Phiri ruling is a lost opportunity

Ever since the Constitutional Court delivered its judgment in Grootboom (the first constitutional case dealing with the right to housing), critics have accused the court of unnecessarily restricting the scope of the socio-economic rights enshrined in our Constitution.

In Grootboom, the court developed a reasonableness test: the government would fulfil its constitutional obligations if it acted reasonably in giving effect to these rights within the constraints of its available resources. The court held that the government had not acted reasonably, essentially because its housing programme gave no priority to the needs of the poorest of the poor.

Many commentators contended that the very wording of these constitutional rights demanded of the court that it determine a minimum core for each right — that is, the floor below which government implementation could not drop. On this basis the Phiri community proceeded to court to demand that each of its members be given 50 litres of water free a day as the minimum necessary for a dignified existence in what became known as the Johannesburg water case.

A further element in the case turned on the introduction of pre-paid meters that cut off further water supply once water to the extent of prepayment had been delivered. This issue must await separate analysis.

The high court granted the community an order of 50 litres free water a day, but the Supreme Court of Appeal, in one of the most confused judgments in the constitutional era, effectively gutted the immediate relief sought by the community. Hence the case proceeded to the Constitutional Court.

The court again affirmed its reasonableness test, for which it offered two justifications. First, a minimum standard of 50 litres a day of free water a person is excessively rigid and can prevent an analysis of context that can shift because of delivery, improved resources and changing needs. Looking beyond the strict confines of water, Judge Kate O’ Regan — writing significantly for a unanimous court — said “the concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government programme is indeed reasonable”.

Second — and arguably a more important reason, given its future implications — the court held that “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”. Hence the court was saying that its task was not to determine policy, which is the preserve of the other arms of state, but primarily to ensure that those arms of state act constitutionally. In the final analysis the court must show “institutional respect for the policymaking function of the other two arms of government”.

In its affirmation of the reasonableness test the court took the opportunity to tease out its contours: the government should set clear targets it wishes to achieve in respect of economic policy. The minimum standard set will then inform citizens of that which government is seeking to achieve. In this way citizens can monitor performance and hold government accountable if the standard is not achieved. Similarly, if the standard set is unreasonable, then citizens can again proceed against government.

In the Johannesburg water case the city had, on the evidence, continually revised its water policy and investigated ways to ensure that the poorest inhabitants gained access to sufficient water and to increase access to water progressively for larger households that were prejudiced by existing policy. Further, the court accepted the reasonableness of the city’s indigent policy whereby, on the basis of a means test, an increased amount of free water was made available to poor people.

For many, the defeat suffered by the Phiri community will come as a major blow and place a significant damper on the promise of socioeconomic rights. It does appear, though, that the facts of this case were hardly favourable to an expansion of South Africa’s socio­economic rights jurisprudence in that the city had shown a responsiveness to the problem. Pushing legal boundaries requires a cautious and strategic litigation plan that may have been lacking in those who initially pushed this case.

On the one hand the judgment may be viewed as no more than an affirmation of the Grootboom test. But, although the court chose to provide guidance to future courts about how to apply the Grootboom test, it did nod expressly in the direction of greater deference to the legislature and executive.

The danger now exists that the scope for socioeconomic rights litigation is narrowed if the new Constitutional Court employs the deferential approach it articulated with greater enthusiasm. Unless the four new appointees surprise us, they are hardly likely to push the contours further than the retiring members.

More’s the pity, then, that the court passed up the opportunity to strike a more progressive balance between the policy prerogative of the legislature and executive and the promise of rights as set out in clear language in the Constitution.

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