Falling Short of Constitutional Norms: Does ‘Normative (In)congruence’ Explain the Courts’ Inability to Promote the Right to Water in South Africa?

Abstract

In South Africa, municipal non-compliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis”, arguing that the rule of law can accommodate social justice if it demands “normative congruence” alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of “normative incongruence” that impedes the pursuit of social justice, even as courts compel congruence with formal rules.

Keywords: Rule of Law, Social and Economic Rights, Right to Water, Administrative Law, Administrative State, Constitutional Law

JEL Classification: K32, K23, K42, K30