The following op-ed is a collaborative effort by Thabiso Mbhense and Simone Gray of the Legal Resources Centre.
Zabalaza Mshengu was 104 years old when he was laid to rest. His name, “Zabalaza”, means ‘stand firm or plant oneself firmly on the ground or refuse to give way’ in isiZulu. He embodied the name completely: relentless in his struggle for basic services for farm occupiers and labour tenants. Unfortunately he died before seeing the fruits of his labour. But it was not in vain and his efforts have restored the dignity of thousands of forgotten citizens across South Africa. On 29 July 2019 the Pietermaritzburg High Court handed down a landmark judgment in which it confirmed that farm dwellers and labour tenants residing on farms, has a constitutional right to basic services which have to be provided to them by the municipality.
Farm occupiers and labour tenants in remote parts of the country endure appalling living conditions due to limited, and at times no access to the basic resources necessary for human survival, self-actualisation, or dignity. They struggle to access water, have unsanitary ablution facilities and their refuse is not collected by municipalities. They often have inadequate housing, and a lack of access to medical services, education, and electricity.
Tired of being treated as second-class citizens, a group of labour tenants and farm occupiers instructed the LRC to launch an application on behalf of all farm dwellers occupying, and using land situated within the jurisdiction of the uMsunduzi, uMshwathi and uMgungundlovu municipalities. Zabalaza Mshengu was the first applicant, and the purpose of the application was to compel these municipalities to provide farm occupiers within their jurisdictions with access to water, sanitation and refuse removal.
Many of the farm dwellers and labour tenants were systematically dispossessed of their land during the apartheid years and trapped in an exploitative labour system as farm workers. They were often stripped of their rights as owners of land and their use and enjoyment of the farm land was subject to the will of the landowner and the government. They were forced to live and work on farms, often under inhumane conditions and with little to no remuneration.
The applicants in this case have no formal sanitation or sufficient water supply on the farms on which they reside. Some of the applicants had to dig pit latrines next to their homes, but these makeshift toilets are unsanitary and attract flies and vermin. Others have to go to the nearest bush to relieve them, while women struggle to dispose of used sanitary products and wash themselves. No refuse collection services takes place on these farms which means that the areas around their homesteads are littered with rubbish. The farm occupiers describe themselves as the “forgotten citizens” due to this neglect by the state.
Before his passing, Zabalaza Mshengu lived in an old dilapidated, hand-built mud structure. The communal tap was at the bottom of a hill and his home was on the hilltop. In order to collect water, he (and other farm occupiers and labour tenants) pushed 25 litre cans down the hill on wheelbarrows, through the bush, and hauled them up a gruelling upward ascent on their return – an arduous task for a centenarian. Struggle was a part of life for Mr Mshengu. He was hopeful that democracy would see an improvement in his living conditions, but nearly twenty years after democratic rule little had changed. That is when he decided to take legal action.
Basic services such as water and sanitation are human rights that are confirmed in both international and domestic legal instruments. According to the United Nations “[w]ater scarcity can mean scarcity in availability due to physical shortage, or scarcity in access due to the failure of institutions to ensure a regular supply or due to a lack of adequate infrastructure.” In South Africa, people often do not have access to water and sanitation services as a result of the state’s failure to ensure regular supply or install infrastructure.
The Constitutional Court in Mazibukomade it clear that access to services such as water is a basic human right. The Court stated that “Water is life. Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising then that our Constitution entrenches the right of access to water.” Despite the Constitutional Court’s emphasis on the importance of the right to access water, ithas not translated into material change for many farm occupiers. Municipalities are organs of state, tasked with legislative and executive powers, including the responsibility to provide basic services to citizens of South Africa, yet in many instances municipalities fail in their obligations with respect to those residing on farms.
In the Pietermartizburg High Court, Judge Mnguni placed a strong reliance on sections 27 (1)(b) and 24 of the Constitution which provide that everyone has the right to have access to sufficient water and an environment that is not harmful to their health and wellbeing. Farm occupiers are entitled to enjoy these rights as well. Municipalities also have a duty to ensure efficient, affordable, economical, and sustainable access to basic services for consumers or potential consumers in their area of jurisdiction. Municipalities have a constitutional obligation to focus on the provision of these basic services and may not prioritise other services at the expense of basic services.
In addition to declaring that the conduct of the municipalities in failing to provide access to basic services as inconsistent with the Constitution, the Court also ordered that the municipalities identify the labour tenants and farm dwellers in their areas of jurisdiction who do not have access to basic services and indicate how they intend to provide them with access to water, sanitation and refuse removal. By ordering the municipalities to report back on their progress and plans, the Court intends to supervise implementation of the order to ensure that the municipalities comply with their constitutional obligations. The Court recognised that these are vulnerable communities who live at the mercy of farm owners and whose rights have simply not been prioritised by municipalities.
Judge Mnguni recognised the instrumental role that Zabalaza Mshengu had played in the case. He emphasised Mr Mshengu’s plight and vulnerability. Judge Mnguni correctly described him as a strong person and paid homage to the meaning of his name, acknowledging how Zabalaza Mshengu’s commitment to the struggle for basic services for farm occupiers and labour tenants continued even after his death.
The Legal Resources Centre (LRC) believes that this judgment will ensure that the farm dwellers are not forgotten when municipalities undertake their planning and budgetary processes. The judgment has the potential to not only impact the farm occupiers who were applicants in the case, but will change the circumstances of farm dwellers across the country. The judgment serves as an unequivocal directive to municipalities as to their responsibilities. The success rests in enforcing the order and the ability to influence the political and budgetary decisions made by local government once they grasp the consequences of failing to perform their functions.
The LRC does, however, acknowledge the challenges in the implementation of this judgment. Budgetary constraints and other excuses often delay the provision of services and strict monitoring will be required to ensure that the decision-making process at local government level accommodates this judgment. The judgment has already led to valuable stakeholder engagements between different levels of government and the civil society sector. Dialogues aimed at collaborative efforts for change have encouraged NGOs to volunteer research and statistical data to the municipalities to assist them to identify persons without access to basic services. The judgment illustrates how strategic litigation may give rise to meaningful engagement to better the lives of people living in poverty.
Although he was unable to enjoy access to basic services during his lifetime, Zabalaza Mshengu shined a light on the forgotten citizens of South Africa. His legacy will live on in the judgment bearing his name.
 C M Doke and B W Vilakazi Zulu-English Dictionary 2 ed (1964)
 Mshengu and Others v Msunduzi Local Municipality and Others (11340/2017P)  ZAKZPHC 52;  4 All SA 469 (KZP) (29 July 2019)
 Association for Rural Advancement ‘Court judgment to restore farm dwellers’ dignity’ available at https://afra.co.za/2019/08/29/court-judgment-to-restore-farm-dwellers-dignity/, accessed on 02 April 2020
 Mazibuko and Others v City of Johannesburg and Others  ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) at para 1