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After Mazibuko: Exploring the responses of communities excluded from South Africa's water experiment

Published online by Cambridge University Press:  06 February 2017

Nathan John Cooper
Nathan John Cooper*
Affiliation:
University of Lincoln
*
[email protected]
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Abstract

Despite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

Keywords

Right to waterConstitutional CourtcommonsIWRMeco-socio-sustainable water
Type
Research Article
Information
Journal of African Law , Volume 61 , Issue 1 , February 2017 , pp. 57 - 81
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

* Senior lecturer in law, University of Lincoln, Centre for Environmental Law and Justice. The author wishes to thank Profs Louis Kotze and Matthew Hall for their helpful comments on an earlier version of this article. All views and errors remain the author's.

References

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2 The Constitution of the Republic of South Africa, No 108 of 1996, sec 27(1)(b).

3 See discussion and statistics at points 7–10 of the General Household Survey 2013 (GHS 2013), available at: <http://www.statssa.gov.za/publications/P0318/P03182013.pdf> (last accessed 30 December 2016).

4 See generally Plummer, K Telling Sexual Stories (2004, Taylor & Francis)Google Scholar.

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8 For more detail on this planetary perspective, see the emerging literature on the Anthropocene, beginning with Crutzen, P and Stoermer, E “The ‘Anthropocene’” (2000) 41 IGBP Global Change Newsletter 17 Google Scholar. They suggest that the Earth is moving into a critically unstable and inharmonious state as a result of the global human imprint on the biosphere and that concomitant social-ecological security issues are gaining renewed traction as scientists search for regulatory interventions to ensure social-ecological security amidst Anthropocene consequences.

9 The wording of sec 24(b)(iii) consciously references the requirement of intergenerational equity, which is essential to any meaningful basic definition of sustainable development. See World Commission on Environment and Development Our Common Future (1987, Oxford University Press) (Brundtland Report) at 43.

10 UN Committee on Economic, Social and Cultural Rights, General Comment 15: The right to water (29th session, 2003), UN doc E/C.12/2002/11 (2002), reprinted in “Compilation of general comments and general recommendations adopted by human rights treaty bodies”, UN doc HRI/GEN/1/Rev.6 at 105 (2003) (General Comment 15).

11 Kidd, M Environmental Law (2008, Juta & Co Ltd) at 64 Google Scholar.

12 Ibid.

13 Department of Water Affairs and Forestry White Paper on a National Water Policy for South Africa (April 1997), para 14. The population of South Africa in 1997 was around 42 million. By 2013 the population had risen to nearly 53 million; see note 16 below.

14 All percentages are from GHS 2013, above at note 3.

15 Ibid.

16 Statistics South Africa “Mid-year population estimates 2013”, available at: <http://www.statssa.gov.za/publications/P0302/P03022013.pdf> (last accessed 30 December 2016).

17 Author's own calculation based on the figure for the total population of South Africa in 2013.

18 24.4%, according to GHS 2013. Fieldwork undertaken by the author in February 2010 in Winterton in rural Kwa-Zulu Natal concurred that residents regularly experienced an interrupted water supply, with significant associated consequences for health and education, as well as discrimination (details on file with the author).

19 Russell, A Bring Me My Machine Gun: The Battle for the Soul of South Africa, from Mandela to Zuma (2009, Perseus Books)Google Scholar.

20 Neither do these statistics give any information on water quality. The Water Services Act, discussed below, aims to regulate water quality as well as quantity (see GN R 509 Government Gazette, 8 June 2001, reg 5).

21 Bond, P and Dugard, J “Water, human rights and social conflict: South African experiences” (2007) 1 Law, Social Justice & Global Development Journal 1 Google Scholar. Note also that fieldwork affirmed the connection between access to contaminated water and a range of health problems for residents interviewed in Winterton and Burlington (copies on file with the author). Quality of water supply is also a crucial aspect of the definition of the human right to water as detailed by General Comment 15.

22 See discussion below of Manqele and Mazibuko.

23 Gleick, PH “The human right to water” (1998) 1 Water Policy 487 at 496Google Scholar.

24 The RDP is a coherent socio-economic policy framework, the first priority of which is to begin to meet people's basic needs: jobs, land, housing, water, electricity, telecommunications, transport, a clean and healthy environment, nutrition, health care and social welfare. The RDP's short term aim (sec 2.6.6) is to provide every person with adequate facilities for health. The RDP will achieve this by establishing a national water and sanitation programme that aims to provide all households with a clean, safe water supply of 20–30 lpd within 200 metres, an adequate / safe sanitation facility per site and a refuse removal system for all urban households. In the medium term, the RDP aims (sec 2.6.7) to provide an onsite supply of 50–60 lpd of clean water, improved onsite sanitation and an appropriate household refuse collection system. A water supply to nearly 100% of rural households should be achieved over the medium term and adequate sanitation facilities should be provided to at least 75% of rural households. Community / household preferences and environmental sustainability will be taken into account. The RDP's long term goal (sec 2.6.8) is to provide every South African with accessible water and sanitation. See African National Congress “Introduction to the Reconstruction and Development Programme”, available at: <http://www.anc.org.za/content/reconstruction-and-development-programme-introduction-rdp> (last accessed 16 January 2017).

