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.
Five residents of Phiri in Soweto brought a case against the City of Johannesburg, Johannesburg Water (a company wholly owned by the City) and the national Minister for Water Affairs and Forestry. There were two key questions at issue. The first was whether the City’s policy in relation to the supply of free basic water, and particularly, its decision to supply 6 kilolitres of free water per month to every accountholder in the city (the Free Basic Water policy), was in conflict with the Water Services Act and the right to have access to sufficient water set out in section 27 of the Constitution. The second was whether installation of pre-paid water meters in Phiri which charged consumers for use of water in excess of the free basic water allowance was lawful. The South Gauteng High Court found that the installation of pre-paid water meters in Phiri was unlawful and unfair. It also held that the City’s Free Basic Water policy was unreasonable in terms of Section 27(2) of the constitution and therefore unlawful. It ruled that the City should provide 50 litres of free basic water daily to the applicants and ‘similarly placed’ residents of Phiri.
On appeal, the Supreme Court of Appeal varied this order, holding that 42 litres of water per day would be ‘sufficient water’ within the meaning of the Constitution, and directing the City to reformulate its policy in light of this conclusion. The Supreme Court of Appeal also held that installation of the pre-paid water meters was unlawful on the ground that the City’s by-laws did not make provision for them and that the cut-off in water supply that occurs when the free basic water limit has been exhausted constituted an unlawful discontinuation of the water supply. The Court suspended its order for two years but held that, pending the reformulation of the water policy, any accountholder in Phiri who is registered as an ‘indigent’ must be supplied with 42 litres of free water per day per member of his or her household.
Having referred to its previous jurisprudence, the Constitutional Court overturned the Appeals Court decision and held that the right of access to sufficient water does not require the state to provide upon demand every person with sufficient water. Rather it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources. The Court rejected the applicants’ argument that the Court should adopt a quantified standard determining the ‘content’ of the right not merely its minimum content. According to the Court, that argument must fail for the same reasons that the minimum core argument failed in its earlier decisions in Grootboom and Treatment Action Campaign No 2.
In doing so, the Court stated that ‘ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right.’ The Court stated that, the positive obligations imposed upon government by the constitutional social and economic rights will be enforced by courts in at least the following ways: (a) where government takes no steps to realise the rights; (b) where the government’s adopted measures are unreasonable; and (c) where the government fails to give effect to its duty under the obligation of progressive realization to continually review its policies to ensure that the achievement of the right is progressively realised.
The Court found that the City’s Free Basic Water policy fell within the bounds of reasonableness and therefore did not contravene either section 27 of the Constitution or the national legislation regulating water services. The applicants’ argued that the policy was unreasonable based on the following grounds; first, the amount of 6 kilolitres was insufficient for large households, and second, the policy was inflexible by allocating 6 kilolitres per month to both rich and poor households and allocating per household rather than per person. The Court expressly rejected these arguments.
On pre-paid water meters, the Court held (contrary to the High Court and the Supreme Court of Appeal) that the national legislation and the City’s own by-laws authorised the latter to introduce pre-paid water meters. According to the Court the cessation in water supply caused by a pre-paid meter stopping is better understood as a temporary suspension in supply, not a discontinuation in water supply. The Court concluded that the installation of the meters was not unlawful and rejected the applicants arguments including: that installation of the water meters was the result of an unfair process, that the meters were a violation of the duty to respect the right to have access to sufficient water, that the meters were an unreasonable measure in conflict with section 27(2) or the Water Services Act, that the installation of the meters was a retrogressive measure, and that the installation of water meters were constitutionally irrational or discriminatory.
Keywords: Lindiwe Mazibuko & Others v City of Johannesburg & Others, Case CCT 39/09, [2009] ZACC 28, Enforceability, ESCR
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
