THE SHAPE OF WATER PROVISION IN SOUTH AFRICA

Any discussion of water rights must be framed within the reality that water in South Africa is a scarce resource.Footnote ¹¹ Increasing demand from urban centres for water for domestic use jostles with demands from industry, mining and agricultural sectors. These demands are made in a country where rainfall is lower than the global average and falls unevenly across the country.Footnote ¹² Over a decade ago, the South African Department of Water Affairs and Forestry warned of the unsustainable nature of water use: “[w]ith just 1200 Kl of available freshwater for each person each year … we are at the threshold of the internationally used definition of ‘water stress’. Within a few years, population growth will take us below this level. South Africa already has less water per person than countries widely considered to be much drier, such as Namibia and Botswana”.Footnote ¹³

With the advent of majority rule in 1994 it was clear that a significant change in the approach to water supply and water rights was necessary, based on the acceptance of two fundamental factors: the extreme inequality of water distribution (pre 1994) and the overall scarcity of water in terms of the total available to the country. A brief overview of South Africa's General Household Survey (2013) gives the most recent picture of the nation's access to water for domestic use. The percentage of households in Limpopo with access to water decreased from 84 per cent in 2010 to 77.5 per cent in 2013, making it the province in which households had the poorest access to water in 2013.Footnote ¹⁴

Access in the Eastern Cape increased in the same period from 74.7 per cent in 2010 to 80.5 per cent in 2013. Access in other provinces in 2013 was as follows: KwaZulu-Natal 86.2 per cent; Mpumalanga 86.8 per cent; Western Cape 98.7 per cent; Free State 96 per cent; Gauteng 95.9 per cent; Northern Cape 96.3 per cent; and North West 88.4 per cent. Average access nationally in 2013 was 85.9 per cent.Footnote ¹⁵

With a total population of 52,980,000,Footnote ¹⁶ this means that 7,470,180 people lacked access to onsite or offsite piped or tap water in 2013.Footnote ¹⁷ Of those who received piped water from a municipality, almost 25 per cent experienced interruptions in their piped water supply at least once a month.Footnote ¹⁸ Access to sufficient water remains a significant stumbling block to both socio-economic development and political stability.Footnote ¹⁹

These statistics only present a picture of people's access to water per se. They do not indicate the quantity of water people access and the reasons why.Footnote ²⁰ Consequently, the figure of 85.9 per cent of the national population that has access to water does not indicate that the same percentage of people have access to sufficient water as section 27 of the Constitution stipulates. This issue has significant bearing not only on people's general level of health and wellbeing,Footnote ²¹ but has also been a key feature of the legal disputes over the constitutional provisions.Footnote ²² “Sufficient water” has been quantified internationally to be between 20 and 50 cubic litres per person per day (lpd).Footnote ²³ In South Africa the ANC's Reconstruction and Development Programme (RDP)Footnote ²⁴ set sufficient water at a minimum quota of 25 lpd, available within 200 metres of a household.

As discussion below of the recent case of Mazibuko shows, defining sufficient water is problematic. However, a significant proportion of South Africans still do not even have access to the RDP quota of 25 lpd, 22 years after the formal end of apartheid. The recognition, promotion, protection and fulfilment of the right to sufficient water therefore remain crucial aims.

SOUTH AFRICAN LEGISLATION AND REGULATION

IWRM is an influential scientific approach to water management, which has provided the basis for water sector reform across the world, including shaping legislation in South Africa. As a systematic process for sustainable development, IWRM considers questions of water allocation within the contexts of economic and social development and environmental protection. Its central conceptual theme (that finite water resources are interdependent) leads to the conclusion that decisions about water use must involve all users, since they affect all users. Such an interconnected approach to water allocation encourages long term sustainability. It also incentivizes local self-regulation of water resources more effectively than central regulation and surveillance could. IWRM also recognizes the right of all people to clean water and sanitation at an affordable price. This right should be recognized first in all negotiations regarding water resources.Footnote ²⁵

Two acts in particular have been promulgated in order to give effect to the constitutional right of access to sufficient water. The Water Services Act 108 of 1997 (WSA) is the principal legislative mechanism to actualize the state's obligations. The WSA aims to provide inter alia “the right of access to basic water supply and the right to basic sanitation necessary to secure sufficient water and an environment not harmful to human health or well-being”.Footnote ²⁶ The act further addresses the social and ecological purposes of water respectively, setting “national standards and norms and standards for tariffs in respect of water services” and aiming “to promote effective water resource management and conservation”.Footnote ²⁷ Basic water supply is defined in the WSA as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households including informal households, to support life and personal hygiene”.Footnote ²⁸ The act sets the minimum quantity for basic water supply as 25 litres of potable water per person per day, or 6,000 litres per household per month.Footnote ²⁹ This minimum quota is to be provided free of charge and is designated as Free Basic Water.Footnote ³⁰ Water services authorities, including municipalities, are charged with a duty “to consumers or potential consumers in [their] area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services”.Footnote ³¹ But there are no explicit provisions within the act on how “access” is to be achieved.

