The leaders of Coastal Links in the Eastern Cape have lodged an urgent application to the Mthatha High Court. They asked the court to order the Department of Water and Sanitation, the Eastern Cape government and Amatole District Municipality to provide water to residents of 28 villages in Centane. Coastal Links is a rural organisation of small fishers and smallholders in coastal areas of the Eastern Cape.
The urgent application was brought after the failure of the municipality and the provincial government to address the water crisis in the villages. According to Mr Khetshemiya, one of the local leaders of Coastal Links, the villages did not have water for most of 2020 and 2021. The water was only carted once to some villages during this period.
Indeed, the high court sat on 28 September 2021 to hear the urgent application, when representatives of the 28 villages made their case. The Trust for Community Outreach and Education (TCOE) and Inyanda National Land Movement supported the mobilisation of the community for the case.
Representatives of other coastal villages from Hamburg to Mbizana as well as non-governmental organisations also converged in Mthatha in solidarity with the affected communities. The representatives of the coastal communities were members of Coastal Links. The Masifundise Development Organisation, an NGO that was instrumental in the formation of Coastal Links, organised legal support that is led by Advocate Budlender.
The water crisis dates back to March 2020, when 10 leaders of Coastal Links were arrested. They were charged for holding a meeting to discuss the water crisis – accused of contravening Covid-19 lockdown regulations in holding the meeting. The charges were later dropped, but the fact that they were charged for alleged contravention of lockdown regulations when they were faced with a water crisis shows how uncaring the government is about the rights of the citizens.
It is due to the government’s failure to provide water that the villagers had a water crisis. Moreover, Section 27 of the Constitution states: “Everyone has the right to have access to sufficient food and water.” Instead of providing water, the government has criminalised, arrested and charged the leaders of Coastal Links for holding a meeting to discuss the water crisis. And the National Disaster Management Committee considers access to water as one of the measures to mitigate the spread of Covid-19. Yet, the government still charged the leaders for seeking solutions to their crisis.
Arguing their case before the judge, the legal representative for the Amatole District Municipality stated that the municipality had done everything in its power to provide water. Bizarrely, the advocate argued that although boreholes had been drilled in the villages, no water had come out. Thus, the district council could do nothing to change the will of God who had not brought rain to the villages. Thus, the district cannot be blamed for this natural phenomenon. The implication of the argument of the council’s legal representative is that the residents should wait until rain comes to their villages.
The applicants’ legal representative countered this argument as nonsensical. He reminded the district council that it has a constitutional obligation to ensure that the villagers have adequate access to water. This means the district must make means to provide water, even carting it to the villages, as is the case in other municipalities.
The case has been adjourned until November 2021. However, the district municipality, the Department of Water and Sanitation and the provincial government were ordered to come up with a clear interim measure to urgently provide water to the villagers, as well as come up with long-term solutions to the water crisis in the affected villages.
The municipality’s argument infuriated the community leaders. In a reflection meeting after the court hearing they pointed out that there had been no boreholes drilled in their villages since the advent of democracy. Thus, the district council was disingenuous in claiming that it had. The representatives resolved to pursue the matter to its finality.
Lessons from the case
The challenges of lack of access to water for the residents of Centane must be viewed in line with the general failure of the current government to provide services to its residents. This is a manifestation of the general collapse of municipalities across the country, which is highlighted in a recent Auditor-General’s report, according to which the situation in municipalities “tells a story of a widespread lack of financial controls and project monitoring, an ongoing culture of a lack of accountability as well as a tolerance of transgressions”.
Indeed, the argument that the water crisis is God-created amounts to the municipality trying to absolve itself of the responsibility of providing services to communities. The municipality tells the residents that the council and administration do not care about their welfare. Moreover, the politicians and functionaries behave as though they do the citizens a favour by providing them water. This carefree attitude highlights the lack of accountability of political leaders and the functionaries of state institutions.
The case clearly shows that the councillors and administrators are not doing the citizens a favour. It is an obligation, and the citizens must demand that the district honours the obligation without fail.
The case also highlights the importance of democratising governance. The lack of accountability and the careless attitude displayed by leadership in the municipality is due to failure of the democratisation of governance in municipalities. The leadership does not see itself as accountable to the residents, but accountable to their political principals. Such a set-up makes political leaders and officials think they are safe as the citizens can do nothing about the leaders’ actions.
Democratised municipal governance would enable the residents to be part of decision-making processes in municipalities, as envisaged in the Constitution and local government legislation. Such a situation would give residents more power to force officials and politicians to be responsive and accountable to them. Furthermore, a democratised local government would empower residents to remove politicians and officials who fail to carry out what is required by law.
In what is an important case in the build-up to the local government elections, the Mthatha High Court may deliver a landmark judgment forcing the government to honour its constitutional obligations. If handled properly, the judgment can help bring confidence to the residents and can be a tool to force the government to deliver services instead of making lame excuses about its failures. DM/MC
Dr Fani Ncapayi is a senior researcher at Trust for Community Outreach and Education (TCOE). He is based in the Eastern Cape.