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OPINION - Confusing Cause and Effect


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Founder : Len Abrams
Water Policy International

 

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The Right to a water supply?

LET THERE BE WATER, SAYS LAWYER

A CASE THIS WEEK [6 July 2000] IN A HIGH COURT IN SOUTH AFRICA IS A MAJOR CONSTITUTIONAL POSER TO TEST EVERY SOUTH AFRICANS' RIGHT TO BASIC AMENITIES. 
[And to provide an interesting precedent for other countries?]

An indigent Chatsworth mother who could not afford to pay an outstanding R10000 (about 1400 UD$) water bill has challenged the government's authority to deny her the basic right to water. Frail single mother Christina Manqele, who has seven children, won her first battle against the Durban Metro Council in March when it was forced to temporarily reconnect her water after cutting the supply pending this week's court case.

Her counsel, advocate Maurice Pillemer SC, argued that the Water Services Act took into account people's personal circumstances, and when the council cut off her water supply, it acted unlawfully. She did not ask for an unlimited or unrestricted water supply, he said, but the six kilolitres of water granted free to users had also been stopped.

The Manqele case follows closely on the Grootboom case in Cape Town, which is now at the Constitutional Court for determination on whether a group of squatters with children is entitled to shelter in terms of the Constitution. Manqele's case is a test case taken up by lawyers Chennells Albertyn & Tanner who are hoping to determine the constitutional rights of other water users whose supply has been disconnected.  It comes in the wake of the disconnection of more than 10000 Umlazi residents whose water supply was stopped this week after non-payment.  Justice Vivien Niles-Duner heard the Manqele matter this week.  For the Council, Advocate Malcolm Wallis SC argued that since the regulations in terms of the Water Services Act for a "basic water supply" had not yet been drawn up by the National Ministry, the Council's hands were tied.

Manqele's constitutional challenge, Pillemer argued, was that she had a right to sufficient water and that her children had the right to adequate nutrition which involved access to water. But, Pillemer said, in the absence of promulgated water regulations, the Constitution provided for "sufficient" water as the right of every citizen. "Sufficient water is more than no water at all. As the Constitution is the supreme law of the land, the concept of sufficient water has to be used in place of the absent regulations to define a basic water supply".

In the aftermath of the constitutioal case of Durban man Thiagraj Soobromoney two years ago, denied dialysis treatment because the state could not afford to provide it, Pillemer conceded Manqele's own rights to water may be limited.

UNWILLING

The Council submitted that just as the state had been unwilling to provide medical treatment to Soobromoney, a refusal which cost him his life as a result of financial constraints, the state could not be expected to supply water to all who needed it. Wallis said the constitutional provisions depended on the availablity of resources, placing no obligations on the state and providing no unqualified guarantees.  Pillemer argued that since everyone in Durban was entitled to at least six free kilolitres of water per month, in disconnecting Manqele's water, the Council was denying a person who most needed access to such a free amount.  He said Manqele was prepared to use less than six kilolitres a month.

Judge Niles-Duner interjected from the bench to share her memories of the water restrictions during the 1984 drought. She said consumers then were expected to monitor their consumption, otherwise supply was cut off.  In the Durban Metro Council, Wallis argued, there were not sufficient resources to police the use of the six free kilolitres, It was a difficult choice to be made but the court also had to consider 8000 other households which might want to have their water turned on.

For Manqele and her children, it was argued that to deny them access to water because there were no means to ensure that only a basic supply was consumed was but to reinvoke a limitation of rights where the Constitution did not allow limitation in respect of the rights of children. 

Bearing in mind the recent words of Mr Justice Arthur Chaskalson, that South Africa was losing its way in looking after the poorest and most vulnerable, it seems the ghost of Soobromoney still haunts us with the Manqele case. 

Judgement has been reserved.

The Water Page will bring you the result of the ruling as soon as it is made.

 


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