January 19 2012 at 11:21

Thirst does strange things to people. In the case of Mandla Bushula, it provoked him to chase a mirage, taking legal action with a case in which his chances of winning were virtually zero.

Bushula, who lives in the Kwa-Ngquba locality, Voyizana administrative area, Sterkspruit, had what sounded like a really bad complaint – the supply of running water to his area was completely cut off by the Ukhahlamba district municipality.

He wanted to claim his rights under the constitution and asked the court to order that the basic water supply, discontinued in 2008, be restored to the local community.

According to Bushula, in 2004 Ukhahlamba started supplying running water to his area via communal taps. But in October 2008 the water stopped completely, without any notice. People were thus forced to draw water from polluted springs.

Early the next year Ukhahlamba started bringing in water by truck but there wasn’t enough for everyone.

Then the trucks stopped and a few water storage tanks were installed instead.

From those facts claimed by Bushula it sounded as though he had a strong case to claim that the constitutional rights of himself and the others in his community had been infringed. As Judge Lusindiso Pakade said at the start of his decision on the matter, the application seemed to raise important constitutional issues concerning the law intended to ensure that community members accessed their rights to a basic water supply.

But Bushula lost his application. Many people might ask how the judge reached this conclusion: why didn’t the court ensure that the constitutional rights of the litigant and the rest of the community were safeguarded? Because of a growing awareness about divisions within the judiciary over whether it is proper to challenge decisions of the other arms of government, readers could even wonder whether the outcome indicates that the judge in this case was executive-minded.

But there’s something else going on here. For although the court starts off by saying that the case raises important questions about the constitutional rights of Bushula and the rest of the community, the rest of the judgment shows that in fact the case as presented was not suitable for this kind of litigation.

The municipality as it turns out had an apparently reasonable explanation, while Bushula had no real response to the municipality’s version of things.

Even worse, while Bushula claimed to be acting on behalf of members of the community as well as for himself, there was no proof of this in his papers, no affidavits by any local people confirming that he was acting on their behalf as well.

This proved fatal for Bushula’s case: the municipality claimed that the decision to close off the communal taps was made with the consent of the local community, and as the judge pointed out, without any proof that he was acting on their behalf, Bushula was unable to counter the municipality’s argument that the people had agreed to its strategy.

According to the municipality the water problem had been created by the local people themselves: after the pipes were installed the good water quality led people to start illegally siphoning it off.

The municipality had thus to produce more and more water and its quality dropped to unacceptable levels.

At that point, following expert scientific advice, the municipality decided to reduce the amount of water it provided while it worked on a plan to improve both quality and quantity. According to Ukhahlamba, in the period after the running water was cut off and water supplied via storage tanks instead, a project to upgrade the entire water supply scheme had been implemented and it was due to be completed later this year. Again, it appeared that Bushula had no answer to this claim.

Judge Pakade concluded that the municipality had acted reasonably particularly since the local community was not completely without water while the supply was upgraded. If there were not enough tanks to ensure water for everyone, then it was up to the community to request that more tanks be provided, the judge said.

Since Bushula had not proved his case his application was dismissed and he was ordered to pay costs.

It may sound a bit rough that someone who tried to help with a community problem ended up carrying the costs – but there’s an important lesson here: people who ask a judge to uphold constitutional rights must ensure that they present a case on which the court can take action.


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