UN Special Rapporteur on Housing, Miloon Kothari, visting the Phiri community in South Africa

Source: Centre on Housing Rights and Evictions (COHRE)

Mazibuko right to water case reaches Constitutional Court of South Africa

The Geneva-based Centre on Housing Rights and Evictions (COHRE), with the cooperation of the South Africa-based Legal Resource Centre, has intervened as amicus curiae (“friend of the court”) in a historic human rights battle in South Africa. After a five year legal battle, the landmark case of Mazibuko and others vs. the City of Johannesburg and others will finally be heard on the 2nd and 3rd of September by the Constitutional Court of South Africa.

COHRE argues that the City’s policy violates international human rights obligations as well as the Constitution of South Africa as informed by international law.

The case, brought by several poor residents of Phiri, a township in Soweto, with the support of the Centre for Applied Legal Studies, involves a Constitutional challenge to the use of pre-paid water metres which provide an insufficient amount of free water each month before automatically shutting of if residents cannot afford to pre-purchase water credits. The applicants ask the City to provide them and other similarly situated persons with 50 litres of free water per person per day, as well as the option of water credit which is afforded to the wealthier and largely white residents of Johannesburg who get water on credit, rather than having to use pre-payment meters.

The case centres on Article 27 of the South African Constitution, which sets out the right of everyone to have access to ¬sufficient water. According to Article 27, the State is obliged to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

Salih Booker, COHRE Executive Director, noted that “This decision will have far reaching consequences because efforts to impose pre-payment water systems on the poor in South Africa may soon spread to other parts of Africa and globally if not stopped now in Soweto. COHRE hopes that the Constitutional Court will continue to uphold the South African state’s obligation to progressively realise social and economic rights for which government bodies can be held accountable.”

Bret Thiele, Coordinator of COHRE’s Litigation Programme, added that “The lower courts were correct to rely on international human rights law in their previous rulings. They found that a right of access to sufficient water means a right of access to that quantity required for dignified human existence. Now, the Constitutional Court must also consider the principle of progressive realisation in the South African context which in this case requires a minimum of 50 litres of water per person per day. It should also address the state’s obligation to take meaningful and measurable steps towards the full realisation of the right to water as soon as feasible for all South Africans.”

COHRE is participating in this historic case as a “friend of the court”. This term refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.

A decision is expected later in the year. See more information, including COHRE briefs and lower court judgments.

For interviews or additional information please contact Bret Thiele, Coordinator of COHRE’s Litigation Programme, Litigation@cohre.org or Sonkita Conteh, Legal Officer (Africa) in COHRE’s Right to Water Programme, sonkita@cohre.org.

human rights, water crisis