Flag Boshielo Petition

NCOP Petitions and Executive Undertakings

09 June 2022
Chairperson: Ms A Maleka (ANC, Mpumalanga)
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Meeting Summary

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The Select Committee on Petitions and Executive Undertakings convened in a virtual meeting to consider the Flag Boshielo Petition, which requested the National Council of Provinces (NCOP) recommend the dissolution of the Sekhukhune District Municipality by the Limpopo Provincial Government Executive and to place it under administration in terms of section 139 (1) (c) of the Constitution. The petition also requested that the NCOP recommend that the Administrator's first order of business be to provide clean running water to the District Municipality.

The petition concerned the municipality's unresponsiveness to the water crisis in Flag Boshielo West. The community had approached the courts on five different occasions seeking relief and all the legal processes were finalised, which was why they had approached the NCOP as a last resort. The community had no access to sufficient, safe and reliable water, exposing them to health risks, especially in the context of the COVID-19 pandemic.

Five court orders had been cumulatively granted in favour of the community. On the first occasion, the municipality was compelled to provide water through reticulation using existing water infrastructure, and by weekly delivery of water to the villages. On the second occasion, the municipality was ordered to erect and install Jojo tanks and provide water per the first court order. In the third instance, the municipality was once again ordered to comply with the first and second orders to supply the community with adequate potable water. The municipality was also ordered to provide monthly progress reports detailing the compliance efforts regarding the court orders, focusing on water purification plants. On the fourth occasion, the municipality was found to be in contempt of the previously granted court orders. On the fifth occasion, the Acting Municipal Manager was officially joined to the application.

The municipality's attorneys said that what had been presented by the petitioner was not consistent with the information that the municipality had because the matter was still before the court, and they reported to the court monthly. The case was a case management matter that was before court under a judge of the North Gauteng High Court, who monitored the progress in protecting the complainants' constitutional rights. It had been premature to refer the matter to the Select Committee, because any decision taken by the Committee on the matter would have the potential to undermine the judicial process in place.

The Committee said that the water delivery issues in the district dated as far back as 2007, and that people should not be withheld from accessing a basic human right while waiting for the courts to decide. A Member said he did not understand why the senior officials of the municipality were not in the meeting to account for the issues, and commented that it was arrogant of them to send their attorneys to address the Committee. He added that the attorneys used legal jargon to respond to the issues raised, and had not provided evidence of the solutions made by the municipality to address the water shortages in the district.

The Committee would need more information from the district to decide on the next step, but first, it would need to visit the district municipality.

Meeting report

The Chairperson welcomed Members of the Committee, the delegation from the Sekhukhune District Municipality, and the petitioners to the meeting. She said the meeting would take only one hour because the National Council of Provinces (NCOP) would have a plenary meeting at 2:00 pm.

Flag Boshielo Petition

Ms Basetsana Koitsioe, Attorney: Centre for Applied Legal Studies, said this was a collective petition on behalf of the complainants in respect of the Sekhukhune District Municipality and responsiveness to the water crisis in the Flag Boshielo West area. The Centre for Applied Legal Studies was a public interest organisation based at the University of Witwatersrand Law School. It was a registered legal practice council representing the Flag Boshielo West community.

The community they represented was indigent persons residing in five villages within the Sekhukhune District Municipality. The collective petition concerned the municipality’s unresponsiveness to the water crisis in the Flag Boshielo West. The community had approached the courts on five different occasions seeking relief, and all the legal processes were finalised, which was why they had approached the NCOP as a last resort. The community had no access to sufficient, safe and reliable water, exposing them to health risks, especially in the context of the COVID-19 pandemic.

Referring to the litigation history of the matter, she said that five court orders had been cumulatively granted in favour of the community. On the first occasion, the municipality was compelled to provide water through reticulation, using the existing water infrastructure and by weekly water delivery to the villages. On the second occasion, the municipality was ordered to erect and install Jojo tanks and provide water per the first court order. In the third instance, the municipality was once again ordered to comply with the first and second orders to supply the community with adequate potable water.