The National Water Act 36 of 1998 (NWA) is also important in implementing the constitutional right to water. The chief aim of this act is the protection of South Africa's water resources and, as such, the NWA adds ecological aspects of the right to water to the primarily social aspects stressed in the WSA.Footnote ³² The coexistence of these two acts illustrates the importance of considering the socio-economic right to water within an environmental context that recognizes and responds to competing claims for scarce water resources (including domestic, industrial, human, non-human, present and future). Indeed, the NWA has been described as “the ecological grundnorm to facilitate access to water”,Footnote ³³ setting the parameters within which sufficient water can be realised. However, the Constitution makes no mention of prioritizing either the right of access to sufficient water above the environment right or visa versa. Similarly the NWA receives no explicit authority above that of the WSA. There is therefore no legislative justification for limiting the social aspect of the right to water within the constraints of the NWA without acknowledging a corresponding need to view ecological priorities in light of the constitutional obligation to provide every citizen with access to sufficient water. The differing emphases of these two acts should not encourage incompatible agendas regarding water resources and water services. The WSA and the NWA must be read together, with the aim of facilitating access to sufficient water for all within the context of present and future ecological sustainability.Footnote ³⁴ The imperative of providing sufficient water to citizens now, provides a pragmatic framework within which ecological aspects of, inter alia, sustainability, conservation and biological diversity must be addressed.Footnote ³⁵

The right of access to sufficient water requires a definition of sufficiency and access. Neither term is defined in the Constitution but, as already discussed, sufficient water has been defined in the literature variously as between 20 and 50 lpd and has been defined legislatively as 25 lpd. Sufficiency has been described as being dependent on three factors: accessibility, adequate quality and adequate quantity.Footnote ³⁶ These factors encompass the five components of the human right to water as interpreted by the Committee on Economic, Social and Cultural Rights, namely that water must be sufficient, safe, acceptable, physically accessible and affordable.Footnote ³⁷

Together, the constitutional right of access to sufficient water and its promulgating legislation have framed the goal of realising access to sufficient water within a rights based approach. Individuals have the right of access to sufficient water. This right should be progressively realised, according to the state's available resources and subject to certain qualifications. Measures to ensure economic imperatives, social development and environmental protection are included in these instruments and recourse to restitution is available where individual rights are violated unreasonably (ultimately through litigation).

Section 39 of the Constitution (the constitutional interpretation clause) requires that a court, tribunal or forum must consider international law and may consider foreign law when interpreting legislation and when developing the common law and customary law. This provision means that the scope of, and discourse around, an internationally acknowledged human right to water is particularly pertinent to the domestic, constitutional position in South Africa.

THE IMPACT OF AN INTERNATIONALLY ACKNOWLEDGED RIGHT TO WATER

Despite not being explicitly mentioned as a human right in the Universal Declaration of Human RightsFootnote ³⁸ or International Covenant on Economic, Social and Cultural Rights,Footnote ³⁹ access to sufficient water has been progressively recognized internationally as a human right since the 1977 UN Water Conference in Mar del Plata.Footnote ⁴⁰ General Comment No 15, issued in 2002 by the Committee on Economic, Social and Cultural Rights, re-emphasized water as a prerequisite for the realization of other human rights and restated that access to water was itself a human right.Footnote ⁴¹

In July 2010 the UN General Assembly adopted a resolution recognizing access to clean water and sanitation as a human right,Footnote ⁴² further entrenching access to sufficient water as an internationally accepted human right to which the obligations of states parties to the International Covenant on Economic, Social and Cultural Rights apply. Compounding this clear declaration at the international level is the recently agreed goal 6 of the Sustainable Development Goals, to “ensure availability and sustainable management of water and sanitation for all” by 2030.Footnote ⁴³

In South Africa, in addition to the right of access to sufficient water,Footnote ⁴⁴ other constitutional rights are related, directly or indirectly, to water access. These include the right to equality,Footnote ⁴⁵ right to human dignity,Footnote ⁴⁶ right to life,Footnote ⁴⁷ property rights,Footnote ⁴⁸ right of access to housing,Footnote ⁴⁹ rights of children,Footnote ⁵⁰ right to have access to courts,Footnote ⁵¹ locus standi provisionsFootnote ⁵² and the environmental right.Footnote ⁵³ In short, access to sufficient water is an internationally accepted and nationally protected right for all people in South Africa, despite the fact that for many it is not a reality.

