, the municipalities are directed to file the reports under oath (the reports) and the plans (the plans) with Pietermaritzburg High Court.
8. The reports shall identify all the farm occupiers and labour tenants who are residing within the areas of their jurisdiction.
9. For each farm occupier and labour tenants, indicate whether he/she has access to water, sanitation and collection of refuse.

• If he/she has access to water, sanitation and collection of refuse:
• Indicate the type of water source, type of sanitation and collection of refuse.
• Indicate the quality and the quantity of water, sanitation and collection of refuse.
• Indicate the distance from the water source, sanitation and collection of refuse, to each farm occupier and labour tenant’s house.
• If he/she does not have access to water, indicate how long he/she does not have access to water, sanitation and collection of refuse.

10. The Plan shall:
    • Explain the steps the municipalities will take in order to provide farm occupiers

and labour tenants with access to water, sanitation and the collection of refuse.

• Explain the steps and criterion the municipalities will take in order to ensure that all farm occupiers, labour tenants and farm owners within their jurisdiction are aware of this case.
• Set measurable, periodic deadlines for progress.

11. The reports and the plans will be served on the applicants and be made available on the municipalities’ website.
12. The applicants, and any other interested parties, will be entitled to comment on the reports and the plans within one (1) month of the date on which they are filed.
13. The municipalities will file to this Court, and serve on the applicants, monthly reports indicating their progress with regard to provision of access to water, sanitation and the collection of refuse to farm occupiers and labour tenants living within the areas of their jurisdiction.
14. The applicants, and any other interested parties, will be entitled to comment on these monthly reports within 30 days after the date on which they are filed.
15. The Court may, at any stage and of its own accord, after having heard submissions by the parties, make any further directions or orders it deems fit.
16. Thereafter, the matter is to be enrolled on a date to be fixed by the Registrar in consultation with the presiding judge for consideration and determination of the aforesaid reports, plans, commentary and replies.