Respect, Protect, Fulfil: The Implementation of the Human Right to Water in South Africa
South Africa is one of the few States that have included the right to water in their Constitution. Section 27 (1) (b) of the South African Constitution recognizes that everyone has the right to have access to sufficient water. Yet, a great number of people still lack access to water services. The South African Government aims to overcome this deficit with its Free Basic Water (FBW) Policy meaning to provide each household with 6000 litres of water every month free of charge.
There are, however, certain areas of concern in the implementation of the right to water. These will be analysed under the framework of the common tripartite distinction between obligations to respect, to protect and to fulfil.
Obligations to respect require States to refrain from interfering with the enjoyment of human rights thus aiming to ensure that existing human rights guarantees are not violated. As far as the right to water is concerned this obligation becomes relevant in cases of disconnection of water supplies. Several such cases have been heard before South African courts and will be presented.
Obligations to protect refer to the duty of States to prevent third parties from interfering with the enjoyment of human rights. They are particularly important in the context of water services privatisation as for example in Johannesburg .
Obligations to fulfil require States to adopt the necessary measures directed towards the full realization of human rights. This refers to cases where people do not have the means to attain water services for themselves. The FBW Policy is an instrument to meet this obligation. Since its adoption in 2001 enormous progress has been made, but there are also points of critique. For instance, the calculation of the basic water supply on a per-household basis seems unsatisfactory as it does not take into account the number of people living in one household. A recent application to the Johannesburg High Court addresses this issue.
Finally, the implementation of the right to water will be analysed in the light of the South African Constitutional Court's case law on socio-economic rights and in particular its landmark Grootboom judgment. The Constitutional Court has developed the concept of reasonableness which also applies to the implementation of the right to water. It can be assumed that the FBW Policy meets the requirements of the test of reasonableness. The approach, however, also provokes criticism. It is stated that the notion of a minimum core would be more far-reaching and oblige the Government to immediately fulfil the basic needs of all indigent people, for example by expanding its FBW Policy without delay. These opposing views will be discussed.