City of Johannesburg v Lindiwe Mazibuko

Five residents of Phiri, a poor township in Soweto, Johannesburg, challenged the City of Johannesburg and Johannesburg Water's decision to limit free basic water supply to 6 kilolitres per household per month (approximately 25 litres per person per day) and the installation of prepayment water meters. The residents had previously received unlimited unmetered water charged at a deemed consumption rate of 20 kilolitres per month. In 2004, prepayment meters were installed dispensing 6kl free water per month with additional water requiring prepayment. The residents argued this was insufficient water and that they had a constitutional right to 50 litres per person per day, provided free to those who could not afford to pay. The City faced financial constraints, infrastructure problems with approximately 67kl actual consumption per household due to leaks and wastage, and a payment rate of less than 10% from consumers. The High Court found in favour of the residents, declaring 50 litres per person per day and that prepayment meters were unlawful.

• What quantity of water constitutes 'sufficient water' in terms of section 27(1) of the Constitution?
• Whether the Water Services Act 108 of 1997 supersedes the direct constitutional right to sufficient water under section 27(1)?
• Whether the City has a constitutional obligation to provide free water to residents who cannot afford to pay for it?
• Whether the installation of prepayment water meters was authorized by the City's Water Services By-laws?
• What is the appropriate remedy for unlawful policy decisions and unauthorized prepayment meters?

The appeal was upheld. The High Court order was replaced with an order: (1) Reviewing and setting aside the City's decision to limit free water to 25 litres per person per day or 6kl per household per month; (2) Declaring that 42 litres per person per day constitutes sufficient water under section 27(1); (3) Declaring the City is obliged, to the extent reasonable given available resources, to provide 42 litres free water to each Phiri resident who cannot afford to pay; (4) Ordering the City to reconsider and reformulate its free water policy in light of these findings; (5) As an interim measure pending policy reformulation, ordering the City to provide 42 litres free water per day to each member of households registered as indigent; (6) Declaring prepayment water meters used for service level 3 consumers unlawful; (7) Suspending the unlawfulness declaration for two years to enable the City to legalize prepayment meters if possible. The respondents were ordered to pay costs including three counsel.

The binding legal principles established are: (1) The Water Services Act 108 of 1997 does not deprive anyone of the right of access to sufficient water in terms of section 27(1) of the Constitution; the Act was intended to achieve progressive realization of the right, not to be exhaustive of it. (2) 'Sufficient water' in section 27(1) means the quantity of water required for dignified human existence, not merely survival. (3) A person who cannot afford to pay for water has no access to that water within the meaning of section 27(1). (4) A local authority is constitutionally obliged to supply free water to residents who cannot afford to pay for the water, to the extent that it is reasonable to expect it to do so having regard to its available resources and other relevant considerations under section 27(2). (5) Administrative actions implementing water policy may be reviewed and set aside if based on an error of law regarding constitutional obligations. (6) Prepayment water meters must be specifically authorized by municipal by-laws; general authorization for 'metered' connections does not include prepayment meters, particularly where by-laws specifically authorize prepayment meters only in limited penalty circumstances.

The court made several non-binding observations: (1) The 'direct reliance rule' (preventing reliance directly on constitutional rights where legislation gives effect to them) only applies when the Constitution expressly provides that legislation must or may be enacted to give effect to the right AND Parliament intended the legislation to be exhaustive. This differs from section 27(2) which requires measures to achieve progressive realization. (2) The court noted with concern the culture of non-payment that developed under apartheid and its ongoing effects on municipal finances, while recognizing many residents genuinely cannot afford to pay. (3) The court acknowledged the practical and logistical difficulties in targeting free water to those who cannot afford to pay, and recognized the City's Register of Indigents as a reasonable interim mechanism despite imperfections. (4) The court emphasized that courts should not usurp the functions of administrative agencies and must recognize their lack of expertise in policy formulation, citing Bato Star Fishing principles. (5) The court noted that effective remedies are required for constitutional violations (citing Fose v Minister of Safety and Security) but this must be balanced against practical implementation. (6) The court observed that prepayment meters may have benefits (guaranteed monthly free delivery, consumer preference, reduced unaccounted water) but these practical benefits cannot override the requirement for lawful authorization.

This case is a landmark decision on socio-economic rights in South Africa, particularly the right to water under section 27 of the Constitution. It established important principles about: (1) The relationship between constitutional rights and implementing legislation - legislation giving effect to socio-economic rights does not necessarily supersede the constitutional right itself unless Parliament intended to 'cover the field'; (2) The meaning of 'sufficient water' as linked to human dignity - it must be adequate for dignified human existence, not merely survival; (3) The state's positive obligations regarding socio-economic rights - municipalities must provide free basic services to those unable to afford them, subject to available resources; (4) The justiciability of socio-economic rights while respecting institutional competence - courts can set standards and review policies but should not usurp administrative functions in policy formulation; (5) Appropriate remedies for socio-economic rights violations - balancing immediate relief with practical implementation challenges. The case demonstrates the Constitutional Court's willingness to enforce socio-economic rights while recognizing resource constraints and the need for progressive realization.