Fumani Mthembi recently graduated from the University of Cape Town and is now a consultant in the renewable energy sector. A prolific social and political commentator, Mthembi is a regular contributor to the main pages of the Mail & Guardian and the Independent on Sunday.
Reading the progressive press is my favourite activity here in South Africa (the diverse, pugnacious, investigative journalism on offer is a far cry from the crap that we get fed by News Corp in Australia.) I particularly enjoy Mthembi’s pieces – I find her very persuasive.
Here she addresses the dangers of blind hero-worship, a sin to which I am famously prone.
CNN recently ran a story on how the ANC is behaving in an “un-Mandela-like” fashion. For a South African aware of the political realities of our context, there wasn’t much in the way of news in that headline. Because, frankly, no person, party or institution is capable of behaving in a way that is consistent with the image of the Mandela CNN was peddling.
The Mandela of CNN’s headline was in fact Saint Mandela, the flawless epitome of the struggle for justice and equality. For the masses that bow at the altar of this imaginary figure, those with an unchecked capacity for fantasy, it seems logical to assume a perfect Mandela, born of a perfect political party. For the rest of us, the expectation of Mandela’s perfection is most far-fetched. But the continued march towards Mandela’s canonisation raises important questions about the agenda that finds currency in a more than human Mandela. What is it that makes us uncomfortable with the notion of a heroic figure residing within a flawed and contradictory person? Or rather, what is it about the specific, historical reality of Mandela that must be concealed for his status to be accepted? While there is an extensive and undoubtedly fascinating problem to be unravelled around human beings and our psychology of demigods, celebrities, heroes and the like, I’d like to focus this article on the question of our relationship to Mandela and by extension, South Africa’s history. To suggest that there’s an “agenda” behind the construction of St Mandela admittedly resonates with conspiracy-style analysis. In this sense, the term “agenda” is right up there with the agents, bastards and reptilian forces in our midst.
Rather, agenda in this context does not refer to a sinister five-point manifesto advanced by an identifiable, though necessarily opaque, network of influential individuals. Rather, what is being referenced is a subtler impulse that informs the processes by which we rationalise our history and assign meaning to key events and leaders.
While one can reasonably expect the international community to have a limited understanding of and thus fall into the St Mandela trap, it is especially jarring to see the ways in which we convert and sometimes obscure our own history to create new forms of legitimacy. And indeed, we’re often subjected to confusing, at worst insulting, displays of historical revision through the use of symbols our politicians view as fungible. It couldn’t have been a coincidence that at the height of his Mauritius-wedding tender-king-esque jaunts, Julius Malema started appearing in a beret and T-shirt with Chris Hani’s face emblazoned on it. Was the communist garb supposed to evoke an image of Malema as a man of the people? Was the image of Hani meant to remind us of how we were robbed (by white people) of a man who would have fought for the social justice we no longer associate with the mainstream ANC? Absolutely. And why all this toying with the collective psyche? To save a solitary, sinking political career.
And things are no better on the other end of the spectrum. We must have all watched the news with some measure of subconscious confusion last year as Helen Zille shouted out to her rallying masses “Waar was jy?” (Where were you?) in reference to the Struggle days. Was Zille giving a shout-out to Prophets of da City, who made that phrase popular in the 1990s? No? Because indeed, everyone born before 1994, “was daar”. So was this piece of rhetoric (recycled from the language of a small crowd that challenged the erection of the United Democratic Front memorial by DA leaders) meant to make everyone believe they had a transformative role to play in the Struggle? You betcha. All in the name of allaying the fears of voters who don’t know how to reconcile, among other contradictions, the National Party’s existence within a party that promises them a democratic future.
Yet surely there must be a more productive way to engage with the realities of our past, starting with non-linear ways of thinking about who we are and where we’re going. Linearity is what creates undue associations in our minds and the attendant expectations of consistency where there is none. It is only the linear mind that believes Mandela to be patient, kind, fair, honest and all other things good, all the time. And it seems the linear person, the perfectly consistent goodie or baddie is both the fodder and product of the dominant opinion-making machinery.