Consequently, discussion of access to sufficient water has been conducted largely using “rights talk”: framing problems and obligations within a paradigm of individual rights. The case of Mazibuko illustrates the limits of rights talk in realising access to sufficient water. The case also highlights the courts’ lack of consideration of sustainability, despite IWRM influenced legislation. Indeed the interconnectedness of social, economic and environmental factors that IWRM emphasizes seems to be recast here as three mutually exclusive camps playing a zero sum game.

THE LIMITS OF A RIGHTS CENTRED APPROACH

Since majority rule, several cases have been litigated in relation to social and economic rights, including a small number of cases on the right to water. However discussion here will focus on the case of Mazibuko and Others v City of Johannesburg and Others (Mazibuko (W)),Footnote ⁵⁴ which as will become apparent is the most important water related case to date. Mazibuko was first heard in the Witswaterand High Court and was brought by a group of residents from the Phiri area of Soweto, near Johannesburg. It challenged the legality of installing pre-payment water meters in light of the constitutional right to sufficient water. Installation was undertaken by the City of Johannesburg and its water company, Johannesburg Water, in response to acute water losses in Soweto as a result of corroded pipes, an inaccurate tariff system (that meant more water was used than was predicted to be necessary) and a “culture of non-payment” for water services that had “arisen originally as part of the resistance to apartheid local government”.Footnote ⁵⁵

The case examined the obligations of the City of Johannesburg and Johannesburg Water regarding access to water and the supply of free water for residents who cannot afford to pay. It was contended that, since pre-payment water meters, by design, require users to pay for water in advance, access to sufficient water is curtailed if users cannot afford to pre-pay. Such a situation was commonplace for Phiri residents and was raised as incompatible with the constitutional right to sufficient water. The WSA's quantification of sufficient water as a minimum standard of 25 lpd was directly challenged in this case on the basis that what is a sufficient quantity of water depends on the requirements of users in particular social circumstances. For instance, people using waterborne sanitation require a greater volume of water to support life and personal hygiene than those using pit latrines.Footnote ⁵⁶ The High Court decision put great emphasis on the need to redress past injustices (as a result of apartheid policies) and the dire social and material state of many Phiri residents, described as “poor, uneducated, unemployed and ravaged by HIV / AIDS”.Footnote ⁵⁷

In determining the applicants’ grounds, the High Court looked to General Comment No 15 of the UN Committee on Economic, Social and Cultural Rights.Footnote ⁵⁸ Applying the General Comment, the court's view was that “the State is under an obligation to provide the poor with the necessary water and water facilities on a non-discriminatory basis”.Footnote ⁵⁹

Moreover, the progressive realization of the constitutional right of access to sufficient water meant that: “[r]etrogressive measures taken by the state are prohibited. If such retrogressive measures are taken, the onus is on the state to prove that such retrogressive measures are justified with reference to the totality of the rights provided for in the [International Covenant on Economic, Social and Cultural Rights]. The state is obliged to respect, protect and fulfil the right to water.”Footnote ⁶⁰

The installation of prepayment meters was held to be just such a retrogressive step, preventing residents from the access to sufficient water that they had previously enjoyed (before the prepayment meters, Phiri residents had access to a constant supply of water, despite many accruing arrears as a result).Footnote ⁶¹ The retrogressive step was taken without adequate justification.

It was held that, given the particular needs of the Phiri community (including the need to use waterborne sewerage), a volume of 50 lpd would be a more appropriate quantification of sufficient water than the statutory 25 lpd limit. Satisfied that the respondent could provide this increased amount “without restraining its capacity on water and its financial resources”,Footnote ⁶² the High Court decided wholly in the applicants’ favour.

The City of Johannesburg and Johannesburg Water appealed to the South African Supreme Court of Appeal in February 2009.Footnote ⁶³ The quantity amounting to sufficient water for Phiri residents was reduced on appeal to 42 lpd. However, the High Court's approach was otherwise upheld, and the City of Johannesburg and Johannesburg Water were directed to formulate a revised water policy accordingly.Footnote ⁶⁴

Mazibuko in the High Court and Supreme Court of Appeal was heralded as an important milestone in socio-economic jurisprudence in South Africa.Footnote ⁶⁵ It showed the courts’ willingness to push the legislature towards concrete manifestations of constitutional rights and not to allow the “progressive realization” of these rights to result in unconstitutional policies. The impetus to promote and fulfil the right of access to sufficient water was clearly discernible (particularly in Tsoka J's High Court judgment)Footnote ⁶⁶ in the acceptance of the need for sufficient water to be a quantity that promotes dignity and goes beyond the minimum of Free Basic Water already set.Footnote ⁶⁷ The potential implications of Mazibuko for people living in similar situations to the Phiri residents were significant. Both decisions demonstrated the courts’ engagement with polycentric matters in order to help people to realize their socio-economic constitutional rights more quickly and more explicitly than would otherwise be the case. However, the environmental implications of Mazibuko may have been significant too, potentially doubling the demand for water from a significant portion of the population,Footnote ⁶⁸ in a “water stressed” country.Footnote ⁶⁹

