Another mayor, another attack on the judiciary

Johannesburg mayor Amos Masondo is reported to have criticised High Court Judge, Moroa Tsoka, who ruled that the installation of prepaid water meters in Phiri, Soweto — without the choice of all available supply options — was unconstitutional and unlawful. Business Day reports that Masondo said that:

[T]he municipality was not against the judiciary, but judges must not take the role of the government. “Judges are not above the law. We don’t want judges to take the role of Parliament, the role of the national council of provinces, the role of the legislature and the role of this council. Judges must limit their role.” He said although the municipality respected Tsoka’s decision, the city believed he was wrong and intended to lodge an appeal with the Supreme Court of Appeal.

Masondo has every right to criticise the judgment by judge Tsoka, which – unfortunately – might well be partially overturned on appeal. But it was unwise to imply that the judgment reflects a lawlessness on the part of the judiciary and that the judge was usurping the role of Parliament and the executive. In the Treatment Action Campaign case the Constitutional Court made it clear that courts had a duty to interpret and enforce the social and economic rights in the Constitution and that when doing so they were merely upholding the Constitution.

Having said that, the judgment is rather bold and some might well argue that it went further than the Constitutional Court precedent would allow.

As I understand it, the judgment is on pretty solid legal ground in declaring unlawful and unconstitutional the arbitrary imposition of pre-paid water meters that automatically cut of water supply to households who use more than 6 kiloliters of water per month (25 liters per person per day). This is because the legislation – passed by the very Parliament whose integrity Masondo claims to want to uphold – does not allow for such an automatic cutting off of water. Section 4(3) of the Water Services Act requires that procedures for the discontinuation of water services must be just and equitable; can only be done after reasonable notice was given; and cannot result in a denial of access to basic water services merely for non-payment.

The installation of the meters – which automatically cut off water supplies to the residents of Phiri after they had used their allocated 6 kiloliters of free water per month – was therefore ultra vires. It also constituted unfair discrimination on the basis of race and sex because residents of the mostly white suburbs were not treated in a similar fashion.

But the judgment went further, finding that the decision of the Johannesburg Municipality to restrict the provision of free water services to 25 liters per person per day was unreasonable and thus constituted an infringement of section 27(1) and (2) of the Constitution, and ordered the City to provide each person with 50 liters of free water per day.

On one reading of the judgment, judge Tsoka’s order is based on the notion that the right of access to water in section 27(1) of the Constitution places a minimum core obligation on the municipality to provide every person with at least 50 liters of water per day. Such a reading would suggest that the court went further than the Constitutional Court precedent (by wrongly resurrecting the notion that social and economic rights place and obligation on the state to provide a minimum level of water rights to all people immediately) and that the City would therefore have a strong case in overturning this aspect of the judgment on appeal.

But another reading is possible. As I understand it, the judgment is not based on the notion that there is an absolute right for every South African to receive at least 50 liters of free water a day. Instead it was based on an understanding that the Johannesburg City council had a constitutional duty to act reasonably to progressively realise the right of access to water for all. Given the fact that it was common cause that 25 liters of free water per day was not sufficient for most people, and given the fact that the City of Johannesburg had already adopted measures to provide more than 25 liters of water to indigent and needy users, under certain conditions, the question was whether these conditions were reasonable.

The Court found that these measures were not reasonable because they were inflexible. While the City had adopted policies that demonstrated it had the ability to provide more than the 25 liters of free water, their policy of installing pre-pad water meters without a flexible process to provide for exemptions, restricted access to this additional amount of water in a rigid and inflexible manner. The Court found – on my reading at least – that it was this rigidity that made the City’s water policy unreasonable and unconstitutional.

Ironically, by trying to meet their constitutional duty to address the water needs of the most vulnerable members of society, the city had demonstrated that it could easily provide more free water for those who really needed it, but rigidly refused to do so for the majority of needy residents in Phiri.

On this second reading, the judgment could pass constitutional muster because it would be based on a finding of reasonableness – not on a finding that the City had a constitutional duty to provide a minimum core of 50 liters of free water to every inhabitant who needed it. In this regard, the case might have some echoes in the Khosa judgment where the Constitutional Court found that the legislation that restricted social grants to South African citizens was unreasonable and thus unconstitutional, not because there is a duty on the state to provide all people who need it with social grants, but because the state had extended social grants to some and not to others in need.

In any event, this is going to be a facinating case to follow as it winds its way all the way to the Constitutional Court.

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