The
High Court opined that the right to potable water is enshrined in the
Constitution and that the appellant, being a public body, cannot deny
water to any citizen without just cause. Furthermore, the relevant
by-law relied upon by the appellant, Government Notice No.164 of
1913, titled 'Bye-laws for Regulating the Supply and Use of ...
The
High Court opined that the right to potable water is enshrined in the
Constitution and that the appellant, being a public body, cannot deny
water to any citizen without just cause. Furthermore, the relevant
by-law relied upon by the appellant, Government Notice No.164 of
1913, titled 'Bye-laws for Regulating the Supply and Use of Water
within the Municipality of Salisbury', was…., unconstitutional.
The
appellant derives its right to discontinue water supplied to its
consumers from an antiquated Government Notice No.64 of 1913, titled
'Bye-laws for Regulating the Supply and Use of Water within the
Municipality of Salisbury'. In particular, it relies not upon any
specific by-law but upon a clause contained in its standard form
contract governing the supply of water by meter, which contract is
annexed as a schedule to the Bye-laws. Clause 8(a) of the standard
contract stipulates that:
“The
Council may, by giving twenty-four hours' notice, in writing,
without paying compensation and without prejudicing its right to
obtain payment for water supplied to the consumer, discontinue the
supply to the consumer –
(a)
If he shall have failed to pay any sum which, in the opinion of the
Council, is due under these conditions or the Water Bye-laws;
(b)…,.;
(c)…,.;
(d)…,.”…,.
Whether
By-laws are Unconstitutional
In
the context of a Constitutional framework within which the right to
water is not explicitly articulated, the right is often subsumed
under the broader rubric of the fundamental right to a clean and
healthy environment and sustainable development implicit in the right
to life. The right to fresh air, clean water and a pollution-free
environment is perceived to derive from the in-alienable common law
right to a clean environment.
See,
for instance, the decisions of the Supreme Court of India in Vellore
Citizens Welfare Forum v Union of India
(1996) 5 SCC 647 and Narmada
Bachao Andolan v Union of India
(2000) 10 SCC 664.
In
South Africa, section 27 of the Constitution expressly provides for a
right to have access to health care, food, sufficient water and
social security. Insofar as concerns water, section 27(1)(a) dictates
that “everyone has the right to have access to…, sufficient…,
water”; while section 27(2) enjoins the State to “take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation” of this right.
According
to N. GABRU: Some
Comments on Water Rights in South Africa
PER/PELJ 2005 Vol.8 No.1…, the nature of the obligation imposed by
section 27 is not unqualified so as to impose any duty on the State
to provide water on demand. The reference to “access” rather than
the “right” to water means that the State's duty is limited to
only those sections of the population without the means to ensure
access to healthcare, food, water and social security. Those who have
the means already have access to those essentials, since they can
afford it, and, therefore, cannot claim it from the State.
Additionally, there is no explicit guidance in the Constitution
itself as to the meaning of “sufficient” food and water, i.e.
as to the quantity and quality of water that each individual is
entitled to access. Sufficient food and water must therefore be
measured in terms of an adequate standard of living, which, in turn,
is linked to the necessities of life in accordance with the
prevailing cost and standard of living in the country concerned.
Thus, the availability of access to food and water depends upon the
availability of the resources at the disposal of the State. The
learned author further notes, quite correctly, that fundamental
rights and freedoms are not absolute, their boundaries being
demarcated by the rights of others and by the legitimate needs of
society.
In
the case of Mazibuko
& Others v City of Johannesburg & Others
[2009] ZACC 28 [2010 (4) SA 1] the Constitutional Court of South
Africa was seized with an appeal from the Supreme Court of Appeal
upholding the decision of the Johannesburg High Court. The High Court
had found that the prepayment water system used in the township
concerned was unconstitutional and unlawful. It ordered the City to
provide free basic water supply of 50 litres per person per day and
the option of a metered supply to be installed at the City's
expense. On appeal to the Supreme Court of Appeal, it was held that
the quantity of water required for dignified human existence, in
compliance with section 27 of the Constitution, was 42 litres per
person per day. The court also concluded that the City had no
authority, in law, to install prepaid meters and that the
disconnection of water supply, once the free basic water limit had
been exhausted, constituted an unlawful discontinuation of water
supply.
