The recent high court judgment declaring that three municipalities in Pietermaritzburg must provide water, sanitation and waste collection on farms has been hailed as a victory for farm dwellers across the country.
“The judgment will have implications to the broader South Africa, in that it will be used as a precedent by the farm dwellers to demand municipalities in their areas provide them with basic services,” explained senior attorney Thabiso Mbhense from the Legal Resources Centre (LRC).
Labour tenants and farm dwellers brought an application against various local and district municipalities in and around Pietermaritzburg, including the Msunduzi and uMshwathi local municipalities and the uMgungundlovu district municipality, to provide them with sufficient water, basic sanitation and collection of refuse on farms.
Among the applicants was labour tenant Zabalaza Mshengu, 104, who died on 13 August 2018 before this year’s court ruling in July. The centenarian was born and had lived his whole life on Edmore Farm, under the jurisdiction of Msunduzi municipality. His father before him was also a labour tenant on this farm. Mshengu lived with his family in what Judge Bhekisisa Jerome Mnguni described as an “old, dilapidated, hand mud structure” on the farm’s hilltop.
Distant water source
Mnguni wrote in his judgment that the house’s nearest water source was 100m away, but it contained water that was “stagnant and not suitable for consumption or any other use”.
The only viable source of water for the Mshengu family and other occupiers is a communal tap about 500m away, on a neighbouring farm. Mshengu’s family and others living on Edmore Farm “have to push 25-litre cans down the hill on wheelbarrows, through the bush, and haul them back up a gruelling upward ascent on their return”, according to the judgment.
In Pietermaritzburg, labour tenants on Greenbranch Farm do not have ablution facilities in their homes. The farm’s owner thwarted attempts to build pit toilets.
The farm owner “advised them that they were not allowed to construct pit toilets on the settlement and were to use the sugar cane plantation as their toilets. Mr Meyer [the owner] told them that human waste is a form of manure that assists with fertilising his crop,” says Mnguni’s report. “The plantation is unsafe, unhygienic, smelly and attracts flies and other health hazards … Women in particular suffer great hardship, humiliation and impairment of their dignity as they do not have a proper place to dispose of their used sanitary towels.”
The Greenbranch Farm lack toilet facilities and the labour tenants working on the farm, more than 60 people, have to share two taps.
At times, people have to queue for hours. Some days, they cannot get water as the farm owner switches the water off willy-nilly and without notice.
Attempts at engaging the municipal councillor failed to resolve the matter. They said the landowner had blocked the municipality from providing basic services.
Afra gets involved
This led to non-governmental organisation the Association for Rural Advancement (Afra) taking the matter, along with the labour tenants, to the local government. They wrote several letters to the various municipalities involved, but got only one vague and short response.
The LRC represented the farm dwellers in a class action suit against the three municipalities involved on the basis that a number of constitutional rights were violated.
Farm tenants relied on Section 27 of the Constitution, which states that they have the right to water, sanitation, refuse collection and a clean environment. The municipalities have an obligation to provide these essential services.
The municipalities argued that farms were the private property of farm owners and, as such, the responsibility of providing water and sanitation fell to them.
Mnguni dismissed this, saying: “As state, the first respondent is the water services authority and, as such, the obligation to provide water and sanitation for farm occupiers and labour tenants rests on it, not on the landowners.
“The landowners have no direct statutory obligation to provide such services unless contracted to do so by the water services authority in terms [of Section] 19 of the Water Services Act (WSA). Even in instances where landowners are to provide water services to another in terms of a contract, [Section] 26(3) of the WSA authorises the water services to authority, if the intermediary fails to perform its obligations in terms of the agreement to ‘take over the relevant functions of the water services intermediary’.”
The municipalities claimed that the right to private property was preventing the labour tenants from fulfilling their duties.
Mnguni refuted this claim, saying that a “landowner cannot unreasonably deny the municipality access to his farm in order to install necessary infrastructure to ensure the provision of the services”.
Farm dwellers call themselves “forgotten citizens” because of how the state has neglected them. The court concurred, saying: “It seems apparent from the perusal of the Integrated Development Plans that the first respondent has not prioritised the farm occupiers and labour tenants that are particularly vulnerable and in need, by providing an actual plan for how their rights will be realised.”
The high court directed municipalities to comply with regulations by installing “a sufficient number of water user connections to supply a minimum quantity of potable water of 25 litres per person per day or six kilolitres per household.”
The flow rate in water user connections should, it recommends, not be less than 10 litres per minute. And most importantly, these water user connections must be within 200m of the farm dwellers’ households.
The court went further, ordering the municipalities to install, as per regulations, a Ventilated Improved Pit toilet in each household. It also directed municipalities to provide farm dwellers with refuse collection, for a cleaner and healthier environment.
With municipalities having demonstrated a lack of responsiveness on issues affecting farm dwellers, the high court opted to supervise the order, so that it would be implemented timeously.
To this effect, Mnguni ordered the municipalities to file a report with details of all farm dwellers in their jurisdictions, indicating if they have access to water, sanitation and a refuse collection service. The order instructs that an action plan be filed with the report, detailing how the municipalities will provide these essential services.
Mbhense said the judgment had “restored the dignity of farm dwellers”.
Nokuthula Mthimunye of Afra agreed, saying that the association “believes that the judgment will reinforce and strengthen the rights of farm dwellers and labour tenants, but more than anything, that it will restore the dignity of the many farm occupiers and labour tenants who have to use the bushes as ablutions/toilets, who have to carry 25-litre cans ±200m to get their water, who do this every day because they are not visible and therefore are not included in Integrated Development Plans.”