Mazibuko v City of Johannesburg

Mazibuko v City of Johannesburg
Mazibuko v City of Johannesburg
Court	Constitutional Court of South Africa
Full case name	Mazibuko and Others v City of Johannesburg and Others
Decided	8 October 2009
Docket nos.	CCT 39/09
Citation(s)	[2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC)
Case history
Prior action(s)	City of Johannesburg and Others v Mazibuko and Others [2009] ZASCA 20 in the Supreme Court of Appeal ; Mazibuko and Others v City of Johannesburg and Others [2008] ZAGPHC 491 in the High Court of South Africa, Witwatersrand Local Division
Court membership
Judges sitting	Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and van der Westhuizen J
Case opinions
Decision by	O'Regan J (unanimous)

Last updated February 13, 2024

Mazibuko and Others v City of Johannesburg and Others is a landmark decision of the Constitutional Court of South Africa concerning the content of the constitutional right of access to water. It was decided on 8 October 2009 in a unanimous judgment, the last written by Justice Kate O'Regan before her retirement.

Background

The applicants were five indigent residents of the township of Phiri in Soweto, which is governed by the City of Johannesburg Metropolitan Municipality. Until 2004, households in Soweto had access to an unlimited supply of water, for which they were charged at a flat rate on the basis of a deemed consumption of 20 kilolitres of water per household per month. However, according to the City of Johannesburg and its water services company, Johannesburg Water, average household water consumption in Soweto was in fact about 67 kilolitres per month, far in excess of deemed consumption, though it was not clear what proportion of the excess was consumed by residents and what proportion was lost to leakage from corroded pipes. In addition, many residents did not pay the flat-rate consumption charges, leading to a serious revenue shortfall.

To address this situation, Johannesburg Water developed the Operation Gcin'amanzi (Zulu for "Operation Conserve Water") plan, which was implemented as a pilot project in Phiri in 2004. Under the plan, the City installed pre-payment meters in households. The flat-rate pricing system was discontinued; instead, each household received a free monthly allowance of six kilolitres of water, and any consumption over that amount had to be pre-paid for.

The applicants challenged the constitutionality both of the installation of prepaid meters and of the six kilolitre limit on free basic water. They contended that six kilolitres did not fulfil their "right to have access to sufficient water", in terms of section 27(1)(b) of the Constitution, nor the state's obligation, in terms of section 27(2), to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of that right. The installation of prepaid meters allowed the state to inhibit residents' access to water, and prepaid meters – unlike meters that dispensed water on credit – did not protect residents' access to water against administrative errors and household emergencies: among the applicants, Lindiwe Mazibuko's water had been disconnected erroneously for several months in 2004, and two children died in a house fire on Vusimuzi Paki's property after he was unable to access tap water with which to distinguish the blaze. Moreover, insofar as households in the majority-white suburbs of Johannesburg were permitted to install credit meters as an alternative to prepaid meters, the compulsory installation of prepaid meters in Phiri was unfair and discriminatory.

Prior actions

Represented by Wim Trengove SC, the applicants applied in the High Court of South Africa to sue the City of Johannesburg, Johannesburg Water, and the national Minister for Water Affairs and Forestry.^[1] The Centre on Housing Rights and Evictions was admitted as amicus curiae. On 30 April 2008, Tsoka J of the Witwatersrand Local Division found in favour of the applicants, setting aside the six kilolitre limit on the free basic water allowance; the City of Johannesburg was ordered to provide the applicants, and all similarly situated residents of Phiri, with a free basic water allowance of 50 litres per person per day (about twice the prevailing allowance). The prepaid water system in Phiri was additionally declared unconstitutional and unlawful.