However, in September 2009 the Phiri residents appealed to the Constitutional Court (unhappy with the Supreme Court of Appeal's order to reduce the amount of water deemed to be sufficient from 50 to 42 lpd). This was the first time the Constitutional Court had considered the proper interpretation of the right of access to sufficient water. The Constitutional Court set aside the orders made by the High Court and Supreme Court of Appeal respectively.

The Constitutional Court held that the City of Johannesburg's Free Basic Water policy was not in conflict with section 27 of the Constitution or section 11 of the WSAFootnote ⁷⁰ and that the installation of pre-paid water meters was lawful. The court was satisfied that, while the Free Basic Water policy was flawed, it was consistent with the constitutional right of access to sufficient water.Footnote ⁷¹ This was particularly so since the City of Johannesburg had continually amended its Free Basic Water policy during the course of the litigation.Footnote ⁷² Consequently the applicants’ appeal was dismissed, and the installation of prepaid water meters in Phiri was affirmed as compatible with section 27 of the Constitution.Footnote ⁷³

Crucial to this judgment is the guiding role that reasonableness has played in the Constitutional Court's jurisprudence since the seminal case of Government of the Republic of South Africa and Others v Grootboom and Others (Grootboom).Footnote ⁷⁴ Although Grootboom related specifically to the constitutional right to adequate housing,Footnote ⁷⁵ the standard established in this case required that government action in relation to socio-economic entitlements generally, must be reasonable. Yacoob J defined reasonableness in Grootboom as follows: “[a] court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted or whether public money would have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognize that a wide range of possible measures could be adopted by the state to meet its obligations”.Footnote ⁷⁶

More detailed consideration of reasonableness as a legal principle is beyond the scope of this article. However what is prescient to the application of reasonableness by the Constitutional Court is that it allows for the accommodation of a legitimate diversity of views within the “limits of reason”.Footnote ⁷⁷

The principle of reasonableness was applied to the Constitutional Court's judgment in Mazibuko as follows. First, the nature of the right of access to sufficient water was accepted as being one of progressive realization. Secondly, the actions of the respondents (namely the City of Johannesburg and Johannesburg Water) in constantly reviewing their Free Basic Water policy, and providing on occasion for an additional free water allowance as well as relief from other municipal charges, together represent reasonable actions in relation to the constitutional right to water, notwithstanding the respondents’ continuing obligation towards progressive realization.Footnote ⁷⁸ The clear implication here is that, while the actions and policy of the respondents were deemed reasonable at the time of the judgment, they must not be allowed to solidify into an established standard. Rather, the impetus of progressive realization must engender continual revision.Footnote ⁷⁹

This application of reasonableness contrasts directly with the alternative approach to adjudicating on socio-economic rights that was followed by the lower courts in Mazibuko: namely establishing a minimum core obligation for the state to fulfil. Establishing the minimum quantum of water to be deemed sufficient, by reference to international standards and domestic, context specific evidence,Footnote ⁸⁰ would seem an appropriate approach to interpreting the constitutional right to water. So it is important to note the reasons that the Constitutional Court raised to vindicate its continued, deliberate and explicit rejection of a minimum core approach, in favour of reasonableness.

First, a constitutional defence can be made for the court's approach here. It reflects an impetus to maintain a clear separation of powers and to refrain from encroaching on matters of resource allocation, under the purview of the legislature and executive.Footnote ⁸¹ Arguably, such a “restrained and focused role for the Courts”Footnote ⁸² may help achieve “appropriate constitutional balance”Footnote ⁸³ by avoiding direct incursion into budgetary and policy priorities: “[t]he Constitution does not require government to be held to an impossible standard of perfection. Nor does it require courts to take over the tasks that in a democracy should properly be reserved for the democratic arms of government”.Footnote ⁸⁴

Secondly, the argument is made that quantifying a minimum core requirement here would detract from the duty imposed on government continually to review its policies to ensure the progressive realization of the right.Footnote ⁸⁵ Indeed, a situation could be envisaged where a defined minimum quantum of water may impede rights holders from receiving more than this quantum in keeping with the provider's capacity to supply. In order to avoid this, the court reiterates that it is for government to set the target it wishes to achieve, and for the courts to hold such a target to the standard of reasonableness.Footnote ⁸⁶

