Enforcing the right to water: South Africa

In countries such as South Africa, in which the right to water is enshrined in the national constitution, courts have supported and enforced an explicit right to water.

The Bon Vista Mansions Case, September 2001
Residents of Bon Vista Mansions v. Southern Metropolitan Local Council

High Court of South Africa, Case No. 01/12312

This case clearly demonstrates how the right to water can be used as a legal tool to make a difference to the lives of those living in poverty.

The case was brought by a resident of the Bon Vista Mansions block of flats, Mr Ngobeni, on behalf of himself and his fellow residents, following the disconnection by the local Council of the water supply to the flats, due to non-payment of water charges.

Due to the urgent nature of the case, the applicant requested interim relief, in the form of a court order to restore the water supply immediately, while the case was being heard by the court.

After some debate regarding the applicant’s eligibility to sue the council for disconnection on behalf of the other residents, the court found the fact that the applicant was himself a resident of the flats reason enough to grant him locus standi to act, especially due to the ‘inherent urgency’ of the case.

The court used, as a basis for its decision, Section 27(1)(a) of the South African Constitution, which provides that everyone has the right of access to water. The court also referred to the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights and its General Comment 12 on the Right to Food, which imposes on States Parties the obligation to respect existing access to adequate food by not taking any measures that result in preventing such access. [Note to reader – this case pre-dated the adoption of UN General Comment No. 15 on the Right to Water]

The Court found that the applicants had existing access to water before the Council disconnected the supply, and that the conditions and procedures for disconnection had not been ‘fair and equitable’ in accordance with Section 4 (3) of the South African Water Services Act 108 (1997), since reasonable notice of termination and the opportunity to make representations had not been provided.

The importance of having the opportunity to make representations was stressed. This was required by the provision that water supply may not be discontinued if it results in a person being denied access to basic water services due to non-payment, where that person proves, to the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services.

The Court consequently found that the Council’s disconnection of an existing water supply to consumers constituted prima facie a breach of its constitutional duty to respect the right of (existing) access to water and that the applicants had satisfied the requirements for the granting of an interim interdict. The water supply to the flats was subsequently reinstated.

Manqele v Durban
Transitional Metropolitan Council in South Africa, Durban High Court, 2002
(6) SA 423 (D)

This case highlights some of the remaining challenges in the legal enforcement of the right to water.

The applicant, Thulisile Christina Manqele, was an unemployed mother of seven, whose water supply had been disconnected as a result of the non-payment of her water account.

Manqele sought a declaratory order that the discontinuation of the water supply was unlawful and invalid, under the terms of the Water Services Act of 1997, as the disconnection had resulted in the applicant and her dependants being denied access to basic water services when she was unable to pay for the services.

The South African Water Services Act 108 (1997) refers to the right to a basic water supply, defining this as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene”. It defines “prescribed” as “prescribed by regulation”.

As there was no such guideline ‘prescribed by regulation’ in place in South Africa at that time, the respondent had adopted a policy of providing the first six kilolitres of water per month free to domestic consumers in an attempt to fulfil their obligation under the Act. The applicant’s water consumption per month had, without her knowledge, far exceeded the basic six kilolitres free service provided by the respondent.

The court found that, in the absence of regulations defining the extent of the right of access to a basic water supply, it had no guidance from the legislature or executive to enable it to interpret the content of the right embodied in the Act. It therefore held that the right to water, upon which the applicant relied, was in this case incomplete and therefore unenforceable.

This case raises many issues, such as the need for comprehensive national legislation on the right to water and the clarification of minimum water requirements.