Lindiwe Mazibuko and Others v City of Johannesburg and Others

The present case is concerning the right of access to water entrenched in section 27 of the Constitution, which provides that everyone has the right to “sufficient water”. The case considers the lawfulness of Operation Gcin’amanzi, a project the City of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. This project involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kilolitre per household monthly free basic water allowance. The applicants succeeded in the South Gauteng High Court. The Court found that the installation of pre-paid water meters in Phiri was unlawful and unfair. It also held that the City’s Free Basic Water policy was unreasonable and therefore unlawful. It ruled that the City should provide 50 litres of free basic water daily to the applicants and “similarly placed” residents of Phiri. On appeal, the Supreme Court of Appeal varied this order. The Supreme Court of Appeal held that 42 litres of water per day would be “sufficient water” within the meaning of the Constitution, and directed the City to reformulate its policy in light of this conclusion. The Supreme Court of Appeal also held that installation of the pre-paid water meters was unlawful on the ground that the City’s By-laws did not make provision for them in these circumstances. The Court gave the City two years to rectify the By-laws. The Supreme Court of Appeal did not consider whether the manner in which the meters were installed was fair. The applicants applied to this Court for leave to appeal against the judgment of the Supreme Court of Appeal and, in effect, sought reinstatement of the High Court order. The Constitutional Court held that the obligation placed on government by section 27 is an obligation to take reasonable legislative and other measures to seek the progressive realisation of the right. In relation to the Free Basic Water policy, therefore, the question is whether it is a reasonable policy. The Court notes that it is implicit in the concept of progressive realisation that it will take time before everyone has access to sufficient water. The Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water” because this is a matter best addressed in the first place by the government. The national government has adopted regulations which stipulate that a basic water supply constitutes 25 litres per person daily; or 6 kilolitres per household monthly (upon which the City’s Free Basic Water policy is based). On pre-paid water meters, the Court held (contrary to the High Court and the Supreme Court of Appeal) that the national legislation and the City’s own by-laws authorise the latter to introduce pre-paid water meters as part of Operation Gcin’amanzi. The Court concluded that the installation of the meters was neither unfair nor discriminatory. The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable. During the litigation City has repeatedly reviewed and revised its policies to ensure that they do promote the progressive achievement of the right of access to sufficient water. The Court thus upheld the appeal by the City and Johannesburg Water and the Minister. The orders of the High Court and Supreme Court of Appeal were, therefore, set aside.