Assignment:
Consider the case of Lindiwe Mazibuko and others v City of Johannesburg and others, at
www.saflii.org/za/cases/ZACC/2009/28.ht
Facts:
1) Operation Gcin’amanzi is a project the city of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. It involves re-laying water pipes to improve the water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kilolitre per household monthly free basic water allowance.
2) Mrs. Mazibuko and four other residents of Phiri, Soweto( the applicant) challenged, firstly, the city of Johannesburg’s free basic water policy in terms of which 6 kilolitres of water are provided monthly for free to all households in Johannesburg and , secondly, the lawfulness of the installation of pre-paid water meters in Forestry.
3) The three respondents are the city of Johannesburg (the city); Johannesburg Water (the company wholly owned by the city which provides water services to the residents of the city); and the National Minister for Water Affairs and Forestry.
4) After the City had opted for operation Gcin’amazi, extensive conclusion ensured with communities about what the project would entail and how it would be implemented. The initial implementation in early 2004 caused unhappiness amongst residents. By the time the applicants brought their challenge in the High Court eighteen months later, the vast majority of residents had accepted pre-paid water meters. According to a survey the City undertook, they were satisfied with the new system. Moreover, the new system successfully curtailed the amount of unaccounted-for water in Soweto.
5) The city provided a detailed account of Operation Gcin’amazi including how it came to be adopted and implemented. It also made plain that its free basic water policy under constant review since it was adopted. In particular, the city sought to ensure that persons with the lowest incomes receive not only an additional free water allowance, but also assistance regarding the charges levied for other services provided by the city, such as Electricity, refuse removal and sanitation. The city accepts that it’s under a continuing obligation to take measures progressively to achieve the right of access to sufficient water.
6) All the parties, including the applicants, accept that the old system of water supply to Soweto was unsustainable and had to be changed. The applicants however assert that the city’s policy and the manner in which it was implemented is unlawful, unreasonable, unfair and in breach of their constitutional right to sufficient water.
Please answer the two sets of questions based on the case above and be very limited in answering the questions based on direct, and precise with the words as instructed.
Answer the questions in 1 page maximum:
Question 1:
A) What hard right, if any, is violated here under the covenant on economic, social and cultural rights( ESC-Covenant)?
B) Does the ESC-Covenant protect the right to “ SUFFICIENT WATER”
Question 2: What conduct on the part of the government infringes upon that right? Is it an act or an omission? ( Maastricht guidelines paras 14, 15)
Question 3: What hard obligation on the part of the government is violated here?
Question 4: What is the injury suffered by the applicants?
Question 5: Is there a direct casual effect between the injury to the particular individuals and the state’s conduct?
Answer the questions in a 6 pages maximum:
Question 6: Should the standard of review of the state’s obligation vis-à-vis ESCR- right be
A) “Whether the legislative and other measures taken by the state are reasonable” within the context of the “state’s available means” (Grootboom at para 41) (Mazibuko at paras 59-60, 63-66)
OR
B) Wether a minimum core content component or the progressive realization of the particular right has been violated? ( applicants in Mazibuko at para 51 but cp.para 56)( General comment 3 para 10 UN Comm’ee on ESCR-Rights)( Maastricht Guidelines para 9)( Commentary Dankwa, Flinterman and leckie at 22-23) (Rejected: Mazibuko at paras 56-58; Grootboom para 32; Treatment Action Campaign No 2 at paras 34, 38)
C) Why?
Question 7: Is it approprtiate for a court to give a quantified content to what constitutes “sufficient water” as argued in Mazibuko?
Or, is that matter best addressed by government as the court holds in Masibuko at paras 59-67 because of the need for “institutional respect for the policy-making function of the two other arms of government” (Mazibuko para 65)?
Question 8: Is it appropriate to describe the justicibility of ESC-Rights, i.e., Litigation on social, economic and cultural rights, in terms of its “ democratic value” as the court does in Mazibuko at 159-165?