Archive for the Basic rights Category

Must a municipality supply free water to its inhabitants?

Posted in Basic rights, Constitutional matters with tags , , , on October 30, 2009 by Maggie

We recently discussed the Supreme Court of Appeal’s decision regarding the unconstitutionality of aspects of the water policy of the City of Johannesburg. This decison has now been considered by the Constitutional Court.

There were two main issues for consideration by the Court. Firstly whether or not the City’s policy (which gave the residents of Phiri, free of charge, 6 kilolitres per household per month or 25 litres of water per person per day) was unreasonable in terms of the Constitution and / or the Water Services Act, which had been promulgated to give effect to the constitutional right of access to sufficient water. The second concerned the lawfulness of the pre-payment meters.

The Court clarified that the City was not under a constitutional obligation to provide any particular amount of free water to citizens per month but rather that it was “under a duty to take reasonable measures progressively to realize the achievement of the right”. Thus the Court concluded that the policy of the City was not unreasonable and that the pre-payment meters were not unlawful being empowered by law, procedurally fair and not unfairly discriminatory.

The Court dealing with the importance of litigation around the area of socio-economic rights, considered the detail of what the government is required to do in order to meet the standard of reasonableness in these terms:

“The purpose of litigation concerning positive obligations by social and economic rights should be to hold the democratic arms of government to account through litigation. In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy. When challenged… the government agency must explain why its policy is reasonable. Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected. …Simply put, through the institution of the Courts, government can be called upon to account to its citizens for its decisions. This understanding of social and economic rights…. accords with the founding values of our Constitution.” (Emphasis added).

Photo credit: http://www.flickr.com/photos/lady_lush/1922652073/sizes/s/

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Can you evict a dismissed employee off your property?

Posted in Basic rights, Dismissals, Questions and Answers with tags , , on October 26, 2009 by labourlawoffices

In terms of his contract of employment with his employer, Mr Viljoen was provided with accommodation for a nominal rental on his employer, Lebowa Platinum Mines’ Land.  After he was dismissed from his employ, Viljoen remained in occupation beyond the 30 days permitted in terms of the employer’s housing policy, and refused to vacate the premises.  The employer duly instituted proceedings in the High Court for his eviction on the basis that he was “an unlawful occupier” as he no longer had the employer’s express or tacit consent to occupy the premises.

Viljoen opposed proceedings and raised the defence that he was an “occupier” as contemplated in the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) because he was unemployed and the premises were situate on a farm and not in a township as envisaged in Section 2 of ESTA.

Those facts, he contended, excluded the High Court’s jurisdiction to adjudicate the eviction proceedings.  The matter was transferred to the Land Claims Court by agreement between the parties.  The Court ultimately found that Viljoen was an occupier as contemplated in ESTA and that the employer ought therefore to have instituted the eviction proceedings under ESTA and dismissed the application.

The employer appealed against that decision to the Supreme Court of Appeal.  [(Lebowa Platinum Mines Limited v Viljoen) 2009 (3) SA 511].  The employer contended that Viljoen’s right to occupy the premises terminated automatically on his dismissal and that he did not thereafter qualify as an “occupier” as contemplated in ESTA, as ESTA was intended only to protect “poor previously disenfranchised farm workers”, which Viljoen undisputedly was not.

The Court held that the contention that ESTA was intended only to protect “poor previously disenfranchised farm workers” was misconceived.

Although there was obviously a particular class of vulnerable persons which was the legislature’s primary concern when ESTA was conceived, of which Viljoen might not be a member, Courts were nonetheless enjoined to consider the colour-blind provisions of Section 26 (3) of the Constitution when interpreting ESTA.  From the wide wording of such provisions, it hardly seemed inconceivable that, in that exercise, a person falling outside the designated category, but nonetheless possessed of a landowner’s consent or some other legal right, might fall within its purview the Court held.

The relevant time at which Viljoen’s circumstances had to be assessed for purposes of determining whether he was or was not an “occupier” as defined in ESTA was when his lawful occupation ceased, i.e. when the permission or right to occupy was withdrawn or ceased.

In the present case it was found that the employee did not qualify as an occupier during the tenure of his employment.  However, he remained in occupation of the premises with the employer’s consent after termination of such employment; that, at a time when he no longer earned an income and did not use the premises for the purposes precluded in the ESTA definition.  During this period the employee’s occupation of the premises undoubtedly assumed an entirely different character which brought him squarely within the amdit of “occupier”.  It was therefore held that Viljoen was an occupier as contemplated in ESTA and the Court declined to grant a remedy.

How much free water do you need?

Posted in Basic rights, Questions and Answers with tags , , on October 20, 2009 by labourlawoffices

The City of Johannesburg limited the free basic water supply to Phiri Township residents to 25 litres per person per day or 6 kilolitres per household per month.  It also introduced a pre-payment water system.  This meant that residents could only get water if they had pre-paid for supply of water.

The High Court set aside this arrangement finding it to be unconstitutional and unlawful and ordered the City to provide each Respondent and other similarly placed residents of Phiri Township with a free basic water supply of 50 litres per person per day.

On appeal the Court stated that the provisions of the Water Services Act, together with the regulations promulgated in terms thereof, were not intended to detract from the right of everyone of access to sufficient water in terms of the Constitution.  They were intended to achieve a progressive realization of those rights.  Circumstances, however, differed which made a dramatic difference to the water required by different households and residents.  The Court held that a right of access to sufficient water could not be anything less than a right of access to such quantity of water that was required for dignified human existence.

The quantity of water that was required for dignified human assistance would depend on the circumstances of the individual concerned.  In the case of the residents of Phiri, the evidence established that the minimum supply provided for in the legislation and the regulations did not constitute sufficient water for leading a life in human dignity.

On the evidence presented the Court held that 42 litres of water per resident in Phiri per day would constitute sufficient water in compliance with the Constitution.

Although Section 27 (1) of the Water Systems Act provided that everyone had the right to sufficient water, everyone did not have a claim for the immediate fulfillment of that right.  The Court stated that a local authority such as the City was required only to act reasonably and to progressively fulfill its obligation to ensure that everyone had access to sufficient water.