Women's socio-economic [in]equality and gender [in]justice: Feminist reflections on the right of access to water in Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28 1

Abstract

The gendered-neutrality of poverty statistics, masks the structural and systemic gender inequalities between women and men as a dimension of poverty, with poor African women being particularly disadvantaged. For in addition to experiencing the general effects of poverty (like any other poor individual), it is mainly poor women (in particular), and not men, who operate as shock absorbers of poverty for others. Given the patriarchal nature of society and most of its institutions, including the judiciary, and the general failure with respect to socio-economic rights, this Article provides a critique of the Mazibuko case from a feminist legal perspective. I argue that as a consequence of failing to incorporate the wisdom of feminist jurisprudence in both the applicants case itself and the Constitutional Court's own jurisprudence and adjudication method, the Court was forced to make a decision that was not in tune with the needs of all its citizens, both women (in particular) and men. In sum, I argue that a great transformation in human affairs and state programmes, policies and legislation, needs gender-sensitive (and not gender-blind) women and men as a critical mass at the heart of the initiative. Seemingly constrained by the inherent limits on the judiciary based on the separation of powers doctrine, the Constitutional Court in Mazibuko, failed to provide meaningful redress to poor women (in particular) and men in their quest to vindicate their fundamental human right of access to water, leaving mainly women (and not men) to shoulder the burden of water and sanitation management in their impoverished households.