REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS
and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA
Case law
305.
Notable cases which relate to the right to access to water include Mazibuko v City of
Johannesburg.180 In this case the applicants sought to challenge, among others, the
introduction of a quantified provision of kiloliters of water per family per month and also
the introduction of prepaid meters in Phiri Township in Soweto. The Court upheld the
policy of introducing prepaid meters as well as the setting of an allowance of free water
by the City of Johannesburg. The Constitutional Court acknowledged is that most of the
problems that the poor of South Africa face, in relation to accessing water, are intimately
related to the skewed policies that apartheid implemented. Government thus faces the
monumental task of reversing the effects of apartheid in almost all spheres of life.
306.
In Nokotyana v Ekurhuleni Metropolitan Municipality181 the applicants relied on sections
27 and 26 of the Constitution, the Water Services Act and the decision in Mazibuko to
enforce their right to basic sanitation. In the Gauteng High Court in the matter of
Federation for Sustainable Environment v Minister of Water Affairs182 the court
considered the contaminated water supply in Silobela and Carolina communities which is
contaminated by acid mine water to an extent that it is not healthy for both human and
animal consumption. The court ordered the municipality to engage actively and
meaningfully with the applicant and the community regarding the steps to be taken to
ensure potable water can once again be supplied through the water supply. In Beja v
Premier of the Western Cape183 the City of Cape Town was ordered to enclose 1000 toilets
in Makhaza, Khayelitsha after the court held that the City has violated the dignity of
residents.
The right to food
307.
The right to food is protected in three different articles of the Constitution. Very often
the focus is mainly on section 27, as this is the principal provision which entrenches
everyone's right to have access to sufficient food and water. But it is equally important
to note the provisions of section 28(1)(c) which states that every child has the right to
basic nutrition and section 35(2)(e) which provides that everyone who is detained,
including every sentenced prisoner, has the right to conditions of detention that are
consistent with human dignity including the provision, at state expense, of adequate
nutrition.
308.
Household access to food has improved since 2002, but has remained static since 2011.
The Household Food Insecurity Access Scale which is aimed at determining households’
access to food showed that the percentage of South African households with inadequate
or severely inadequate access to food decreased from 23,9% in 2010 to 23,1% in 2013.
During this time, the percentage of individuals that were at risk decreased from 28,6% to
180
(2009) ZACC 28
2010 (4) BCLR 312 (CC)
182
(35672/12) [2012] ZAGPPHC 128 (10 July 2012)
183
(10) BCLR 1077 (WCC)
181
89