This is what dumbs us down, dulling our minds to the complexity of the world we live in. Rather than presenting ourselves as reincarnations of infallible heroes and duping ourselves into believing that we were more than the also-rans that we in fact were, let’s engage with the message that Mandela truly stands for. So what if you were once a racist bigot? You can change your mind. So what if you were an impimpi? You can change your actions. So what, if like most South Africans, you did very little to free this country? You can abandon apathy. And so what if the father of our nation is in fact a member of a political party you don’t respect? Deal with it. Don’t change him into something he’s not just so you can feel comfortable with the things about him that make you proud. Rather than the unattainable myth of perfection, what Mandela should symbolise is that transformation is possible for us all and absolutely necessary in the process of making history.
© 2012 Daniel Wells, School for Advanced Legal Studies, University of Cape Town
A. Visionary Constitutionalism
Vision and the law. The one is rarely thought of as having much to do with the other. Children are natural visionaries. The late Donella Meadows, perhaps America’s foremost environmentalist, observed that:
before they are squashed by cynicism, [children] can tell you clearly and firmly what the world should be like. There should be no war, no pollution, no cruelty, no starving children. There should be music, fun, beauty, and lots and lots of nature. People should be trustworthy and grownups should not work so hard. It’s fine to have nice things, but it’s even more important to have love.
Lawyers, on the other hand, are not usually attributed with this capacity to freely envision. Generally speaking, we are about as ‘squashed by cynicism’ as it is possible to be. This is because ‘the law’, whether inherited from the Code of Justinian or long-dead English judges, is an inherently conservative, anti-visionary force. Public law experts, for example, will be quick to advise you on what the government cannot do, but they are distinctly less forthcoming on what it should do. Public law – more specifically, constitutional law – is fundamentally orientated toward constraining public power. Constitutional projects throughout Europe were bound to centuries of struggle by the governed against the arbitrary or capricious exercise of sovereign power. With exceptions, these struggles were mainly concerned with pegging power down rather than informing the objects of its exercise.
The new South African Constitution which emerged from the exhaustive consultations, deliberations and certifications that occurred from 1990 to 1996 broke free from this paradigm. In the words of Karl Klare, it entailed a project of ‘transformative constitutionalism … an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.’ More than a legal framework for the separation and regulation of power, the South African Constitution is a positive, normative vision of a new society: ‘a society based on democratic values, social justice and fundamental human rights; ‘a democratic and open society in which government is based on the will of the people and every citizen is equally protected by the law’; a society animated by a commitment to ‘improve the quality of life of all citizens and free the potential of each person’.
Judicially-enforceable socio-economic rights are central to this vision. Addressing the ANC Conference on the Bill of Rights in 1991, Nelson Mandela commented:
‘A simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people. It is to create an appearance of equality and justice, while by implication socio-economic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.’
The presence of these rights was vigorously contested during the certification process. In the First Certification judgment, three objections were raised: first, it was questioned whether, with respect to Constitutional Principle II, socio-economic rights were ‘universally accepted fundamental rights’; secondly, it was argued that the presence of socio-economic rights conflicted with the separation of powers guaranteed by Constitutional Principle VI; thirdly, it was submitted that such rights were not non-justiciable and therefore inoperable.
The Court made short thrift of the first objection, pointing out that Principle II permitted the Constitutional Assembly to ‘supplement the universally accepted fundamental rights with other rights not universally accepted.’ The Court then went on to find that the adjudication of socio-economic rights would indeed have budgetary implications for the executive and legislative arms of government, but that in this respect it was a task ‘not so different from that ordinarily conferred upon them by a bill of rights’, and that such effects did not constitute a breach of the separation of powers. Further, the Court found that the budgetary implications of adjudicating such rights did not, prima facie, render them non-justiciable: ‘at the very minimum’, the Court decided, ‘socio-economic rights can be negatively protected from improper invasion.’ It is important to note that by framing its defence of socio-economic rights negatively, the Court was not denying itself the jurisdiction to enforce positive governmental duties.
Moving from the legal to the actual, from the past to the present, it is an undeniable fact that South Africa in 2012 is a nation wracked by severe social, economic and environmental problems. The socio-economic rights contained in the Constitution remain largely unrealised. Many would argue that material social conditions for the vast majority of South Africans are only marginally better today than they were under apartheid; in some contexts they may be worse. Justice Dennis Davis captures the situation neatly: ‘Unless we can close the gap between the Constitution and daily reality, we are indeed in deep trouble.’
