Social and Economic Rights

“Water is life…  Without it, we will die,” writes justice Kate O’Regan in the Constitutional Court judgment of  Mazibuko and Others v City of Johannesburg and Others, handed down late last week. But if water is life, do the lives of poor people in Soweto count for less than, say, the lives of rich people living in Sandton?

This is the question that comes to mind when one reads the carefully argued (but, to my mind, utterly unconvincing) judgment of the Constitutional Court in the above mentioned case.  The Court was asked to answer the question of whether the policy of the City of Johannesburg to install pre-paid water meters in poor areas like Phiri, Soweto, coupled with a policy to cut off the water supplies of households who had used more than their 6 kiloliters of free water for the month, contravened section 27(1)(b) read with the right to equality in section 9 of the Constitution.

Both the High Court (in a brilliantly innovative judgment by Tsoka J) and the Supreme Court of Appeal (SCA) had found that the City Council did not have the legal authority to install pre-paid meters and cut off water supplies when residents had no money to pay for more than their free allocation of water, that the system discriminated unfairly against Phiri residents because residents in rich areas were not subject to the installation of pre-paid meters and that the 6 kiloliters of free water per household per month was not constitutionally adequate.

The Constitutional Court judgment demonstrates a limited (and quite conservative) understanding of its role in enforcing social and economic rights and shows an over eagerness on the part of the Court to endorse the essentially “neo-liberalism-with-a-human-face”  pay-as-you-go water provision policies of the Municipality. To some extent the judgment represents a retreat for the Court from its hey-day when (in the TAC case) it ordered the state to take steps to make Nevirapine available to all HIV positive pregnant mothers in order to prevent HIV transmission to their babies.

The Court argued in Mazibuko that in the TAC case “in a sense” it did no more than to “render the existing government policy available to all”. This is a rather innovative (re)interpretation of the TAC case (hence the “in a sense” rider, one suspects) as the government argued then that Nevirapine was probably toxic, that giving it to mothers would probably lead to resistance to other drugs, that it might not be effective in preventing mother to child transmission of HIV and hence that the state was reasonable in restricting the use of Nevirapine to pilot sites until such time as these questions were definitively answered. When the case was argued there was a policy NOT to provide the drug to those who needed it to save the lives of their babies, so there was “in a sense” no existing policy to be extended.

In any case, despite this rather unconvincing interpretation of precedent, the Mazibuko case does add two interesting and welcome innovations to the jurisprudence on social and economic rights. First, it states that the government has a duty continually to review its policies to ensure the progressive realisation of social and economic rights - something the City of Johannesburg was willing to do in this case. Second, the judgment views social and economic rights adjudication as part of a broadening of democracy as it help to hold the government accountable for its actions.

Thus the national government had a duty to set the targets it wishes to be achieved with respect to social and economic rights. This was consistent with accountable, open and responsive government as it required the state to explain and justify its choices regarding the realisation of social and economic rights.

If the process followed by government is flawed or the information gathered is obviously inadequate or incomplete, appropriate relief may be sought.  In this way, the social and economic rights entrenched in our Constitution may contribute to the deepening of democracy.  They enable citizens to hold government accountable not only through the ballot box but also, in a different way, through litigation.

One assumes where no targets are set by the government, it would be difficult for the state to show that it has acted reasonably because it would make it very difficult for ordinary citizens to hold the government to account for the progressive realisation of the rights. This is potentially a very significant gain for social and economic rights jurisprudence.

Where the judgment really fails to convince is where the Court (re)interprets section 4(3) of the Water Services Act to ensure that it does not apply to cases such as the one before it.

The implications of this move are rather startling. The Court endorses the neo-liberal paradigm of water provision adopted by the city, a policy which would often deny poor people access to adequate water because they would be unable to pay for the water needed to live. This is something that would happen often, given the fact that 6 kiloliters of water for large families are wholly inadequate and given further that many poor residents stay on plots where one water meter serves two or three families living on that plot. Many such families are unemployed and do not have money to pay for the very water that would sustain their lives. 

The judgment seems to be based on an assumption that people do not pay for water because they are bad or dishonest people: they want something for free when they need to (and can) pay for the water. It fails to take account of the fact that even if we all wanted to be good little capitalists like the government wants us to be, we cannot all afford the basic necessities that would sustain our lives.

One might well argue (as others have done) that it is not the role of the Constitutional Court to second guess the policy choices of the government. If the government decides to implement neo-liberal policies on water provision, it is constitutionally allowed to do so - as long as it acts reasonably in the context of the logic and assumptions of the economic paradigm it has chosen. The problem in this case is that it is far from clear that the national government had chosen the path endorsed by the Court.

Section 4(3) of the Water Services Act – which sets minimum standards that must be followed by municipalities – states that where water services are limited or discontinued, a fair and equitable process must be followed, reasonable notice had to be given of “intention to limit or discontinue” water services and must not result in the termination of water services where a person can show that he or she is unable to pay.

