The Justiciability of Water Rights: Mazibuko v. City of Johannesburg

Abstract

This paper uses the case of Mazibuko v. City of Johannesburg, now set down on appeal in the Constitutional Court of South Africa, as the basis of a discussion of judicial enforcement of social and economic rights, with special emphasis on the right of access to sufficient water. The paper compares the conditions of the black township residents who brought the lawsuit and residents of wealthier, white areas of Johannesburg and calls attention to trends in water policy in South Africa running counter to egalitarian goals of the Constitution. The paper argues that judicial enforcement of social and economic rights can (although it does not necessarily) advance democracy by affording every person the minimum conditions necessary for meaningful political participation and enjoyment of his or her political, social, and economic rights. The paper proposes a new legal approach for analyzing access-to-water and other socioeconomic rights issues—the ‘developmental-reasonableness’ test which incorporates equality principles—as better suited than existing approaches to the transformative aspirations of the South African Constitution. The proposal urges that socio-economic rights jurisprudence emphasise redistributive measures.