A sophisticated academic discourse has developed around the Constitutional Court’s socio-economic rights jurisprudence. I cannot hope to engage meaningfully with all of its interstices. Rather, taking a reflective and comparative legal approach, I aim merely to configure this discourse within a wider debate about the proper role of the judiciary in the new constitutional settlement. It is my submission that the Court’s approach to socio-economic rights thus far has been inadequate. Referring specifically to the right to access to sufficient water as interpreted in Mazibuko, I argue that the Court’s adoption of a ‘reasonableness’ test significantly underestimates its constitutional jurisdiction. Where the legislative and executive arms of government can afford to but nevertheless fail to provide universal access to the basic social goods guaranteed by the Bill of Rights, the Court has a mandate to command the State to provide a specified or specifiable ‘minimum core’ of such goods. The constitutional vision of a new South Africa requires nothing less.
B. Mazibuko and the Right to have Access to Sufficient Water
Section 27(1)(b) of the South African Constitution provides that everyone has the right to have access to sufficient food and water. Section 27(2) goes on to imposes a positive obligation upon the state to achieve the progressive realisation of these rights by taking ‘reasonable legislative and other measures, within its available resources’.
In 2008 an application was brought before the South Gauteng High Court by the late Lindiwe Mazibuko and other residents of the Phiri community invoking s 27 of the Constitution to, inter alia, demand an increase in the quantum of domestic water provided by the City of Johannesburg pursuant to the Water Services Act 108 of 1997. Finding against the City, the Court determined that the existing allocation of approximately twenty-five litres of water per person per day did not meet the standard set by s 27 as read in conjunction with the interrelated rights to dignity, life and healthcare. Inviting submissions from the residents regarding their own views on the amount of water required to fulfill their basic needs, taking notice of expert evidence on the subject, and referring to international standards, Tsoka J skillfully fleshed out the substantive content of the right, declaring that fifty litres of free water per person per day constituted the minimum standard of s 27 in the circumstances of the case at hand, and ordered the City to provide accordingly.
On appeal, the Supreme Court of Appeal also ordered the City to increase its allocation, although the original minimum amount was reduced by eight litres. In approaching the issue of quantification, the Court drew guidance from General Comment 15 from the UN Committee on Economic, Social and Cultural Rights, which declares that:
The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.
This led Streicher JA, with whom the other four judges concurred, to conclude that the amount of water required to support a dignified life must, in an urban context such as Phirri, account for sanitation. On this basis alone, the existing allocation was deficient and the residents’ constitutional rights were infringed.
Ultimately, however, this judicial approach to testing the State’s constitutional compliance by reference to the quantified minimum material standards necessary for a safe, healthy and dignified life was not swallowed by the Constitutional Court. Handing down the final say on Mazibuko, the Court reverted to inquiring into the ‘reasonableness’ of State policy – the same approach to socio-economic rights it had begun to develop eight years earlier in Grootboom.Little credence was given to the argument, accepted in the earlier proceedings, that s 27(1)(b) has an existence and a substantive content of its own, independent of the qualified obligation under s 27(2).
Writing for the Court, O’Regan J framed the matter as one which hinges only on the reasonableness of the City’s policy of restricting basic water supply to twenty-five-litres per person per day. This test is satisfied so long as (i) the government does indeed take steps to realise constitutional rights, (ii) these steps address the needs of the most desperate people in society and avoid unreasonable limitations or exclusions, and (iii) such steps are accompanied by transparent standards by which government can be held to account. This is an even more deferential version of the reasonableness review developed in Grootboom, which at least required inquiry into whether State policy is ‘capable of facilitating the realisation of the right’. O’Regan justifies the Court’s reluctance to intervene by observing that the minimum standards for the enjoyment of socio-economic rights will inevitably vary according to context and should not, therefore, be judicially fixed; and that only the legislature and the executive are competence to determine and realise these standards.