On
further appeal and cross-appeal, the Constitutional Court set aside
the orders made by both the High Court and the Supreme Court of
Appeal. The court adopted a more robust and practical approach to the
realisation of social and economic rights generally. It is
instructive to set out the reasoning of the court at length in order
to illustrate the modalities for the progressive implementation of
the right to water and other rights of the same genus. To quote
O'REGAN J, with whose pragmatic approach I respectfully concur:
“….,
section 27(1) and (2) of the Constitution must be read together to
delineate the scope of the positive obligation to provide access to
sufficient water imposed upon the State. That obligation requires the
State to take reasonable legislative and other measures,
progressively, to achieve the right of access to sufficient water
within available resources. It does not confer a right to claim
“sufficient water” from the State immediately.
…,.
The fact that the State must take steps, progressively, to realise
the right implicitly recognises that the right of access to
sufficient water cannot be achieved immediately. That the
Constitution should recognise this is not surprising.
At
the time the Constitution was adopted, millions of South Africans did
not have access to the basic necessities of life -, including water.
The purpose of the Constitutional entrenchment of social and economic
rights was thus to ensure that the State continue to take reasonable
legislative and other measures, progressively, to achieve the
realisation of the rights to the basic necessities of life. It was
not expected, nor could it have been, that the State would be able to
furnish citizens immediately with all the basic necessities of life.“
[at paragraphs 57, 58 and 59].
“Moreover,
what the right requires will vary over time and context. Fixing a
quantified content might, in a rigid and counter-productive manner,
prevent an analysis of context. The concept of reasonableness places
context at the centre of the enquiry and permits an assessment of
context to determine whether a Government programme is indeed
reasonable.
Secondly,
ordinarily it is institutionally inappropriate for a court to
determine, precisely, what the achievement of any particular social
and economic right entails and what steps Government should take to
ensure the progressive realisation of the right. This is a matter, in
the first place, for the legislature and executive, the institutions
of Government best placed to investigate social conditions in the
light of available budgets and to determine what targets are
achievable in relation to social and economic rights. Indeed, it is
desirable, as a matter of democratic accountability, that they should
do so for it is their programmes and promises that are subjected to
democratic popular choice.“ [at paragrpahs 60 and 61].
“The
Constitution envisages that legislative and other measures will be
the primary instrument for the achievement of social and economic
rights. Thus, it places a positive obligation upon the State to
respond to the basic social and economic needs of the people by
adopting reasonable legislative and other measures. By adopting such
measures, the rights set out in the Constitution acquire content, and
that content is subject to the Constitutional standard of
reasonableness.
Thus,
the positive obligations imposed upon Government by the social and
economic rights in our Constitution will be enforced by courts in at
least the following ways;
(i)
If Government takes no steps to realise the rights, the courts will
require Government to take steps;
(ii)
If Government's adopted measures are unreasonable, the courts will
similarly require that they be reviewed so as to meet the
Constitutional standard of reasonableness;…,.
(iii)
Finally, the obligation of progressive realisation imposes a duty
upon Government, continually, to review its policies to ensure that
the achievement of the right is progressively realised.“ [at
paragraphs 66 and 67].
“…,.
What is clear from the discussion above is that the City is not under
a Constitutional obligation to provide any particular
amount of free water to citizens per month. It is under a duty to
take reasonable measures, progressively, to realise the achievement
of the right.” [at paragraph 85].
“I
have thus concluded that neither the Free Basic Water policy nor the
introduction of pre-paid water meters constitutes a breach of section
27 of the Constitution.” [at paragraph 169].
Section
77 of the Constitution of Zimbabwe is framed in words that are almost
identical to those used in its South African counterpart. It
encapsulates the right to food and water in the following terms:
“Every
person has the right to -
(a)
Safe, clean and potable water; and
(b)
Sufficient food;
and
the State must take reasonable legislative and other measures, within
the limits of the resources available to it, to achieve the
progressive realisation of this right.”
Counsel
for the appellant submits that section 77 must be read with section
86 of the Constitution. He argues that no right is absolute and that
every right must be exercised reasonably and with due regard to the
rights of others. Rights come with responsibilities and obligations
and there can be no right to water without paying for the cost of
supplying it. In any event, the impugned bye-laws are necessary for
planned urban administration and are also fair and reasonable in a
democratic society.
