Archive for Basic rights

Must a municipality supply free water to its inhabitants?

Posted in Basic rights, Constitutional matters with tags , , , on October 30, 2009 by Maggie

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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How much free water do you need?

Posted in Basic rights, Questions and Answers with tags , , on October 20, 2009 by labourlawoffices

The City of Johannesburg limited the free basic water supply to Phiri Township residents to 25 litres per person per day or 6 kilolitres per household per month.  It also introduced a pre-payment water system.  This meant that residents could only get water if they had pre-paid for supply of water.

The High Court set aside this arrangement finding it to be unconstitutional and unlawful and ordered the City to provide each Respondent and other similarly placed residents of Phiri Township with a free basic water supply of 50 litres per person per day.

On appeal the Court stated that the provisions of the Water Services Act, together with the regulations promulgated in terms thereof, were not intended to detract from the right of everyone of access to sufficient water in terms of the Constitution.  They were intended to achieve a progressive realization of those rights.  Circumstances, however, differed which made a dramatic difference to the water required by different households and residents.  The Court held that a right of access to sufficient water could not be anything less than a right of access to such quantity of water that was required for dignified human existence.

The quantity of water that was required for dignified human assistance would depend on the circumstances of the individual concerned.  In the case of the residents of Phiri, the evidence established that the minimum supply provided for in the legislation and the regulations did not constitute sufficient water for leading a life in human dignity.

On the evidence presented the Court held that 42 litres of water per resident in Phiri per day would constitute sufficient water in compliance with the Constitution.

Although Section 27 (1) of the Water Systems Act provided that everyone had the right to sufficient water, everyone did not have a claim for the immediate fulfillment of that right.  The Court stated that a local authority such as the City was required only to act reasonably and to progressively fulfill its obligation to ensure that everyone had access to sufficient water.