C. Is ‘Reasonableness’ Always Reasonable?
In Mazibuko O’Regan restates (albeit conservatively) the same reasonableness test that has been developed over a line of Constitutional Court cases. The most important of these include Soobramoney,which concerned the extent of the applicant’s right to healthcare under s 27 of the Constitution; the afore-mentioned case of Grootboom, which looked at the right to access to adequate housing under s 26; TAC, which examined the State’s obligations under s 27 to provide antiretroviral drugs to HIV-positive mothers in order to prevent mother-to-child transmission; as well as Khosa, a challenge to the constitutionality of social security legislation which purportedly excluded non-citizens. Whilst not entirely ruling out the possibility of a more expansive approach in the future, the Constitutional Court has, in all of these cases, held that the State will be found to have met its Constitutional obligations to protect and progressively realise the socio-economic rights contained in the Bill of Rights if it has in place a programme to do so, and if that programme can be shown to be reasonable.
But what is this ‘reasonable’? As first set out by Yacoob J in Grootbloom,it is clearly a multifactorial test that must adapt in each case to the nature of the right being litigated and the measures adopted by government toward its realisation. But where does the notion of ‘reasonableness’ originate? Cass Sunstein has argued that the Constitutional Court has basically adopted an ‘administrative law model of socio-economic rights.’Writing extra-curially, Dennis Davis also describes the Constitutional Court’s approach as expressive of a ‘judicial retreat into administrative law’.
Under Australian administrative law, which remains largely faithful to the English authorities, we have a common law ground of judicial review known as ‘Wednesdbury unreasonableness’. The test for making out this ground was famously laid out by Lord Greene MR, speaking for the English Court of Appeal, in Associate Provincial Picture Houses Ltd v Wednesbury Corp: ‘…if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’ But as Lord Diplock pointed out in the CCSU case, it is never easy to make out a case of unreasonableness against a decision-maker:
Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another — a balancing exercise which judges by their upbringing and experience are ill-qualified to perform. 
A test for rationality or reasonableness gives the executive a significant margin of appreciation: ‘What is reasonable is not only that which is correct, but also those decisions that lie between in between correctness and capriciousness.’ This traditional notion of reasonableness arises from a respect for the separation of powers; O’Regan’s judgment in Mazibuko is a classic recourse to this doctrine. In its application to the South African context of constitutional socio-economic rights, the reasonableness test is essentially premised on two assumptions: that it is not legitimate for the Court to instruct the State in precisely how it must realise its constitutional duties, and that the Court lacks the competence to determine the quantitative features of a rights standard in a polycentric policy context.
D. Institutional Legitimacy and ‘Minimum Core’
Contrary to the Constitutional Court’s approach thus far, it is my submission that, in the face of legislative and executive inaction, it is both legitimate and necessary for the Court to determine a quantified or quantifiable minimum core for the socio-economic right in question, and to command the State to provide accordingly. On the issue of legitimacy, the Court held in TAC that:
Where State policy is challenged as inconsistent with the Constitution, Courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the Executive, that is an intrusion mandated by the Constitution itself.
It must be borne in mind that this assertion of jurisdiction to order performance was made in response to a total policy vacuum. The State in this case had no nation-wide policy of antiretroviral dispensation whatsoever, and had therefore failed to meet its obligations of progressive realisation under s 27(2). But the Court is entitled to go much further. Sections 26(1) and 27(1) are freestanding rights that were intended to play a crucial role in mapping the constitutional vision of a new South Africa by providing a floor upon which the State programmes under ss 26(2) and 27(2) should be built. As a matter of constitutional interpretation, socio-economic rights must be afforded substance. As David Bilchitz argues, quite correctly, ‘measureswhich the government adopts must be reasonable in relation to the objective it seeks to achieve… This enquiry requires the specification of some content to the right, independently of the notion of reasonableness.’
