Mazibuko v City of Johanesburg  ZACC 29 (8 October 2009) The decision of the Constitutional Court of South Africa in Mazibuko v City of Johannesburg  ZACC 28 is the first to consider the right of access to sufficient water entrenched in the South African Bill of Rights. Its elucidation of the principles to be applied when Courts adjudicate cases based on economic and social rights will be crucial to the understanding of these rights both within and outside South Africa.
The case arose from a new program of water supply implemented in the Soweto area of Johannesburg. Soweto, a historically black district of Johannesburg, was constructed according to apartheid-era urban planning principles, and, because of its black population, was made subject to special water policies. Each household was deemed to consume a fixed amount of water and charged accordingly. Actual usage of water was in fact far higher, in part due to leakage from badly corroded pipes. Many residents did not pay the deemed consumption charges.
It was decided that the situation in Soweto would be changed. The Johannesburg water authority generally made available two ‘levels’ of consumption to Soweto residents: a yard tap or a ‘pre-paid meter’. According to city policy, all Johannesburg households (including those in Soweto), are supplied with 6kL per month of water free of charge (‘free water policy’), in accordance with national free water allowance legislation. Beyond this amount, pre-paid meters would not supply water unless credit was purchased.
The Applicants were all residents of Phiri, in Soweto. They were all poor and lived in accommodation ranging from a brick house to a ‘stand’, the occupancy rate of which varied. They asked the Court to declare that the City’s free water policy and the water authority’s installation of pre-paid water meters were unconstitutional. Other arguments as to the lawfulness of these measures under South African national legislation are not discussed here.
Section 27(1) of the South African Bill of Rights says that ‘[e]veryone has the right to have access to…sufficient food and water’. Section 27(2) further states that ‘[t]he state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights’.
Two lower courts had decided largely in favour of the Applicants. They found, in essence, that the pre-paid meter system was unlawful, and that the right to ‘sufficient water’ in the South African Bill of Rights entitled the Applicants to an amount of water greater than the statutory minimum of 25L per person per day.
In contrast to the lower courts, the Court did not uphold any of the Applicants’ grounds of objection.
Free water policy
The Applicants objected to the free water policy on the basis that a 6kL monthly allowance did not represent ‘sufficient water’. O’Regan J, who delivered judgment on behalf of the Court, therefore began by pointing out that while traditionally human rights cases are about the state’s duty to refrain from interfering with a right, the present case required the Court to consider the extent of the state’s positive obligations.
Her Honour determined in the first place that s 27(1)(b) of the Bill of Rights did not require the state, on demand, to provide every South African with sufficient water. Rather, read in conjunction with s 27(2), the right to sufficient water required 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 concept of progressive realisation implicitly recognises that the right to sufficient water cannot be achieved immediately, especially given the backdrop of poverty and deprivation against which the Bill of Rights was adopted.
O’Regan J therefore declined to ‘give content to’ the right to ‘sufficient water’ by articulating an amount of water that would satisfy its requirements. To do so, O’Regan J feared, would exclude any consideration of context from the right’s application, something she thought was crucial to the assessment of whether a government measure was ‘reasonable’.
The Applicants also argued that the free water policy was unreasonable because the free allocation applied irrespective of household wealth or size. On this point, O’Regan J emphasised that the determination of precisely which measures will be employed to realise social and economic rights is properly the domain of the legislature and executive. The nature of realisation depends on circumstance, and ‘[c]ourts are ill-placed to make these assessments for both institutional and democratic reasons’. As a result, Courts will generally not seek to re-draft government policies in assessing whether they meet the standards of the Constitution. They will merely ask whether they are reasonable.
Here, O’Regan J found that the free water policy was reasonable. The grounds relied upon by the Applicants to show unreasonableness could not succeed because alternatives to the City’s approach would have been extremely costly, inequitable or impossible to implement. Importantly, the record showed that the City had continually reviewed its policy and undertaken research and consultation to this end. This demonstrated that measures had been employed to progressively realise the right to sufficient water.
Pre-paid meter system
The Applicants argued that the move from deemed consumption to pre-paid meters was unconstitutional. Although they conceded that the deemed consumption model was unsustainable, they submitted that the pre-paid meter system was retrogressive and unreasonable.
O’Regan J compared the two systems and found that (a) the new system allowed for a free per month allotment of water and (b) resulted in lower overall tariffs for users. Her Honour did not think this could amount to a retrogressive measure. She declined to take into account in this comparison that, prior to the introduction of the pre-paid meter system, many users did not in fact pay for their water.
Purpose of ESC rights litigation
O’Regan J noted finally that the purpose of litigation over social and economic rights should be to hold the executive and legislature to account by fostering participative democracy and requiring the state to justify its policy decisions. That is, the litigation requires the government to explain why its policies are reasonable, what research underlies them and why they were selected. The benefits of this approach, according to O’Regan J, were borne out in this case when the government was compelled to explain, and saw fit to amend independently of any Court order, the flaws in its free basic water policy.
Relevance to the Victorian Charter
There are presently no social or economic rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The immediate relevance of this case to the interpretation of the Charter will therefore be limited. However, the Court’s treatment of the South African Government’s positive obligations to fulfil social and economic rights provides a useful framework within which the present debate on the introduction of a ‘Human Rights Act’ might evolve. Further, the Court’s elucidation as to the content and justiciability of socio-economic rights could usefully inform the forthcoming review of the Victorian Charter, s 44(2)(a)(i) of which requires consideration as to whether ESC rights should be included in the legislation.
The decision is available at http://www.constitutionalcourt.org.za/site/Mazibuko.htm.
Sharyn Broomhead, Human Rights Law Group, Mallesons Stephen Jaques