As it emerged from decades of legal apartheid, South Africa also embarked on an ambitious program of water-law reform. At its core were two ideas. The first was to treat an old legal concept—the public-trust doctrine—as a foundation for the emerging legal system. That meant treating water as a common resource, to be held by the government in trust for the public and managed for the public’s shared benefit. The second idea was to treat water access as a human right.
At first blush, these ideas may sound intuitive or even obvious. Of course, one might think, water is a public resource; how could we privatize something as deeply shared as our rivers? And of course, one might also think, water is a human right; how could it not be, when we cannot survive even a few days without a drink?
Yet in the real world, people privatize rivers all the time, and legal systems do not guarantee individual access to water. Throughout much of the world, gathering water occupies a huge amount of time, particularly for poor women and children, and the water they can gather is extremely expensive and, often, unfit to drink. South Africa’s bold experiment, then, was to try to use legal doctrine to match basic moral intuitions with the realities of water distribution in the real world. But in a nation grappling with poverty, an HIV crisis, and all the other legacies of colonialism and apartheid, the transitions promised to be particularly difficult.
In the spring of 2015, Professor David Takacs journeyed to South Africa to find out how South Africa was coping with these challenges. The article that came out of that journey—recently published in the Berkeley Journal of International Law—provides a sobering report, albeit with some silver linings. South Africa, Professor Takacs finds, started out on a bold path, proclaiming the centrality of the public trust doctrine even as some other nations and states pushed it to the margins (or never adopted it in the first place), and emphasizing a human right to water years before the concept began to spread through domestic and international (and California) law. Then, however, came the retreat. In Mazibuko v. City of Johannesburg, South Africa’s Constitutional Court held that Johannesburg’s water-distribution scheme did not violate the human right to water. That scheme included providing paltry basic water rations to poor families and installing pre-paid, automatic-shut-off water meters in Black neighborhoods. But the court upheld the scheme, holding that the right to water only obliged governmental water managers to make progress toward full implementation of the right. Given Johannesburg’s allegedly constrained access to both water and money, and the undisputed fact that it was making some progress, these draconian restrictions were not unreasonable, according to the court.
And that, Professor Takacs argues, is wrong. His disagreement is with the court’s framing of the issue. The court took Johannesburg’s limited ability to supply water to poor Black neighborhoods as a given, not as a choice. And that, Professor Takacs argues, was incorrect. If water were more carefully managed in upstream reaches, and if it were not so freely available to agricultural users—if, in other words, waterways were treated more like public-trust resources and less like privatized supplies—then Johannesburg’s constraints would not have been so dire. Policy, in other words, helped create the shortages that Johannesburg relied upon in its defense, and South African law already provided a legal basis for the court to address that policy failing. Instead, by failing to link public-trust obligations and the human right to water, the court left both doctrines unjustifiably weak.
That is the sad part of the story. But Professor Takacs also offers glimmers of hope. First, even though South Africa’s progress on water distribution is not what it should be, real progress has been made. Second, South African water managers are now taking promising measures to try to redress their water-supply problems, including limiting livestock grazing in sensitive areas, targeting conservation efforts to headwater areas, and eradicating invasive water-consuming plant species.
South Africa’s constitutional jurisprudence may yet return to a more ambitious reading of the human right to water, and if Professor Takacs’s argument gains traction, that more ambitious reading will be closely tethered to ecological protections grounded in the public trust. In the meantime, however, the most promising action marrying South African ecology and equity may simply be pulling weeds.