The Constitutional Court interpreted the words “limit or discontinue” to mean the permanent discontinuation of the water supply and in doing so ignored some of the wording (“limit”) of section 4(3) of the Act.

The ordinary meaning of “discontinuation” is that something is made to cease to exist. The water supply does not cease to exist when a pre-paid meter temporarily stops the supply of water.  It is suspended until either the customer purchases further credit or the new month commences with a new monthly basic water supply whereupon the water supply recommences.  It is better understood as a temporary suspension in supply, not a discontinuation….

Could section 4(3) mean that every time a water supply, provided through a pre-paid meter is about to be suspended because the credit purchased for the water supply is at its end, reasonable notice and an opportunity to be heard must be provided to the relevant customer by the municipality?  This would, in my view, have a result that borders on the absurd.

The Court here comes close to subverting the democratic will of the people as expressed through the legislature. Parliament had passed a law which required that where water supply was either limited or discontinued reasonable notice had to be given to those whose supply was to be cut off. Because it first decided (using contorted reasoning to re-interpret section 3(2) of the Act in a completely unconvincing way) that the Act allowed for the installation of pre-paid water meters (so much for interpreting a statute holistically!), it could then, second, argue that the next section had to mean that reasonable notice had only to be given when the water supply was permanently discontinued.

To reach this conclusion, the Court had to ignore the fact that the Act also includes the word “limit”, which could surely not mean anything but the “temporary suspension in supply”. In effect this aspect of the judgment ignores the express words of the legislature (“limit”) in order to justify its endorsement of the neo-liberal water policies of the City of Johannesburg. This was done not to show an adequate respect for the legislature to uphold the separation of powers doctrine but, on the contrary, to undermine that very doctrine in order to achieve a specific ideologically desired result.

The Court also rejected the argument that the implementation of pre-paid water meters to Phiri and other areas of Soweto (but not to wealthy, mostly white, suburbs) constituted unfair discrimination on the basis of race. Because water meters were not introduced in all townships and because households with pre-paid meters paid less for their water, this was not discrimination at all.

This argument does not seem plausible to me. First, it is based on the premise that unless all black residents of Johannesburg had been affected by the move, it would not really amount to discrimination. If followed in other non-discrimination cases this reasoning would make it almost impossible to prove indirect discrimination.

Second, although the users of pre-paid water meters pay less for water, they have no choice in the matter and they do suffer a disadvantage: when the free water runs out they have to pay – even when they have no money. If they had the same system than in Sandton, they would be able to pay their account at the beginning of the month when they are paid or receive their social grants and the chances of having an uninterrupted water supply would be far greater. There is a clear disadvantage for poor people to be put on a pre-pad system and the fact that the Court denies this shows a rather cavalier attitude towards the real lived experience of poor South Africans.

Previously the SCA used to hand down conservative judgments which were then overturned on appeal to the Constitutional Court. But as the latter court becomes more conservative, the SCA might emerge as the court championing the rights of the marginalised and downtrodden while the CC might become the court for those who run the country from the back of their R1.2 million BMW’s.

Prof Sandra Liebenberg has a good article in Business Day today in which she also criticises the attack by Johannesburg mayor Amos Masondo on the judgment of Judge Moroa Tsoka in the Phiri water case. Money quote:

There may of course be legitimate debate about whether the judge got it right, and this is an important part of public discourse and debate in a democratic society. As is the case with legislation and policy, court judgments should also be exposed to robust critique and debate. This is fundamental to a vibrant democracy.

However, it is an entirely different matter to call into question, as Masondo has done, the duty of judges to interpret constitutional rights and to grant effective remedies in the cases that come before them. The suggestion that, in performing this role, judges are acting as though they are “above the law” or that they should form a political party if they wish to govern the land undermines the fundamental principle of the rule of law. It also contributes nothing to democratic debate about the meaning and implications of constitutional rights for the governance of our country.

I also totally agree with Prof Liebenberg – following Justice Albie Sachs? – that we should view judgments of the Constitutional Court as part of our democratic conversation. Judges are independent but the courts are one of the three branches of government and their decisions must be viewed in that light.

Instead of viewing the courts’ role in enforcing these rights as an unwelcome intrusion, Johannesburg should understand that this is part of the “constitutional conversation” between courts, the government and civil society on how best to realise human rights. Rather than detracting from democratic politics, the judicial enforcement of human rights enriches constitutional democracy. The city should view judicial intervention in cases such as Mazibuko as an opportunity for research and reflection on whether its policies are consonant with the Bill of Rights. This will enable a more constructive dialogue on whether we as South Africans are meeting our constitutional commitments to the poor.

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.

