Category Archives: constiutional court

The Star: In defence of the Concourt

In defence of the Concourt

Jackie Dugard and Kate Tissington

In recent months the judiciary has come under attack for being anti-transformative. Yet the Constitutional Court’s most recent judgments reveal its true transformative credentials. They also reveal the transformative potential of the judiciary generally.

The violent dispossession wrought by colonialism and apartheid left millions of people without secure access to land. We continue to struggle with this legacy 17 years into our democracy.

On the best estimates we have, at least 7 million people live in informal settlements. Thousands more live in derelict buildings in inner cities.

Without legal rights to the land they live on, the informally housed are particularly vulnerable to eviction.

In four judgments handed down in the past two weeks, the Concourt has confirmed that evictions that lead to homelessness will not be permitted.

They are unlawful and unconstitutional. While the state and private property developers have legitimate interests in possessing and developing land, these interests must be balanced against, and may be limited by, the needs and interests of the poor.

Often, a private property developer will have to wait to take possession of his land until alternative housing can be found for those living on it.

This is especially the case where a developer purchases land knowing it to be occupied.

This fundamentally subverts the logic of colonialism and apartheid. And it cannot seriously be said that the court that has come to this conclusion is not, at least in some important respects, a transformative court.

But these decisions are important in other respects. They are critical in ensuring that the constitution has meaning for most of SA’s poor people.

And they are also important to safeguard SA’s constitutional democracy for us all. If our constitutional democracy serves only the interests of the wealthy, the adequately housed, the well-educated, the healthy and those with sufficient food, water and a healthy environment, it will not survive much longer.

SA is the most unequal society in the world.

Internationally, inequality is associated with a range of social ills ranging from high levels of violence and criminality to ill health and low life expectancy.

Equality is better for everyone. To survive as a democracy, SA must be a place where nobody wins unless everybody wins.

Consequently, the Concourt must not simply be concerned with respecting the powers and role of the executive in giving effect to the constitution. It must, at the same time, ensure that it remains in touch with, and responsive to, poor people’s struggles for equality and social justice. We see these in increasing “service delivery” protests.

These protests are poorly understood. They are not just about inefficiency, corruption and failure to “deliver services”.

They are also about participation, governance and accountability. Communities don’t just protest because they have no services. They protest because they are ignored (and often repressed) when they seek to hold the state accountable for its duty to provide them. They also protest when the goods and services are provided in a repressive, unaccountable manner.

The decisions of Blue Moonlight Properties, Pheko, Mooiplaats and Skurweplaas show that the court is sensitive to these issues – and, by extension, to the claims of the poor and dispossessed to a transformed society.

In Blue Moonlight Properties, the court held that the state, and in particular municipalities, must provide shelter to those evicted from private land.

And private landowners must wait until the state can reasonably be expected to do so before they evict people. In this decision, the court establishes an implicit hierarchy of interests. The poor sit at the top of this hierarchy. They cannot be dispossessed unless and until the state acts on its obligations to provide shelter.

And a private landowner’s interests in developing property are temporarily frustrated until this has been achieved. This does not mean that private property is ignored or subverted, as some have claimed. It means that the law responds sensibly to needs of the poor. It means that economic development cannot only benefit the already rich and powerful.

Nor can it ride roughshod over the often meagre claims of the poor and desperate.

Blue Moonlight will not end property development, much less urban regeneration in Joburg.

The obligations it imposes and the legal relationships it establishes will simply be factored into the calculations of the state and the private sector in their ordinary course of business. Nor will it impoverish municipalities, as the court made clear that national and provincial government must bear the cost of providing shelter when a municipality cannot.

These principles were affirmed in Mooiplaats and Skurweplaas. In these cases, hundreds of desperately poor people were sought to be evicted as “land invaders”.

But the court saw that the “invasion” was, in fact, a desperate act by people who had nowhere else to go.

They occupied private land that was put to no productive use by its owner because they had been evicted by another private property developer.

Here, again, the state will provide, and the private owner will get his land back.

