Case alleging violation of the right to have access to sufficient water under Section 27 of the South African Constitution; Reasonableness of the City’s scheme to progressively realize the right to water within maximum available resources; Scope of the right of access to sufficient water; Legality of pre-paid water meters.
The Constitutional Court’s decision was greeted with dismay by socio-economic rights activists, community organizations and a wide range of actors working on the right to water. It was also subject to considerable criticism by socio-economic rights academics both in terms of the Court’s conclusions on the constitutional right to have access to sufficient water, as well as its ‘recharacterisation’ of the Court’s previous ESR jurisprudence (particularly the Treatment Action Campaign No.2 case). The Anti-Privatisation Forum has stated that the struggle for water rights will continue.
This case was the first in which the South African Constitutional Court considered the obligations imposed by the right to access sufficient water set out in Section 27(2) of the Constitution. The outcome of the case is arguably reflective of the increasingly deferential and conservative approach adopted by the Court in the context of socio-economic rights cases. It also constitutes a failure of the Court to counter criticisms by Jackie Dugard, attorney in this case, and others that, in its jurisprudence, ‘the Court has rejected or ignored pro-poor jurisprudential options and arguments, which might have directly promoted transformation in South Africa and most certainly would have improved the living conditions of the claimants’.[1]
[1] Jackie Dugard, ‘Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa’s Transformation’ (2007) Leiden Journal of International Law 965-981, at p. 973.
This case was brought by 5 residents of Phiri in Soweto, South Africa. Their legal battle was supported by social movement groups the Coalition Against Water Privatisation (CAWP) and the Anti-Privatisation Forum (APF). The applicants were represented by the Centre for Applied Legal Studies (CALS). An amicus curiae submission was made by the Centre on Housing Rights & Evictions. Centre for Applied Legal Studies (CALS) University of the Witwatersrand South Africa Web: http://web.wits.ac.za/Academic/Centres/CALS/ The Anti-Privatisation Forum (APF) and the Coalition Against Water Privatisation (CAWP) http://apf.org.za/ Centre on Housing Rights & Evictions (COHRE) 83 Rue de Montbrillant, 1202 Geneva, Switzerland Web : www.cohre.org