Avoiding Mazibuko: Water Security and Constitutional Rights in Southern African Case Law

E Couzens

doi:10.4314/pelj.v18i4.12

Abstract

The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The Constitutional Court ruled that the right of access to sufficient water does not require that the state provide every person upon demand and without more with sufficient water. Nor does the obligation confer on any person a right to claim "sufficient water" from the state immediately. Reactions to the judgment have been consistently negative, with criticisms largely focusing on the Court's apparent lack of appreciation for the situation of the very poor. It is not easy, however, to overturn a decision of the Constitutional Court and South Africa will need to work within the constraints of the precedent for many years to come. It is suggested in this article that two subsequent, recent judgments (one of the Supreme Court of Appeal in South Africa, City of Cape Town v Strümpher, 2012, and one of the High Court in Zimbabwe, Mushoriwa v City of Harare, 2014) show how it might be possible for courts to avoid the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will undoubtedly be more court cases to come involving access to water. Conclusions are drawn as to how the two judgments considered might offer a way to ameliorate the harsh effects of the Mazibuko judgment.

Highlights

The judgment in Mazibuko v City of Johannesburg ometimes a judgment is given which is so significant that it attracts attention not just in its region but worldwide
The Supreme Court of Appeal (SCA) compared the respondent in Strümpher to the water users in Impala, saying that water users have a statutory right to the supply of water in terms of the Water Services Act, which imposes a duty on a water services authority to "ensure access to water services to consumers", with it following that the respondent's right to a water supply could not be classified as purely contractual
His right to a water supply was subsumed into rights under the Water Services Act and could not be described as merely personal rights arising from a contract

Summary

Introduction

The judgment in Mazibuko v City of Johannesburg ometimes a judgment is given which is so significant that it attracts attention not just in its region but worldwide . The judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg appears to have been one such in the field of environmental law. The Constitutional Court held, in the light of the evidence presented, that it could not be said that the provision of six kilolitres of free water per household per month was unreasonable.. According to the Constitutional Court, when the state is challenged judicially as to its socio-economic policies, the agency in question must explain why the Mazibuko para [57]. The state may be challenged judicially to account for its decisions, and must show that the policy selected is reasonable and that it is being reconsidered in the light of its obligation progressively to realise the relevant socio-economic rights.

Reactions to the judgment in Mazibuko

Further judgments

Conclusion

Findings

Literature