A Government in Deep Water? Some Thoughts on the State's Duties in Relation to Water Arising from South Africa's Bill of Rights

Abstract

This article questions the meaning of a domestic constitutional water right for the State's provision of water suitable for domestic use and human consumption. Following a brief historical introduction to the constitutional right of access to sufficient water in Section 27 of the Constitution of the Republic of South Africa (1996), the scope and meaning of this right as it is currently understood by the courts and others are explored. Attention is also paid to the relationship between Section 27 and other substantive constitutional rights such as the environmental right (Section 24), the right to life (Section 11), the right to human dignity (Section 10) and the right to equality (Section 9). With brief reference to some of the most imminent water provision challenges that South Africa currently faces, some views are raised concerning the State's constitutional duty to take affirmative action with respect to different interests that people hold in water. It is concluded that the body of constitutional rights in South Africa compels the State to take positive action to ensure access to enough water of suitable quality in a manner that is fair and just and that is aimed at sustainability.