CCSA, Mazibuko v. City of Johannesburg, SA 1 (CC) (2009), excerpt

CCSA, Mazibuko v. City of Johannesburg, SA 1 (CC) (2009), excerpt

Introduction

[1] This application for leave to appeal against a judgment of the Supreme Court of Appeal raises, for the first time in this Court, the proper interpretation of section 27(1)(b) of the Constitution which provides that everyone has the right to have access to sufficient water.  Cultures in all parts of the world acknowledge the importance of water.  Water is life.  Without it, nothing organic grows.  Human beings need water to drink, to cook, to wash and to grow our food.  Without it, we will die.  It is not surprising then that our Constitution entrenches the right of access to water.

[2] Although rain falls everywhere, access to water has long been grossly unequal.  This inequality is evident in South Africa.  While piped water is plentifully available to mines, industries, some large farms and wealthy families, millions of people, especially women, spend hours laboriously collecting their daily supply of water from streams, pools and distant taps.  In 1994, it was estimated that 12 million people (approximately a quarter of the population), did not have adequate access to water.  By the end of 2006, this number had shrunk to 8 million, with 3,3 million of that number having no access to a basic water supply at all.  Yet, despite the significant improvement in the first fifteen years of democratic government, deep inequality remains and for many the task of obtaining sufficient water for their families remains a tiring daily burden.  The achievement of equality, one of the founding values of our Constitution, will not be accomplished while water is abundantly available to the wealthy, but not to the poor….

Parties

[3] The applicants are five residents of Phiri in Soweto.  They are poor people living in separate households.  The first applicant, Mrs Lindiwe Mazibuko, who has sadly passed away since the litigation commenced, lived in a brick house on her mother’s property.  There were two informal dwellings in the backyard of her mother’s home for which the tenants paid low rentals.  Altogether 20 people lived on the stand.  …

Issues

[4] The case concerns two major issues: the first is whether the City’s policy in relation to the supply of free basic water, and particularly, its decision to supply 6 kilolitres of free water per month to every accountholder in the city (the Free Basic Water policy) is in conflict with section 27 of the Constitution or section 11 of the Water Services Act.  …

[5] The case needs to be understood in the context of the challenges facing Johannesburg as a City.  The City is, in terms of population, the second fastest growing city in the country and according to Census 2001, (the last Census) is home to approximately 3,2 million people living in about a million households.  Half of these households are very poor with an income of less than R1 600 per month.  Just under a fifth of the households are located in informal settlements.  A similar proportion has no access to basic sanitary services, and a tenth of all the households have no access to a tap providing clean water within 200 metres of their home.  It can be seen that there is much to be done to “[i]mprove the quality of life of all citizens”, an important goal set by the preamble of our Constitution. …


The Free Basic Water policy

[6] The applicants raised four arguments as to why the City’s Free Basic Water policy should be declared invalid:
(a) The applicants contend that the Court should determine a quantified amount of water as “sufficient water” within the meaning of section 27 of the Constitution and that this amount is 50 litres per person per day.  This contention requires the Court to consider the proper relationship between section 27(1)(b) and 27(2). 
(c) The applicants contend that the allocation of 6 kilolitres of free water per stand per month by the City is unreasonable within the meaning of section 27 of the Constitution …  The applicants point to the following considerations as evidence of unreasonableness: that the amount was based on a misconception; it is insufficient; it is inflexible; it allocates 6 kilolitres per month to both rich and poor; and it allocates per stand rather than per person. …

The role of courts in determining the content of social and economic rights: the proper interpretation of section 27(1)(b) and 27(2) of the Constitution

[7] It will be helpful to start by considering the relationship between section 27(1)(b) and section 27(2) of the Constitution.  In section 27(1), the Constitution creates a right of access to sufficient water.  As with all rights, to understand the nature of the right, we need to understand the nature of the obligations imposed by it.  What obligations does it impose and upon whom?  …

[8] Traditionally, constitutional rights (especially civil and political rights) are understood as imposing an obligation upon the state to refrain from interfering with the exercise of the right by citizens (the so-called negative obligation or the duty to respect).  As this Court has held, most notably perhaps in Jaftha v Schoeman, social and economic rights are no different.  The state bears a duty to refrain from interfering with social and economic rights just as it does with civil and political rights.