The municipality was also ordered to provide monthly progress reports detailing the compliance efforts regarding the court orders, focusing on water purification plants. On the fourth occasion, the municipality was found to be in contempt of the previously granted court orders. On the fifth occasion, the Acting Municipal Manager was officially joined to the application. Not only had there been no response to the concerns raised in almost seven years, but the office of the district municipality had failed to respond to emails and follow-ups. They took temporary actions only when threatened to be taken to court and when the case management meetings were due.

The five court orders were granted on the following dates:

The first on 21 July 2015.
The second on 29 September 2015.
The third on 17 August 2017.
The fourth on 29 November 2019.
The fifth on 7 February 2020.

She said that the background was important in highlighting that the petition was brought forward to the Select Committee after all the possible legal and administrative remedies were exhausted. The issues had been brought to the attention of the relevant government departments and the courts. Collective actions were also taken through a petition started by the Right to Protest, calling for accountability, the municipality's compliance with the court orders, and clean running water for the community. The petition had gained over 7 000 signatures and was handed over to the Office of the Presidency in November 2021, but no response was received from either the Office of the Presidency or the Department of Water and Sanitation (DWS).

Reasonable time had been afforded to the municipality since 2015 to consider and address the water crisis, but to no avail. The community had approached the courts on several occasions and orders were granted in their favour, but no practical solutions were made to address the water crisis. The municipality eventually undertook to build the water plant meant to resolve the crisis after years of back and forth. In May 2021, the municipality confirmed that the construction of the water plant had been completed, but the community nevertheless continued to have water shortages.

The municipality had delayed the completion of the water purification plant, and the Centre for Applied Legal Studies sent a letter to the Minister of Water and Sanitation on 5 May 2020 to seek the urgent intervention of both the provincial and national government in the management and investigation of the process of the water purification plant. There had been no reply to the letter. The lack of response demonstrated that provincial and national government fell short of adequately addressing the continuing failure of the municipality to comply with the court orders and the strength they posed to the rule of law. It also demonstrated that the provincial and national governments failed to recognise the devastating impact of the failure on the lives of impoverished people within the area.

She said it was clear that the municipality had failed the community and failed to properly comply with the court orders, despite the water plant being completed. There was still no running water in the community, which was a gross violation of the community's constitutional right to water. On behalf of the Flag Boshielo West community, the Centre for Applied Legal Studies requested the Select Committee to refer the community to the Limpopo Provincial Government Executive Council. They requested that the Select Committee recommend that the Executive Council dissolve the Municipal Council of the Sekhukhune District Municipality, and place it under administration in section 139 (1) (c) of the Constitution.

Alternatively, they requested that the Select Committee recommend that the Administrator's first order of business would be the provision of clean water to the community daily, in terms of the court orders issued over the years. Finally, they requested that the Select Committee hold the DWS and all spheres of government to account for their consistent neglect of the community’s Section 27 constitutional rights and the disregard for the judiciary and its orders. They requested that the Committee set up an inquiry on the case for the continued lack of sufficient and reliable water, despite the completion of the water plant, and provide recommendations to the Department, and monitor the implementation by the Department.

Sekhukhune District Municipality's response
Ms Julia Mathebe, Executive Mayor: Sekhukhune District Municipality, introduced the delegation from the municipality, and handed over to the legal manager to comment.

Mr Hlabirwa Malatji, Manager: Legal Services, Sekhukhune District Municipality, said that what had been presented by the petitioner was not consistent with the information that the municipality had, because the matter was still before court, and they reported to the court monthly. The suggestion that the petitioner had exhausted all means was misleading, because the matter was still before court, and the initial application in court was on sections A and B. The municipality complied with the ruling granted on section A, because section B was not granted.

The first order granted the petitioner the opportunity that if the municipality had failed to comply with the ruling, the petitioner would be allowed to take the matter to the high court within 48 hours. He said it was untrue that all means had been exhausted. The other misrepresentation of the municipality by the petitioner was that there was no water supply to the community, because from 1 June, the municipality provided more than 25 litres of water per person daily.

It was also untrue that the communities were indigent, and that all the community members could not pay for water. The community was so well developed that there were people who had installed 10 000 litre tanks in their private residences, which would account for the reason the community appeared to consume more water than the 25 litres per person per day. The municipality submitted a report of this to the Committee which proved there was water supply to the community.