The City appealed the decision to the Supreme Court of Appeal, where its appeal was partly upheld on 25 March 2009 by Hurt AJA and Judges of Appeal Piet Streicher, Kenneth Mthiyane, Chris Jafta, and Mandisa Maya. Writing for the unanimous bench, Streicher agreed with the High Court that the prevailing free basic water allowance was insufficient to fulfil the state's obligations under section 27(1) of the Constitution. However, he held that 42 litres of water per day was "sufficient" water in terms of section 27(1). The High Court's order was therefore replaced with an order declaring that the city was obliged, to the extent that it was reasonable to do so, to provide 42 litres of water per day to each Phiri resident who could not afford to pay for such water. The city was ordered to reformulate its free water policy in light of this declaration, and in the interim it was ordered to provide each indigent Phiri resident with a free allowance of 42 litres per day. The Supreme Court also found that the use of prepaid meter was unlawful in terms of the city's prevailing Water Service By-Laws.

The applicants appealed the Supreme Court's decision to the Constitutional Court of South Africa, seeking a substantial reinstatement of the High Court's more favourable order; the City of Johannesburg and Johannesburg Water applied to cross-appeal the decision.^[2] The Constitutional Court heard arguments on 2 September 2009,^[3] and judgment was handed down on 8 October 2009.^[4]

Judgment

In a judgment written by Justice Kate O'Regan, the Constitutional Court was unanimous in dismissing the applicants' appeal and upholding the city's cross-appeal, thereby setting aside the orders of both lower courts and affirming the lawfulness of the city's prevailing policy in Phiri. In contradistinction to the lower courts, the Constitutional Court declined to entertain arguments about the objective minimum quantity of water that qualified as "sufficient" for the purposes of section 27(1)(b). Instead, the Constitutional Court assessed the constitutionality of the city's policy by submitting it to reasonableness review.

This approach arose from O'Regan's finding that it was not appropriate for the courts to delineate the normative content of the section 27 right to water viz. a specific determination of a minimum amount of water that the state was obligated to ensure for all residents. As the court had found in Government v Grootboom (on the right to housing) and Minister of Health v Treatment Action Campaign (on the right of access to healthcare services), the government had a positive constitutional obligation to promote residents' socioeconomic rights, but the scope of that obligation was delineated not by a fixed "minimum core" of socioeconomic entitlement but instead by the section 27(2) requirement that the state should take "reasonable" measures, "within its available resources". Moreover, the judiciary was not well placed, either practically or constitutionally (under the separation of powers and demands of democratic accountability), to "investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights" at any given time; that task should rest with the legislature and executive.

Thus turning to a reasonableness review, the court found that the City of Johannesburg's policy in Phiri was reasonable and lawful; both the six kilolitre free basic water allowance and the introduction of prepaid metres were compliant with section 27 of the Constitution, with the Water Services Act, 1997, and with the city's own bylaws.

Reception and significance

In the summation of Wits academic Marius Pieterse, Mazibuko has been derided for its "limited conception of the role of socio-economic rights litigation, as well as for its formalist reasoning and its normatively sparse, institutionally deferent and procedurally-fixated employ of the reasonableness inquiry".^[5] Although some commentators agreed with the court that its Mazibuko ruling followed from precedent in Grootboom and Treatment Action Campaign,^[6] others viewed it as a retreat from the court's more progressive and activist stance in those cases;^[7] Judge Dennis Davis viewed it as a deviation from Grootboom's "open ended and flexible" model of reasonableness review,^[8] and Pierre de Vos described its interpretation of Treatment Action Campaign as "rather innovative" and "rather unconvincing".^[9] Indeed, Pieterse viewed Mazibuko – along with Residents of Joe Slovo Community v Thubelisha Homes and others – as part of a "second wave" of Constitutional Court jurisprudence on socioeconomic rights, defined by its increased concern with judicial deference to the political branches.^[5]

Related Research Articles

The University of Johannesburg (UJ) is a public university located in Johannesburg, South Africa. The University of Johannesburg came into existence on 1 January 2005 as the result of a merger between the Rand Afrikaans University (RAU), the Technikon Witwatersrand (TWR) and the Soweto and East Rand campuses of Vista University. Prior to the merger, the Daveyton and Soweto campuses of the former Vista University had been incorporated into RAU. As a result of the merger of Rand Afrikaans University (RAU), it is common for alumni to refer to the university as RAU. The vice-chancellor and principal of UJ is Professor Letlhokwa George Mpedi who took office on 1 January 2023. Between 2018 and 2022, UJ's vice-chancellor and principal was Tshilidzi Marwala.