[9] The primary question in this case, though, is the extent of the state’s positive obligation under section 27(1)(b) and section 27(2).  This issue has been addressed by this Court in at least two previous decisions: Grootboom and Treatment Action Campaign No 2.  In Grootboom, the Court had to consider whether section 26 (the right to housing) entitles citizens to approach a court to claim a house from the state. Such an interpretation of section 26 would imply a directly enforceable obligation upon the state to provide every citizen with a house immediately.

[10] This Court concluded that section 26 does not impose such an obligation.  Instead, the Court held that the scope of the positive obligation imposed upon the state by section 26 is carefully delineated by section 26(2).  Section 26(2) provides explicitly that the state must take reasonable legislative and other measures progressively to realise the right of access to adequate housing within available resources.  In Treatment Action Campaign No 2, this Court repeated this in the context of section 27(1)(a), the right of access to health care services:

“We therefore conclude that section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2).  Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the State to ‘respect, protect, promote and fulfil’ such rights.”

[11] 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.

[12] The applicants argued that the Court should determine the content of the right in section 27(1)(b) by quantifying the amount of water sufficient for dignified life, and urged that the appropriate amount is 50 litres per person per day.  They further contended that the Court should hold that this is the content of the section 27(1)(b) right which the Court should declare and that the Court should then determine whether the state acted reasonably in seeking to achieve the progressive realisation of this right. 

[13] This argument is similar to that advanced in earlier cases in this Court asserting that every social and economic right has a minimum core, a basic content which must be provided by the state.  In international law, the concept of “minimum core” originates in General Comment 3 (1990) of the United Nations Committee on Economic, Social and Cultural Rights …

[14] In Grootboom, this Court rejected the argument that the social and economic rights in our Constitution contain a minimum core which the state is obliged to furnish, the content of which should be determined by the courts.  …

[15] In Treatment Action Campaign No 2, as well, this Court refused to accept that section 27 of the Constitution had a minimum core content.  It reasoned:

“Although Yacoob J indicated that evidence in a particular case may show that there is a minimum core of a particular service that should be taken into account in determining whether measures adopted by the State are reasonable, the socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to them.  Minimum core was thus treated as possibly being relevant to reasonableness under section 26(2), and not as a self-standing right conferred on everyone under section 26(1).” (My emphasis) (Footnotes omitted.)

[16] A little further on the Court added:

“Courts are ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community.  The Constitution contemplates rather a restrained and focused role for the Courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation.  Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets.  In this way, the judicial, legislative and executive functions achieve appropriate constitutional balance.”

[17] The applicants’ argument that this Court should determine a quantity of water which would constitute the content of the section 27(1)(b) right is, in effect, an argument similar to a minimum core argument though it is more extensive because it goes beyond the minimum.  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.

[18] Those reasons are essentially twofold.  The first reason arises from the text of the Constitution and the second from an understanding of the proper role of courts in our constitutional democracy.  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.

[19] As counsel for the Minister argued this understanding of the scope of the positive obligation borne by the state in terms of section 27 is affirmed by the duty of progressive realisation.  The fact that the state must take steps progressively to realise the right implicitly recognises that the right of access to sufficient water cannot be achieved immediately.  That the Constitution should recognise this is not surprising.

[20] At the time the Constitution was adopted, millions of South Africans did not have access to the basic necessities of life, including water.  The purpose of the constitutional entrenchment of social and economic rights was thus to ensure that the state continue to take reasonable legislative and other measures progressively to achieve the realisation of the rights to the basic necessities of life.  It was not expected, nor could it have been, that the state would be able to furnish citizens immediately with all the basic necessities of life.  Social and economic rights empower citizens to demand of the state that it acts reasonably and progressively to ensure that all enjoy the basic necessities of life.  In so doing, the social and economic rights enable citizens to hold government to account for the manner in which it seeks to pursue the achievement of social and economic rights.

[21] Moreover, what the right requires will vary over time and context.  Fixing a quantified content might, in a rigid and counter-productive manner, prevent an analysis of context.  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.

