Abstract
SUMMARY Access to water is a constitutionally-protected right in South Africa and an energetic flow of laws, policies and programmes have been initiated to address historical inequalities in the supply of water since the dawn of democracy. Yet despite this, millions of people living in South Africa still have inadequate access to water. Access to water is a particular challenge for people living on farms. By providing an analysis of the case of Mshengu & Others v uMsunduzi Local Municipality & Others, decided by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, this article seeks to make two key contributions. First, it highlights the challenges experienced by farm dwellers in realising their right to water and locates these challenges within a legal framework which places obligations on both municipalities and private land owners to provide access to water on farms. In particular, the mechanism of water services intermediaries envisaged in the Water Services Act 108 of 1997 is explored as a way to delineate and facilitate the role of private land owners in realising the right to water for farm dwellers. Second, drawing on debates around how the value of public interest litigation can be understood, the article interrogates the value of the litigation in the Mshengu case. Key words: right to water; water services intermediaries; farm workers; labour tenants; public interest litigation
Highlights
During the 2014 hearings on the status of water services provision conducted by the South African Human Rights Commission (SAHRC), many people in farming communities raised the concern that they were reliant on the landowner for the provision of basic services, and the resulting SAHRC report highlighted the fact that the main reason that farm dwellers are unable to access water is because they live on privately-owned land.[87]
An intermediary cannot contract out of the statutory obligation laid out in section 25(1) of the Services Act, read with Regulation 3(b). This means that even if a farm owner has agreed to supply workers with less than this farm dwellers can insist on the basic water supply standards. uMsunduzi is correct that farm dwellers cannot insist on piped water to their homes, but water provision by the land owner must still meet the quantity, distance, flow rate and consistency required by the national norms and standards
In the last decade there have been a number of other contributions to the debate around how best to assess the impact of Public interest litigation (PIL) in South Africa.[143]
Summary
While access to water is a systemic challenge in South Africa, this challenge is acute for people living on farms These include labour tenants, farm workers and their families, who in this article will be collectively referred to as farm dwellers. Many farm dwellers report deplorable living conditions, including insufficient access to an adequate water supply, sanitation facilities and refuse collection services.[8] Their greatest struggle has been that farm owners claim that the provision of water is a municipal responsibility. A labour tenant provides labour on a farm in exchange for the right to live there and work a portion of the farm for his or her own benefit It is a precarious state, subject to the will of the land-owner. That the Land Claims Court eventually appointed a Special Master to assist the Department, an order that in 2019 was upheld by the Constitutional Court in Mwelase. 12 Further information about AFRA and LRC can be found at https://afra.co.za/ and https://lrc.org.za/ respectively (accessed 9 June 2021)
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