Some in the upper echelons of the government blame the Constitution, the courts, non-governmental organisations, lawyers and the media for the failure to deliver essential services to the poor and disadvantaged. They say the courts should not interfere with the executive functions.
Judges are reluctant to respond. The media and others often respond by drawing attention to the provisions of the Constitution, particularly section 16, which guarantees freedom of expression.
Members of the executive often say they were quoted out of context. Their juniors appear to prefer what their superiors said the first time. An example of this is the recent case brought on behalf of the people of Carolina by the Federation for a Sustainable Environment and the Silobela Concerned Community group, the Legal Resources Centre and Lawyers for Human Rights in the Gauteng High Court. There were 10 respondents against whom relief was sought, including the three tiers of government.
Judge Moses Mavundla found that the matter was urgent and ordered the Gert Sibanda district municipality to provide 25 litres of drinkable water to all Carolina residents within 72 hours. He ordered the mayor and manager of the municipality to consult the federation and the community in restoring the water supply and to draw up a plan for where, when and what volume of water would be provided in the interim. The municipality was told to report to the court within a month, detailing the progress made.
Minister of Water and Environmental Affairs Edna Molewa did not oppose the grant of the relief sought and, to her credit, agreed to assist. The applicants accepted her undertaking.
The mayors and managers of the Sibandi and Luthuli municipalities filed 150 pages not only opposing the relief claimed, but also arguing that those who initiated the case did so for political gain and in bad faith to embarrass the government. Their counsel implicitly queried the good faith of the Legal Resources Centre, Lawyers for Human Rights and the media, seeing them as aiding the applicants for political ends.
Molewa welcomed the judgment but also said, in reference to obstacles to delivery, “there is a war on the state”. She did not identify who the enemy was – the people of Carolina, their community organisations, their lawyers? Mavundla?
On June 12, one newspaper “red carded” her for her comment about “war on the state”. “There isn’t,” it wrote, “but, if the state denies people their constitutional right to fresh water, ‘a war’ seemed an appropriate response.”
The municipal authorities have served a 15-page notice of application to appeal, in the hope of suspending the effect of the order to deliver water within 72 hours. Their main complaint against the judgment is that the matter was not urgent and they were wrongly ordered to pay costs. They do not say whether they will interact with the communities or obey the order to report to the court. If their attempt to appeal succeeds, the people of Carolina could wait another year or two for water.
Given the facts, there is hardly any basis for leave to appeal to be granted. The people of Carolina had every right to go to court for the relief sought, irrespective of what others may have done in the past. They chose to go to court instead of blocking roads, burning tyres, looting shops, defying the police or engaging in any other activity that may have entitled the minister to accuse anyone of participating on a “war on the state”.
Out of hand
The Legal Resources Centre and Lawyers for Human Rights were formed by senior and prominent lawyers in the late 1970s. Among them were people such as Arthur Chaskalson, then the chief justice of South Africa and later president of the Constitutional Court, Johan Kriegler, later a Constitutional Court judge, and Professor John Dugard, who founded the Centre for Applied Legal Studies.
John Vorster, then prime minister, was not pleased with them. Human rights were getting out of hand in South Africa, he declared. We hope that some utterances of some of our political leaders were not intended to echo those of Vorster.
Obeying court orders is essential for the proper functioning of a democratic state. When then-president Nelson Mandela lost a case in the Constitutional Court, he quickly went to the SABC to assure the public that the order would be obeyed. The mayors and managers of Carolina should consider following his example.
The Constitution calls on all of us, more than 30 times, to be “reasonable”. We should all try to do so.
George Bizos, SC, works in the constitutional litigation unit of the Legal Resources Centre. This is an edited version of a speech to the International Association for Media and Communication Research Conference in Durban last week.