He said it was perplexing that the petitioner sought a remedy that would inherently delay a water supply to the community, because the dissolution of a municipal council took time and created chaos in administration. By the time the process is finished, the community would have suffered immensely. He said that interventions did not start with the dissolution of municipal councils but with the Provincial Executive stepping in and providing support to the municipalities. Lastly, he said that the municipality held monthly meetings, and the petitioner could have raised all the issues at those meetings, especially if there was any contempt of court by the municipality. 

Mr Sibusiso Mdluli, Municipal Attorney, said the case was a case management matter that was before court under a judge of the North Gauteng High Court, who monitored the progress in the protection of the complainants’ constitutional rights. It had been premature to refer the matter to the Select Committee, because any decision taken by the Committee on the matter would have the potential to undermine the judicial process in place. It was disingenuous of the complainants to want to run parallel processes while fully aware that the High Court was deciding on the matter.

Discussion
Mr T Dodovu (ANC, North West) asked for clarity on whether the petitioners were asking the Select Committee to intervene because the municipality had failed to comply with several court orders to provide water to the communities, and whether the municipality was disputing the petition because the matter was sub judice.  

Ms C Visser (DA, North West) said that the water delivery issues in the district dated as far back as 2007, and that people should not be withheld from accessing a basic human right while waiting for the courts to decide. The Committee must visit the communities and examine the extent of the problem, because the shortage of water provision and negligence by relevant departments and the municipality because of a pending court order was not aiding the affected communities. The fact that 7 000 people had signed the petition proved that there was indeed negligence on the part of the DWS, and the Committee must visit the communities and ascertain the reasons for this negligence.

Municipal Attorney's response
Mr Mdluli said that four of the five court orders were consent court orders, where the municipality had sat with the judge, agreed on certain things, and made undertakings. The municipality had complied with all four consent court orders, and the case management that the municipality was going to do, such as reticulating water systems, installing Jojo tanks, and the continuous filling of the tanks. It was incorrect that the municipality had not complied with the court orders.

The one court order, not a consent order, was the one where the municipality was found to be in contempt of court. At no point was the municipality in contempt of court for failure to discharge its constitutional obligations. The only contempt order that was filed was the 2019 order, where the municipality was found in contempt only for having failed to submit reports to the judge, which was a technical glitch explained to the judge.

Member's comments
Mr Dodovu said that the municipality disrespected the Select Committee, because water was a basic human right that must be provided, and agreed with Ms Visser that the Committee should visit the municipality to examine the extent of the problem. He did not understand why the senior officials of the municipality were not in the meeting to account for the issues. He noted that it was arrogant of them to send their attorneys to address the Committee. He added that the attorneys used legal jargon to respond to the issues raised and did not provide evidence of the municipality's solutions in addressing the district's water shortages.

He wanted to know the amount spent by the municipality on legal matters defending the indefensible, while not ensuring that they complied with the court orders in the way they were supposed to. The documents provided by the municipality did not allow the Committee the ability to read and comprehend the magnitude of the problem at hand. The municipality must inform the Committee of its water plan in terms of how it plans to eradicate the water shortage issues in the area. The Committee must urgently visit the affected areas, because the main issue was the provision of water and not the court issues the municipality hid behind.

The Chairperson agreed with Mr Dodovu, and added that the Committee must visit the areas urgently.

Concluding remarks
Ms Koitsioe said that even though there were the scheduled case management meetings, they were usually at their behest, and they were supposed to be provided with monthly progress reports, but they had received none since last year around April when they had asked. She said the point was that many people were living without access to water and there were many reasons for that, but the water access issue must be solved, which was why a petition was raised.

Ms Mathebe said that the executive leadership of the municipality was present in the meeting.

Mr Dodovu apologised for suggesting they were not present, and maintained that the Committee should visit the municipality. He asked the municipality to ensure they brought the necessary documents on time.

The Chairperson thanked the petitioners and the district municipality for their presentations, and added that the Committee would need more information from the district to decide on the next step, but first, it would need to visit the district municipality.

The meeting was adjourned.

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