http://www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%e2%80%99s-decision-in-the-mazibuko-case/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 http://www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%e2%80%99s-decision-in-the-mazibuko-case/comment-page-1/#comment-1422 Jackie Dugard Sat, 17 Apr 2010 08:50:27 +0000 http://www.ejiltalk.org/?p=1848#comment-1422 This article misses many important points about the Mazibuko case and judgment. I will focus on only three here. First, the Constitutional Court misunderstood the applicants as arguing for a minimum core approach to the right to water. They did not. Rather, the applicants pursued the approach established by the Constitutional Court in Grootboom (in its rejection of the minimum core content approach, as being too inflexible), which is that rights and obligations can only be established in context. This is precisely what the applicants did in Mazibuko: they asked the Court to determine the reasonableness of the City's Free Basic Water policy in the context of a high-density urban township with waterborne sanitation and no alternative water or sanitation sources. The Court, however, cast this as a minimum core content argument. And, displaying an extraordinary degree of deference, found the City's Free Basic Water policy to "fall within the bounds of reasonableness", which appears to me to be a worrying retreat from the standard of reasonableness and of inquiry set in Grootboom. Second, contrary to the findings of both the High Court and the Supreme Court of Appeal, the Con Court found the City's interpretation of the by-laws as allowing the installation of prepayment meters to be "textually permissable", which seems to be a new form of highly deferent legal interpretation. Third, in dismissing the applicants arguments that prepayment meters amount to unfair discrimination based on race - because, despite proven debt across the City, prepayment meters have only been installed in poor black areas - the Court said that the applicants had not proven that prepayment meters were installed in ALL black areas. This is nonsensical and goes against all its previous equality decisions. It would mean that, for example, if I allege that my dismissal on the grounds of my sexual orientation (a listed ground in the Constitution) amounted to unfair discrimination, I would have to prove that my employer had dismissed all other gay employees in the organisation. In South Africa, there is growing concern about the Mazibuko judgment and the Court's apparent retreat from enforcing socio-economic rights. The subsequent judgment of Nokotyana is another case that raises similar concers. This article misses many important points about the Mazibuko case and judgment. I will focus on only three here. First, the Constitutional Court misunderstood the applicants as arguing for a minimum core approach to the right to water. They did not. Rather, the applicants pursued the approach established by the Constitutional Court in Grootboom (in its rejection of the minimum core content approach, as being too inflexible), which is that rights and obligations can only be established in context. This is precisely what the applicants did in Mazibuko: they asked the Court to determine the reasonableness of the City’s Free Basic Water policy in the context of a high-density urban township with waterborne sanitation and no alternative water or sanitation sources. The Court, however, cast this as a minimum core content argument. And, displaying an extraordinary degree of deference, found the City’s Free Basic Water policy to “fall within the bounds of reasonableness”, which appears to me to be a worrying retreat from the standard of reasonableness and of inquiry set in Grootboom. Second, contrary to the findings of both the High Court and the Supreme Court of Appeal, the Con Court found the City’s interpretation of the by-laws as allowing the installation of prepayment meters to be “textually permissable”, which seems to be a new form of highly deferent legal interpretation. Third, in dismissing the applicants arguments that prepayment meters amount to unfair discrimination based on race – because, despite proven debt across the City, prepayment meters have only been installed in poor black areas – the Court said that the applicants had not proven that prepayment meters were installed in ALL black areas. This is nonsensical and goes against all its previous equality decisions. It would mean that, for example, if I allege that my dismissal on the grounds of my sexual orientation (a listed ground in the Constitution) amounted to unfair discrimination, I would have to prove that my employer had dismissed all other gay employees in the organisation. In South Africa, there is growing concern about the Mazibuko judgment and the Court’s apparent retreat from enforcing socio-economic rights. The subsequent judgment of Nokotyana is another case that raises similar concers.

]]> http://www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%e2%80%99s-decision-in-the-mazibuko-case/comment-page-1/#comment-1046 Bret Thiele Tue, 19 Jan 2010 17:14:09 +0000 http://www.ejiltalk.org/?p=1848#comment-1046 The article provides an interesting analysis of the case, although misses to some degree the nuance of COHRE's amicus curiae intervention (as we argued that a minimum core should be used in determining reasonableness rather than in place of the reasonableness standard). The article provides an interesting analysis of the case, although misses to some degree the nuance of COHRE’s amicus curiae intervention (as we argued that a minimum core should be used in determining reasonableness rather than in place of the reasonableness standard).

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