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Mazibuko v City of Johannesburg - a jurisprudential setback 335
legislature and the executive (in particular) to determine the precise
contours of the enjoyment of the rights guaranteed under section 27(1) at
any given time.
An analysis of the Court’s previous jurisprudence however seems to
suggest that when the right of access to sufficient water under section
27(1)(b) is deconstructed (just as with the rest of the other rights provided
for under section 27(1)), there are some aspects of those guarantees that
guarantee immediate claims and hence impose immediate obligations. In
the Grootboom case, the Court held that the state is under an obligation to
provide immediate relief that would fulfil certain minimum standards for
those in desperate need. In the context of housing, the Court held that the
requisite standards, short of adequate housing, that would meet this test
were durability, habitability and stability. 79 Although it is arguable that the
situation in the Mazibuko case, on its specific facts, was different in that there
was nothing on record to show that there were people who, by reason of the
policies adopted by the City of Johannesburg, were left in a state of
desperation without any potable water, the problem is that the decision, as
has been the trend in the socio-economic rights jurisprudence of the Court,
does not seek to deconstruct the content of the right of access to sufficient
water. The jurisprudence focuses on determining the obligations of the
state. As Bilchitz has argued, the approach of the Court suggests that the
content of the right itself is to be determined by taking account of available
resources and comes close to viewing socio-economic rights under the
Constitution as providing a right to reasonable government action. 80
However, if the state is under an obligation to make immediate provision
for those in desperate need, as the Court acknowledged in Grootboom, then
correlatively, this implies that under sections 26 and 27 of the Constitution,
everyone has a right to the immediate provision of the basic necessities of
life, including water, when in desperate need. 81 After all, the Court in
Mazibuko begins with an acknowledgment that ‘water is life’ and that
‘without it, we will die’. 82
An objection can indeed be raised that the approach of the Court thus
far, most prominently exemplified by the Mazibuko decision, of first
identifying the obligation of the state and then determining whether the
obligation gives rise to an immediate right to claim a right, access to
sufficient water in this case, is rather lopsided. The preferred approach
should be to look at the right in section 27(1) and then ask whether the right
gives rise to such an immediate obligation, or an immediate obligation of
any other form, regard being had to section 27(2). The integrity of the
rights-based vision of the Constitution that Sachs J talked about in the Port
79
See Grootboom (n 60 above) para 52.
80 D Bilchitz Poverty and fundamental rights: The justification and enforcement of socio-economic
rights (2007) 216.
81
See Grootboom (n 60 above) para 44.
82 Mazibuko (n 14 above) para 1.