Section 27(1)(b) of the Constitution provides that “everyone has the right to have access to … sufficient … water”. However, the Constitutional Court in Mazibuko vs City Cape Town  confirmed that there is no positive obligation on the state to immediately deliver sufficient water but rather that:

“the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of … these rights”. 

In her judgment, Judge Kate O’Regan argued that:

“it is clear that the right does not require the state upon demand to provide every person without sufficient water with more; rather, it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources”.

The court thus rejected both the argument that there is a constitutional core minimum right to water and the argument that the court is in the position to adjudicate the steps government should take to ensure the realisation of the right to sufficient water. In this judgment, it became clear that the role of the court should rather be to require the state to take measures to meet its constitutional obligations and to scrutinise the reasonableness of the measures it has already adopted and plans to adopt.

The following questions should be considered before challenging the constitutionality of government delivery of water services;

• Is government taking progressive steps to realise the right to water?
• Are government’s adopted measures reasonable?
• Does government’s adopted policy have unreasonable limitations or exclusions?
• Does government’s adopted policy progressively realise the right to water?

The remedy that can be requested is for the court to require government to review its adopted measures to realise the right to water. Where legislation has been enacted to give effect to the right to water, a possible legal challenge should rely on that legislation in order to either give effect to that legislation or alternatively challenge the legislation as inconsistent with the Constitution.

Given the substantial legislative framework on water services, the court in the Mazibuko case decided that government, in fact, had been taking major steps to realise the constitutional right to water. The court then went on to scrutinise whether the legislative framework was reasonable. It here relied on the Grootboom judgment, which considered a measure unreasonable if it makes no provision for those who are desperately in need. It also considered the Treatment Action Campaign case, which showed that if government adopts a policy with unreasonable limitation or exclusion, the court may order that those are removed.

The court found that in the Mazibuko case, the city’s free basic water policy provided reasonable minimum standards for basic water supply. A breach of the constitutional right to water would occur if a municipality provided below-basic levels of water services or if municipalities implemented the free basic water policy differently. The aim should be to provide universal free basic water rather than to target urban and more accessible areas. Although such targeting provides for progressive realisation of the right, it discriminates against poor and rural areas where access to water services is low and the implementation of water services often difficult.

Two interesting questions that arise from the Mazibuko case are:
 
• By complying with a national minimum standard, does a municipality automatically act reasonably?
• Would a municipality with greater available resources than the national minimum standards for service delivery be expected to go beyond those minimum standards?

It could be argued that such municipalities would be expected to go beyond the national minimum standards.

In the interpretation of the Mazibuko judgement, the most significant constitutional breach of the right to water, however, would occur if government fails to adequately implement its own statutory framework for water services. What is therefore needed is an administrative law approach that fulfils the constitutional right to water by focusing on the constitutional rights of procedural fairness, public participation and access to information.