Eastern Cape families go to court over water

A group of Eastern Cape families has asked the High Court to force the government to provide them with access to water. Photo: Liezl Human

A group of residents of Centane in the Eastern Cape, alongside the Masifundise Development Trust, have gone to court to force the government to provide them with water.
The residents have already secured one court ruling, ordering the Amathole District Municipality to ensure access to water.
They say the municipality has not done so.
Now they want the Mthatha High Court to declare that the situation violates the Constitution and to order the municipality, the Premier and the Ministers of Water and Sanitation and Co-operative Governance and Traditional Affairs to work together to implement a plan.

A group of Eastern Cape families has approached the High Court to force the government to provide them with water.

Residents of Centane and the Masifundise Development Trust went to the Mthatha High Court on 25 November. The case was heard by Judge Zamani Nhlangulela, and judgment was reserved.

In their court papers, the applicants, who live in Nombanjana and Nxaxo in Centane, argue that the Amathole District Municipality (ADM) has “failed dismally” to ensure that they have access to “sufficient potable water”.

“The primary source of water for the residents of Nombanjana Village and Nxaxo Village in the Centane region … is a local river which they share with cattle and other animals. The residents of these villages must walk for hours to local rivers to collect water. This situation has existed for years,” they say in their court papers.

“The closest river to Nombanjana is the Kobonqaba River. It takes approximately 1.5 hours to walk to the river. The journey is long and arduous. The distance to the river means that the residents are limited in the amount of water they can carry back to their homes. Children carry water in containers of between 5 and 10 litres.”

“The quality of the water in the Kobonqaba River is poor. There are often animal carcasses and the like in the river. The water must be boiled before it is used, to prevent the residents getting sick.”

“In 2008, the ADM installed 22 water taps around Nombanjana. They all ran dry. Some have since been vandalised. Nombanjana has been without a reliable source of potable water since at least 2017,” they say. “The desperate need for water is the same in Nxaxo.”

“None of the relevant organs of state accepts any responsibility for this state of affairs and will do anything material to remedy it in the foreseeable future.”

The residents have already been to court on the issue. In April 2022, the court made a ruling on Part A of their application, ordering the municipality to make sure residents had access to water pending the finalisation of Part B of the application. But despite this order, they remain without water, and now they want the court to rule that the municipality’s failure to provide basic water services is unconstitutional.

They also want the court to declare that the Minister of Water, the Minister of Cooperative Governance and Traditional Affairs (COGTA) and the Eastern Cape Premier “have failed in their duty to intervene to remedy the failures” of the municipality. They want a task team to be set up by the Minister of Water, or alternatively COGTA, to “devise and implement a long-term, sustainable plan”, and to provide frequent reports on progress to the court and applicants.

Part B of the application is opposed by the Minister of Water and Sanitation, Pemmy Majodina, the Minister of COGTA, Velenkosini Hlabisa, and the Eastern Cape Premier, Lubabalo Oscar Mabuyane.

The Amathole municipality withdrew its opposition “on condition that the applicants do not persist in seeking an order holding it in contempt of court for its failure to comply with the April 2022 order”.

The Ministry of Water and Sanitation argues that neither the Constitution nor the Water Services Act gives it an obligation to provide residents with water. The Minister says that she is “not opposed and will never be opposed to the provisioning of water and basic services to the residents”, but that the order they want would constitute “interference by the Minister in local government issues”.

Provision of water is the responsibility of the Premier and the Amathole municipality, she argues.

Similarly, the Minister of COGTA argues that there is no constitutional duty on him to intervene to fix the municipality’s failure to provide water to the residents.

Intervention, he said, “falls outside the constitutional and statutory powers” of COGTA and would “undermine municipal autonomy, the separation of powers, and the constitutionally allocated division of functions among the spheres of government”.

But the residents argue in their court papers that the Constitution gives the Ministers “both the power and the duty” to intervene, yet neither has. “The Constitution obliges provincial and national governments to supervise the functioning and performance of municipalities” they say.

They also refer to the Water Services Act, which says “there is a duty on all spheres of Government to ensure that water supply services and sanitation services are provided in a manner which is efficient, equitable and sustainable”.

The Premier argues that the provincial government didn’t fail to intervene in the municipality to address the water crisis. In February 2022, the provincial government did intervene, he says, by preparing and introducing “a draft financial recovery plan”.

But the Centane residents say that the plan “did nothing to produce any water for them”.

They want the court to declare that the situation violates the Constitution and to order that the municipality, the Premier and the Ministers “are under an obligation to co-operate and work together, under the direction of the Minister of Water, to plan and implement an effective and sustainable long-term solution to resolve the water crisis”.

GroundUp sent a request for comment from the Department of Water, COGTA, the Premier’s office, and the Amathole municipality, but did not receive a response.

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