THE Constitutional Court surprised many of us last Thursday. In the prepaid water case brought by residents of Phiri in Soweto, the court ruled unanimously that providing prepaid water meters and only 6kl of free water a household a month is constitutionally acceptable. The applicants wanted installation of the prepaid water meters declared unconstitutional, or for residents to at least be given a choice between these and contract meters. They also hoped that the municipality would be required to provide 50l of free water a person on the premise that it is necessary for a dignified life. Instead, Judge Kate O’Regan hit each of the applicants’ arguments out of the constitutional park for spectacular legal sixes.
In examining the right of access to sufficient water, the court relied on its own analysis in the Treatment Action Campaign (TAC) and Grootboom cases. In these cases, it held there was a positive burden on the state to take reasonable steps towards the progressive realisation of socioeconomic rights within the available resources. This does not imply that there is a quantifiable, “minimum core” of specific goods that can be enforced by the court. The role of the court is to test the reasonableness of state policies.
This requires a delicate balancing act. The court should not dictate the content of socioeconomic policies. That is the government’s prerogative, and it is desirable because the government has a popular mandate for policy creation, while the courts do not.
Further, the complexities of budget decisions and policy research and review processes are beyond the court’s institutional capacity, but this does not mean that the government has free rein on policy. The court helps to ensure government accountability by allowing citizens to come before it to test state policies against the reasonableness standards mandated by the constitution and developed in constitutional case history.
On the basis of this self-definition of its relationship with other branches of government, the court held in the Phiri case that the right of access to sufficient water needed to be analysed similarly to socioeconomic rights cases such as TAC and Grootboom. It then becomes a question of whether the municipality formulated policies that demonstrably aimed to realise the rights of all residents to access sufficient water progressively.
On the facts before the court, O’Regan’s logic is unanswerable, and would look anti- poor only to someone who failed to read and consider carefully the cogent rationale that it set out.
First, the installation of the prepaid water meters is not unlawful, but coheres with both the bill of rights and municipal by-laws that emanate from the Water Services Act.
Second, the nonpayment culture under apartheid was a morally acceptable form of resistance. Now, however, we need to instil a culture of payment by all to ensure our democratic state is sustainable, while developing interventions to cushion the most vulnerable who cannot easily meet the municipality’s fee structures. The municipality had, in fact, evolved a set of policies in a commendable attempt to do just that.
This is why, for example, means testing was introduced to allow the indigent to get an additional 4kl of free water a month. Such an indigent household, with low additional usage beyond the free supply of water, generally ends up paying less for water and sanitation a month than what it costs the municipality to provide water to these households.
Wealthier citizens also cross-subsidise the poor because the tariff structure for water usage in areas with greater consumption is more onerous than those in poorer areas. So, for example, someone with a prepaid meter using 20kl of water pays R95,80 a month, compared with someone using the same quantity of water on a credit-meter system paying R131,25 a month.
In essence, then, the City of Johannesburg has been a model of how a government agency should continuously research, test, revise and improve its policies. It has struck a balance between its legitimate requirements that all citizens must pay for essential services, while being sensitive to the welfare needs of the most vulnerable by designing a complex service delivery and payment structure that still favours the poor.
If the Constitutional Court demanded blindly that the municipality simply provide more free water to Phiri residences, it would have improperly exerted control over complex budgetary decisions and policy processes that had been shown, at any rate, to be developing progressively.
What, then, are the implications of this case? First, it demonstrates the importance of the Constitutional Court not overreaching its powers. It does not have the institutional capacity or mandate to insert itself gratuitously into policy debates and simply stipulate substantive policy content.
Instead, it needs to hold the government thoroughly accountable by employing the “reasonableness” test. This is a powerful test, so it should not be misconstrued as lacking teeth. The TAC and Grootboom cases showed otherwise.
Second, the court needs to acknowledge reasonable state policy effort where it is demonstrated. In this case, it is appropriate for the City of Johannesburg to be praised.
Third, the case demonstrates the need for social justice litigation to be undertaken more strategically by nongovernmental organisations. This was perhaps not the best first water rights case to go all the way to the Constitutional Court. The municipality made a reasonable effort to provide water access. A clearer case, such as a situation in which citizens did not have access to communal taps within 200m of their living space, for example, would have had a better chance of landing a win.
Human rights lawyers and their nongovernmental institutional friends need to think more carefully about their selection of cases, the timing of judicial activism and the nature and scope of the relief sought.
Fourth, while the constitutional enforcement of socioeconomic rights is an important tool for achieving social justice, other tactics such as political lobbying are underused.
This is not to suggest that we are becoming too litigious as a society, but rather that civil society organisations need to have a more expansive tool kit for achieving their noble goals.
Most importantly, this case begins to settle a question that was raised in the TAC and Grootboom cases. Should we accept a “minimum core” interpretation of socioeconomic rights, or should we accept a “reasonableness test”? The former entails quantifying the content of socioeconomic rights, such as a specified measure of water each of us must get from the government. The court rightly rejected this approach as impossibly complex, favouring instead the reasonableness test. This test allows the court to test policies for the extent to which they progressively realise minimum socioeconomic wellbeing. This is the sensible way forward.
“Minimum core” stipulations can also harm citizens. Fixing the content of socioeconomic rights does not take sufficient account of changes in context.
Ultimately, O’Regan situated the court comfortably between the rock of passively deferring to government policy processes on the one hand and the hard place of subverting the government’s right to make policy on the other. The Constitutional Court’s pro-poor credentials remain intact.
http://www.businessday.co.za/articles/Content.aspx?id=83847
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