Jackie Dugard

Can Human Rights Transcend the Commercialization of Water in South Africa? Soweto’s Legal Fight for an Equitable Water Policy

The South African Constitution guarantees the right to water, which is reinforced by a national Free Basic Water policy. However, water delivery is a local government function, which, in the absence of a national regulator, is largely operated as a commercial service. Using the lens of the Mazibuko water rights case—the first South African test case on the right to water—this article examines the conflict between a progressive rights-based model, which views water as a social good, and the commercialized model, which treats water as a source of revenue instead of a public service. The article finds in the legal iterations of the Mazibuko applicants the potential for a new, more equitable approach to water services. This is despite the set-back occasioned by the ultimate legal defeat in the Constitutional Court in late-2009. JEL codes: I31, H41, K32, Q25

Courts and the poor in South Africa : a critique of systemic judicial failures to advance transformative justice

Abstract Under apartheid the judiciary failed to meaningfully confront a racially-divided South Africa in which civil and political rights were denied to the majority of South Africans. The apartheid judiciary was able to rationalise a generalised failure to craft socially just rulings by claiming that law was distinct from morality. In the constitutional era judges are not afforded the luxury of amorality. The Constitution, which is an explicitly moral document, binds the judiciary (along with the legislature, the executive and all organs of state) to upholding constitutional values. The judiciary is expected to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’ and it is required always to ‘promote the spirit, purport and objects of the Bill of Rights’. How, then, has the post-apartheid judiciary dealt with the challenges of adjudication in an increasingly socio-economically divided society in which poverty is widespread and inequality is escalating? As an institution, the judiciary is found to have failed to advance transformative justice in critical systemic ways. Specifically, the judiciary has failed to improve access to legal representation for the poor (by not delineating a comprehensive right to legal representation at state expense in civil matters and under-utilising the in forma pauperis procedure in courts), and to promote public interest litigation (through maintaining a practice of wide discretion in awarding costs orders, including awarding costs against winning public interest organisations, and as a result of the Constitutional Court’s reticence to allow direct access, even for clear matters of public interest). Finally, the weak socio-economic rights record of the Constitutional Court has further diminished the capacity of the judiciary to act as an institutional voice for the poor.

Court of first instance? Towards a pro-poor jurisdiction for the South African Constitutional Court

Abstract Despite being premised on a transformative constitution, the South African Constitutional Court has not always functioned as an institutional voice for the poor. This is apparent in the relatively low number of cases brought by poor people, as a percentage of the total number of cases in which decisions are handed down by the Court. This article examines the extent to which the Court can in fact be said to have a pro-poor jurisdiction. In particular, it considers whether the Court’s practice regarding direct access applications adequately facilitates the uptake of issues affecting the fundamental rights of poor people. The Court’s record indicates that it has failed to utilise the direct access mechanism to allow constitutional matters to be brought directly to it by poor people who have been unable to secure legal representation. In so doing, the Court has failed to live up to its transformative promise. Two recent decisions of the Court — Mnguni v Minister of Correctional Services and De Kock v Minister of Water Affairs and Forestry — are used to indicate how the Court might pursue a different modus operandi to develop a pro-poor jurisdiction.

Art or Science? Synthesising Lessons from Public Interest Litigation and the Dangers of Legal Determinism

Abstract In 2008, one of the largest funders of human rights organisations in South Africa, the Atlantic Philanthropies, published a report that identified several factors for optimal public interest litigation. Despite the relative density of organisations that conduct public interest litigation in South Africa, there has been little critical engagement with its findings. Yet this exercise is pertinent given the growing reliance by South African civil society organisations on litigation to resolve systemic failures by the state, together with the ever more pressing requirement from donors to prove the strategic value of the turn (or return) to the courts. This article aims to contribute to the discussion about the uptake and value of public interest litigation by problematising the premises and recommendations of the Atlantic Philanthropies Report (APR). The report’s analysis is tested, partly through the lens of two recent cases concerning the disconnection of municipal services – Mazibuko (water) and Joseph (electricity) – revealing another type of disconnection: that the public impact litigation process is generally too unpredictable and diffuse for it to be adequately assessed through a formulaic or scientific approach. At the same time, it has more potential for social change than covered in the APR. The article therefore advances a more expansive, contextualised and responsive framework for conceptualising the role of public impact litigation and assessing its impact. The proposed framework takes into account structural conditions of power, agency in the form of social mobilisation and the role of public interest litigation in constituting ‘politics by other means’.1

