Service Delivery in South Africa at a Glance

Introduction

Back in 2009, the Constitutional Court stipulated “[w]ater is life. Without it, nothing organic grows. Human beings need water to drink, to cook, to wash, and to grow their food. Without it, we will die.”[i] Fast-forward ten years and sustainable access to sufficient and adequate water is still a major concern for many within South Africa. As a result, some are forced to approach the courts for assistance.

The history of service delivery, or lack of it, in South Africa has been troublesome to say the least. A few weeks ago a general news search of service delivery or local municipalities would have revealed many articles by irate residents about the failures of their municipalities to deliver basic services. Now there is an intriguing High Court judgment in a case involving a local municipality in the North West, the Kgetlengrivier Local Municipality. Residents have finally won.[ii]

Kgetlengrivier Concerned Citizens v Kgetlengrivier Local Municipality

In a case that offers hope to exasperated residents around South Africa, the High Court of South Africa North West Division, Mahikeng granted the Kgetlengrivier Concerned Citizens control of the water and sewage works after an urgent application was launched regarding intermittent water supply and raw sewage running into the Koster and Elands rivers.[iii] The High Court found that the Kgetlengrivier Local Municipality was in breach of “its obligations to prevent contamination of the environment whilst allowing raw sewage to spill”. In addition, the Court found that both the local municipality as well as the district municipality, Bojanala Platinum District Municipality, were in breach of their “constitutional obligations for providing potable water sustainably”.[iv]

This is not the first time the Kgetlengrivier Concerned Citizens have taken control[v] but hopefully this will be the last time. An agreement was reached, and made a court order on 12 January 2021, that an implementing agent must be appointed to run the water and sewage works.[vi] In terms of this agreement Magalies Water has been appointed for the “operation and maintenance of water and wastewater treatment plants for a period of three years”.[vii]

What about residents in other municipalities?

What does this mean for dissatisfied residents in other municipalities? Some residents’ associations are considering, or have implemented, a tax diversion policy, whereby the residents withhold or refuse to pay the rates and taxes to the relevant municipality until such time as that municipality provides the basic services.[viii] One such resident association is the Umdoni Action Group, from Scottburgh.[ix]

As tempting as this approach may seem, it would be inadvisable given the Constitutional Court’s ruling in Rademan v Moqhaka Local Municipality.[x] In this case, the Constitutional Court found that a municipality may consolidate the different components of a resident’s account and as such the resident’s electricity supply may be cut where payment of rates and taxes have been withheld despite the electricity account having been paid.[xi] Notwithstanding the Court providing that “[t]here is no obligation on a resident, customer or ratepayer to pay the municipality for a service that has not been rendered”[xii] a resident would have to be able to show that no services were rendered by the municipality at all. Since the writing of this brief, it has come to the HSF’s attention with great sadness that Mrs Olga Rademan, a citizen activist who refused to stay quiet in the face of her municipality’s failures, has unfortunately passed away. She must be remembered for her commitment to standing up for what is just.

In Pietermaritzburg, emboldened by the success of the Kgetlengrivier Concerned Citizens, the Msunduzi Association of Residents, Ratepayers and Civics has indicated that they are considering their available options, including approaching the courts, given the state of degradation of service delivery in the area.[xiii] Their position may be justified. The South African Human Rights Commission launched a court application last year over the Msunduzi Municipality’s control and management of the New England Road Landfill Site being a violation of the “right to an environment that is not harmful to their health or well-being” as contained in section 24 of the Constitution.[xiv] Not to mention that the municipality has been paying the salary of 121 “employees” who are either dead or who have resigned.[xv]

Similarly, the Centre for Good Governance and Social Justice, a newly formed NGO in the North West, has tried nearly every avenue at its disposal to hold the Mamusa Local Municipality to account for its consistent failures and degradation. Frustrated with the total lack of regard that the municipality has for its citizens, the Centre has approached the President as well as the South African Human Rights Commission for assistance. It has also instituted action against the municipality to remove the newly appointed municipal manager who, despite his previous removal from the post and a legal opinion finding he was unqualified, was reappointed to the position. Not leaving a stone unturned, the Centre has indicated that it is currently considered legal action similar to that as was taken in Kgetlengrivier.[xvi]

Recently, the South African Human Rights Commission has released a 100 plus page report wherein it finds that the Emfuleni Local Municipality is guilty of violating multiple human rights in its failure to prevent raw sewage from contaminating the Vaal River and Dam.[xvii] This includes a violation of the right to dignity,[xviii] freedom and security of the person,[xix] the environment,[xx] property;[xxi] health care, food, water and social security;[xxii] children;[xxiii] and just administrative action.[xxiv] These findings, like that of the Kgetlengrivier case, indicate that there is an urgent need to address failures in service delivery.

In this report the South African Human Rights Commission recommends administration[xxv]. However as can be seen from Kgetlengrivier case, where the whole province is already under administration,[xxvi] this may not always be an adequate solution.

Conclusion

Local municipalities have faced a tough few weeks with findings of violations and reports of service delivery failures being repeatedly highlighted in the media. Whether other residents of failing municipalities will be able to achieve similar results is unknown, but it is not hard to imagine, given current reports, that there are other areas in comparable, if not identical, situations to those faced by the Kgetlengrivier Concerned Citizens. While it may not be as simple as merely approaching the court for an order as the precedent currently set means only the North West High Court is bound by the previous decision, but the case can definitely be considered to have persuasive value. But something needs to change. And until such time as local municipalities are able to deliver adequate services there seems little recourse other than legal action.

Chelsea Ramsden
Legal Researcher
chelsea@hsf.org.za

[i]Mazibuko v City of Johannesburg [2009] ZACC 28 para 1.