In 1990, with the initiation of a new constitution-making process, the ANC published a working document – A Bill of Rights for a Democratic South Africa – outlining its agenda for the negotiations. Article 10, entitled ‘Social, Educational, Economic and Welfare Rights’, contained the following imperative: ‘The State, shall, to the maximum of its available resources, undertake appropriate legislative and executive action in order to achieve the progressive realisation of basic social, educational, economic and welfare rights for the whole population.’ It goes on to describe this is a ‘common floor of rights for the whole country’. Under ‘The Right to Shelter’, the document goes on to provide that, ‘The State shall take steps to ensure that energy, access to clean water and appropriate sewage and waste disposal are available to every home.’ All such rights would be subject to judicial enforceability. Addressing the ANC on these issues, Mandela stated that the judiciary should be left to determine which rights are directly enforceable by individual applicants, but that ‘[we] shall be surprised if such rights as the right to clean water, to minimum nutrition and to adult education cannot be enforced by the courts.’ This is compelling evidence that, at least from the perspective of the dominant actor in the Constitutional Assembly, socio-economic rights were intended to have minimum cores, and that it was legitimate – indeed, necessary – for the Constitutional Court to define and enforce these standards. In regard to water – surely the easiest social good to quantitatively analyse – Sandra Liebenberg bemoans the apparent reluctance of the Constitutional Court to seriously contemplate this approach:
The analysis of the jurisprudence demonstrates that the courts have generally failed to engage substantively with these questions. Instead the focus has fallen disproportionately on the criteria for evaluating the State’s policy and resource-based justifications in legal challenges based on socio-economic rights. This is illustrated most clearly by the Constitutional Court in Mazibuko… The Court’s assessment of the reasonableness of the City’s water policies takes place in the absence of a serious, systematic attempt to explore the normative commitments which the entrenchment of the right of access to sufficient water in s 27(1)(b) of the Constitution seeks to advance.
E. The Constitutional Court is Competent to Provide Effective Remedies in Polycentric, Quantitatively-Complex Matters
If we are able to accept that ‘minimum core’ is the correct and intended approach to interpreting socio-economic rights in the South African Constitution, then this goes a long way to justifying the Court’s institutional legitimacy in such matters: if the Constitution requires the Court to quantify a minimum standard of rights enjoyment, then it also has a clear mandate to compel the State to so provide. But this proposition does not adequately address the Court’s alleged incompetence to make these kinds of decisions. The root of this alleged incompetence is twofold. First, decisions about the distribution and development of socio-economic goods are innately ‘polycentric’, requiring the decision-maker to balance numerous competing interests in what is an inescapably political exercise. Secondly, calculating the precise quantum of per capita entitlement requires the synthesis of a significant volume of complex data; moreover, even when a standard is determined, to fix it indefinitely would be to prevent government from adapting and evolving its response to socio-economic need in the future.
i. Constitutional priorities trump the doctrine of polycentricity
In Australian administrative law, decisions of the executive government are deemed to be non-justiciable if they concern matters which are ‘polycentric’; that is, if they involve complex decisions about the distribution of resources amongst several interlocking interests. Under a minimalist constitutional framework, these decisions ought to be left to the people’s elected representatives. The non-justiciability of polycentric matters is not primarily justified by reference to the separation of powers; rather it is based on the deemed impossibility of crafting effective remedies in cases where so many interests are affected. In Minister for Arts, Heritage & Environment v Peko Wallsend, the Full Court of the Australian Federal Court considered a challenge brought by a mining company whose exploration leases had been effectively voided by a decision of the Federal Cabinet to nominate a large area of Kakadu National Park in the Northern Territory for world heritage listing, and therefore out of bounds for miners. Bowen CJ found for the Court that ‘…the whole subject-matter of the decision involved complex policy questions relating to the environment, the rights of Aborigines, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the respondents to this appeal’, and on that basis was non-justiciable.
Australia’s hundred-year-old constitution contains very few rights-protective qualities, so it is significant that s 100 provides both the states and their residents with a freedom from Commonwealth abridgement of their ‘reasonable use of the waters of rivers for conservation or irrigation’. Australia contains some of the most arid environments on Earth. Water is a precious socio-economic good. Litigation over water rights is frequent and fierce, and the doctrine of polycentricity drinks deeply from the resulting jurisprudence. For example, in 2008 the New South Wales Court of Appeal considered whether a decision to substantially reduce groundwater entitlements in the Lower Murrumbidgee Basin, made pursuant to a state water management scheme, was void for want of procedural fairness. Spigelman CJ found the decision to be non-justiciable because its subject was polycentric:
The present is a case in which the multiplicity of considerations, together with the broad range of interconnected, conflicting and incommensurable interests, is such that the decision-making process involved in a particular component part is simply overwhelmed by the whole. The elements of policy involved in the exercise of a power directed to achieving the public interest, in a context affecting numerous interests, is entitled to significant weight in the present context.
