Mazibuko, Lindiwe, et al. v. City of Johannesburg, et al.

Five impoverished residents of Phiri in Soweto filed a legal action against the City of Johannesburg, the water provider company wholly owned by the City, and the Ministry of Water Affairs and Forestry, challenging the legality of Operation Gcin’amanzi–a project the City of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses due to faulty water piping laid during the apartheid government in the 1940s and 1950s, as well as non-payment for water services in Soweto. The project involved relaying pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kiloliter per household monthly free basic water allowance. The applicants claimed that the City’s Free Basic Water policy conflicted with section 27 of the Constitution, which among other rights enshrines the right of access to water, and section 11 of the Water Services Act, which “conditions for the limitation or discontinuation of water services.” They also challenged the legality of the installation of pre-paid water meters by the respondents.

The applicants submitted their claim before the High Court, which found in their favor. However, upon appeal, the Supreme Court of Appeal found in favor of the respondents, after which the applicants filed an appeal before the Constitutional Court requesting a proper interpretation of section 27(1)(b).

The Court held that City's Free Basic Water policy was "reasonable" and did not in conflict with either section 27 of the Constitution or with national laws that regulated water services, including the Water Services Act, which enshrines the right of access to water and defines the related state obligations. The Court also found that the installation of pre-paid meters in Phiri was lawful. The Court analyzed the concept of progressive realization with respect to the right of access to water and found that the City had done its due diligence in reviewing and evaluating its water policy. The Court also concluded that the Court was in no position to define the steps through which the government progressively realizes a social or economic right.

The Court set aside the orders issued by the lower courts.

"The concept of progressive realisation recognises that policies formulated by the state will need to be reviewed and revised to ensure that the realisation of social and economic rights is progressively achieved. In this case, the evidence tendered by the City and Johannesburg Water shows that the City's water policy, and in particular its policy of providing services to indigent households within the city, has been under constant review and has now been revised. It seems to me that the evidence may be admitted for the purpose of showing that the City accepts an obligation to continue to revise its policy consistently with the obligation to ensure progressive realisation of rights, and that it has done so." Page 20.

"[50] Applying this approach to section 27(1)(b), the right of access to sufficient water, coupled with section 27(2), it is clear that the right does not require the state upon demand to provide every person with sufficient water without more; rather it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources." Page 25.

"[51] The applicants' argument is that the proposed amount (50 litres per person per day) is what is necessary for dignified human life; they expressly reject the notion that it is the minimum core protection required by the right. Their argument is thus that the Court should adopt a quantified standard determining the content of the right not merely its minimum content. The argument must fail for the same reasons that the minimum core argument failed in Grootboom and Treatment Action Campaign No 2. Those reasons are essentially twofold… As appears from the reasoning in both Grootboom and Treatment Action Campaign No 2, section 27(1) and (2) of the Constitution must be read together to delineate the scope of the positive obligation to provide access to sufficient water imposed upon the state. That obligation requires the state to take reasonable legislative and other measures progressively to achieve the right of access to sufficient water within available resources. It does not confer a right to claim "sufficient water" from the state immediately... Secondly, ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right." Page 26-30.