Mazibuko and Others v City of Johannesburg and Others (Lindiwe Mazibuko v City of Johannesburg)

The applicants were five poor residents of Phiri, Soweto, living in separate households. The City of Johannesburg implemented Operation Gcin'amanzi to address unsustainable water losses and non-payment in Soweto. The previous system was based on a "deemed consumption" flat rate of R68.40 per month for 20 kilolitres, but actual consumption averaged 67 kilolitres per month, with 75% of water unaccounted for. The new policy provided 6 kilolitres of free basic water per household per month (based on national minimum standards prescribed in regulations), followed by a subsidised rising block tariff for additional usage. Residents of Phiri were offered a choice between Service Level 2 (yard standpipe with restricted flow) or Service Level 3 (pre-paid meter). The vast majority chose pre-paid meters. Registered indigent households received an additional 4 kilolitres free monthly from July 2007. The applicants challenged the policy as unconstitutional and the installation of pre-paid meters as unlawful.

• What is the proper interpretation of the relationship between section 27(1)(b) (right of access to sufficient water) and section 27(2) (progressive realisation within available resources) of the Constitution?
• Should courts quantify the content of social and economic rights by determining a specific amount of water as 'sufficient'?
• Is the City's Free Basic Water policy of 6 kilolitres per household per month reasonable within the meaning of section 27(2) of the Constitution and section 11 of the Water Services Act?
• Does regulation 3(b) of the National Water Standards Regulations constitute a minimum standard that courts may exceed without challenging the regulation?
• Is the City's indigent registration policy reasonable and constitutional?
• Did the City have legal authority to install pre-paid water meters under its By-laws?
• Do pre-paid meters result in unlawful discontinuation of water supply contrary to section 4(3) of the Water Services Act?
• Was the process of implementing pre-paid meters procedurally fair and lawful?
• Does the installation of pre-paid meters constitute unfair discrimination on the grounds of race or poverty contrary to section 9 of the Constitution?

The applicants' application for leave to appeal was granted. The first, second and third respondents' conditional applications for leave to cross-appeal were granted. The applicants' appeal was dismissed. The respondents' cross-appeals were upheld. The orders of both the Supreme Court of Appeal and the High Court were set aside. No order as to costs was made in any court.

The binding legal principles established are: (1) The right of access to sufficient water in section 27(1)(b) does not confer an entitlement to claim a specified quantity of water from the state immediately. Sections 27(1) and 27(2) must be read together to delineate the scope of the positive obligation, which is to take reasonable legislative and other measures progressively to realise the right within available resources. (2) Courts should not determine a quantified minimum core content or specific amount for social and economic rights. What the right requires varies over time and context. It is institutionally inappropriate for courts to determine precisely what achievement of a social and economic right entails. This is primarily for the legislature and executive as the institutions best placed to investigate social conditions and available budgets. (3) The test for reasonableness of government measures to realise social and economic rights requires: (a) if government takes no steps, courts will require steps to be taken; (b) if measures are unreasonable, courts will require review; (c) measures must make provision for those most desperately in need; (d) if measures have unreasonable limitations or exclusions, courts may order removal; and (e) progressive realisation imposes a duty continually to review policies. (4) The obligation of progressive realisation recognises that policies must be reviewed and revised to ensure rights are progressively achieved. Evidence of such ongoing review may be admitted on appeal to demonstrate acceptance of this obligation. (5) National government should set clear targets for social and economic rights achievement to ensure accountability and enable citizens to monitor performance and hold government accountable politically and through legal challenge. (6) When a municipal council takes decisions in pursuance of its legislative and executive functions, those decisions will not ordinarily be administrative action for purposes of PAJA, as expressly excluded by the definition in section 1. (7) "Discontinuation" of water services in section 4(3) of the Water Services Act means permanent cessation, not temporary suspension under a pre-paid system where supply recommences upon purchase of credit or commencement of a new monthly free allocation.

O'Regan J made several significant non-binding observations: (1) On the role of litigation in social and economic rights: Litigation should hold government accountable through requiring detailed explanation of policies, fostering participative democracy between elections. Government must disclose what it has done to formulate policy: research, alternatives considered, and reasons for the selected option. This understanding accords with founding values of responsiveness, accountability and openness. (2) On costs in public interest litigation: The approach to costs in constitutional matters means that litigation launched in a serious attempt to further constitutional rights, even if unsuccessful, will not result in an adverse costs order. (3) On the subsidiarity principle: The Court raised but expressly did not decide the difficult question of whether the principle of constitutional subsidiarity requires litigants to challenge national minimum standards directly before challenging municipal policies based on those standards. This was left open "for another day." (4) On the role of non-governmental organisations: South Africa is fortunate to have organisations with expertise in litigating in the interests of the poor to the great benefit of society. Such litigation should be pursued despite its expense and complexity. (5) On equality and redressing apartheid spatial planning: Courts need to be cautious when approaching differential treatment of historically disadvantaged areas not to find legitimate government action to constitute unfair discrimination. Different treatment might often be necessary or desirable given deep inequality resulting from apartheid policies. (6) On the quality of government policy-making in this case: The City approached challenges with "impressive seriousness of purpose and commitment to improving the lives of residents in a sustainable fashion." The litigation revealed that continual revision of policy during litigation was beneficial, not problematic, as it showed progressive realisation in action. (7) On new evidence on appeal: In social and economic rights cases, evidence of policy development after the challenged decision may be admitted to show ongoing compliance with progressive realisation obligations and may assist in determining appropriate relief, though it cannot be used to assess the original decision's lawfulness on ordinary appellate principles.

This is the first Constitutional Court judgment to comprehensively interpret section 27(1)(b) (the right of access to sufficient water). It establishes the binding principle that courts should not quantify the content of social and economic rights, rejecting the "minimum core" approach advocated in international law. The judgment clarifies that sections 27(1) and 27(2) must be read together, with the positive obligation being to take reasonable measures for progressive realisation within available resources. It establishes the proper role of courts in socio-economic rights litigation: to hold government accountable by requiring it to explain and justify its policies, not to draft policies or determine their specific content. The judgment demonstrates how litigation can beneficially impact policy-making by requiring government to provide detailed accounting of its decision-making processes, research, and alternatives considered. It affirms that means-testing is a constitutionally permissible methodology for targeting social benefits. The case illustrates the institutional respect courts must show for the policy-making functions of the executive and legislature while maintaining constitutional accountability. It provides important guidance on when municipal council decisions constitute administrative action versus executive functions. The judgment is significant for its approach to equality analysis in the context of measures aimed at addressing apartheid-era service delivery inequalities, recognising that differential treatment may be necessary and not unfairly discriminatory when properly justified.