25 The Dublin Statement on Water and Sustainable Development (the International Conference on Water Environment, Dublin, Ireland, January 1992), Principle 4, available at: <http://www.wmo.int/pages/prog/hwrp/documents/english/icwedece.html> (last accessed 30 December 2016).

26 WSA, sec 2(a).

27 Id, secs 2(b) and 2(j).

28 Id, sec 11(1).

29 WSA, Water Services Regulations, reg 3(b) in GN R 509 Government Gazette, 8 June 2001. The figure of 6,000 litres is based on 200 litres per household per day for each 30 day month. This assumes no more than eight people per household (200 litres divided by eight people is 25 lpd). The adequacy of the 25 lpd minimum as well as the assumption of no more than eight people per household were considered in Mazibuko, discussed below.

30 This commitment to free basic water was reiterated in the Free Basic Water Implementation Strategy 2007, available at: <http://www.gov.za/sites/www.gov.za/files/FBW%20strategy%20-%20Version%204%20final%2020070402%20mk_0.pdf> (last accessed 16 January 2017).

31 The application of this duty on municipalities can be considered within the broader context of the onus on municipalities to provide basic services and realise basic socio-economic rights. Some commentators question to ability of municipalities to provide such services in the face of severely limited resources and capacity. Such constraints at the municipal level may significantly impair the state's ability to respect, protect, promote and fulfil the right to water as set out in WSA (and sec 27 of the Constitution). See generally Plessis, AA Du Fulfilment of South Africa's Constitutional Environmental Right in the Local Government Sphere (2009, Wolf Legal Publishers)Google Scholar.

32 Kotze, L “Access to water in South Africa: Constitutional perspectives from a developing country” (2009) 1 Ymparistojuridiikka 70 at 76Google Scholar.

33 Id at 79.

34 Ibid.

35 The aims of the NWA are detailed in sec 2: “Ensure that the nation's water resources are protected, used, developed, conserved, managed and controlled in ways which take into account amongst other factors: (a) meeting the basic human needs of present and future generations; (b) promoting equitable access to water; (c) redressing the results of past racial and gender discrimination; (d) promoting the efficient, sustainable and beneficial use of water in the public interest; (e) facilitating social and economic development; (f) providing for growing demand for water use; (g) protecting aquatic and associated ecosystems and their biological diversity; (h) reducing and preventing pollution and degradation of water resources; (i) meeting international obligations; (j) promoting dam safety; (k) managing floods and droughts.”

36 Scanlon, J, Cassar, A and Nemes, N “Water as a human right?” (2004) 51 IUCN Environmental Policy and Law Paper 28 Google Scholar.

37 General Comment 15.

38 Adopted 10 December 1948, GA res 217A (III), 3 UN GAOR (resolutions, pt 1) at 71, UN doc A/810 (1948).

39 Adopted 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), GA res 2200 (XXI), 21 UN GAOR supp (no 16) at 49, UN doc A/6316 (1966).

40 Res II of the conference declared: “All peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.”

41 General Comment No 15, para 2: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” Para 1 exhorts states parties to “adopt effective measures to realise, without discrimination” the human right to water.

42 UN GA10967, adopted 28 July 2010.

43 See: <http://www.un.org/sustainabledevelopment/sustainable-development-goals/> (last accessed 30 December 2016).

44 Sec 27(1)(b) of the Constitution: “(1) Everyone has the right to have access to: (a) health care services, including reproductive health care; (b) sufficient food and water; (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.”

45 Id, sec 9.

46 Id, sec 10.

47 Id, sec 11.

48 Id, sec 25(8), regarding measures to achieve land, water and related reforms in order to redress the results of past racial discrimination.

49 Id, sec 26.

50 Id, sec 28.

51 Id, sec 34.

52 Id, sec 38.

53 Id, sec 24: “Everyone has the right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

54 Mazibuko and Others v City of Johannesburg and Others (Centre on Housing Rights & Evictions as amicus curiae) [2008] JOL 21829.

