Case studies

Water Solutions

Case 3: The Constitutional Right to Water in South Africa

Introduction

case3.jpgNational water rights embedded in constitutional law offer hope for a systematic approach to working toward equal and sustainable water access. In the case of South Africa, is the law living up to its ambitions? ********* Alongside the right to sufficient food, health care services and social security, the South African Constitution includes the right to access “sufficient water.” The duty to respect these rights is both negative and positive in nature. On one hand, the state must refrain from unjustifiably interfering with the enjoyment of the right, including:
  • any practice or activity that denies or limits equal access to adequate water;
  • unlawfully diminishing or polluting water;
  • limiting access to, or destroying, water services and infrastructure as a punitive measure;
  • arbitrary or unjustified disconnection or exclusion from water services or facilities;
  • discriminatory or unaffordable increases in the price of water; or
  • pollution and diminution of water resources affecting human health.
On the other hand, the rights are positive in the sense that there are duties to protect, promote and fulfill them, requiring the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right (Section 27(2) of the SA Constitution.) The recognition of the right, in turn, imposes certain duties on both state and non-state actors that can be enforced by courts, as was the case in the landmark ruling in Government of the Republic of South Africa v Grootboom (2000), where the Constitutional Court held that positive social and economic rights obligations are enforceable. The Court explained that in challenging the failure of the state to take sufficient positive measures “the real question will be whether the legislative and other measures taken by the state are reasonable.” It is the “reasonableness” clause that is most critical here, including the roles and capacities of different spheres of government as well as the resources required to ensure that water rights can be met. For the most part, this reasonableness clause has been used to justify limited rights to water, as well as to uphold legislation that requires water to be “cost reflexive,” which in effect facilitates private sector involvement in water services and allows for service disconnections for non-payment. Any provision of “rights” perceived by the Courts to undermine South Africa’s macro-economic strategies of international competitiveness, or forcing lower tiers of government to institute rate increases above a legislative ceiling, are considered “unreasonable.” At the same time, the Constitution and other legislation have been used to defend the introduction of prepaid water meters in low-income areas, with the South African state arguing that prepaid water meters are “pro-poor,” and allow households to better budget their water spending, and the state to better manage its revenue flows to invest in extending water services to un(der)serviced areas. Similarly, water cut-offs are deemed constitutionally sound because the non-payment of service bills negatively affects the rights of others to water. Access to water in South Africa is therefore enhanced by constitutional rights, but by no means guaranteed, as other legislative and macro-economic demands shape what is considered “reasonable.”

Questions

  • What kinds of institutions or legal mechanisms are necessary to help ensure the realization of equal access to water enshrined in a national constitution?
  • How can citizens be supported in their efforts to bring grievances before governments that fail to live up to the spirit of laws aimed at ensuring water access and sustainability?

Notes and Links