[22] 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.  This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights.  Indeed, it is desirable as a matter of democratic accountability that they should do so for it is their programmes and promises that are subjected to democratic popular choice….

[23] In Grootboom and Treatment Action Campaign No 2, the focus of the Court’s reasoning was whether the challenged government policies were reasonable.  In both cases the Court identified deficiencies which rendered the policies unreasonable.  In determining an appropriate remedy in each case, the Court took care not to draft policies of its own and impose them on government.  So, in Grootboom, the Court did not order that each applicant be provided with a house, but required government to revise its housing programme to include “reasonable measures . . . to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.”

[24] In Treatment Action Campaign No 2, the Court did order the government to make Nevirapine available at clinics subject to certain conditions.  But it did so because government itself had decided to make Nevirapine available, though on a restricted basis, and the Court found that there was no reasonable ground for that restricted basis.  Moreover Nevirapine was, at least for a period, being made freely available to government by its manufacturer.  In a sense, then, all the Court did was to render the existing government policy available to all.  However, the Court made it expressly clear that government might revise and amend its policies if it needed to do so.  Thus, the Court expressly provided that its order did not “preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.”

[25] The orders made in these two cases illustrate the Court’s institutional respect for the policy-making function of the two other arms of government.  The Court did not seek to draft policy or to determine its content.  Instead, having found that the policy adopted by government did not meet the required constitutional standard of reasonableness, the Court, in Grootboom, required government to revise its policy to provide for those most in need and, in Treatment Action Campaign No 2, to remove anomalous restrictions.

[26] The Constitution envisages that legislative and other measures will be the primary instrument for the achievement of social and economic rights.  Thus it places a positive obligation upon the state to respond to the basic social and economic needs of the people by adopting reasonable legislative and other measures.  By adopting such measures, the rights set out in the Constitution acquire content, and that content is subject to the constitutional standard of reasonableness. 

[27] Thus the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways.  If government takes no steps to realise the rights, the courts will require government to take steps.  If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness.  From Grootboom, it is clear that a measure will be unreasonable if it makes no provision for those most desperately in need. If government adopts a policy with unreasonable limitations or exclusions, as in Treatment Action Campaign No 2, the Court may order that those are removed.  Finally, the obligation of progressive realisation imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realised. …

The reasonableness of the City’s Free Basic Water policy

[28] The applicants argue that the policy is unreasonable.  They identify the following considerations as supporting this submission: the fact that 6 kilolitres per month is allocated to both rich and poor; the fact that the amount is allocated per stand rather than per person; the fact that the 6 kilolitre free water policy was based on a misconception in that the City did not consider that it was bound to provide any free water to citizens; that the 6 kilolitre amount is insufficient for large households and finally that the 6 kilolitre amount is inflexible.

Rich and Poor
[29] The first question is whether it is unreasonable for the City to provide the 6 kilolitres of free water to rich and poor alike.  The City asserts that the fact that the benefit is afforded to all is reasonable for two reasons.  First, it asserts that the rising block tariff structure means that wealthier consumers, who tend to use more water, are charged more for their heavier water usage.  The effect of this is that the original 6 kilolitres that is provided free is counterweighed by the extent to which heavy water users cross-subsidise the free allocation.  Secondly, the City points to the difficulty of establishing a method to target those households who are deserving of free water.  This is a matter to which I return in a moment. In my view, these reasons are persuasive and rebut the charge of unreasonableness on this ground.

Per household versus per person allowance
[30] Secondly, the applicants argue that the policy is unreasonable because it is formulated as 6 kilolitres per household (or accountholder) rather than as a per person allowance.  Again the City presents cogent evidence that it is difficult to establish how many people are living on one stand at any given time; and that it is therefore unable to base the policy on a per person allocation.  This evidence seems indisputable.  The continual movement of people within the city means that it would be an enormous administrative burden, if possible at all, for the City to determine the number of people on any given stand sufficiently regularly to supply a per person daily allowance.  The applicants’ argument on this basis too must fail.

