## Facts

- Indigent residents of Phiri, Soweto challenged Johannesburg’s water-supply reforms and free-basic-water allocation as inadequate under the constitutional right of access to sufficient water.
- Before 2004, Soweto water charges were based on a flat-rate “deemed consumption” model that encouraged high usage and coincided with extensive leakage and widespread nonpayment.
- In 2004 the City launched Operation Gcin’amanzi to reduce losses and improve sustainability by upgrading pipes, ending the flat-rate system, and installing prepaid water meters.
- Under the prepaid system, households received 6 kilolitres of free water per month, with additional water available only if purchased in advance.
- Applicants argued the free allocation was insufficient, sought a higher minimum free amount, and alleged prepaid meters were unlawful, discriminatory, and procedurally unfair.
- The High Court found the policy unreasonable, declared prepaid meters unlawful, and ordered provision of 50 liters per person per day free.
- The Supreme Court of Appeal substituted a 42 liters per person per day standard and held prepaid meters unlawful absent by-law authorization, granting time to amend by-laws.
- The case reached the Constitutional Court on the applicants’ appeal and the City’s cross-appeal.

## Issues

1. Whether the City’s free-basic-water policy and implementation measures constituted “reasonable” steps, within available resources, to progressively realize the constitutional right of access to sufficient water.
2. Whether a court may define and enforce a fixed quantitative minimum standard of “sufficient water” as a constitutional entitlement.
3. Whether installing and operating prepaid water meters in Phiri was lawful under the governing statutory/by-law framework and consistent with constitutional and administrative-law requirements.

## Decision

- The Constitutional Court dismissed the applicants’ appeal and upheld the City’s appeal.
- The Court held the City’s water policy, considered in its evolving and reviewed form (including measures for indigent households), fell within the bounds of reasonableness required for progressive realization.
- The Court held the Constitution does not confer an immediate individual right to a court-determined, fixed minimum quantity of free water, and courts generally should not set such numerical standards.
- The Court held prepaid meters were authorized under the City’s by-laws as properly interpreted and were not shown to be implemented in a constitutionally impermissible manner.

## Legal Principles

- Socio-economic rights to services such as water are realized through reasonable governmental measures, within available resources, aimed at progressive realization rather than immediate fulfillment on demand.
- Judicial review focuses on whether government measures are reasonable in context; courts should not replace policy choices or resource-allocation judgments with their own preferred designs.
- A fixed, quantified constitutional minimum for “sufficient water” is not ordinarily for courts to prescribe because the determination entails complex tradeoffs better handled through democratic and administrative processes.
- Administrative and equality challenges to service-delivery mechanisms require a showing of unlawfulness, arbitrariness, or unfairness; sustainability objectives and demonstrated consultation may support reasonableness.

## Conclusion

The Constitutional Court upheld Johannesburg’s free-basic-water and prepaid-meter scheme as a reasonable approach to progressively realizing access to sufficient water, and it rejected lower-court orders that imposed judicially defined numerical minimum water entitlements.


Mazibuko v. City of Johannesburg, 2010 (4) S. Afr. L. Rep. 1 (S. Afr. Const. Ct. 2009)