Our Constitution includes a range of socio-economic rights. The challenge to the judiciary was to achieve a balance between enforcement of these rights and deferring to the policy choices of a democratically elected government. The judiciary has precious little precedent to assist it in protecting entrenched rights without so burdening the state with judicially inserted requirements that the latter cannot properly perform its functions.
The Constitutional Court has scarcely addressed this issue. It adopted a reasonableness standard: ”It is impossible to give everyone access even to a ‘core’ service immediately. All that is possible, and all that can be expected of the state, is that it acts reasonably to provide access to the socio-economic rights identified in [sections] 26 and 27 on a progressive basis,” it said in the Treatment Action Campaign case.
This approach is again spotlighted by the recent judgement in Mazibuko and Others vs the City of Johannesburg and Others. The case involved a constitutional challenge to the city’s water policy, which provides every household with 6kilolitres of free water per month (25 litres per person per day on the basis of eight people per household), together with a system of prepaid meters which operate beyond the provision of the free 6kilolitres.
Legal commentators have bemoaned the failure of the Constitutional Court to move from its reasonableness test to a recognition of constitutional guarantees of a ”minimum core” of rights. But in this case the court found that our law had never rejected the latter test.
It proceeded to test whether the core provision of 6kilolitres of free water was constitutional. It found that where, as with the applicant community, there are more then eight members per household, 6kilolitres was woefully inadequate. It concluded that the city could afford to supply the applicant community with more free water.
Many will applaud this judgement for holding that more must be done by local authorities to meet the constitutional standards of basic services to the poor. The judgement goes further than earlier applications of the reasonableness test, which favoured the city. The city had implemented a programme based on expert advice, it improved its policy to ensure more free water to those in need and argued that its plan addressed the poorest of the poor.
This did not include the applicants, who are poor but arguably not in most desperate need. There was also evidence that about 105 000 households in the Johannesburg area are without access to any type of water supply services. Accordingly, they deserve top priority. The city can probably afford to provide 50 litres per person per day to the applicant community, but can it do so for all in need?
This case reveals the danger of the overreach of courts. If the court has got it wrong, then one community obtains 50 litres per person per day while the rest may be fortunate to obtain even 25 litres. On affidavit evidence alone, it is hugely problematic to make a call that may subvert a reasonably created plan by a democratically elected arm of government. We will await the outcome at the Constitutional Court with great interest.