South Africa and the Human Right to Water: Equity, Ecology and the Public Trust Doctrine

Abstract

After liberation from apartheid in 1996, South Africa’s new, progressive Constitution proclaimed: “Everyone has the right to have access to sufficient food and water.” In this paper, I analyze South Africa’s revolutionary legal vision for marrying social equity to ecology in fulfilling the right to water. South Africa’s successes and obstacles as a developing nation with few natural water sources and great water needs demonstrates the translation of aspirational ideas into functional law. This is significant not just to South Africa’s own citizens, but extends to the entire world. South Africa’s approach contains essential lessons for how to use the law to support the billion plus people around the world whose right to water remains unfulfilled, and to the million plus people who die each year from dehydration or diseases related to unclean or inadequate water supplies. South Africa’s past and future approaches to implementing the right to water will continue to shape the legal meanings of “progressive realization” within “available resources” for all economic, social and cultural human rights worldwide.I first examine South Africa’s initial, visionary laws and policies which sought to implement the human right to water. South Africa’s legal blueprint resurrected its Public Trust Doctrine, requiring the government to protect the ecological “Reserve” that nourishes the right to water. After promising beginnings, South Africa applied legally questionable policies vis-a-vis the right to water. For example, it considered the equivalent of two toilet flushes per person per day as an adequate supply of water. Furthermore, it allowed government water service providers to install prepaid water meters for the poorest of the poor, which shut off water supply without notice when water use exceeded the predetermined “adequate” supply.These policies were upheld by the globally influential South African Constitutional Court in Mazibuko v. City of Johannesburg, which this Paper argues undermined the human right to water. The Court failed to respect constitutional prescriptions to advance equity. It also failed to consider public trust responsibilities to steward the legally mandated ecological Reserve, the ultimate source of water. The Court also misconstrued the Constitution’s command to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of” the right to water. Judges and bureaucrats alike — in South Africa and in too many other locales — fail to see that “available resources” must include ecological resources. Failure to root the human right to water in its ecological milieu is a failure to make progress in fulfilling the human right to water.After leading the world in getting the right to water right and then wrong, South Africa has again formulated groundbreaking legal plans to realize the right to water. The nation seeks to reallocate water towards those in greatest need, and has established ambitious plans to steward the ecological Reserve that underlies the human right to water. If South Africa succeeds in implementing its new legal strategies based on the “indivisibility of water,” it will offer a blueprint for how to make the human right to water more than an empty promise through a reconfigured, visionary understanding of the Public Trust Doctrine that marries equity to ecology.