Policy based on a misconception
[31] The third argument, which the Supreme Court of Appeal upheld, is that the policy is unreasonable because the City considered that it was not under an obligation to provide a specified amount of free basic water.  What is clear from the discussion above is that the City is not under a constitutional obligation to provide any particular amount of free water to citizens per month.  It is under a duty to take reasonable measures progressively to realise the achievement of the right.  This the City accepts.  The City is bound as a water service provider by the provisions of the National Water Standards Regulations and the Tariff Regulations, both promulgated in terms of the Water Services Act but it cannot be said it has acted inconsistently with these regulations.  It cannot be said therefore that the policy of the City was based on a misconception as to its constitutional obligations, and I am unable to endorse the reasoning of the Supreme Court of Appeal in this regard.  The applicants’ argument on this score must also fail….

Inflexibility of the policy
[32] The final argument raised by the applicants is that the quantity selected by the City was inflexible in that it did not, at least originally, provide for any individualised variation to avoid the hardship that larger households or households with special needs might face in the light of the fixed free basic water allocation….
 
[33] Initially, indigent households were not afforded a further free water allocation under the new policy although the extension of the free water allocation to 10 kilolitres per month for registered indigent households was under discussion.  On 6 December 2006, five months after the applicants launched their challenge, the City Mayoral Committee adopted interim measures to take effect from March 2007.  In terms of the measures, registered indigent households would receive an additional 4 kilolitres of free water per month.  The applicants acknowledge that those registered as indigent households received the additional 4 kilolitre allocation from July 2007.

[34] The Constitution requires that the state adopt reasonable measures progressively to realise the right of access to sufficient water.  Although the free water policy did not contain any provision for flexibility when it was introduced in 2001, the record makes plain that the City was continually reconsidering its policy and investigating ways to ensure that the poorest inhabitants of the City gained access not only to water, but also to other services, such as electricity, sanitation and refuse removal.  The extremely informative and candid answering affidavits lodged by the City make it plain that for the City the task was a challenging one, both administratively and financially. 

[35] If the City had not continued to review and refine its Free Basic Water policy after it was introduced in 2001, and had taken no steps to ensure that the poorest households were able to obtain an additional allocation, it may well have been concluded that the policy was inflexible and therefore unreasonable.  This would have been so, in particular, given the evidence that poorer households are also often larger than average and thus most prejudiced by the 6 kilolitre cap.  However, the City has not set its policy in stone.  Instead, it has engaged in considerable research and continually refined its policies in the light of the findings of its research.

[36] It may well be, as the applicants urge, that the City’s comprehensive and persistent engagement has been spurred by the litigation in this case.  If that is so, it is not something to deplore.  If one of the key goals of the entrenchment of social and economic rights is to ensure that government is responsive and accountable to citizens through both the ballot box and litigation, then that goal will be served when a government respondent takes steps in response to litigation to ensure that the measures it adopts are reasonable, within the meaning of the Constitution.  The litigation will in that event have attained at least some of what it sought to achieve….

Litigating social and economic rights
[37] The outcome of the case is that the applicants have not persuaded this Court to specify what quantity of water is “sufficient water” within the meaning of section 27 of the Constitution.  Nor have they persuaded the Court that the City’s policy is unreasonable.  The applicants submitted during argument that if this were to be the result, litigation in respect of the positive obligations imposed by social and economic rights would be futile.  It is necessary to consider this submission.

[38] The purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account through litigation.  In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy.

[39] When challenged as to its policies relating to social and economic rights, the government agency must explain why the policy is reasonable.  Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected.  The Constitution does not require government to be held to an impossible standard of perfection.  Nor does it require courts to take over the tasks that in a democracy should properly be reserved for the democratic arms of government.  Simply put, through the institution of the courts, government can be called upon to account to citizens for its decisions.  This understanding of social and economic rights litigation accords with the founding values of our Constitution and, in particular, the principles that government should be responsive, accountable and open.

[40] Not only must government show that the policy it has selected is reasonable, it must show that the policy is being reconsidered consistent with the obligation to “progressively realise” social and economic rights in mind.  A policy that is set in stone and never revisited is unlikely to be a policy that will result in the progressive realisation of rights consistently with the obligations imposed by the social and economic rights in our Constitution.

 

[41] This case illustrates how litigation concerning social and economic rights can exact a detailed accounting from government and, in doing so, impact beneficially on the policy-making process…