In South Africa, however, this fear of polycentricity in the context of socio-economic rights is often ill-founded because important political decisions have already been made by the Constitution itself! It simply falls on the Constitutional Court to define and compel their enforcement. The minimum core of s 27 is unicentric. That is to say, the Preamble, Objects, Bill of Rights and overall structure of the Constitution represent a social vision in which certain political priorities are explicit. These include equal, universal access to the basic resources which make possible a dignified life. They are not optional. They are not subject to the political platform of the government of the day. They are written in stone and they have a minimum, material core which, by one arm of the government or another, must be delivered.
ii. Remedial responses to the challenge of quantifiability
Aside from the issue of polycentricity, many judges and commentators question courts’ technical competency to calculate and articulate the quantitative standards of socio-economic rights. Such calculations threaten an inordinate drain on judicial resources. State performance of the duly-set obligations would ideally need to be supervised, adding further to this drain. Moreover, to fix a socio-economic standard for all time – and for all locations – would only undermine the Constitution’s transformative, egalitarian, dignitarian and developmental objects. As Liebenberg explains, these are some of the most telling argument for avoiding a ‘minimum core’ approach:
In striving to establish clear and judicially manageable standards for the adjudication of socio-economic rights claims, the minimum core approach is in danger of encouraging minimalism in social provisioning when the context may in fact render such minimalism unnecessary and inappropriate… A related concern with an understanding of the minimum core concept linked to an inflexible standard such as survival is its lack of responsiveness to the diverse needs and circumstances of differently placed groups.
But it should never be forgotten that the Constitutional Court retains the broadest possible discretion in deciding how it will grant relief. Remedies must be fashioned in order to give maximum effect to Constitutional rights. Indeed, as Kriegler J observed in Sanderson, ‘our flexibility in providing remedies may affect our understanding of the right.’ The breadth of the Court’s remedial discretion means that it should not shy away from finding a breach of a socio-economic right merely because the cure will be complicated or unconventional. The Court is empowered to ‘shape innovative remedies’ in order to uphold the Constitution. In their joint judgment in Bel Porto, Mokgoro and Sachs JJ held as follows:
The flexibility in the provision of constitutional remedies means that there is no constitutional straightjacket … It would indeed be most unsatisfactory and have negative consequances for constitutionality to fail to provide a remedy where that has been an infringement of a constitutional right. While courts should exhibit significant deference towards the administration and recognise the practical difficulties which the administration faces, it could create a misleading impression that in instances where there is an infringement of a constitutional right, and there are significant practical difficulties in remedying the injustice cause, a decision-maker will not be held to account… It is the remedy that must adapt itself to the right, not the right to the remedy.’
Hereby encouraged, I suggest that it is within the Court’s constitutional powers to order the State to establish new, independent, evidence-based mechanisms for determining the minimum cores of the socio-economic rights contained in the Constitution. The function of these mechanisms would be manifold: (1) to collect expert evidence from around the world on what might constitute the minimum core of each right; (2) to receive and verify regular reports from South African governments on the availability and accessibility of the raw resources to which the rights pertain; (3) on these bases, and taking into account the differing requirements of South Africa’s varying natural and social habitats, to set enforceable, location-specific, minimum standards; (4) to periodically update these standards; (5) to monitor State performance in meeting these standards; (6) and to expeditiously refer State non-compliance to an appropriate court or tribunal.
Such mechanisms could be located with the South African Human Rights Commission. Or, even better, they could take the form of ‘commissions’: independent, purpose-built, statutory agencies. In my home state of South Australia, for example, we have an Essential Services Commission, an arms-length administrative agency whose responsibilities include periodically determining domestic water allocations, setting prices, granting additional licenses, and monitoring public and private compliance. When water restrictions are imposed in times of drought, the community generally accepts that such measures are the result of a flexible, balanced, expert assessment of what is necessary. What prevents the Constitutional Court from leading the State toward an analogous model in this country?