More work for women : a rights-based analysis of women's access to basic services in South Africa

Abstract South Africa has a commendable legislative and policy framework for basic services that explicitly recognises historic disadvantage, including gender. Yet, as explored in this article, inadequate access to water and electricity services has a disproportionately negative effect on women. This is because there is a sexual division of labour within most households meaning that, in addition to typically being singly responsible for childcare, washing, cooking and cleaning, women must usually also take on the role of managing water and energy supplies. In this role, women experience multiple obstacles in accessing these goods, related to the availability, affordability and amount of water and electricity supplied. Analysing such obstacles, this article concludes that, as public services that enter the private realm of the household, water and electricity services are perhaps uniquely resistant to gender-specific legislative and policy recommendations. It suggests that the best way to improve women’s access to basic services is through a socio-economic class analysis, advancing greater access by poor households.

Let's work together : environmental and socio-economic rights in the courts

Abstract Under apartheid poor (black) people and the environment were viewed as antithetical. Poor communities were forcibly relocated to establish or expand game reserves and a range of militaristic interventions were imposed to ‘protect nature’, often at the expense of human rights.3 The environment was overwhelmingly associated as the preserve of the (white) middle class and was preoccupied with saving plants and animals. Under the post-apartheid dispensation, broad environmental rights are constitutionally-entrenched alongside socio-economic rights. But, to what extent does this imply an amicable, or even an established relationship between environmental and socio-economic rights? This article seeks to begin to answer this question by examining first, the kinds of issues taken up and mobilisation pursued by nascent environmental justice movements such as the South Durban Community Environmental Alliance; and, second, the limits and opportunities of environmental litigation pursued by such movements to date.

Property in a time of transition: An examination of perceptions, navigations and constructions of property relations among unlawful occupiers in Johannesburg’s inner city

One of the most enduring legacies of apartheid is the racialised in-access to property for the (black) majority of South Africans. The large unmet demand for accessible and affordable residential property close to work opportunities has resulted in widespread unlawful occupation of inner city buildings, which in the post-apartheid legal order has been shielded by a constitutional prohibition against arbitrary and unjust eviction. Yet, notwithstanding significant protection against eviction, in what remains a largely private property-dominated paradigm, unlawful occupation is an inherently disruptive act that pits ownership against the use/occupation of the same piece of property. Seeking to better understand the under-scrutinised social reality of such unlawful occupation of privately-owned property, we undertook qualitative research to examine how unlawful occupiers view, traverse and (re)define property-related arrangements. Coming from legal and built environment backgrounds respectively, we were particularly interested to understand the extent to which the legal limbo of unlawful occupation has given rise to a rejection of the hegemony of private property ownership and the construction of an alternative urban property rights consciousness among unlawful occupiers. Our research indicates that, although residents in Johannesburg’s inner city have found ways to deal with their state of unlawful occupation, the occupied spaces currently more accurately reflect a survivalist struggle in a mainstream property ownership-dominated reality than the assertion of a new urban property regime, with occupiers yearning for greater, rather than less, formality and legal authority.

Property rights in court: an examination of judicial attempts to settle section 25’s balancing act re restitution and expropriation

Abstract Section 25 of the South African Constitution – the ‘property clause’ – has recently attracted much popular criticism for being an obstacle to socio-economic transformation efforts. Undoubtedly, the issue of property rights was one of the most disputed topics during the historic negotiations in the run-up to the 1994 political transition in South Africa, and it remains a highly contested subject. Attempting to balance the interests of existing (largely white) property owners, on the one hand, with the interests of (overwhelmingly black) dispossessed individuals and communities, along with the state’s public interest, on the other hand, s 25 oversees two potentially transformative processes that pit private property ownership rights against the right of the state to take away property for a public purpose or in the public interest. First, s 25 provides the scaffolding for the project of land restitution. Second, s 25 outlines the post-1994 parameters for expropriation. Engaging in a doctrinal analysis of the extent to which the courts have pursued a transformative interpretation, we examine judicial attempts – especially at the Constitutional Court level and particularly regarding the judgments of Moseneke DCJ – to adjudicate both land restitution and expropriation cases. We conclude that notwithstanding some progressive legal interpretation, the courts have yet to develop a comprehensively coherent approach to realise s 25’s transformative potential in respect of land restitution and expropriation.

