My first post showed how the South African Constitutional Court used a “reasonableness” test in assessing whether the state had met its constitutional socio-economic obligations. My second post explained that the Court recently required the government to “meaningfully engage” with vulnerable parties to try to resolve socio-economic disputes. Constitutional Court decisions, however, towards the end of 2009 harken a troubling third stage.
In Mazibuko v. Johannesburg, CCT 39/09, the Court essentially upheld Johannesburg’s policy of providing pre-paid water meters to certain poorer communities, despite the fact that the city imposed usage limits and payment requirements that could result in water cut-offs without adequate notice. The decision is troubling because the Court seemed inadequately concerned with how lack of water can result in health problems, fire dangers, and many other dilemmas. The Court also “recharacterized” its ealier Treatment Action Campaign decision in a restrictive way.
Moreover, in Nokotyana v. Ekurhuleni Metropolitan Municipality, CCT 31/09, the Court rejected claims by “informal settlement” residents that the government should provide a chemical toilet for a certain number of households, as well as “high-mast” lighting that could provide necessary security. Essentially, the plaintiffs sought more toilets than the municipality agreed to provide. Though the plaintiffs’ claims had some flaws, the Court gave the municipality a full 14 months to act, and also said that the plaintiffs who filed first should not end up better off than other squatters. The reasoning in both cases is far from transformative, which is one of the South African Constitution’s goals. What makes these cases particularly troubling is that the Constitutional Court has five new Justices, four of whom were appointed by the new President of South Africa, Jacob Zuma. If these Justices are not bold and independent, this trend favoring the government could continue.