<span class="mw-page-title-main">Constitutional Court of South Africa</span> Supreme court of South Africa

The Constitutional Court of South Africa is a supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction.

The human right to water and sanitation (HRWS) is a principle stating that clean drinking water and sanitation are a universal human right because of their high importance in sustaining every person's life. It was recognized as a human right by the United Nations General Assembly on 28 July 2010. The HRWS has been recognized in international law through human rights treaties, declarations and other standards. Some commentators have based an argument for the existence of a universal human right to water on grounds independent of the 2010 General Assembly resolution, such as Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); among those commentators, those who accept the existence of international ius cogens and consider it to include the Covenant's provisions hold that such a right is a universally binding principle of international law. Other treaties that explicitly recognize the HRWS include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC).

Water supply and sanitation in South Africa is characterised by both achievements and challenges. After the end of Apartheid South Africa's newly elected government struggled with the then growing service and backlogs with respect to access to water supply and sanitation developed. The government thus made a strong commitment to high service standards and to high levels of investment subsidies to achieve those standards. Since then, the country has made some progress with regard to improving access to water supply: It reached universal access to an improved water source in urban areas, and in rural areas the share of those with access increased from 66% to 79% from 1990 to 2010.

Catherine "Kate" O'Regan is a former judge of the Constitutional Court of South Africa. From 2013 to 2014 she was a commissioner of the Khayelitsha Commission and is now the inaugural director of the Bonavero Institute of Human Rights at the University of Oxford.

The Legal Resources Centre (LRC) is a human rights organisation based in South Africa with offices in Johannesburg (including a Constitutional Litigation Unit), Cape Town, Durban and Grahamstown. It was founded in 1979 by a group of prominent South African lawyers, including Arthur Chaskalson, Felicia Kentridge, and Geoff Budlender, under the guidance of American civil rights lawyers Jack Greenberg and Michael Meltsner, then Director-Counsel and former First Assistant Counsel of the NAACP Legal Defense and Educational Fund respectively.

Founded in 2008, the Social Justice Coalition (SJC) is a membership-based social movement made up of 12 branches, located mainly in informal settlements across Khayelitsha, Cape Town. Since its formation, the SJC has worked to advance the constitutional rights to life, dignity, equality, freedom and safety for all people, but especially those living in informal settlements across South Africa. Their campaigns are based on ongoing research, education, and advocacy and divided across two programs. The Local Government Program leads the work on sanitation, budgets, and urban land. The Safety and Justice Program is focused on policing and the criminal justice system.

Soobramoney v Minister of Health, KwaZulu-Natal is an important judgement of the Constitutional Court of South Africa, delivered in 1997, and the first in which the court had to adjudicate on the universal constitutional right to medical treatment as against the problem of an under-resourced health care system.

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others is an important case in South African property law, heard by the Constitutional Court on August 21, 2008, with judgment handed down on June 10.

Government of the Republic of South Africa and Others v Grootboom and Others is an important case in South African law, heard in the Constitutional Court on 11 May 2000, with judgment handed down on 4 October.

Barkhuizen v Napier is an important case in South African contract law. It was heard in the Constitutional Court of South Africa on 4 May 2006 and decided on 4 April 2007. The judges were Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke, and Justices Tholie Madala, Yvonne Mokgoro, Sandile Ngcobo, Bess Nkabinde, Kate O'Regan, Albie Sachs, Thembile Skweyiya, Johann van der Westhuizen, and Zak Yacoob.

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others is an important case in South African civil procedure and property law, decided in the Constitutional Court of South Africa on 8 October 2004. The court held unanimously that the Magistrates' Courts Act, 1944 was unconstitutional insofar as it did not provide for judicial oversight over sales in execution against the immovable property of judgment debtors. In a judgment written by Justice Yvonne Mokgoro, the court found that sales in execution limited the debtor's constitutional right to housing and that the prevailing execution scheme was overbroad because it permitted such sales to proceed even in circumstances where they limited that right unjustifiably.