The remedial suitability of a commission occurred to me one day in class, but a week later I came across the following statement from a pre-ConCourt Albie Sachs:
This [the justiciability of socioeconomic rights] raises the important and delicate question of the relationship of a Bill of Rights to the legislative power of Parliament… The kind of body that might provide a bridge between popular sovereignty on the one hand, and the application of highly qualified professional and technical criteria on the other, would be one similar to the Public Service Commission. A carefully chosen Public Service Commission with a wide brief, high technical competence and general answerability to Parliament, could well be the body to supervise affirmative action in the Public Service itself. Similarly, a Social and Economic Rights Commission could supervise the application of affirmative action to areas of social and economic life.
In Glenister, a majority of judges found that the Bill of Rights – particularly s 7(2) as read in light of South Africa’s commitments under ratified international agreements – imposes an obligation on the State to establish and maintain an independent body to combat corruption and organised crime. Surely the Court can extrapolate a similar obligation to establish, for example, an independent South African Water Commission to set and enforce minimum standards for the immediate, universal, equitable provision of access to water.
F. Conclusion: Colouring-in the Constitution
The South African Constitution is more than a legal document. It is a vision of a just, healed, diverse, democratic, equitable, non-racialist, non-sexist, prosperous society. The realisation of that vision relies on giving socio-economic rights immediate, independent, minimal content. The State can then effectively lead this realisation by first ensuring that, at the very least, everyone has access to emergency housing, basic healthcare, sufficient food, water and social security; and that, without exception, all children go to school, are safe, sheltered and loved. The budgetary allocations required to establish these starting conditions are not subject to governmental discretion: they are constitutional duties. The State’s only permissible excuses for failing to provide sufficient water are that either water reserves are too low, or, due to its other absolute constitutional obligations, the State has insufficient funds to pump it. Given the health of both the national budget and the country’s water reserves, the State would be currently hard-pressed to make out either defence.
The role of the Constitutional Court in this process is to assist the State to perform its constitutional duties by fashioning remedies that either quantify these standards or render them quantifiable. The Court must be bolder. No doubt the Court’s affection for the ‘reasonableness review’ stems somewhat from its desire to remain a credible, legitimate institution in a nation where the rule of law is not yet fully entrenched. But there are other ways to pursue this legitimacy. For example, judges and advocates may see sense in citing more frequently the earlier documents of the ANC; that is, to take a more originalist approach to constitutional interpretation. This is not to be sycophantic, but simply to emphasise that most of the Constitution’s more radical objects originated from what is now the ruling party. Faithfulness to these objects furthers, rather than hinders, social transformation.
Within the common law tradition of judicial review, courts rarely tread on the hallowed turf whereupon legal duties and government policy meet. This reluctance is justified on the grounds that it is both impractical and inappropriate for judges to involve themselves in political ‘line drawing’. But what this paper asserts is that the South African Constitution is a colouring-in exercise, and these lines have already been drawn. The legislature determines which colour goes where, and the executive rolls up its sleeves and gets down to the job of colouring-in. But where a segment of the template lies empty for too long, the judicial arm of government has a duty to intervene: like an older sister guiding her younger sibling, the Constitutional Court must start things off.
