Makalah

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Makalah. WORKSHOP. Memperkuat Justisiabilitas. Hak-Hak Ekonomi, Sosial dan ... fairness, including (i) adequate notice of proposed action, (ii) reasonable.
Makalah WORKSHOP Memperkuat Justisiabilitas Hak-Hak Ekonomi, Sosial dan Budaya : Prospek dan Tantangan Yogyakarta, 13 - 15 November 2007

The right of access to water in South Africa Contribution by Dr. Jackie Dugard (University of the Witwatersrand, South Africa)

The right of access to water in South Africa International law • UDHR, 1948 – Art

25: a standard of living adequate for the health and wellbeing … including food, clothing, housing...

• ICESCR, 1966 (SA has not ratified but see Makwanyane) – Art

11: an adequate standard of living … including adequate food, clothing and housing, and to the continuous improvement of living conditions. – Art 12: the highest attainable standard of physical and mental health

• ACharterHPR, 1981 – silent, but maybe art 21 – freely dispose of … natural resources or art 24- generally satisfactory environment favourable to their development

Explicit references to water



CEDAW, 1979 –



CRC, 1989 –



Art 14(2)(h): adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply…

Art 24(2)(c): to combat disease and malnutrition … through the provision of adequate nutritious foods and clean drinking-water…

African Charter on the Rights and Welfare of the Child, 1990 –

Art 14(2)(c): ”provision of adequate nutrition and safe drinking water”

UN Committee on Economic, Social & Cultural Rights •

General Comment 15 on the right to adequate water (arts 11 and 12 of the Covenant) 2002 at para 3 (see also para 11 and 12) –



“Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival… The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.”

General Comment 3 on the nature of states parties obligations (art 2(1) of the Covenant) 1990 – –

Para 10: minimum core (SA ConCourt rejected this argument in Grootboom and TAC) Para 12: “even in times of severe resource constraints … the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost programmes”.

Constitution of the Republic of South Africa 108 of 1996 •

Section 9 (Equality) –



Section 27 (Healthcare, food, water and social security) – –



The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, maritul status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth [note: no class/s-e status].

(1) Everyone has the right to have access to – • (b) sufficient food and water. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

Section 33 (Just administrative action) – –

(1) Everyone has the right to just administrative action that is lawful, reasonable and procedurally fair. (3) National legislation must be enacted to give effect to these rights.

¾ Promotion of Administrative Justice Act (PAJA) 3 of 2002 –

3(2)(b) requirements for procedural fairness, including (i) adequate notice of proposed action, (ii) reasonable opportunity to make representations (iii) clear statement of the adminstrative action …

Relevant South African cases



S v Makwanyane 1995 (3) SA 391 (CC) at para 35 (re Section 39(1): When interpreting the Bill of Rights, a court … (b) must consider international law): –



… public international law ”would include non-binding as well as binding law”.

Government of the Republic of South Africa v Grootboom 2000 BCLR (11) 1169 (CC) at paras 44-45: –

To be reasonable, government programmes must ”respond to the needs of the most desperate” and must ensure that socio-economic rights are ”made more accessible not only to a larger number of people but to a wider range of people as time progresses”.

Sufficiency of water •

Peter Gleick. 1996. ”Basic Water Requirements for Human Activities: Meeting Basic Needs”, Water International 21 p 88 (General Comment 15, para 12(a) refers to this): –



A minimum amount of water to ensure a basic standard of living is 50 litres per person per day (lpppd), broken down as follows: • Minimum for drinking: 5lpppd • Basic sanitation: 20lpppd • Basic bathing: 15lpppd • Basic food preparation: 10lpppd

Founding affidavit, Lindiwe Mazibuko (applicant in Phiri water rights case), para 114: –

”Assuming our household was to follow Johannesburg Water’s Menu 1 … each person in our household of 20 would only be able to flush the toilet less than once every two days; each person could only have a ’body wash’ every four days; 2 kettles of water, 1 sink full of dishes and half a clothes wash per day. After all the free basic water budgeted for that day was used, no water would be left for anything else, such as drinking, cooking, cleaning …”