We see more and more critical infrastructure failures and deterioration, both within local and metropolitan Municipalities.

Raw sewerage in the streets is a common sight, potholes prevail, and stormwater drainage fails repeatedly.  It is commonplace that despite residents paying rates and making multiple complaints to authorities, the situation does not improve.

Citizens have various constitutional rights, including the freedom of movement and access to essential services, as well as to approach a Court when a right in the Bill of Rights has been infringed.

Can citizens or local resident associations take the local or national Government to Court to obtain Court Orders compelling them to effectively deal with the situation?

This question came before the High Court in Umtata in a judgment handed down earlier this month.^[1]

A local residents' association brought an application against the Department of Transport, directing them to repair the surface and undertake all the necessary work to restore a main road to good condition. 

The Court accepted that the resident association had legal standing to bring the application. The applicant put up extensive evidence of complaints being lodged with councillors and the local municipality, with no tangible results. The Court considered the effect of the inaccessible road on the applicants’ daily lives, their ability to shop, access to banking services and get to work, learners’ ability to get to school, access to medical facilities as well as the impact of poorly positioned drainage pipes causing flooding and an additional slippery road surface causing danger.

The respondents argued that they had a significant scope of responsibility and that the maintenance costs of a paved road network was approximately R1.8 million per kilometre. given their budget limitations annually, the Department had to engage with Municipalities to prioritise road maintenance based on the needs of each respective community.  The Department had to acknowledge the need for road upgrades that the applicants had requested and contended that considerable progress had been made with the budget approved and contractors appointed.

The Court accepted that it was the respondents’ responsibility and constitutional role, and accepted, although the Municipalities had an interest in the matter, it was not required for the Municipalities to be joined to the proceedings.

The Court accepted that the applicants had clearly demonstrated their rights were being infringed upon, as well as the deplorable state of the road, and that they had no other remedy available.

The Court issued an Order that the Department was directed to repair, resurface and restore the main road within 120 days of the date of the Order, and ordered that the respondents pay the cost of the application.

Conclusion:

This case serves as a reminder that the Courts will intervene where the State fails to discharge its constitutional obligations and where citizens or local associations can show extensive complaints and requests for assistance which have remained unanswered. 

It is not sufficient for the State to point to budget limitations as an exclusive answer to its failure to implement important and necessary infrastructural maintenance or upgrades.

Citizens can be confident in taking a more active approach to holding local and national governments responsible for fulfilling their constitutional mandates to effect repairs to ageing and failing infrastructure.