City of Johannesburg v Lindiwe Mazibuko and Others

The respondents were poor residents of Phiri Township in Soweto. Until 2004 they had access to an unmetered water supply. In 2004 the City of Johannesburg introduced a new water policy involving prepayment water meters and limited free basic water to 25 litres per person per day (or 6 kilolitres per household per month). Once the free allocation was exhausted, residents had to prepay for additional water, which many could not afford. The residents challenged the sufficiency of the free water allocation under section 27(1) of the Constitution and the lawfulness of prepayment water meters. The High Court set aside the City’s policy, ordered provision of 50 litres per person per day, and declared the prepayment meters unconstitutional and unlawful. The City, Johannesburg Water, and the Minister of Water Affairs appealed to the Supreme Court of Appeal.

The appeal was upheld and the High Court order was replaced. The City’s decision limiting free basic water to 25 litres per person per day was reviewed and set aside. It was declared that 42 litres per person per day constitutes sufficient water under section 27(1). The City was ordered to reconsider and reformulate its free water policy and, pending reformulation, to provide 42 litres of free water per day to indigent Phiri residents. The use of prepayment water meters was declared unlawful, with the declaration suspended for two years.

This judgment is a major authority on the constitutional right of access to sufficient water and the interpretation of socio-economic rights. It clarified that legislation giving effect to section 27 does not necessarily exclude direct reliance on the Constitution. The case established that sufficiency of water is context-specific and linked to human dignity, and it recognised that municipalities may be obliged to provide free water to indigent residents. It also highlighted the requirement that municipal service delivery mechanisms, such as prepayment meters, must be authorised by law.