Our constitutional right to clean water & dignified sanitation — a liberator or oppressor?

By Amanda Mkhonza-Board Member Amani

MRJN Photography on Unsplash

More than 25 years have passed since South Africans were first empowered with the right to an environment that is not harmful to health and wellbeing, in section 24 of the Constitution. South Africa’s water resources, although mentioned in the definition of ‘environment’, are regulated separately by the National Water Act. It seeks to ensure that this precious resource is used, controlled, protected, managed, conserved and developed accordingly.

Akin to this right is the right to access sufficient water in section 27 of the Constitution. Couched in slightly different terms, the right to access sufficient water is prefaced on government ‘progressively realising’ this right through legislative and other measures. South Africa’s legal framework governing our right to access clean water and dignified sanitation services seems to be clearly prescribed on paper. The national laws and regulations, as well as the various municipal by-laws, regulating both these aspects speak to post-constitutional, rights-based prescripts which echo the values of freedom, dignity and respect for all. But is this the lived experience of all South Africans today? Have these rights to clean water and dignified sanitation, guaranteed by our Constitution 25 years ago, actually granted us the necessary freedom, dignity, and respect that we deserve at a fundamental human level? Have the laws, regulations, and by-laws changed the reality on the ground?

Bill Oxford on Unsplash

I’m a lawyer so you know I have to drop some legalese but stay with me! A noteworthy case that dealt with these questions was heard by the Constitutional Court more than 10 years ago. It gained much traction both locally and internationally in the realm of basic water services specifically. Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) (the Mazibuko judgement) highlighted the stark differences between the envisioned purpose of our water services laws and their impact on the majority of the South African population. The case involves a few community members of Phiri in Soweto, a township of Gauteng that was home to almost a million people (as at 2009). Due to the racist planning policies that led to the developmental of the area, the residents of Phiri are generally black and poor. For Mazibuko and the other four applicants in the case, they lived in small households of anything between three to 20 people per stand. The City of Johannesburg, as a municipality, was home to almost 3.2 million people at the time: half of whom were poor, a fifth of whom had no access to basic sanitation services and a tenth of whom had no access to basic water supply. The context of the case is therefore not without its challenges.

An added layer of complexity in the Mazibuko judgement was owed to the flat rate charges that had historically been levied against the residents of Soweto. Although the flat rate was seemingly low, about 75% of all water pumped into Soweto was financially unaccounted for as a result of a culture of non-payment. Further to this, the actual consumption was more than triple the deemed consumption (which was used to calculate the flat rate). In response to this anomaly, the City of Johannesburg developed a water conservation project as an attempt to recover the costs. They offered residents a choice between a tap being installed within their yard or a prepaid water metre. Those who refused both options were given a notice period after which all access to their water supply would be cut. Indeed, the greater majority opted for a tap in their households. Mazibuko, however, was one of the few who had the water supply to her household cut for a period of approximately five months until she applied for a water metre connection. However, after the completion of the municipality’s water conservation project, Mazibuko together with the other applicants were displeased with the statutory limits to their free water supply per month (25 litres per person per day) which did not take into account the personal circumstances of each household and the level of need. The issue was therefore brought before the High Court, then the Supreme Court of Appeal (SCA), before being finalised by the Constitutional Court.

In the High Court, it was found that the City of Johannesburg should have indeed provided at least 50 litres of free water per person per day (instead of the legally prescribed minimum of 25 litres). Dissatisfied with this, the municipality approached the SCA for relief which overturned the High Court’s ruling by changing the prescribed limit to 42 litres of free water per person per day. Although still much higher than the legally prescribed minimum standard, the residents approached the Constitutional Court to insist on a declaration of the prescribed minimum standard as being 50 litres per person per day. However, the Mazibuko judgement took an unexpected turn of events — at least for the applicants. Instead of attempting to attach a specific numerical value to what ‘basic water supply’ means, the Constitutional Court reminds us that the courts role is very different from that of the administrators: whereas the administrators of a government department are charged with the bureaucratic responsibility of arriving at the amount of water that is deemed sufficient for a dignified life, the courts can only interfere at two specific junctures. First, where government does not take the steps to realise a right, the courts will require them to do so. Second, where the measures that are being taken are unreasonable, the courts can call upon government to revise their measures so as to meet the required standard of reasonableness. Therefore, this division of responsibilities and roles, which clearly demarcates different areas of competence for the executive and the judiciary, was upheld by the Constitutional Court — and rightly so considering the principle of separation of powers.

Gallery DS on Unsplash

What does all of this mean for us today? Every person is granted access to free water supply of up to 25 litres per person per day and is expected to pay for water use above that amount. Of course, indigency policies exist within municipalities which set out differentiated rates for people with lower levels of income. However, research has shown that many indigent people do not volunteer themselves to be signed up for such programmes as they feel less dignified as a result. The Phiri residents in the Mazibuko judgement unfortunately lost the case for increasing the amount of free water for all — which means the majority of poor South Africans in rural areas, peri-urban areas, townships and informal settlements also lost the case.

Many legal scholars have expressed disdain with this judgement for various reasons. Although these reflections are in respect of the prevailing water supply issues in South Africa, similar reflections can be made on the poorly maintained and lacking sanitation services for the poorest members of our society. The constitutional rights and guarantees to these basic services seem to give hope to a young democratic country. They shine a light that will lead us out from our historical issues that remain rampant in our society as a result of deep-set apartheid regimes. They also resemble liberation from dry, dusty and disconnected communities which previously did not enjoy the same basic privileges of access as their luscious, leafy and perfectly manicured counterparts. Yet, 25 years since South Africa’s coming into constitutionalism, the majority of South Africans are still oppressed — without access to the basic amenities of a dignified life.

Is there hope? Most certainly. In fact, there are many beacons of hope. With the recent discussions on the possible amendment of section 25 of the Constitution (the property clause), we have opened up discussions on possibly changing our most foundational and aspirational law. As lofty and idealistic as it seems now, there is a possibility of the right to clean water and dignified sanitation being reviewed and fashioned differently — even if it’s in the next lifetime. However more feasible alternatives also exist: the lowest hanging fruit for dealing with the meaning of these rights (at the very least) can be achieved by amending the language of the Water Services Act, together with its relevant regulations. Whether a more dignifying iteration of the law should be reflected in a higher prescribed minimum standard or as a set of criteria that must be used by the administrators to determine a level of access that resembles freedom, dignity and respect for each applicant on a case-by-case basis, is a completely different conversation. For now, we celebrate the great strides that have been made towards uplifting the lives of many through granting them the very least — infrastructure for more people to access basic services of water supply and decent sanitation — and look forward to the progressive realisation to come.

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