The Federation for Sustainable Environment and Another v The Minister of Water Affairs and Others

The applicants brought an urgent application concerning the water crisis in Silobela, Caropark and Carolina Town in Carolina, Mpumalanga. The water supply in these areas was contaminated by acid mine water, making it unfit for human and animal consumption. Around February 2012, approximately 20 water tanks were placed to supply potable water from neighboring towns (Breyten and Chrissiesmeer), with seven tanks around Silobela. From March to May 2012, this system proved inadequate - tanks were not regularly refilled, some remained empty, access was on a "first come first served" basis, and residents had to walk long distances to access water. The first applicant is the Federation for Sustainable Environment, a registered NPO bringing the application under section 38(c), (d) and (e) of the Constitution. The second applicant is the Silobela Concerned Community, a voluntary association of 150 members who are residents of Silobela, a predominantly African residential area in the outskirts of Carolina bearing the legacy of apartheid underdevelopment.

• Whether the matter was urgent
• Whether the failure to provide access to effective/reliable potable water for more than seven days violates regulations relating to compulsory national standards and measures to conserve water (GN 509 in GG 22355)
• Whether the respondents violated the constitutional right to access to water under section 27(1)(b) of the Constitution
• The respective obligations of national government, provincial government, and local government in providing water services
• Whether national government (first to fourth respondents) should be joined and held liable for costs
• What interim relief should be granted to ensure access to potable water
• Whether the respondents should be ordered to engage with the applicants and report to court on progress

1. The application was urgent and non-compliance with Rules of Court was condoned. 2. The Sixth and Seventh Respondents were ordered to provide temporary potable water in line with regulation 3(b) of the regulations relating to compulsory national standards to residents of Silobela, Caropark and Carolina Town within 72 hours. 3. The Sixth and Seventh Respondents were directed to engage actively and meaningfully with the applicants regarding: 3.1 steps to ensure potable water can be supplied through water supply services; and 3.2 where, when, what volume, and how regularly temporary water will be made available in the interim. 4. The Sixth and Seventh Respondents were ordered to report to court within one month as to measures taken to ensure portable water is supplied. 5. Any party is permitted to re-enroll the application on the same papers, duly supplemented, on reasonable notice. 6. The sixth to ninth Respondents were ordered to pay costs jointly and severally on a party and party scale, including costs of two counsels. 7. No order was made against the other respondents.

The binding legal principles established are: (1) When fundamentally entrenched constitutional rights (such as the right to access water under section 27) are violated or compromised, the matter is intrinsically urgent. (2) Local government municipalities bear primary responsibility for providing water services at the local level, and national government is constitutionally debarred from interfering with local government's administrative functions, as this would negate the separation of spheres created by the Constitution. (3) Local government is constitutionally obliged under section 152 of the Constitution and the Local Government: Municipal Systems Act to be accountable to communities, to engage meaningfully with them, and to have progressive strategic plans to resolve service delivery problems. (4) Courts may grant supervisory orders requiring government respondents to engage with affected communities and report back to court on progress in fulfilling socio-economic rights obligations. (5) The State's positive obligations under section 27(2) to take reasonable legislative and other measures within available resources to progressively realize the right to access water applies with equal force as the framework established in Grootboom for section 26 housing rights.

The court made important observations about the legacy of apartheid in South African spatial planning, adopting and endorsing the observations of O'Regan J in Democratic Alliance v Masondo regarding the deep divisions in South African towns and the continuing reality that formerly white suburbs have better services than townships formerly reserved for black people. The court observed that "If the legacy of apartheid is ever to be eliminated, it requires that the Courts, must also strive to encourage the national government and all its structures, to boldly and with haste march towards the cherished objective encapsulated in the preamble [of the Constitution]." The court also noted, without making a binding finding, that the cause of the water problem appeared to be the mines, though the respondents had not stated what steps they had taken against the mines toward achieving a permanent solution. This suggests that private parties (mines) causing pollution may also bear responsibility for water quality problems affecting constitutional rights.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It applies and extends the Grootboom framework on progressive realization of socio-economic rights (section 26 housing) to section 27 rights (access to water). (2) It establishes that violations of constitutionally entrenched fundamental rights are intrinsically urgent, regardless of how long the underlying problem has existed. (3) It clarifies the respective roles and obligations of national, provincial and local government in providing basic services, respecting the constitutional principle of separation of spheres while ensuring accountability. (4) It reinforces that local government must engage meaningfully with communities and be accountable to them in fulfilling constitutional obligations. (5) It demonstrates judicial willingness to grant supervisory orders requiring government to report back to court on progress in fulfilling socio-economic rights. (6) It contextualizes socio-economic rights litigation within the continuing legacy of apartheid spatial planning and under-resourced former African townships. (7) It interprets regulations relating to compulsory national standards for water provision in light of constitutional obligations.