55 Mazibuko and Others v City of Johannesburg and Others [2009] JOL 24351 (CC) (Mazibuko (CC)), para 166.

56 This is particularly pertinent to the interpretation of sufficient water in the Constitution, since sec 27 links food and water: “Everyone has the right to have access to … (b) sufficient food and water”. Also, since sanitation is not listed in sec 27 of the Constitution, but is recognized as a right in WSA, sec 3(1), the volume of water that is sufficient must depend on the type of sanitation system being used.

57 Mazibuko (W), para 5.

58 Id at 106.

59 Id, para 36.

60 Id, para 37.

61 Mazibuko (W). Note that, before the installation of pre-payment meters and the associated improvements made to water pipes as part of the city's water services improvement project in Soweto (Operation Gcin'amanzi), water services were poor, but the volume of water available was unlimited (except when affected by intermittent technical problems).

62 Id, para 181.

63 City of Johannesburg and Others v Mazibuko and Others (Centre on Housing Rights & Evictions as amicus curiae) [2009] JOL 23337 (SCA) (Mazibuko (SCA)).

64 Id, summary. Note that, because the Supreme Court of Appeal found that 42 lpd was the quantity of sufficient water, not 50 lpd as decided by the High Court, the appeal was upheld.

65 Rensberg, LJ van “The right of access to adequate water: Discussion of Mazibuko v The City of Johannesburg case no 13865/06” (2008) 3 Stellenbosch Law Review 415 at 434Google Scholar.

66 See generally Mazibuko (W).

67 Id, para 1.

68 Id at 136, para 434.

69 Kidd, M Environmental Law (2008, Juta & Co Ltd) at 64 Google Scholar.

70 The duty on the part of the water services authorities to provide access to water services is clearly spelled out in WSA, sec 11(1): “Every water service authority has a duty to all consumers or potential consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services.” Note that, while this duty is subject to a number of conditions including the availability of resources and the duty of consumers to pay reasonable charges (sec 11(2)), the WSA entrenched this duty by stating in sec 11(4) that a water services authority may not unreasonably refuse to give access to water services to a consumer or potential consumer in its area of jurisdiction. Further, in sec 11(5), the act states that in emergency situations a water services authority must take reasonable steps to provide a basic water supply and basic sanitation services to any person within its jurisdiction and may do so at the cost of that authority.

71 Mazibuko (CC), para 163.

72 Ibid.

73 Id, para 169.

74 2001 (1) SA 46 (CC).

75 The Constitution, sec 26.

76 Grootboom, para 41.

77 Hoexter, C “The future of judicial review in South African administrative law” (2000) South African Law Journal 484 at 509Google Scholar.

78 Mazibuko (CC), para 168.

79 Id, para 163.

80 Mazibuko (W), paras 128 and 172.

81 This reflects the High Court's approach in Manqele v Durban Transitional Metropolitan Council 2002 (6) SA 423. The volume of water deemed sufficient for the purposes of sec 27 of the Constitution and sec 3 of WSA had not yet been prescribed. (The WSA had been enacted, but the associated regulations (GN R 509 of 8 June 2001) had not been promulgated). The court held that the minimum volume of water must be prescribed by regulation. In the absence of a regulation, the applicant relied on an incomplete right, rendering it unenforceable. Determining sufficient water was “a policy matter which falls outside the purview of the role and function of the court and is inextricably linked to the availability of resources”: para 427.

82 Minister of Health and Others v Treatment Action Campaign and Others [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (Treatment Action Campaign No 2), para 38.

83 Ibid.

84 Mazibuko (CC), para 161.

85 Id, para 67.

86 Id, para 70.

87 Id, para 68.

88 Bilchitz, D “Giving socio-economic rights teeth: The minimum core and its importance” (2002) 119 South African Law Journal 484Google Scholar.

89 Mazibuko (CC), para 71.

90 Id, para 160.

91 The Constitution, sec 1(d).

92 Id, sec 34.

93 Steven, B “Globalization and the requirements of ‘good’ environmental governance” (2005) 4/3–4 Perspectives on Global Development and Technology 645 at 652Google Scholar.

94 Mazibuko (CC), para 163.

95 See variously: Kotze, LJ “Phiri, the plight of the poor and the perils of climate change: Time to rethink environmental and socio-economic rights in South Africa?” (2010) 1/2 Journal of Human Rights and the Environment 135 CrossRefGoogle Scholar; Dugard, J “Can human rights transcend the commercialization of water in South Africa? Soweto's legal fight for an equitable water policy” (2010) Review of Radical Political Economics 1 Google Scholar.