Experiences of Gender-Based Violence at a South African University: Prevalence and Effect on Rape Myth Acceptance:

Instances of gender-based violence (GBV) on university campuses are rarely reported to the authorities. This makes it difficult to gauge the prevalence of this problem, which in turn affects efforts for prevention. This article describes a university-wide online survey aimed at assessing, first, the prevalence of GBV experienced by the three sectors in the community-students, academic and research staff, and professional/administrative staff. Many of the findings concurred with research elsewhere-students were the predominant victims of GBV; men were the main perpetrators; and instances of rape occurred mainly when the victim/survivor was under the influence of alcohol or drugs. In contrast to some of the more well-known U.S. surveys (e.g., Georgetown University), we found relatively few instances of students being exploited by staff members. Occurrences of contrapower harassment were also reported in our survey. The second aim investigated whether rape myth acceptance was related to experiences of GBV. We found that women who had these experiences were more rejecting of rape myths than women who had not had such experiences. The opposite was found for White men. White men who had experienced GBV were more accepting of the rape myths than those who had not had such experiences. It was suggested that this reflected a need for these male victims to establish their hegemonic masculine identity. In general, the level of rape myth acceptance was relatively low. This suggested that widespread victim-blame, and self-blame does not account for the low levels of GBV reports to officials. A limitation of the study was the relatively low response rate (1,350 respondents), which was likely caused by the student protests over university fees that were ongoing at the time of the survey. These protests caused considerable disturbance for all sectors of the university community.

Power, suffering, and the struggle for dignity: human rights frameworks for health and why they matter

Alicia Ely Yamin’s book, Power, Suffering, and the Struggle for Dignity (2016, University of Pennsylvania Press) is a profoundly rich, textured and compassionate book that at the same time is rigorously analytical and intellectual. From the first paragraph (indeed, even before this, in the preface), the author pursues a very personal, intimate and warm approach that throughout the book is remarkably successfully combined with social and political theory, philosophy and structural analysis. Power, Suffering, and the Struggle for Dignity draws on the vast direct experience of the author gained over several decades of health rights-related activism across the world. Each chapter begins with a particular first-hand account of a healthand/or human rights-related story, which is used to anchor different but linked arguments for pursuing a human rights-based approach (HRBA) to health. Explaining that – as pointed out by Jonathan Gottschall – human beings are naturally storytelling animals, Yamin shares her stories of real people (whose names have been changed unless their names are within the public domain) to make the dilemmas and issues faced in the field feel more immediate for many readers. One such story – which will resonate particularly poignantly with South African readers – is of Nomkhosi, who was born into a no/low-income household in KwaZulu/ Natal and suffered from a physical disability that resulted in her receiving only a few years of education. When she fell pregnant as a teenager it was not clear to her mother, Zondi, whether Nomkhosi had been forced to have sex with the boy from their neighbourhood or whether it had been consensual, and whether perhaps ‘the result of efforts to attract a boy’s desire and affection in spite of her physical difference’. As highlighted by Yamin, the ‘fine line between being treated as asexual versus being victimized by sexual abuse is a reality that girls (and boys) with physical and mental disabilities navigate throughout their lives’, a reality that was recognized by a 2012 Lancet study, which found that children with disabilities are almost three times more likely to experience sexual violence than their nondisabled peers. Nomkhosi did not receive any prenatal care or checks in the course of her pregnancy. When she presented at the public hospital for delivery, the doctors assumed Nomkhosi would not be able to deliver vaginally and instead opted for a caesarean delivery. Nomkhosi gave birth to a healthy girl and