Hoffmann v South African Airways is a decision of the Constitutional Court of South Africa in the area of South African labour law and constitutional law. It concerned employment discrimination on the basis of HIV status and was decided on 28 September 2000.

Magajane v Chairperson, North West Gambling Board and Others is an important case in South African criminal procedure, decided by the Constitutional Court of South Africa on 8 June 2006. The court found that provisions of the North West Gambling Act, 2001 were unconstitutional insofar as they permitted warrantless inspections of private premises for the purposes of obtaining evidence for prosecuting illegal gambling. In a unanimous judgment written by Justice Johann van der Westhuizen, the court held that the relevant provisions imposed an unjustifiable limitation on the constitutional right to privacy.

Land reform in South Africa is the promise of "land restitution" to empower farm workers and reduce inequality. This also refers to aspects such as, property, possibly white-owned businesses. Proponents argue it will allow previously unemployed people to participate in the economy and better the country's economic growth. It also relates to restitution in the form of settling Land Claims of people who were forcefully removed from their homes in urban areas that were declared white, by the apartheid government's segregationist Group Areas Act: such areas include Sophiatown, Fietas, Cato Manor, District Six and Greyville; as well as restitution for people forcibly evicted from rural land because of apartheid policies.

Nomzamo Zondo is a South African attorney, specialising in human rights. Since July 2014, Zondo has been the Director of Litigation for the Socio-Economic Rights Institute for South Africa (SERI). In 2020, Zondo became executive director for SERI.

A delinquent director is a term used under Section 162 of the South African Companies Act 71 of 2008, which allows shareholders and other stakeholders to apply to the court to declare a director of a company delinquent.

Qwelane v South African Human Rights Commission and Another is a 2021 decision of the Constitutional Court of South Africa on the constitutionality of a statutory prohibition on hate speech. The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.

Kylie v Commission for Conciliation, Mediation and Arbitration and Others is an important decision in South African labour law, handed down on 26 May 2010 in the Labour Appeal Court of South Africa. Writing for a unanimous court, Judge of Appeal Dennis Davis held that the Labour Relations Act, 1995 applied to sex workers and that the Commission for Conciliation, Mediation and Arbitration therefore had jurisdiction to hear a dispute between a sex worker and the brothel that had fired her. Although the court affirmed that sex workers' employment contracts were legally unenforceable, it held that sex workers were nonetheless protected by the labour rights granted in section 23 of the Constitution of South Africa.

References

↑ "Phiri water war goes to court". The Mail & Guardian. 9 December 2007. Retrieved 7 February 2024.
↑ "A 'Phiric' victory for the poor". The Mail & Guardian. 21 July 2009. Retrieved 7 February 2024.
↑ "Jo'burg water policy discriminatory, court told". The Mail & Guardian. 2 September 2009. Retrieved 7 February 2024.
↑ "Court rules prepaid water meters not illegal". The Mail & Guardian. 8 October 2009. Retrieved 7 February 2024.
1 2 Pieterse, Marius (2018). "Socio-economic Rights Adjudication and Democratic Urban Governance: Reassessing the "Second Wave" Jurisprudence of the South African Constitutional Court". Verfassung und Recht in Übersee. 51 (1): 12–34. ISSN 0506-7286.
↑ Fuo, O. (16 September 2015). "In the face of judicial deference: Taking the "minimum core" of socio-economic rights to the local government sphere". Law, Democracy & Development. 19: 1–28. doi:10.4314/ldd.v19i1. ISSN 2077-4907.
↑ Wesson, M. (26 March 2011). "Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johnnesburg". Human Rights Law Review. 11 (2): 390–405. doi:10.1093/hrlr/ngr002. ISSN 1461-7781.
↑ Davis, Dennis M. (1 January 2016). "Twenty Years of Constitutional Democracy: A Preliminary Reflection". NYLS Law Review. 60 (1). ISSN 0145-448X.
↑ de Vos, Pierre (13 October 2009). "Water is life (but life is cheap)". Constitutionally Speaking. Retrieved 7 February 2024.