96 Here, water commodification refers to the application of a commercial or private sector “mind set” to water services. This is characterized primarily by the expectation that water services are provided in ways that will generate profit, or will at least recover costs in full. Such an expectation is not limited to water services provided by private companies, but is also now a common feature across state owned and provincial water providers. See generally McDonald, DA and Ruiters, G The Age of Commodity: Water Privatization in Southern Africa (2005, Taylor & Francis)Google Scholar.

97 R Bailey and C Buckley “Modelling Domestic Water Tariffs” (presentation to Centre for Civil Society, University of Kwa-Zulu Natal, 7 November 2005).

98 All quotations come from the author's interviews with residents during fieldwork between 2010 and 2015 (copies on file with the author).

99 See above at note 53.

100 Stewart, L and Horsten, D “The role of sustainability in the adjudication of the right to access to adequate water” (2009) 24 South African Publiekreg / Public Law 486 at 503Google Scholar.

101 Brand, D “The politics of need interpretation and the adjudication of socio-economic rights claims in South Africa” in Walt, AJ van der (ed) Theories of Social and Economic Justice (2005, African Sun Media) 17 at 35Google Scholar.

102 P Bond “South Africa's rights culture of water consumption: Breaking out of the liberal box and into the commons?” (paper presented at Syracuse conference, Cape Town, February 2010) at 12.

103 The Constitution, sec 36.

104 Bakker, K “The ‘commons’ versus the ‘commodity’: Alter-globalization, anti-privatisation and the human right to water in the global south” (2007) 39/3 Antipode 441 at 447CrossRefGoogle Scholar.

105 See Residents of Bon Vista Mansions v Southern Metropolitan Local Council [2002] JOL 9513 (W).

106 Pieterse, M “Eating socio-economic rights: The usefulness of rights talk in alleviating social hardship revisited” (2007) 29 Human Right Quarterly 796 at 822CrossRefGoogle Scholar.

107 Bond “South Africa's rights culture”, above at note 102.

108 See Socio-Economic Rights Institute of South Africa website: <http://www.seri-sa.org> (last accessed 30 December 2016).

109 See On the Commons website, available at: <http://www.onthecommons.org/> (last accessed 16 January 2017).

110 Bollier, D and Weston, BH “Reimagining ecological governance through human rights and a rediscovery of the Commons” in Grear, A and Grant, E (eds) Thought, Law, Rights and Action in the Age of Environmental Crisis (2015, Edward Elgar) 251 at 252Google Scholar.

111 Id at 251. Here the term “state / market”, used by Bollier and Weston, indicates the close relationship between the institutions of state and market, which reflects a shared commitment to a neoliberal political and economic agenda.

112 See: <http://www.ourwatercommons.org> (last accessed 30 December 2016).

113 Neimanis, A “Alongside the right to water, a posthumanist feminist imaginary” (2014) 5/1 Journal of Human Rights and the Environment 5 at 5CrossRefGoogle Scholar.

114 Author's interview with Thembeka, a resident of Burlington Township, Durban, November 2015 (copy on file with the author).

115 South African Water Research Commission “Adopt-a-River launches in Limpopo and KwaZulu-Natal” (31 August 2010), available at: <http://www.wrc.org.za/news/pages/adopt-a-riverlaunchesinlimpopoandkwazulu-natal.aspx> (last accessed 30 December 2016).

116 Taken from interview transcripts during fieldwork in South Africa (February 2010) (copies on file with the author).

117 Hellberg, S “Water life and politics: Exploring the contested case of eThekwini municipality through a governmentality lens” (2014) 56 Geoforum 226 at 230CrossRefGoogle Scholar.

118 In 2014 eThekwini Municipality won the Stockholm Industry Water Award. See “‘Most progressive water utility in Africa’ wins 2014 Stockholm Industry Water Award”, available at: <http://www.siwi.org/prizes/winners/2014-2/> (last accessed 16 January 2017).

119 Id at 228.

120 See: <https:// www.tni.org/en/profile/durban-group-for-climate-justice> (last accessed 30 December 2016).

121 Bond “Water rights, commons”, above at note 1 at 140.

122 Hardin, G “The tragedy of the commons” (1968) 162 Science 1243 Google ScholarPubMed.

123 Ostrom, E Governing the Commons: The Evolution of Institutions for Collective Action (1990, Cambridge University Press) at 42 CrossRefGoogle Scholar.

124 Id at 14.

125 Ibid.

126 Bond “Water rights, commons”, above at note 1 at 138.

127 Mazibuko (CC), para 71.

128 Bollier and Weston “Reimagining ecological governance”, above at note 110 at 254.