It is plausible to suggest that defining a (static) minimum core content to the right to water may have negative practical consequences in the future. Regarding this, the High Court and Supreme Court of Appeal decisions, to quantify the content of the right, without clarifying how a minimum core content relates to progressive realization, were unfortunate.Footnote ⁸⁷ However it seems less plausible that a minimum core approach is necessarily incompatible with reasonable, progressive realization. Indeed there seems to be scope here to explore a mutually reinforcing model for these two principles, whereby a provisional minimum core is established, based on current capacity, but coupled with the requirement continually to pursue a fuller realization of the right, to the extent that available resources allow. Such a hybrid approach would presumably require the periodic redefinition of the minimum core to reflect the progress made in realizing the right to date. Indeed, the degree of complementarity or antagonism between a reasonableness approach to socio-economic rights and a minimum core approach has been considered at length elsewhere and remains contested.Footnote ⁸⁸

Thirdly, it is asserted that a jurisprudence of reasonableness encourages a continuous contestation for the content of socio-economic rights, enabling “citizens to hold government accountable not only through the ballot box but also, in a different way, through litigation”:Footnote ⁸⁹ citizens and the courts combining in a dynamic, collaborative endeavour to negotiate what content the right (to water, in this case) should have at any one point in time. Indeed, the product of such litigation, according to O'Regan J, is to foster “a form of participative democracy”.Footnote ⁹⁰ The clear implication here is that, if the court instead set an ultimate standard for such rights, government accountability would be affected and the citizens’ role in the democratic process would be diminished. To this end the Constitutional Court maintained that litigation regarding the positive obligations of socio-economic rights was an important element of government accountability, concomitant with the founding provisions of the Constitution, “to ensure accountability, responsiveness and openness”.Footnote ⁹¹ Such litigation also complements the right of access to the courts in section 34 of the Constitution, to which Lindiwe Mazibuko and others were entitled as litigants: “[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.Footnote ⁹²

Reading sections 1 and 34 together, the requirements of accountability, responsiveness and openness, and that of a fair public hearing, reflect much of the content ascribed by Bernstein to the value of fairness (“accountability, representation, and responsibility, as well as distributive justice”).Footnote ⁹³ When considered in the light of these standards, the Constitutional Court's judgment in Mazibuko has clearly facilitated government accountability by requiring “a detailed accounting from government”.Footnote ⁹⁴ Furthermore, it has supported the representation of the applicants, by allowing their appeal, and clarified the responsibility of the City of Johannesburg and Johannesburg Water respectively. However, whether the judgment also achieved distributive justice remains contentious, as seen below.

The reasons set forth by the Constitutional Court in Mazibuko can be summarized as delivering a constitutionally deferent, pragmatic and conditional judgment that the actions of the water service providers regarding the claimants’ right to water had been reasonable. Scholarly disagreement persists around the judgment.Footnote ⁹⁵ However, the explicit restatement of reasonableness as the appropriate approach to socio-economic rights litigation is perhaps understandable in a country with limited resources and manifold social and economic problems. Nevertheless, it emphasizes the tension at the heart of the justiciability of socio-economic rights: the pragmatism of progressive realization versus the necessity of immediate fulfilment. To those Phiri residents now denied a quantum of water commensurate with their needs and necessary for their dignity, their right to water rings hollow.

The plight of the Phiri residents reflects the enduring reality of water poverty for people across the country, despite their right to water. In Durban, where the author's empirical work has focused, research on the city's experiment with water commodificationFootnote ⁹⁶ reveals that the consequent impact of higher prices is disproportionately felt by those on low incomes.Footnote ⁹⁷ The following experiences of water poor residents are included to add a human face to these consequences. They record the reality of forced disconnections, which represent a regression in people's level of access to water and illustrate the dire choices forced on people whose access to water is insufficient and insecure:

The social dimensions of these problems caused by access to insufficient water are obvious. However there are doubtless economic and environmental consequences too. Indeed the “Trinitarian” model of sustainable development, requiring consideration of social, economic and environmental factors, is central to an IWRM influenced approach to water allocation. It is visible to differing degrees in the courts’ engagement with Mazibuko. However it is the social concerns of the Phiri residents pitched against the economic impetus of Johannesburg Water that are seen most clearly. The High Court and Supreme Court of Appeal afforded more weight to those social considerations of individual necessity for water and dignity; the Constitutional Court emphasized the nature of water as an economic good and the pragmatic limitations of progressive realization. The question of sustainability was raised before the Constitutional Court in relation to the ability of Johannesburg Water to provide a particular quantity of sufficient water per person. However this was clearly a question of economic sustainability linked to the assumption that the water provider must be able to operate competitively. Concerns about environmental protection and the potential ecological implications of doubling the quantum of sufficient water were conspicuous by their absence from the High Court and Supreme Court of Appeal judgments. Neither court mentioned the environmental right (particularly sustainable development) in section 24 of the Constitution.Footnote ⁹⁹ Despite environmental protection and sustainability featuring heavily in the legislation, these considerations appeared in neither the obiter nor ratio of the Mazibuko judgments.