Counsel
for the respondent counters that section 77 of the Constitution
obligates the appellant to provide clean and potable water. To the
extent that the by-laws allow the appellant to act arbitrarily, they
must be regarded as impeding the progressive realisation of the
Constitutional right to water.
The
first point to note about section 77 of the Constitution is that it
is a fundamental human right enshrined in Part 2 of the Declaration
of Rights. As such, it is directly enforceable in terms of section 85
of the Constitution if it has been, is being, or is likely to be
infringed. Nevertheless, being in the nature of a social right, I do
not think that it is susceptible to unqualified application and
enforcement. This emerges clearly from the wording of the section
itself.
What
the State is enjoined to do is to take reasonable legislative and
other measures to achieve the progressive realisation of the rights
to sufficient food and potable water. Moreover, its obligations in
this regard are confined to measures within the limits of the
resources available to it. In light of the relatively inchoate and
somewhat nebulous scope of the rights conferred and the concomitant
obligations imposed, I am inclined to regard section 77 as being,
essentially, policy-oriented and hortatory in nature. This is not to
render the provision entirely nugatory but rather to recognise that
the extent of its practical enforceability is not necessarily
self-evident in every circumstance.
My
reading of section 77 of the Constitution is that the possible
violation of its provisions is only implicated where the State, or a
local authority, fails to provide any or adequate water supply to any
given community or locality. It might also arise where, as appears to
have been recently admitted by the appellant itself, having afforded
an adequate water supply to most inhabitants, it is then discovered
that such supply is, in fact, contaminated and therefore only potable
at great risk. In contrast, it is difficult to envisage how the broad
import of section 77 might be invoked in the case of a consumer, who
has full or adequate access to water supply, but is deprived thereof
by being disconnected for having failed to pay for water consumed and
after having received due notice and warning to settle his account.
Even
assuming that my overall construction of section 77 is flawed, I have
no doubt that the powers conferred by the bye-laws in
casu
can be appropriately scrutinised and evaluated to ensure that they
comply with and do not infringe the requirements of section 77, no
matter how imprecise and ill-defined those requirements may be.
Having regard to my earlier assessment of the processes embodied in
the by-laws pertaining to the supply of water, I take the view that
the power to disconnect water supply, exercisable by the Council, is
eminently reasonable and does not in any way contravene section 77 of
the Constitution.
Bearing
in mind the enormous economic and budgetary considerations that would
ordinarily arise in the provision of safe and clean water to a large
populace, it cannot be said that the disconnection of water supply,
by reason of non-payment for water consumed in any specific instance,
constitutes an infringement of the Constitutional right to water.
Indeed, it may be necessary to do so to ensure that the majority of
non-defaulting consumers continue to enjoy their respective rights to
water. In other words, the power to disconnect the water supply of
any individual consumer, in the manner prescribed, is a necessary
incident of the measures necessary to safeguard the rights of other
consumers at large. This approach accords squarely with the dictates
of section 86(1) of the Constitution, to wit, that fundamental rights
and freedoms must be exercised reasonably and with due regard for the
rights and freedoms of others.
In
the premises, I am of the considered opinion that the application and
enforcement of the 1913 Bye-laws do not negate or impede the
progressive realisation of the right to safe, clean and potable water
as envisaged by section 77 of the Constitution. Having concluded that
there is no contravention of section 77, it becomes unnecessary to
delve into the question as to whether the by-laws constitute a
limitation that is fair, reasonable, necessary and justifiable in a
democratic society within the contemplation of section 86(2) of the
Constitution….,.
Turning
to the larger issues apropos
the validity of the impugned 1913 Bye-laws, I take the view that
their provisions, construed in their entirety, are not only
reasonable in their operation but also intra
vires
the enabling provisions of the Urban Councils Act. Furthermore, I am
not persuaded by the respondent's contention that the by-laws are
incompatible with the right to water enshrined in section 77 of the
Constitution. Thus, the appellant's power to disconnect water
supplies, for non-payment of water accounts, provided it is
reasonably applied and enforced, and exercised in strict compliance
with the conditions prescribed in the bye-laws, is both statutorily
and constitutionally un-impeachable.
