Phiri, the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa?

摘要

South Africa is a water-stressed country where scarce water resources are unequallyavailable to South Africans. It seems inevitable that climate change will in future severelyaffect the availability of water resources and the ecological and socio-economic aspects ofwater uses in the country. It is especially the poor, indigent and marginalized sectors ofthe population that have inadequate access to water and it is these people who would alsobe most severely affected by the impact of climate change on water resources. While SouthAfrican constitutional and statutory provisions guarantee everyone access to sufficientwater, an environmental right and other laws simultaneously aim to protect waterresources. There is accordingly a very real possibility for sustainability conflicts toarise where difficult decisions have to be made with respect to providing people accessto sufficient water on the one hand and protecting water resources for the benefit of presentand future generations on the other. The latter conflict was recently illustrated in theConstitutional Court judgment of Mazibuko v City of Johannesburg 2009 JDR 1030 (CC).For the first time, South Africa’s highest Court was required to provide content to the constitutionallyentrenched right of access to sufficient water. Against a general discussion ofthe state of water resources in South Africa, the predicted impact of climate change onthese resources and the prevailing socio-economic conditions in the country, this articleanalyses the Court’s decision in Mazibuko and argues that its restrictive interpretationof the right to access to water could be considered ecologically responsible and conduciveto achieving inter-generational equity.