In late 2009, several of the South African Constitutional Court’s most famous Justices were scheduled to step down. They still had to write opinions in some difficult socio-economic rights cases. To the surprise of many legal scholars, they authored opinions which appear to put the brakes on the development of a transformative socio-economic rights jurisprudence. During my trip to South Africa several weeks ago, I did not meet a single legal scholar who agreed with these decisions. Yet the well respected Justices have been defending the cases vigorously since leaving the bench. Perhaps this is just the typical scholar-jurist divide that many countries experience. For example, in the U.S. years ago, Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit famously criticized the impracticality and irrelevance of much legal scholarship.
The most noteworthy case is perhaps Mazibuko v. City of Johannesburg (Oct. 8, 2009) authored by Justice Kate O’Regan, a former academic. The issue in part was whether Johannesburg’s policy of generally installing pre-paid water meters in Phiri, a poor part of Soweto, was unconstitutional. The South African Constitution contains a right to water provision. What I suspect made the case hard for the Court was that Johannesburg undoubtedly was taking action to make the water situation better. Moreover, the city needed some way to recover more funds from customers. Yet the decision was surprisingly formalistic. The Court unanimously adopted the most deferential interpretation of the Constitution’s reasonableness requirement. The Court further said that the stoppage of water at a pump was not a “discontinuation”, triggering certain legal obligations, but merely a temporary suspension. The Court recharacterized some of its earlier socio-economic rights cases in narrow terms e.g. saying those cases did not involve courts imposing affirmative obligations but instead involved removing negative obstacles. This is not correct. Finally, the Court seemed unsympathetic to the fact that there was still not enough free water available for many families or to fight fires in the shanty towns. Instead, the Court was quite pleased that the city had engaged in meaningful consultations with members of the community. Proceduralization trumped substantive justice, presumably based on separation of powers concerns. This is a troubling development.