But not at the expense of the intense suffering that an eviction without alternatives would cause.

In Pheko, the court reaffirmed the need for the state to act lawfully when it does provide services.

In that matter, several thousand residents of the Bapsfontein informal settlement had been violently evicted and relocated by the Ekurhuleni Metropolitan Municipality to a transit camp 35km from their homes, jobs, schools and existing community networks. All of this was done without a court order in terms of the Disaster Management Act. The municipality argued that it had acted in an emergency to avert disaster.

This was because the land was dolomitic. In any event, the municipality claimed, the transit camp gave the Bapsfontein residents access to a range of basic services they did not have before.

But the Bapsfontein land had been dolomitic for more than 20 years. There was no indication that it was getting precipitately worse. In truth, there was neither disaster nor emergency.

Better serviced though the transit camp may have been, it was a vast distance from the community the Bapsfontein residents had known.

All of this had been “achieved” with no real consultation, no lawful authority and in affront to the dignity of the Bapsfontein residents.

If SA’s political leaders are looking for a reason that even communities that have been provided with some services still rise up in protest, they need look no further than Bapsfontein.

The Concourt saw the municipality’s stance for what it was: a cynical manipulation of the law to achieve a violent, repressive end.

The court declared the municipality’s action unlawful and directed it to provide land and housing to the Bapsfontein residents in the immediate vicinity of their former homes.

The Pheko decision is a testament to the court’s resolve in the face of the naked exercise of power without recourse to law.

The Concourt has played, and will continue to play, an important role in transforming our society. Like any institution, it will make mistakes, it will underachieve and it will frustrate.

Despite its spectacular record on the right to housing, we feel that it could have done more to give effect to other socio-economic rights in the constitution – like water and health care – when the opportunities presented themselves. But it has never been, nor does it show indications of becoming, an “anti-transformative” court.

Its role must be debated, analysed and debated again. But the court has, this month, shown itself to be a formidable tool in the hands of those seeking a more just and equal society.

In a time of frustrated expectations, we should take no small degree of pride in it.

SACSIS: Constitutional Water Rights Judgment Gets It Wrong

Constitutional Water Rights Judgment Gets It Wrong

Date posted: 21 October 2009
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On 08 October 2009, the Constitutional Court handed down its first water rights judgment. The case – Mazibuko & Others v City of Johannesburg & Others – was brought by five impoverished residents in Phiri, Soweto, on behalf of themselves, all similarly-situated residents and everyone in the public interest. The applicants challenged the City’s free basic water policy for being insufficient to meet the basic needs of large, poor, multi-dwelling households. They also challenged the lawfulness of prepayment water meters, which had been installed against their will and result in automatic cut-off of the water supply following the exhaustion of the free basic water supply unless additional water credit is purchased.

Unfortunately, instead of taking the opportunity to develop the jurisprudence on the nature of the state’s obligations in relation to the right of access to sufficient water, the judgment dismissed the applicants’ argument that the free basic water supply of 6 kilolitres per household per month was insufficient to meet their basic needs including waterborne sanitation. It also rejected their claim that the installation of prepayment water meters in Phiri occurred without legal authorization and requisite consultation, was coercive (the installation was premised on the threat of water disconnection or the provision of a yard tap) and discriminatory (although the worst debtors are government institutions and businesses, prepayment water meters are only installed in poor, black, suburbs), and deprives them of procedural protections found in conventional credit supply systems (reasonable notice of impending disconnection and opportunity to make representation prior to disconnection).

The High Court judgment of Moroa Tsoka was grounded in a sensitive consideration of the circumstances of the residents of Phiri, and the impact of the free basic water policy and prepayment water meters on their right of access to water. Such a contextual analysis is conspicuously absent from the Constitutional Court decision, which appears to uncritically accept the City’s case and its legal interpretations. Specifically, there are six broad problems with the judgment.

