Comments on: Another mayor, another attack on the judiciary

By: Brookes

Brookes — Sat, 17 May 2008 07:33:29 +0000

This was a case of ineptly formulated criticism of a judgment based on the Johannesburg mayor’s perception of how the doctrine of separation of powers should operate under our constitution.
It is not correct to equate it with the Cape Town mayor’s criticism of the judge who accepted the premier’s invitation to chair a commission of inquiry.
Masondo’s criticism was directed at a judge who was carrying out his judicial function of judging.
Zille’s controversial remarks were about a judge who had agreed to undertake a politically contentious non-judical function.
There is an important difference.

By: Anonymouse

Anonymouse — Fri, 16 May 2008 09:15:25 +0000

Siya (and Clara), the water is always there – it will return in some way or the other as it will not leave the atmosphere. Some imes more rain falls, sometimes less, and indeed global warming is doing its bit. What we need in countries where water resources are scarce, is dams, big ones, and that can be legislated for. Hope the government starts getting its priorities right, and instead of spending so much time, resources and energy on disbanding the Scorpions and other pieces of waste-paper legislation, it will start to prove that they are there for the people they govern. We need water, energy, jobs, wealth, etc; not playing cops and robbers (and politicians).

By: Siya

Siya — Fri, 16 May 2008 08:59:32 +0000

Clara,

Clever observation. In fact its a scary one. I guess we will just have to hope global warming brings us more (unusual) rain than drought, so that this resource (water) is around for much longer.

By: Clara

Clara — Thu, 15 May 2008 18:29:30 +0000

The Bill of Rights states (under health care, food, water and social security) that everyone has the right to have access to the above, and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights”. But it’s tricky with water, this being a finite resource inasmuch there will only ever be as much water on this planet as there is now, and it is not possible for humans to produce more. Humans can, and will, produce more humans, but they cannot legislate for more water.

By: Siya

Siya — Thu, 15 May 2008 12:50:44 +0000

Pierre,

The second reading of the judgment is pretty straightforward. It is what we have come to expect from our courts, as you point out. A court examines a government policy for reasonableness and finds that it is unreasonable and therefore unconstitutional for lack of flexibility and as such unresponsive to the short, medium and long term needs of the most needy (as in the water case). A court would usually stop here.

To go any further would be to answer the question: how many litres per person per day? Thats a policy question – and best left to government-, which our courts have always tried to avoid until this judgment. But the court has answered it: it said 50 litres per person per day. Our courts seem to have dealt with the question of “how much” by emphasising the value of human dignity. So that whatever service government provided, whether its housing or water, must not undermine the dignity of the recipients (as does, for instance, by the match-box RDP houses).

May be this case was problematic from the start (a minimum core case), come to think of it, Pierre. Unlike in Grootboom, where there was no shelter/house to speak of; and in TAC, where there were no ARVs provided at all, in this case there was some enjoyment of the right (access to water). The question was not about access to “some” but access to “more” water. Of course one could argue that “more” (from 25L per day) means progressive realisation of the right in question. But progressive realisation would have meant 30 or 35 or even 50 litres per person per day, at the instance of the City (government), and not the Court. The minute the court allocated 50 litres per day, it went beyond progressive realisation to minimum amount of water per person per day. So whichever angle you want to look at this case, you cannot avoid the conclusion that this was a minimum core judgment, and as such marking the advent of our courts entering the policy terrain.

So the Constitutional Court, if the case ends up before it, would do well to uphold the finding of unreasonableness and therefore unconstitutionality of the water metre policy of the City, but remove the 50 litres per person per day allocation by the High Court. If not, we should expect those who live in so-called match-box houses (earlier RDP houses) approaching the courts for bigger houses, and social grants recipients asking for bigger grants (arguing rising food prices, inflation etc).