As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
What can ordinary citizens do when the state – at either national, provincial or local government level – fails to fulfil its most basic obligations towards citizens to create the conditions that make it possible for them to live meaningful lives and to flourish? In developing his concept that a modern state is based on social contract between the governed and those who govern, Thomas Hobbes famously wrote that life in a state of nature is “solitary, poor, nasty, brutish and short”.
In such a state of nature, Hobbes argued, people fear death, and lack access to both the basic conditions that make a meaningful life possible, and the hope of being able to work to obtain a better life for themselves. In order to avoid this perilous state of affairs, people accede to a social contract and establish a civil society. According to Hobbes, society is a population beneath a sovereign authority (the state), to whom all individuals in that society cede some rights for the sake of protection. Any abuses of power by this authority are to be accepted as the price of peace.
In today’s human rights dominated world, the idea that we should accept abuses of power by those in authority merely because they create the basic conditions within which a meaningful life becomes possible, has been entirely discredited. But the fiction that we enter into a social contract with those in authority by ceding some of our freedom to them in exchange for the provision of basic services, still holds sway. When the state then reneges on its part of the bargain and fails to provide even the most basic minimum services to citizens, the mythical social contract breaks down completely.
This seems to have happened in the Gert Sibande municipality in Mpumalanga, where the 17000 citizens of Carolina seem not to have had access to sufficiently clean water since January (although this is being disputed by the officials and politicians) when the dam that supplies water to Carolina was polluted with acid mine water.
In response to this complete failure by the municipality to secure the provision of clean water, some residents of Carolina – with the assistance of Lawyers for Human Rights (LHR) and the Legal Resources Centre (LRC) – approached the North Gauteng High Court. Yesterday judge Moses Mavundla gave the acting executive mayor of the Gert Sibande municipality, Tunu Agnes Mnisi, and municipal manager DV Ngcobo, 72 hours to provide the 17000 citizens of Carolina, in Mpumalanga, with potable water.
The municipality had placed water tanks around town after disaster struck, but according to residents from early March 2012, until beginning of May 2012, the system of providing potable water through the tanks proved inadequate. Sometimes some of the tanks were not refilled, some remained empty. The tanks were accessed on “first come first served” basis. The end result was that the water supply in general was inadequate. Some of the residents have to walk long distances to access the potable water from the tanks.
Section 27 of the Constitution states that “[e]veryone has the right to have access to … sufficient food and water” and places a positive duty on the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right. The right to water is further amplified in the Water Services Act which states that every water services authority has a duty to all consumers or potential consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services. The Act also states that this duty is subject to, inter alia, the availability of resources and the need to regulate access to water services in an equitable way.
Where access to clean water is not provided because of a failure on the part of the municipality to take reasonable steps to ensure continued access to clean water, the right of access to water as protected in section 27 of the Act, read with the provisions of the Water Services Act, is being denied to citizens.
Of course, the crisis was originally caused by mines who failed to take steps to prevent the pollution of the dam with acid mine water. In terms of legislation they can be held financially liable for the damage they caused. But the mines are not constitutionally and legally obliged to provide the residents of Carolina with clean drinking water. That duty falls squarely on the municipality.
It was therefore disappointing to read comments by Water and Environmental Affairs Minister Edna Molewa that the court action brought by the residents provides evidence of a war against the state. “The mines were not cited in the court action.… You know, there is a war against the state,” said Ms Molewa at a Pretoria media briefing on Judge Mavundla’s ruling. The judge made no order against the Department of Water Affairs.
No Minister, there is no war against the state. Where the state fails to provide even the most basic services to citizens due to incompetence, laziness, arrogance, corruption or nepotism and in complete disregard of the basic needs of citizens, those citizens have a right and a duty to approach a court to try and get the relevant municipality to do what it is legally required to do. When the citizens do this and when the court then orders the municipality to do what it is legally required to do, it is not at war with the state but is in fact correcting the most basic breach of the social contract between the state and its citizens, saving the state from complete collapse.
Besides, as LRC attorney Naseema Fakir explained, although the LRC and the LHR had considered adding the mines to the action, it was felt that it was important to get water to Carolina’s residents as soon as possible. If the mines had been added as respondents, the application for an urgent court order would not have been granted. This is because the mines are not the ones who are constitutionally and legally obliged to provide citizens with clean water.
The Minister’s attitude is strange and troubling indeed. Instead of apologising to the citizens of Carolina for the criminal negligence of the municipality, she acts as if it is treasonous for citizens to have their most basic rights enforced through the courts. Her comments suggest that she believes that it is not legitimate for the state to be held accountable and to be ordered to take the most basic steps to provide citizens with clean water, without which life itself is not possible.
What is the use of us paying the salaries of the mayor of Gert Sibande municipality (and of the Minister for that matter), when they are not doing their jobs and not protecting us from the chaos of a nasty, brutish and short life? Maybe we should stop paying the Minister’s salary and those of her bodyguards for six months so that she can see how it feels to be treated like dirt.
No Minister, the war, if there is one, is being waged against citizens by tardy and incompetent government officials. As citizens in a constitutional democracy we have a right to approach the court in order to force the government to do its job and if we do we are not waging war against our government – just trying to get it to do what we pay it to do.BACK TO TOP