Realising the right of access to water for people living on farms: The impact of the KwaZulu-Natal High Court decision in Mshengu v uMsunduzi Local Municipality

Abstract

SUMMARY Access to water is a constitutionally-protected right in South Africa and an energetic flow of laws, policies and programmes have been initiated to address historical inequalities in the supply of water since the dawn of democracy. Yet despite this, millions of people living in South Africa still have inadequate access to water. Access to water is a particular challenge for people living on farms. By providing an analysis of the case of Mshengu & Others v uMsunduzi Local Municipality & Others, decided by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, this article seeks to make two key contributions. First, it highlights the challenges experienced by farm dwellers in realising their right to water and locates these challenges within a legal framework which places obligations on both municipalities and private land owners to provide access to water on farms. In particular, the mechanism of water services intermediaries envisaged in the Water Services Act 108 of 1997 is explored as a way to delineate and facilitate the role of private land owners in realising the right to water for farm dwellers. Second, drawing on debates around how the value of public interest litigation can be understood, the article interrogates the value of the litigation in the Mshengu case. Key words: right to water; water services intermediaries; farm workers; labour tenants; public interest litigation