Mshengu and Others v Msunduzi Local Municipality and Others (11340/2017P) [2019] ZAKZPHC 52; [2019] 4 All SA 469 (KZP) (29 July 2019)

Mshengu and Others v Msunduzi Local Municipality and Others (11340/2017P) [2019] ZAKZPHC 52; [2019] 4 All SA 469 (KZP) (29 July 2019)

The court found that the ongoing and persistent failure by the respondent municipalities to provide farm occupiers and labour tenants with access to basic sanitation, sufficient water, and refuse collection is inconsistent with the Constitution, specifically sections 9, 10, 24, 27(1)(b), 33, 152, 153, 195, and 237. The municipalities have a constitutional and statutory obligation to progressively realise these rights through reasonable legislative and other measures, including the development and implementation of specific plans prioritising vulnerable communities. The court rejected the respondents' arguments regarding locus standi, non-joinder of landowners, and the necessity of class...

Citation
[2019] ZAKZPHC 52
Parties
Applicant: Zabalaza Mshengu; Applicant: Thabisile Ntombifuthi Ngema; Applicant: Association for Rural Advancement; Respondent: Msunduzi Local Municipality; Respondent: Umshwathi Local Municipality; Respondent: Umgungundlovu District Municipality; Respondent: Shock Proof Investments 71 (Pty) Ltd; Respondent: Vargapath Proprietary Limited; Respondent: Minister of Water and Sanitation; Respondent: Minister of Co-operative Governance and Traditional Affairs; Respondent: MEC: Co-operative Governance and Traditional Affairs, KZN
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
29 July 2019
Case Number
11340/2017P
Procedural Posture
Review Application / Final Judgment After Opposed Application
Outcome
Application granted. Declaratory and mandatory relief issued against the first, second, and third respondents. Structural relief ordered. Costs awarded against first and second respondents.
Judges
Mnguni
Legal Topics
Right of Access to Water, Basic Sanitation, Municipal Services Obligation, Progressive Realisation of Rights, Structural Relief, Public Interest Litigation
Constitutional Law Administrative Law Land and Property Right of Access to Water Basic Sanitation Municipal Services Obligation Progressive Realisation of Rights Structural Relief +1 more

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Parties

Zabalaza Mshengu

Applicant

Thabisile Ntombifuthi Ngema

Applicant

Association for Rural Advancement

Applicant

Msunduzi Local Municipality

Respondent

Umshwathi Local Municipality

Respondent

Umgungundlovu District Municipality

Respondent

Shock Proof Investments 71 (Pty) Ltd

Respondent

Vargapath Proprietary Limited

Respondent

Minister of Water and Sanitation

Respondent

Minister of Co-operative Governance and Traditional Affairs

Respondent

MEC: Co-operative Governance and Traditional Affairs, KZN

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether the ongoing failure by the municipalities to provide farm occupiers and labour tenants with access to basic sanitation, sufficient water, and refuse collection is inconsistent with the Constitution.
  2. 2 Whether municipalities are obliged to develop and implement reasonable plans to progressively realise the rights to water, sanitation, and refuse removal for farm occupiers and labour tenants.
  3. 3 Whether landowners must be joined as parties due to potential impact on their property rights.

Ratio Decidendi

The court found that the ongoing and persistent failure by the respondent municipalities to provide farm occupiers and labour tenants with access to basic sanitation, sufficient water, and refuse collection is inconsistent with the Constitution, specifically sections 9, 10, 24, 27(1)(b), 33, 152, 153, 195, and 237. The municipalities have a constitutional and statutory obligation to progressively realise these rights through reasonable legislative and other measures, including the development and implementation of specific plans prioritising vulnerable communities. The court rejected the respondents' arguments regarding locus standi, non-joinder of landowners, and the necessity of class...

Court Disposition

Application granted. Declaratory and mandatory relief issued against the first, second, and third respondents. Structural relief ordered. Costs awarded against first and second respondents.

Orders

  • It is declared that the ongoing and persistent failure by the first, second, and third respondents to provide farm occupiers and labour tenants with access to basic sanitation, sufficient water, and refuse collection is inconsistent with the Constitution.
  • The first, second, and third respondents are directed, subject to structural relief, to comply with regulation 3 of the Regulations relating to compulsory national standards and measures to conserve water, GN R509, GG 22355, 8 June 2001.