The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
“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.BACK TO TOP