Articles, Books and Conference Papers
ANC, A Bill of Rights for a Democratic South Africa: Working Draft Consultation, 1990 (republished in (1991) 7 South African Journal on Human Rights 110)
David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford University Press, 2007)
Dennis Davis, ‘Adjudicating the Socio-Economic Rights in the South African Constitution: Towards “Deference Lite”?’ (2006) 22(2) South African Journal on Human Rights 301
Karl Klare, ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Right 146
Sandra Liebenberg, Socio-Economic Rights: Adjudication under a Transformative Constitution (Cape Town, JUTA, 2010)
Nelson Mandela, ‘Address: ANC’s Bill of Rights Conference’ in A Bill of Rights for a Democratic South Africa: Papers and Report of a Conference Convened by the ANC Constitutional Committee (May 1991)
Donella Meadows et al, The Limits to Growth (New York, Universe Books, 1972)
Donella Meadows, ‘Envisioning a Sustainable World’ in Constanza Segura & Martinez-Alier (eds), Getting Down to Earth: Practical Applications of Ecological Economics (Washington D.C., Island Press, 1996) 120
Jeff Rudin, ‘Extending the minimum essential amount of water: Going beyond the High Court’s standard’ (2008) 9(4) ESR Review: Economic and Social Rights in South Africa 8
Cass Sunstein, ‘Social and Economic Rights? Lessons from South Africa’ (2001) 11(4) Constitutional Forum 123
Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223
Bel Porto School Governing Body v Premier, Western Cape & Another 2002 3 SA 265 (CC)
City of Johannesburg v Mazibuko 2009 (3) SA 592 (SCA)
Council of Civil Service Unions v Minister for the Civil Service  AC 374 (‘CCSU’)
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (1996) 4 SA 744 (CC) (‘First Certification judgment’)
Fose v Minister of Safety and Security 1997 3 SA 786 (CC)
Glenister v President of the Republic of South African and Others 2011 (3) SA 347 (CC)
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (‘Grootboom’)
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC) (‘Khosa’)
Mazibuko v City of Johannesburg  4 All SA 471 (W)
Mazibuko v City of Johannesburg  ZACC 28 (‘Mazibuko’)
Minister for Arts, Heritage & Environment v Peko Wallsend (1987) 15 FCR 274
Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) (‘TAC’)
Parramatta City Council v Pestell (1972) 128 CLR 305
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Sanderson v Attorney-General, Eastern Cape 1998 2 SA 38 (CC) (‘Sanderson’)
Soobramoney v Minister of Health (KwaZulu-Natal) 1999 (1) SA 765 (CC) (‘Soobramoney’)
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000  NSWCA 356
Constitutions, Legislation & International Law Materials
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9 (‘Australian Constitution’)
Constitution of the Republic of South Africa Act 1996 (South Africa)
Water Services Act 108 of 1997 (South Africa)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976)
UN Committee on Economic, Social and Cultural Rights, General Comment No 15 (29th Session, 2002) The right water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN doc E/C. 12/2002/11
‘Education system worse than under apartheid: Ramphele’, Mail & Guardian (online), 23 March 2012 <http://mg.co.za/article/2012-03-23-education-system-worse-than-under-apartheid-ramphele/>
Pearlie Joubert, ‘Civil society sprouts another champion’, Mail & Guardian (online), 14 September 2008 <http://mg.co.za/article/2008-09-14-civil-society-sprouts-another-champion>
The Essential Services Commission of South Australia, ‘Economic Regulation of the South Australian Water Industry: Statement of Issues’ (December 2010) <http://www.escosa.sa.gov.au/library/101207-EconomicRegulationOfSAWaterIndustry-StatementOfIssuesPaper.pdf>
 Donella Meadows, ‘Envisioning a Sustainable World’ in Constanza Segura & Martinez-Alier (eds), Getting Down to Earth: Practical Applications of Ecological Economics (Washington D.C., Island Press, 1996) 120.
 Nelson Mandela, ‘Address: ANC’s Bill of Rights Conference’ in A Bill of Rights for a Democratic South Africa: Papers and Report of a Conference Convened by the ANC Constitutional Committee (May 1991) 12.
 See, eg, ‘Education system worse than under apartheid: Ramphele’, Mail & Guardian (online), 23 March 2012 <http://mg.co.za/article/2012-03-23-education-system-worse-than-under-apartheid-ramphele/>.
 UN Committee on Economic, Social and Cultural Rights, General Comment No 15 (29th Session, 2002) The right water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN doc E/C. 12/2002/11, . Cited in City of Johannesburg v Mazibuko 2009 (3) SA 592, .
 But a troubling feature of the judgment is the Court’s conflation of ‘minimum standard’ with ‘sufficient water’, which risks applying a ceiling to the right rather than building a floor for its progressive realisation.
 Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223, 230 (Lord Greene MR); app’d in Parramatta City Council v Pestell (1972) 128 CLR 305, 314 (Barwick CJ). But see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 61 (Gleeson CJ).
 See The Essential Services Commission of South Australia, ‘Economic Regulation of the South Australian Water Industry: Statement of Issues’ (December 2010) <http://www.escosa.sa.gov.au/library/101207-EconomicRegulationOfSAWaterIndustry-StatementOfIssuesPaper.pdf>.
Celebrating Freedom Day.. Celebrating pay day..
3AM, Long Street, Cape Town