The absence of environmental considerations is common to rights talk in general, as individuals’ rights claims are contested largely in isolation from the realities of resource scarcity. Such an atomized approach to rights adjudication emphasizes the very practical limitations to an anthropocentric human rights narrative. Yet, given the exigencies of water scarcity in South Africa, and more generally the Anthropocene challenges mentioned earlier, it seems essential that the focus of water access governance must be eco-socially sustainable. Stewart and Horsten's critique of this absence of environmental considerations in Mazibuko leads them to ask how and where water is used (60 per cent agriculture, 15 per cent industry etc), and the justification for such use in the face of the dual reality of water scarcity and insufficient water access for many.Footnote ¹⁰⁰ Such questions, if raised in the context of litigation, are likely to transgress the legitimate purview of the courts. However, when asked openly, they can aid the imperative of keeping social, economic and environmental aspects of water access interconnected.

A second critique is that adjudication of rights claims can remove their public, political dimensions, “domesticating issues of poverty” and casting them as private or familial matters.Footnote ¹⁰¹ The limitations of a rights based approach to basic resource allocation are briefly sketched below.

A liberal analysis of the limitations of rights tends to focus on flawed implementation: sound ideas suffer from insufficient resources or poor application. However a radical critique suggests that the limitations of using rights to achieve genuine socio-economic improvements lie in the way that rights (internationally accepted human rights or constitutional rights) give moral claims legal form. In so doing the moral claim is diluted, turning it into a technical legal problem and bureaucratizing away the imperative to meet the claim on which the right is founded.Footnote ¹⁰² When conceived as a legal problem, considerations like progressive realization, reasonableness and available resources become acceptable explanations for unmet claims. The moral claim that everyone should have access to the quantum of water required for dignified existence is immediately diminished because of the Constitution's limitations clause, which provides that the state can restrict rights if it is doing so reasonably.Footnote ¹⁰³ Similarly the Constitution provides for the progressive realization of socio-economic rights, but only within available resources. Lack of available resources is therefore a (legally) legitimate reason for unfulfilled rights, despite the size and nature of available resources remaining undisclosed. So, expressing the claim of access to water in legal form (as a right) creates practical difficulties, and allows for inchoate application. However there is also a normative dissonance between the moral claim and the narrative of a human right to water, particularly when interpreted in light of water commodification and privatization. As Karen Bakker explains: “[h]uman rights are individualistic, anthropocentric, state-centric, and compatible with private sector provision of water supply … Moreover, ‘rights talk’ offers us an unimaginative language for thinking about new community economies … occluding possibilities for collective action beyond corporatist models of service provision”.Footnote ¹⁰⁴

Such a critique need not deny that the right of access to sufficient water has helped reduce the number of people living with insufficient water in South Africa. The right has had positive substantive and normative effects and has underpinned significant legal victories.Footnote ¹⁰⁵ However PieterseFootnote ¹⁰⁶ and BondFootnote ¹⁰⁷ assert that human rights generally, and constitutional rights specifically in South Africa concentrate on consciousness-raising and recognition of individual's rights to necessities, rather than focusing on redistribution, reparation and environmental exigencies. Their potential for social transformation is therefore limited. Countering these limitations is a growing cacophony of voices advocating for a paradigm shift, away from individualized rights, towards the “commons” and a culture of sharing, which is becoming known as “commoning”.

A RETURN TO THE COMMONS: LESSONS FROM DURBAN

The Constitutional Court's decision illustrates the limitations of using rights to achieve real access to sufficient water. Unsurprisingly therefore, the strategy of campaigners, civil society and those affected by water poverty is changing in response. Reliance on litigation and an overly optimistic conception of the developmental role of the courts is being challenged and replaced. Instead, a shift is emerging towards advocating for greater grass roots, community action, aimed not at challenging the legality of inchoately experienced rights, but at reconfiguration at the community level, to address the underlying problem of water poverty.Footnote ¹⁰⁸ Some specific instances of such reconfiguration are discussed below. These are not a comprehensive survey of commoning in South Africa. They simply offer glimpses of a subaltern paradigm, which it is argued has the potential to combat water poverty more effectively than the status quo.

