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Legal and Ethical Issues

Consider the case of Lindiwe Mazibuko and others v City of Johannesburg and others, at www.saflii.org/za/cases/ZACC/2009/28.ht

Facts:

1- Operation Gcin'amanzi is a project the city of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. It involves re-laying water pipes to improve the water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the 6 kilolitre per household monthly free basic water allowance.

2- Mrs. Mazibuko and four other residents of Phiri, Soweto( the applicant) challenged, firstly, the city of Johannesburg's free basic water policy in terms of which 6 kilolitres of water are provided monthly for free to all households in Johannesburg and , secondly, the lawfulness of the installation of pre-paid water meters in Forestry.

3- The three respondents are the city of Johannesburg (the city); Johannesburg Water (the company wholly owned by the city which provides water services to the residents of the city); and the National Minister for Water Affairs and Forestry.

4- After the City had opted for operation Gcin'amazi, extensive conclusion ensured with communities about what the project would entail and how it would be implemented. The initial implementation in early 2004 caused unhappiness amongst residents. By the time the applicants brought their challenge in the High Court eighteen months later, the vast majority of residents had accepted pre-paid water meters. According to a survey the City undertook, they were satisfied with the new system. Moreover, the new system successfully curtailed the amount of unaccounted-for water in Soweto.

5- The city provided a detailed account of Operation Gcin'amazi including how it came to be adopted and implemented. It also made plain that its free basic water policy under constant review since it was adopted. In particular, the city sought to ensure that persons with the lowest incomes receive not only an additional free water allowance, but also assistance regarding the charges levied for other services provided by the city, such as
Electricity, refuse removal and sanitation. The city accepts that it's under a continuing obligation to take measures progressively to achieve the right of access to sufficient water.

6- All the parties, including the applicants, accept that the old system of water supply to Soweto was unsustainable and had to be changed. The applicants however assert that the city's policy and the manner in which it was implemented is unlawful, unreasonable, unfair and in breach of their constitutional right to sufficient water.

Please answer the two sets of questions based on the case above and be very limited in answering the questions based on direct, and precise with the words as instructed.

1- A) what hard right, if any, is violated here under the covenant on economic, social and cultural rights( ESC-Covenant)?
b) does the ESC-Covenant protect the right to " SUFFICIENT WATER"

2- What conduct on the part of the government infringes upon that right? Is it an act or an omission? ( Maastricht guidelines paras 14, 15)
3- What hard obligation on the part of the government is violated here?
4- What is the injury suffered by the applicants?
5- Is there a direct casual effect between the injury to the particular individuals and the state's conduct?

Answer the questions in a 6 pages maximum:

6- Should the standard of review of the state's obligation vis-à-vis ESCR- right be
A) "Whether the legislative and other measures taken by the state are reasonable" within the context of the "state's available means" (Grootboom at para 41) (Mazibuko at paras 59-60, 63-66)

OR
B) Wether a minimum core content component or the progressive realization of the particular right has been violated? ( applicants in Mazibuko at para 51 but cp.para 56)( General comment 3 para 10 UN Comm'ee on ESCR-Rights)( Maastricht Guidelines para 9)( Commentary Dankwa, Flinterman and leckie at 22-23) (Rejected: Mazibuko at paras 56-58; Grootboom para 32; Treatment Action Campaign No 2 at paras 34, 38)
C) Why?

7- Is it approprtiate for a court to give a quantified content to what constitutes "sufficient water" as argued in Mazibuko?
Or, is that matter best addressed by government as the court holds in Masibuko at paras 59-67 because of the need for "institutional respect for the policy-making function of the two other arms of government" (Mazibuko para 65)?

8- Is it appropriate to describe the justicibility of ESC-Rights, i.e., Litigation on social, economic and cultural rights, in terms of its " democratic value" as the court does in Mazibuko at 159-165?

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The response addresses the queries posted in 2265 words with references.

// Water is an important natural resource which is necessary for everyone. But due to the changing climate, this resource is in danger. An efficient use of this resource is required. For this purpose, the government of South Africa considered to implement a plan. But there were several shortcomings, perceived by the residents of the city, in the plan. They filed a case in the court against this decision of the government. The upcoming section is presenting some of the key points of this sue in brief. //

Ans1. (a). According to the applicants, the Operation Gcina'manzi of the government is violating their core right of getting sufficient water as an important natural resource for fulfilling their needs. This right is provided to them under the covenant on economic, social and cultural rights.

(b). Water is a core need of every one in the world. Every human being is entitled to get sufficient, safe, unobjectionable, physically approachable and inexpensive water resource for their personal and domestic needs by the Human Rights Commission and for protecting this right, in 2002, United Nations, General Committee made a provision under the covenant on economic, social and cultural rights.

Ans2. In the new project, the government was going to abandon the previous system of deemed consumption flat rate charges based on different levels. In this new scheme, the government was providing 6 kiloliters of water, free to every house and would charge the consumers if they required extra water apart from this. This can be regarded as omission of the previous system, because unlike the previous one, it will lead to more efficient use of water.

Ans3. In order to implement this project in practice, the core obligation of the government to provide sufficient water to every household is violated, because, the new system was limiting the residents to use water up to a limit of 6 kiloliters.

Ans4. Some residents of the city filed a case against this move of government. The applicants had to bear several problems related to availability of water. The new system compelled the poor people of the city to consume limited quantity of water which was not sufficient to fulfill their needs.

Ans5. Yes, there is a direct casual effect between injury of the particular individuals and the state's conduct. Because the newly implemented system of water supply will directly affect the daily routine of the residents of the city especially, the poor people who cannot afford the increased prices of water (Constitutional Court of South Africa, 2009).

//The basic purpose of any law which is implemented by the legislative authorities is to facilitate the citizens of the country to live freely and take the advantage of all natural resources. The law provides rights to the people, so that the life of people can be easy and less complicated. The next section is providing a comprehensive review of the obligation of state and rights provided by the ESC-Covenant. //

Answer6 (a) Government has taken various legislative and other measures for implementing the new system in practice. These measures were challenged in the court and the court found these measures of state unreasonable within the context of available means of the state. There are several deficiencies found out by the court in the taken measures by the court and due to this, the court advised the state government not to draft these ...

Solution Summary

The response addresses the queries posted in 2265 words with references.

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