Gauteng North High Court Judge Moses Mavundla yesterday rebuked two Mpumalanga municipalities for bickering over which was responsible for supplying the 17000 people of Carolina with the drinkable water to which they are constitutionally entitled.
The town’s people have been without a steady supply of water since acid mine drainage contaminated the Boesmanspruit dam in mid-January.
The Gert Sibande district municipality and Chief Albert Luthuli local municipality, which have jurisdiction over the area, have refused to take responsibility for providing the water.
Judge Mavundla yesterday ruled that Carolina’s residents should immediately be provided with drinkable water, although he simultaneously granted Gert Sibande leave to appeal against his previous order that it provide the town with drinkable water.
Ordinarily an appeal suspends an order, but Judge Mavundla said getting water to Carolina’s people was more important.
He lifted the suspension "pending finalisation of an appeal and exhaustion of any possible appeal to the Supreme Court of Appeal and/or the Constitutional Court".
Gert Sibande appealed since it believed the judge was wrong to order that it provide the water. Chief Albert Luthuli local municipality argued that as Judge Mavundla’s original order did not place this responsibility at its door, it was under no obligation to provide the water.
Judge Mavundla labelled the to-ing and fro-ing as "tantamount to a dereliction, on technical grounds, of the statutory duties and responsibilities placed not only on a district municipality, but also (on) the local municipality".
The constitution, in its bill of rights, guaranteed a basic water supply and a healthy environment, he said.
"Both (the district municipality and the local municipality) are organs of state, both established in terms of (section) 155 of the constitution, within the local sphere of government tasked with the exercise of co-operative governance within the broad mandate of providing basic necessities, such as water, to ensure healthy service to the communities within their area," he said.
Judge Mavundla granted leave to appeal to a full bench of the Gauteng North High Court.
Although he was convinced another court would not make a contrary finding, Gert Sibande district municipality would be likely to petition a higher court for leave to appeal if he did not grant such leave.
The row began when the Legal Resources Centre and Lawyers for Human Rights, on behalf of the Federation for a Sustainable Environment, and the Silobela Concerned Community, asked the Pretoria high court to order that the town be provided with water.
The federation’s director, Koos Pretorius, said Judge Mavundla’s reasons for granting leave to appeal were practical.
