The Justiciability of Water Rights: Mazibuko v. City of Johannesburg
Lucy A. Williams
Northeastern University - School of Law
June 18, 2013
Willamette Journal of International Law and Dispute Resolution, Vol. 18, No. 2, pp. 211-255, 2010
Northeastern University School of Law Research Paper No. 146-2013
This paper uses the case of Mazibuko v. City of Johannesburg, as it was decided in the High Court of South Africa (Witwatersrand Local Division), as the basis of a discussion of judicial enforcement of social and economic rights, with special emphasis on the right of access to sufficient water. The paper compares the conditions of the black township residents who brought the lawsuit and residents of wealthier, white areas of Johannesburg and calls attention to trends in water policy in South Africa running counter to egalitarian goals of the South African Constitution. The paper argues that judicial enforcement of social and economic rights can (although it does not necessarily) advance democracy by affording every person the minimum conditions necessary for meaningful political participation and enjoyment of his or her political, social, and economic rights. The paper proposes a new legal approach for analyzing access-to-water and other socioeconomic rights issues – the ‘developmental-reasonableness’ test which incorporates equality principles – as better suited than existing approaches to the transformative aspirations of the South African Constitution. The proposal urges that socio-economic rights jurisprudence emphasize redistributive measures. The afterword describes the South African Constitutional Court’s judgment which failed to embrace the transformative potential argued for in this article.
Number of Pages in PDF File: 46
Keywords: access to water, democracy, equality, free basic water, judicial enforcement, pre-paid meters, redistribution, separation of powers, socio-economic rightsAccepted Paper Series
Date posted: June 20, 2013
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