The judges of the Constitutional Court are usually rather tame in their criticism of the government. Although they have made some brave decisions, they have been criticised in the past (sometimes – but not always – unfairly, in my opinion) for giving government officials and Ministers the benefit of the doubt – even when this might seem wildly optimistic or even a bit Pollyanna-ish.

For example, when the Treatment Action Campaign (TAC) took the Minister of Health (she of the watches and whiskey bottles) to court for not implementing an HIV mother-to-child prevention programme, the Court said that there was no reason to believe that the order forcing her to implement such a programme would not be carried out – despite the fact that Manto Tshabalala Msimang had told the SABC news a few months earlier that she would refuse to obey such an order.

Given this history, the judgment of the Constitutional Court in Njongi v MEC, Department of Welfare of the Eastern Cape handed down last Friday seems like another missed opportunity. The case highlights the appalling way in which officials in the Eastern Cape have treated poor black recipients of welfare grants and shines a light on the way in which every legal avenue have been used by these officials to frustrate attempts of bona fide social grant claimants to get the money owed to them.

Like thousands of other people in the Eastern Cape. Mrs Njongi’s disability grant was unlawfully canceled by the Eastern Cape government in the late 1990s. Even after the grant was reinstated, and after several court judgments – one of the Supreme Court of Appeal – had made it clear that the action was unlawful, officials refused to admit that it had acted wrongly and then refused to pay Mrs Njongi the full amount owed to her.

Even worse, when she eventually got lawyers to take up her case, the officials raised the argument that she could not claim the full amount owed to her by the state as her claim was a debt against the state and had been instituted too late and had thus prescribed. The outstanding amount in question – which had prompted Eastern Cape officials to appeal all the way to the Constitutional Court at great expense to the taxpayer – was for a paltry R5800.

The judgment by Justice Zack Yacoob, writing for a unanimous court, relates this sorry saga which – in uncharacteristically strong language – he calls a “disaster” before rejecting the prescription argument of the Eastern Cape lawyers with thinly veiled contempt.

The judgment is shot through with direct and indirect criticism of the officials and politicians in the Eastern Cape who had acted in such a heartless fashion to deny a poor, black woman who was 100% disabled what was rightfully her due. But despite the strong language used and the obvious shock and exasperation of the judges of the Constitutional Court at this turn of events, the Court failed to fully grasp the chance to put a stop to this kind of outrage for once and for all.

After conclusion of oral argument the Chief Justice had directed the MEC and anyone else involved in the decision to oppose the application of Mrs Njongi to show cause why they should not personally be ordered to pay the cost of the application on the scale as between attorney and client. However, in the end the Court decided not to make such a drastic order against the political head of the Department of Welfare in the Eastern Cape or his predecessor or any of the officials without really giving cogent reasons for being so kind to those officials and politicians involved.

This is perplexing, given the very strong language used by Justice Yacoob in rejecting the reasons given by the MEC and his officials for opposing the application. For example, the Court notes dryly that this case would never have come to court if the officials had paid heed to the relevant judgments already handed down about this issue:

In particular, it must be said that judgments of courts in relation to Provincial Government conduct are not meant simply to be filed away without being read. They contain important information that has a bearing on the conduct of the Provincial Government in issue. It is probable that the legal advisors to the Provincial Government did not read the various judgments which are referred to in this judgment with sufficient care. If they did read them however their conduct is worse. Court judgments were ignored by these lawyers. This is unsatisfactory.

The Court also called the decision to oppose the application by Mrs Njongi “unconscionable” and was obviously outraged by the characterisation of the case by one of the legal advisors [a Mr Basson] as a case dealing with “the social issue of making payment of the balance of the [a]pplicant’s claim”, calling it a “grossly insulting understatement of the nature of the problem”.

The court also characterised the attitude of the Department as “a cynical position devoid of humanity”. In the end Justice Yacoob ordered the Department to pay the cost of the application – which means that we the tax payers will again be forking out money for this heartless action by officials and politicians.

This is – to use an understated phrase deployed more than once in this judgment – regrettable. Although I am of the opinion that the Constitutional Court has mostly been quite wise in the way it has dealt with the problems of the separation of powers and that (given our history and the danger of appearing to second-guess every decision of the newly elected government) it has often shown the appropriate respect for the other branches of government, in this case it failed Mrs Njongi and all the other claimants in the Eastern Cape who have suffered at the hands of these bureaucrats.

Sadly, it failed to hold the MEC and his officials personally responsible for this fiasco, so who knows whether they will not act in a similar fashion in future. After all, we already know they do not read the judgments of the court and even if they do, often ignore them. The only way to get these peoples’ attention is to hit them where it hurts – the pocket.

Maybe when next such a case comes to the Court the judges will finally develop the backbone to say “enough is enough” and will hold the MEC and his officials personally liable for the waste of money and, worse, for the total disregard for the rights and dignity of just another ordinary South African.