Legal eagles answer your questions about the water crisis

Cape Town - Day Zero may be avoided in 2018, according to Democratic Alliance leader Mmusi Maimane, but in the meantime handling the water crisis may have legal implications for businesses.

Legal experts from Norton Rose Fulbright answer questions business owners and households may have when it comes to what the law says.

Can we litigate against the City on Day Zero for breaching its constitutional duty to provide access to sufficient water?  

Senior associate Nicki van’ t Riet says the state can be challenged by a member of the public if a human right is violated.

The water services authority in this case is the City of Cape Town. “If a municipality falls far short of the minimum standards set out in the Water Services Act and its regulations, the municipality may be in breach of its statutory obligations,” Van’ t Riet explained.

She added the municipality has the duty to allocate water resources equitably to all consumers within the City’s jurisdiction. “This means there may be instances where we may have to make do with lower amounts so that there is enough to go around for everyone.”

Other duties include conserving water resources. “Water restrictions and the measures it would have had to take if we reached Day Zero – which fall outside the ambits of the regulations - may very well have been considered reasonable from a legal point of view.”

Rights only have to be realised to the extent that state resources permit, Van’ t Riet says. “In the absence of available resources, the failure of the state to address the right is not a violation of the right.”

Can we litigate against the minister for failing to provide the City with financial assistance?

In terms of the Water Services Act, the minister may provide water services in an emergency situation, said Van’ t Riet.

“It does not say the minister has to intervene if the water services authority has the situation under control. Intervention is therefore a ministerial discretion.

“The law also says that the minister may provide loans to water services institutions if these are needed. The law does not say that the minister is obliged to provide loans.”

The minister is still under constitutional obligation to protect the human right to water. “The Constitution also obliges all spheres of government to work in cooperation together to progressively realise our basic human rights.

“Whether the minister is in breach of its human rights obligations or has failed to work in cooperation is therefore open to legal debate.”

Is the installation of a "water management device" on your premises legal?

It is legal for water management meters to be installed without the consent of a property owner or tenant, said Van’ t Riet.

Water management systems, which control the amount of water flowing to a property, are not unfair or unconstitutional. But they can only be used if governed by local legislation. City bylaws in place indicate that these devices may be installed for water demand management.

“You can also be held liable for the cost of the installation. However, customers with good reason for higher consumption need to provide the City with motivation to justify their higher consumption.”

Can borehole water be used for commercial purposes (such as construction)?

A general authorisation was published under the National Water Act which allows any person with lawful access to a property to access groundwater for any use, provided that certain conditions are complied with, explains senior associate Chloe Merrington.

“A person can abstract a maximum of 40m litres of groundwater from their property per annum, but every property will be subject to a specific entitlement depending on the size of the property and its catchment area.”

If a person abstracts more than 10 000 litres per day, that person must register the water use in terms of the act.

“Water cannot be taken at a rate which would prejudice the water resource or the needs of other users.

“The borehole or ground water source must be metred and usage recorded if the water is taken at more than 2 litres per second. Records of metering must be retained for at least five years.”

Can borehole water be supplied or sold to tenants or any other person?

Associate Jarrett Whitehead explains that potable borehole water can be supplied to tenants or other persons. However, the supplier must comply with the requirements in the Water Services Act to be considered a water services intermediary or water services provider. The consumer should have approval from the relevant municipal authority to receive water from the supplier.

Does a landlord have a duty to supply his or her tenant with water?

“The obligation to supply water rests with the municipality, which has a constitutional and statutory obligation to supply water to consumers,” says associate Caleb Jones.

“A landlord, however, has an obligation not to interrupt the supply of water being received by his or her tenant.”

Can a tenant cancel their lease if Day Zero renders them unable to operate their business at full potential?

“The precise remedies available to a tenant should Day Zero occur will depend on the provisions contained in the lease,” Jones explains.  

Tenants seeking to cancel their leases will likely argue that the property being leased is no longer ‘fit for purpose’. Depending on provisions, it is unlikely that the landlord will be found to be in breach of the lease, with the result that the tenant will not be able cancel the lease. 

Who is liable for increases in water tariffs/consumption charges - landlord or tenant?

“It all depends on the nature of the lease agreement,” says associate Sanelisiwe Ngcobo. “If the rent payable in terms of the lease is inclusive of consumption charges, then the landlord is liable for consumption charges.”

If consumption charges increase during the duration of the lease, the landlord is ultimately liable.

If the rent payable excludes consumption charges, the tenant is liable. “It is important to note that failure by the tenant to pay the consumption charges would amount to a material breach of the lease agreement. The landlord will be entitled to recoup the consumption charges from the tenant’s deposit.”

What health and safety obligations do employers have regarding air conditioning systems and ablution facilities?

“Employers are obliged to provide ablution facilities to employees,” says associate Robin Vers.

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