The Right of Access to Adequate Water

• Jurisdiction: South Africa
• Author: Linda Jansen van Rensburg
• Pages: 415-435
• Citation: (2008) 19 Stell LR 415
• Published date: 27 May 2019
• Date: 27 May 2019

415

THE RIGHT OF ACCESS TO ADEQUATE WATER

[DISCUSSION OF MAZIBUKO V THE CITY OF

JOHANNESBURG CASE NO 13865/06]

Linda Jansen van Rensburg

BComm LLB LLM LLD

Professor, North-West University, Potchefstroom Campus*

“Water is life. Life without water is not life. One cannot speak of a dignied human existence if one

is denied access to water.”1

1 Introduction

The rst applicant, Li ndiwe Mazibuko, is a 39 year-old woman. She, along

with approximately twenty other people, share a stand in a suburb called Phiri,

in Soweto. The Court describ es the residents of this township as “poor, unedu-

cated, unemployed a nd ravaged by HIV/AIDS”.2 They are also referred to as

jammergevalle, which – loosely translated – means “pity c ases”.3 Lindiwe,

her two sisters, their mother and their th irteen children live in the main house

while six boarders share t wo shacks in the backyard. No one in Lindiwe’s

house is e mployed. Thei r income consists ma inly of social assista nce grants

(the mother’s old age grant of R820 per month and two child support grants of

R190 per month) and the rent of approximately R150 per month each from the

two backyard shacks.4

On 28 January 2004 the residents of Ph iri received notice that a prepaid

water syste m would be put in place. T he notice fur ther indicated that if the

residents decided on such an inst allation of t he prepaid wate r system, their

debt i n arrear s would be cancelled.5 Lindiwe did not receive such a notice

and lived without water on her propert y for approximately six months. During

this time she walked 3 km, twice a day, to fetch water. On 11 October 2004 she

nally su rrendered to the prepayment water sys tem. In terms of the prepay-

ment water syst em, once the 6 ki lolitres free water per household per month

has bee n consumed, t he water supply is automatically shut off and the con-

sumer has to buy wate r credits in order to be supplied with wate r again.6 The

prescribed free 6 kilolitre s for each stand has almost never been enough for

Lindiwe and her extended family. She indicated that – with extreme care – the

* I wish to thank Debra Horst en and t he anonymous referees for their valuable com ments on a previous

draft of th is paper. Mistakes a re my own.

1 Mazibuko v The City of Joh annesburg case no 13865/06 deci ded on 30 April 2008 (accesse d 18-05-2008)

http://209.85.135.104/search?q=cache:k2oM0ejAUTIJ:www.law.wits.ac.za/cals/phiri /Mazibuko%2520A

pplicants%2520Heads.pdf+Mazibuko+prepayment+water&hl=en&ct=clnk&cd=3&gl=za para 124.

2 Para 5.

3 Para 165.

4 Dugard “A Pro-poor Critique of P repayment Water Mete rs in South Africa: The Phiri Story” (2007)

Critical Heal th Perspectives 1.

5 Mazibuko v The Cit y of Johannesburg ca se no 13865/06 para 108.

6 Para 3.

(2008) 19 Stell LR 415

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water would last for ten to fteen days.7 If they needed more water they had

to sacri ce other basic essentials such as food. This situation fundament ally

compromised their health a nd human dignity.8

The Constit ution of the Republic of South Africa, 1996 guara ntees every-

one the right to access to adequate water9 and places an obligation on the state

to take reasonable measures to progressively realise this right within available

resources.10 South A frica is one of the few jurisdictions that provides for a n

explicit right to water. In international and foreign jurisdictions the right is

implicit in the right to health,11 food and nutrition, and a clean environment as

well as the right to housing and educat ion.12

The applicants (Lindiwe and ve other residents of Phiri and other similarly

situated areas) contested the constitutional validity of the Regulations Relating

to Compulsory National Standards and Measures to Conserve Water13 of the

third respondents (The Min ister of Water Affair s and Forestry) as well as

the water policies of the rst respondent (City of Johannesburg) and second

respondent (Johannesburg Water). The policy decisions challenged as u ncon-

stitutional and unlawful were the dis connection of unlimited wat er supply at

a xed rate and the instal lation of the prepayment meters, the introduction and

continued use of prepayment water meters, and the amount of free water of 25

litres per person p er day or 6 kilolitres per household per month.14

In essence the case concerned the u nconstitutionality and invalidity of

Regulation 3(b),15 which was promulgated in term s of section 9(1)(a) of the

Water Ser vices Act.16 Regulation 3(b) denes the conce pt of the minimum

standard of basic water s upply services as follows:

“(a) the provision of appropriate education in respect of effective water use; and

(b) a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household

per month –

(i) at a minimum ow rate of not less than 10 litres per minute;

(ii) within 200 metres of a household; and

7 Founding Affidav it paras 101 and 114. In her Founding Aff idavit the applica nt contends:

“In our ho usehold of 20, we would on ly be able to f lush the toilet le ss than once eve ry two days; ea ch

person could o nly have a ‘body wash’ every four days; 2 kettles of wat er, 1 sink full of d ishes and half

a clothes wash p er day would have to be u sed by 20 people. Af ter all the fre e basic water budget ed for

that day was used , no water would be lef t for any thing else, such as drinking , cooking, cleaning t he

house and water ing my food garden”.

See further paras 115-117; Benjamin “Jobless People in Soweto Seek More Free Council Water” Business

Day (14-06 -2006) http:www.businessd ay.co.za/articles/to pstories.aspx?ID =BD4A232746 (accessed

18-05-2008); Mabu za “City Failed i n Duty to G ive Water to All, Court Told” Busine ss Day (4-12-2007)

http:www.busi nessday.co.za/art icles/national.as px?ID=BD4A649022 (accesse d 18-05-2008).

8 Dugard Critical He alth Perspectives 1.

9 S 27(1)(b) of the Cons titution, 1996.

10 S 27(2) of the Constitut ion, 1996.

11 uThungulu i n Kwa Zulu Natal, is an exa mple where the disco ntinuance of water through the pre payment

meter syste m had disast rous effects o n health and le d to the outbre ak of cholera. It le d to 113 966 infec-

tions and 259 deaths. Barret & Jaichand “The Right to Water a nd Access to Ju stice: Tackli ng United

Kingdom Water Comp anies’ Practice s in Developing Count ries” 2007 SAJHR 543 551.

12 Langford & Kok “The R ight to Water” in Brand & Heyns (eds) Socio -Economic Righ ts in South Africa

(2005) 191-192; Barret & Jaichand 2007 SAJHR 544.

13 GN R509 of 8-06 -2002.

14 Mazibuk o v The City of Johanne sburg case no 13865/06 para 9.

15 “Regulati ons relating to compuls ory nationa l standard s and mea sures to conserve wat er” GN R 509 in

GG 22355 of 8-06-2001.

16 Mazibuk o v The City of Johanne sburg case no 13865/06 para 26.

416 STELL LR 2008 3

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