A high court action by two farm tenants in the KwaZulu-Natal Midlands to force municipalities to provide them with water and sanitation is likely to benefit more than 42 000 people in the Umgungundlovu district municipality alone.
The application, brought by Zabalaza Mshengu and Thabisile Ntombifuthi Ngema in the high court in Pietermaritzburg, aims to compel Umgungundlovu and the Msunduzi and uMshwathi local municipalities to develop a “reason-able plan” to provide them with water and sanitation. The Association for Rural Advancement (Afra) is a co-applicant in the case, which was brought by the Legal Resources Centre (LRC), on behalf of Ngema and Mshengu.
The matter will be argued this Friday (November 2).
The two lived with their families on farms in the district and have been battling for years to get the municipalities to provide them with water, toilets and refuse removal. If they are successful, about 15 people will benefit immediately from the order being sought.
Mshengu (104), who lived on the farm Ardmore near Ashburton, died in August before the case he initiated two-and-a-half years ago could be heard. He had also instituted a land claim in 2002 for the land where he was born, which houses Hilton College, but died before it could be settled.
The ministers of water affairs and co-operative governance and traditional affairs, the two farm owners and the KwaZulu-Natal co-operative governance MEC have been listed as co-respondents in the case.
In their heads of argument, counsel for Ngema and Mshengu said the three municipalities had failed to meet their constitutional obligation to provide them with water and sanitation, despite ongoing requests that they do so. The applicants, they said, did not have enough water to cook, drink and wash themselves, and they had to use either pit latrines or the bush to relieve themselves.
“When, as is often the case, there is no water to cook, they go to bed without food in their stomachs.
“There are no decent toilets, some of the occupiers and labour tenants have dug pit latrines next to their homes. However, these makeshift toilets are smelly and attract flies and vermin.’’
Women and girls suffered “great hardship, humiliation and impairment of their dignity, as they were unable to wash when necessary and had no proper refuse facilities to dispose of their sanitary pads during their menstrual cycle”.
The municipalities had not only failed to provide the services but had also failed to come up with a plan to do so in the future, besides passing by-laws and integrated development plans that made no specific reference to the “most vulnerable” residents — those living on land that belonged to farmers.
They said the applicants wanted a plan put in place to deliver services to them in the long term and “did not envisage that those services must be provided overnight”.
“The municipalities’ prior failures and current attitude justify supervision,” they said.
There was no need to set aside or review any decisions taken by the municipalities as “the constitutional defect lies in their omissions, not their commissions”.
The assertion by the municipalities that providing water and sanitation to farm residents and labour tenants posed “particular difficulties”, required that they should develop a plan specific to their needs.
The municipalities had failed to develop such a plan and appeared to “seek to blame labour tenants and farm dwellers for not coming up with a plan”.
Msunduzi had “taken a supine approach” by enacting a by-law allowing a farm owner to apply to it for a water connection.
They want the order to include a declaration that the municipalities had failed to discharge their constitutional obligations. They want the court to order the municipalities to provide each household with a ventilation-improved pit latrine and a water supply of 25 litres a person a day. The order should compel the municipalities to report back within a month on progress on developing a plan, they argue.
Afra programme manager Glenn Farred said a survey the organisation had conducted on privately owned farms in the district found that a ruling in their favour would benefit about 42 000 people in the Umgungundlovu municipality.
In addition, the order would have implications for all other municipalities and government departments because labour tenants live in similar conditions throughout South Africa.