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Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W)

Access to water - discontinuance of existing water access – Water Services Act 108 of 1997 – Urgent application

Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W)

Access to water - discontinuance of existing water access - Water Services Act 108 of 1997 - Urgent application

This matter was brought as an urgent application by the residents of a block of flats in Hillbrow, Johannesburg. The applicants' case was that the respondents had unlawfully discontinued its municipal water supply late on the afternoon of 21 May 2001. They had for three days attempted to seek redress through the manager of the premises without success. In this application they sought interim relief in the form of an order on the respondent to restore the water supply pending the final determination of an application for similar relief. Such order was granted by Budlender AJ.

Certain points in limine were raised by the respondents. They argued that the identity of the applicant was not clear and that the application should have been brought by a number of the residents in their own names or accompanied by a resolution authorizing the resident before the court to bring the proceedings on behalf of the other residents. Budlender AJ held that in a highly urgent matter of this kind and where only interim relief is sought the usual formalities do not apply and it was sufficient that the deponent was a resident of the premises. In addition, he had clearly had locus standi in his own interest and in terms of section 38(c) of the Constitution.

The respondent also claimed that they had been wrongly cited. This argument was also dismissed as the true service provider (and disconnector) of the water supply had been served with notice and was actually before the Court and had not claimed to have suffered any prejudice. Respondent also complained that it had only received 3 hours notice before the matter was heard. The Court held that water was a basic and essential service and that the absence of the provision of water could have serious health consequences for the applicants and other residents of the city. The weekend was approaching and the matter was inherently urgent.

Section 27(1)(a) of the Constitution provides that everyone has the right of access to water and the respondent as an organ of State plainly bore the duties set out in section 7 to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right. Budlender AJ held that this case did not involve the positive duty to provide access to water services but instead implicated the duty to respect the right of access to water. In understanding the nature of the duties placed on the State by section 7 of the Constitution, Budlender AJ, relying on section 39(1)(b) of the Constitution made reference to the International Covenant on Economic, Social and Cultural Rights and commentaries on that document. Using the interpretations given to similar provisions to section 27 in the ICESCR, Budlender AJ found that the disconnection of an existing water supply was prima facie in breach of the Council's constitutional duty to respect the right of access to water in that it deprived the applicants of existing access.

The Water Services Act 108 of 1997 creates a statutory framework within which such breaches may be justified. Section 4(1) of that Act states that a water service provider must set the conditions in terms of which water access may be discontinued and section 4(3) provides that procedures for the limitation or discontinuance of water services must be fair and equitable; must in general provide for reasonable notice of intention to discontinue services and provide for an opportunity to make representations; and must not result in a person being denied access to basic water services for non-payment where that person an prove an inability to pay for such basic services.

At the time of these interim proceedings, the Court held that the Council had not as a matter of evidence shown that its actions satisfied the requirements of the Constitution and the Act, although it conceded that it may well be able to do so in due course. This being the case the onus was on the Council to show that it had legally valid grounds for disconnecting the water supply and had acted in compliance with the Constitution and the Act in doing so. The Council had not discharged this onus. Under the circumstances the applicants had therefore shown a prima facie right to a continuing supply of water and the balance of convenience was in their favour and no other remedy was available. The Court therefore granted an interim interdict in favour of the applicants.

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