First – despite noting that the City’s obligation to progressively realize the right of access to sufficient water within available resources is always context dependent – having failed to consider the specific circumstances of the applicants, the Court also failed to grapple with the question of what would constitute water sufficiency in such circumstances. In this regard it ignored the extensive expert and international law evidence that supported a finding (accepted by both the High Court and Supreme Court of Appeal) that between 40 and 50 litres per person per day is the minimum amount of water required to lead a healthy and dignified existence.

Furthermore, the Court declined to interrogate the City’s obligations in the context of its ample resources. Rather, the Court deferred uncritically to the City’s free basic water policy, praising it for having ‘been under constant review’, but not subjecting such revision to any test to determine whether such revisions met the required standard of reasonableness in the prevailing circumstances. Similarly, in relation to the national regulations requiring municipalities to provide at least 6 kilolitres per household per month, the Court found that it will be reasonable for municipalities to ‘strive first to achieve the prescribed minimum standards’, before being required to go beyond that minimum standard.

Worryingly, the emphasis on the obligation only to ‘strive’ to achieve even this directly legislated amount, suggests that the Court would not necessarily adjudicate in favour of a household without any water services, especially if the household was located in a cash-strapped municipality. This approach also misunderstands the obligation to progressively realize the right of access to water. The progressive realization standard recognizes that people in urban areas will usually have more advanced water connections than those in rural and peri-urban areas, and that there are good healthcare and dignity-related reasons to ensure that they have sufficient access, as determined by reference to their circumstances. Such access should, however, not be at the expense of water services to rural areas and informal settlements. Rather it should be seen holistically as a means of ensuring optimal health and development to all residents, determined by their needs and the state’s means. Limiting the water supply to impoverished township households with waterborne sanitation is a regressive measure, which is not only unreasonable but impermissible where there are available resources to remedy the situation.

Second, the Court wholly accepted the City’s assertions that there was extensive consultation prior to the decision to install prepayment water meters in Phiri. Yet, on the record and at the hearing, the applicants stressed that there was not a shred of evidence that there was any consultation prior to the decision being taken. Rather, the decision to install prepayment meters was taken unilaterally by the City and Johannesburg Water in 2001. Thereafter the City embarked on a public relations exercise to ‘sell’ a fait accompli to the residents of Phiri. This was accompanied by the threat to disconnect their water supply or to install yard taps should they not accept prepayment water meters.

Third, in stark contrast to both lower courts, the Constitutional Court found prepayment water meters to be lawful. In a highly deferential analysis, the Court found the City’s interpretation to be ‘textually permissible’, ruling that prepayment meters are provided for in the by-laws and do not discontinue the water supply (which would trigger procedural protections unavailable in prepayment meters) but rather constitute a temporary suspension. Had the Court pursued a purposive or even a formal legal analysis, it is likely that, like the previous courts, it would have come to the conclusion that there is no basis in law for prepayment meters (apart from as a punitive measure for contravening the conditions of service of a yard tap) and that they effect an unlawful discontinuation of the water supply.

Fourth, in relation to the City’s indigency policy, the Court did not engage with the problem of the chronic under-representation of the most vulnerable and needy on the City’s indigent register, which the City proposes will be the basis for future free basic water allocation. Here the Court disregarded its own reasoning in Grootboom: ‘it may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right’.

Fifth, by failing to consider the dire circumstances and the practical impact of prepayment water meters on living conditions, and instead accepting the City’s pronouncements on how preferable prepayment meters are, the Court missed a vital opportunity to develop its equality jurisprudence. As appreciated by the High Court, the rollout of prepayment meters exclusively in poor black residential areas, despite the evidence that the worst debtors are government institutions and businesses, amounts to unconstitutional and unfair discrimination on the basis of both race and class.

Finally, the Court ignored the solid logic of the High Court, when it found that if – as the City suggests – the residents of Phiri are satisfied with prepayment water meters, there can be no problem with an order in which they are offered the choice of a conventional meter. If everyone is happy with a prepayment meter, no-one will choose a conventional meter. If the Court truly believed the City’s assertions of satisfaction, what better way to promote equality and participatory democracy than to offer the residents of Phiri the choice of a conventional meter, such as is offered in all the richer suburbs.