The Constitutional Court has a responsibility to develop the meaning of all the rights in the Bill of Rights, no less so socioeconomic rights such as the right of everyone to have access to sufficient water.
This requires an explanation of what purposes the particular right is intended to achieve, as well as of the standards against which the state (and in appropriate cases, private parties) should be measured in assessing whether they have complied with their obligations. Such standards are also essential for civil society in holding the state accountable for its human rights obligations.
Last week in a judgment written for a unanimous court, Judge Kate O’Regan dismissed the arguments of the Phiri residents that the free basic water supply of 6 kilolitres a household a month (or 25 litres a person a day) was insufficient to meet their basic needs and thus inconsistent with section 27 of the Constitution.
The judgment also dismissed their claim that the installation of prepaid water meters in Phiri took place without legal authorisation, was coercive, discriminatory and, because supply is automatically suspended should they run out of funds to buy additional water credits, deprived them of basic rights.
Unfortunately, the judgment fails to engage, even in a cursory manner, with the meaning of the right of access to sufficient water. Instead, the concepts of ‘reasonablenessâ€ and ‘progressive realisationâ€ in section 27(2) of the Constitution are relied upon to divest the right of much its potential to ensure that people’s basic water needs are met.
A court cannot evaluate whether the state’s conduct or omissions are reasonable in relation to the fulfilment of socioeconomic rights unless it develops a prior understanding of the normative goal to be achieved.
In the context of water rights, guidance is available from international law, expert evidence and the Water Services Act, which requires that a basic water supply must be of ‘a sufficient quantity and quality of water — to support life and personal hygieneâ€.
The court was presented with extensive evidence to support a finding that between 40 and 50 litres of water a person a day was necessary to meet these basic requirements.
The Supreme Court of Appeal evaluated the respective expert evidence presented on behalf of the residents and the city and concluded that 42 litres of water a person a day was required to meet the Phiri residents’ basic needs of drinking, food preparation and toilet flushing.
The Constitutional Court refused to engage with this evidence, taking refuge in the alleged institutional incompetence of courts to make
assessments of this nature.
Even though the court shrank from specifying a quantity of water as constitutionally ‘sufficientâ€, its constitutional duty was surely to specify the nature of the needs and values that must be taken into account when an organ of state develops its water-supply policies. This is the minimum demanded by its role as the primary guardian of the Bill of Rights.
An assessment of the constitutionality of a social programme such as the free basic water policy requires a court to pay close attention to its effect on the applicants and other similarly situated groups.
In the high court Judge Moroa Tsoka carefully considered the effect of insufficient water on the hygiene, health and dignity of Phiri’s residents, including people living with Aids. An appreciation of these lived realities of an impoverished community is almost completely absent from the Constitutional Court’s judgment.
It is in stark contrast to its largely uncritical acceptance of the city’s account of the logistical problems it says it faces in fulfilling its obligations. The court’s dismissal of the challenges to the introduction and implementation of the prepaid water meters is unsatisfactory.
The effect of the court’s ruling is that impoverished communities can be coerced into accepting either a prepaid water meter or being confined to the delivery of water through a yard standpipe.
Once a pre-paid meter is installed they are deprived of fundamental administrative justice safeguards, such as the opportunity to make representations before their water supply is suspended. Again the court deals superficially with the effect of such measures on the rights of cashstrapped communities.
The Constitutional Court’s failure to give meaning to the right of access to sufficient water in section 27 of the Constitution significantly limits the ability of poor communities to hold the state accountable for meeting a basic human need.
Sandra Liebenberg is HF Oppenheimer professor in human rights law at Stellenbosch University