First, it is appropriate to offer a brief definition of the commons. The commons is a new way to express a very old idea, that some forms of wealth belong to us all, and that these community resources must be actively protected and managed for the good of everyone.Footnote ¹⁰⁹ To quote Bollier and Weston: “the Commons is not an ideological agenda or an impractical, utopian vision. It is a useful new / old framework and vocabulary for building a new societal vision and for imagining constructive alternatives to the neoliberal economics and policies that now enclose (commodify and privatise) shared resources …”Footnote ¹¹⁰

As such, commons thinking seems well placed to critique the limitations and failures of existing “state / market”Footnote ¹¹¹ institutions and, in so doing, to create space to imagine and implement new forms of provisioning. Given its necessity as a prerequisite for life, water is increasingly being understood as one such form of wealth for which commons thinking seems appropriate.Footnote ¹¹² It is also becoming acknowledged that understandings of water that are limited to discourses of water rights and water commodification, perpetuate an unsustainable and unhelpful “bifurcation between nature and culture”,Footnote ¹¹³ which must be creatively reimagined.

In contrast to individualized consumption within a rights based paradigm, a commons strategy emphasizes shared consumption. This echoes the emphasis on interconnectivity within IWRM. However, unlike IWRM, a commons strategy avoids emphasizing individual water rights, in favour of communal needs. This shift in focus may offer a more effective model of implementing sustainable water allocation, while avoiding the pitfalls of rights talk inherent in the right to water. A commons strategy would encourage decisions on water allocation to be made at the lowest appropriate level, involving all users inputting into collective decisions that transcend a compromise of competing interests, in favour of corporately “owned” allocation decisions that best serve each community.

One small example of such a commons approach to water resources can be seen in Burlington, in eThekwini municipality, on the outskirts of Durban. Although the municipality had provided piped water to a number of homes here, the cost of water from this source quickly proved prohibitive for many residents. They became indebted and eventually the pipes were disconnected. The author first visited Burlington in February 2010, as part of empirical research to talk to residents about their experiences of access to water. He saw and heard how the community, many of whom had had their water supply disconnected, had organized themselves into those who were able to collect water from the standpipe (both those physically able and those who had time) and those who could not. Those not able to use the standpipe (including older residents) were receiving a small amount of money from their younger neighbours in order to ensure that their water bills were paid and that they could continue to enjoy water piped to their homes, while able bodied residents relied again on the standpipe. Community leaders met to decide who to prioritize in this system and to monitor how it worked.

More recently, in November 2015, the author revisited this community to find that access to sufficient water remained a daily challenge for many. However, once again this problem has led several households to develop an innovative response. Standpipes remain the primary means of accessing water for many in this community. They are fed by long pipes, dug into shallow troughs or running along the surface of the ground. A number of residents living near these pipes have plumbed in to them in order to connect a water supply directly to their homes. However, in so doing, water pressure for the standpipe is reduced, and those residents who continue to rely on water from the standpipe experience periods when little or no water is accessible: “[it is] a struggle because the water can't come out because and all of these people are like taking water in to their house and no water is coming out the standpipe”.Footnote ¹¹⁴

Acknowledging that, for many South Africans, piped water is not a reliable source, the government launched the “adopt a river” initiative in 2010.Footnote ¹¹⁵ This combines education to reduce river pollution with training and equipment to clean and maintain rivers for use as sources of water for communities living close to them. Burlington is one such area and, in 2013, 60 residents volunteered to clean and maintain their local river. Every week volunteers continue to maintain their section of the river, without any ongoing support from government, and create a safe alternative to using standpipes for those still living without piped water to their homes. In the midst of poverty and hardship, and faced with a regression in their level of access to water, residents in Burlington chose to engage with the problem of water poverty from the perspective of shared needs, rather than focusing on their individual rights, and what can be described as commons ideas are beginning to take root in this community.Footnote ¹¹⁶

Similarly, recent research undertaken elsewhere in eThekwini (Durban) municipality suggests that water poor residents are adopting an approach to water allocation that emphasizes a responsibility to each other, in contrast to the individualistic paradigm reinforced by an unreconstructed notion of a right to water.Footnote ¹¹⁷ This municipality is considered a leader in sustainable water services. Initiatives to reduce water wastage and improve water quality have been pioneered by the municipality, with considerable success.Footnote ¹¹⁸ Between 1999 and 2009 water was brought to over a million people who previously lacked it.Footnote ¹¹⁹ Such an approach, driven in large part by municipal and state strategic goals, has been assisted in no small part by the prevailing mindset of residents, who fuse a strong ethic of individual responsibility for water use with an understanding of water as a common resource.

