Page 9 - Litigating Land and Housing in South Africa: Lessons and Reflections

2 2 1 2 2 Legal principles
Figure 1: Municipalities’ obligations to to to provide basic services – – including water – – apply to to to all people in in in its jurisdiction (stock image)
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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The judgment establishes several important legal principles
First it it it holds that municipalities’ obligations to provide basic services – – including including water sanitation and refuse removal – – apply to all people in in in in in in its jurisdiction including including farm dwellers and and labour tenants living on
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private land The application did not seek to to define what the the the the content of these rights were but rather sought to to to compel the the the the municipalities to to to implement existing legislative and and regulatory standards for all its residents Second the judgment re-emphasises a a a a principle estab- lished in in Grootboom A plan to provide socio-economic rights rights is is is not not reasonable if if it it does not not identify how it it will fulfil the the the rights rights of of the the the most vulnerable In this case one of of the the the municipalities argued that because it it it had a a a a a a a a a a a a a a general plan to to to provide water sanitation and refuse col- lection to to to to all its its residents – that was sufficient to to to to fulfil its its duty to to to farm dwellers and labour tenants The Court rejected the the the argument holding that municipalities must make specific provision for how they will fulfil the the the rights of those living on
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farms that face particular challenges in in in accessing basic services Third it it it held that that municipalities cannot avoid their stat- utory and and constitutional duties by by enacting by-laws that that require landowners to to to apply to to to install municipal servic- es
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nor can they abrogate their obligations by by blaming landowners for refusing them access The by-laws are how municipalities give effect to their obligations obligations they are not a a a a substitute for those obligations obligations Fourth the the the the municipalities complained that they did not have the the the the the budget to to provide the the the the the basic services to to farm occupiers and labour tenants But the the the the Court held that is is is is no argument when the the obligation already exists in law As Mnguni J put it: “It is is is is is important to emphasise that this court will will not be be imposing new or or or unforeseen obligations on
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the the first first respondent respondent but will will be be requiring the the the the the first first first respondent respondent to implement duties imposed by the the the the the legislature on
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it It follows therefore that the the the the the first first respondent’s failure to to budget for for the the the the resources neces- sary to to to provide farm occupiers and and labour tenants with access to to water sanitation and and refuse collection is of no moment ”