Must a municipality supply free water to its inhabitants?

We recently discussed the Supreme Court of Appeal’s decision regarding the unconstitutionality of aspects of the water policy of the City of Johannesburg. This decison has now been considered by the Constitutional Court.

There were two main issues for consideration by the Court. Firstly whether or not the City’s policy (which gave the residents of Phiri, free of charge, 6 kilolitres per household per month or 25 litres of water per person per day) was unreasonable in terms of the Constitution and / or the Water Services Act, which had been promulgated to give effect to the constitutional right of access to sufficient water. The second concerned the lawfulness of the pre-payment meters.

The Court clarified that the City was not under a constitutional obligation to provide any particular amount of free water to citizens per month but rather that it was “under a duty to take reasonable measures progressively to realize the achievement of the right”. Thus the Court concluded that the policy of the City was not unreasonable and that the pre-payment meters were not unlawful being empowered by law, procedurally fair and not unfairly discriminatory.

The Court dealing with the importance of litigation around the area of socio-economic rights, considered the detail of what the government is required to do in order to meet the standard of reasonableness in these terms:

“The purpose of litigation concerning positive obligations 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. When challenged… the government agency must explain why its 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. …Simply put, through the institution of the Courts, government can be called upon to account to its citizens for its decisions. This understanding of social and economic rights…. accords with the founding values of our Constitution.” (Emphasis added).

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