On a larger scale, the Durban Group for Climate Justice,Footnote ¹²⁰ formed in 2004, has proved to be an important practical and intellectual focal point for community organization and action, including in relation to water allocation issues. However perhaps more importantly, this civil society movement has galvanized disparate single issues around a coherent aim of climate justice.Footnote ¹²¹ Echoing previous discussion of the indivisibility of human security from ecological security, and of social from economic from environmental sustainability, the Durban Group for Climate Justice has successfully directed public energy and community involvement around the coherent but multi-dimensional goal of pursuing climate justice at every appropriate scale: promoting a truly common endeavour.

Each of these commons approaches seem to contain not only the necessary appreciation of water as a shared resource, but also a strong social conscience that may prove capable of overcoming the perceived weaknesses famously identified in Garrett Hardin's pessimistic treatise “The tragedy of the commons”.Footnote ¹²² The central problem of the commons is described as follows by pioneering commons scholar Elinor Ostrom: “[h]ow a group of principals who are in an interdependent situation can organize and govern themselves to obtain continuing joint benefits when all face temptation to free-ride, shirk or otherwise act opportunistically”.Footnote ¹²³

These examples, from Burlington in particular, illustrate this tension between cooperation and self interest, which any endorsement of commons approaches must acknowledge. In that community, the challenge of securing access to sufficient water is being met variously by those prioritizing sustainable access for the community at large, and by those whose independent action to pipe water to their own homes leaves their neighbours without.

Perhaps such examples of commoning, or commons thinking, are too ephemeral to categorize or concretize formally. Indeed the community's attitudes and response in Burlington have very little rigid structure with which to ensure that future challenges will be met using the same commons approach (although it must be noted that there have been moves towards identifying specific members as decision makers). However this lack of rigid structure should not lead us to conclude that commons approaches lack resilience, nor that they will necessarily be temporary. Rather, it is precisely the relative lack of formalized structure which may allow such commons approaches to withstand changing environments and challenges. Ostrom's insights are particularly pertinent here, as she explains that, traditionally, advocates of state resource allocation and advocates of privatization have both relied on the assumed superiority of top down institutional design. Institutional change, it is assumed, (including that required to give effect to the right to water) must come from outside the community and be imposed on those individuals affected.Footnote ¹²⁴ This assumption rests in turn on a further assumption, that there is a dichotomous choice to make between these two top down modes: state or private control must be the correct route. The benefit of commons approaches, manifest in more or less fluid form, is that they are well placed to fill the gaps between competing regulatory approaches, which almost inevitably appear while the question of (water) resource allocation is being inadequately addressed through the complex, overlapping, sometimes competing paradigms of rights, development and commodification. Ostrom's vision here is to see the creation of a “rich mixture of ‘private-like’ and ‘public-like’ institutions defying classification in a sterile dichotomy”.Footnote ¹²⁵ Such a definition is not out of place in describing the various commons approaches observed above. Indeed “adopt a river” initiatives, pioneered in eThekwini, provide useful examples of precisely such a classification defying hybrid: a mixture of public resources catalysing community action.

Romanticizing community control of resources must be avoided, not least because small as well as large scale inequitable power relations can exist. Therefore there is potential for any institutional design and praxis to discriminate and disenfranchise. Also, it must be acknowledged that commons endeavours face myriad challenges around resourcing and sustainability, as well as the ever present possibility that people will default to opportunistic (in)action. Burlington's adopt a river initiative, described above, began with 60 volunteers. In November 2015 there were only ten.

While we must be mindful of these problems, commons ideas are on the rise.Footnote ¹²⁶ This is driven, in part, by the failures of litigation on the right to water, and of “rights talk” more generally, to incorporate environmental protection, and even to deliver resources to all individuals effectively. Indeed, what the Constitutional Court has identified as a crucial function of litigation on social and economic rightsFootnote ¹²⁷ (to provide crucibles within which new socio-economic settlements are created and recreated) is also a function that may be ascribed to the commons. The commons may contain a degree of potential for positive change, which the court's jurisprudence of reasonableness has so far failed to deliver: “[i]n a commons, ordinary people can deliberate with each other and have their concerns heard … to formulate and ratify the rules that will affect their everyday lives”.Footnote ¹²⁸

Commons strategies, if innovatively applied to water allocation, may be able to avoid the limitations of the right of access to sufficient water, restating sufficient water as a moral claim, made corporately by and for people within their community. Commons solutions, whether long lasting or temporary, have the potential to give form to the erstwhile unheard voices of the water poor and to respond appropriately through innovative and inclusive social / institutional arrangements. Given the social, economic and environmental imperative for sustainability that any commons strategy must consider, IWRM too could find its functional imperative of sustainability rejuvenated beyond the limitations of rights talk.