Judgment No. SC 54/2018
Case No. SC 228/14
(a) safe, clean and potable water; and
(b) sufficient food;
and the State must take reasonable legislative and other measures, within the limits
of the resources available to it, to achieve the progressive realisation of this right.”
Mr Girach submits that s 77 must be read with s 86 of the Constitution. He
argues that no right is absolute and that every right must be exercised reasonably and with
due regard to the rights of others. Rights come with responsibilities and obligations and
there can be no right to water without paying for the cost of supplying it. In any event, the
impugned Bye-laws are necessary for planned urban administration and are also fair and
reasonable in a democratic society. Mr Mpofu counters that s 77 of the Constitution
obligates the appellant to provide clean and potable water. To the extent that the Bye-laws
allow the appellant to act arbitrarily, they must be regarded as impeding the progressive
realisation of the constitutional right to water.
The first point to note about s 77 of the Constitution is that it is a
fundamental human right enshrined in Part 2 of the Declaration of Rights. As such, it is
directly enforceable in terms of s 85 of the Constitution if it has been, is being or is likely
to be infringed. Nevertheless, being in the nature of a social right, I do not think that it is
susceptible to unqualified application and enforcement. This emerges clearly from the
wording of the section itself.
What the State is enjoined to do is to take reasonable legislative and other
measures to achieve the progressive realisation of the rights to sufficient food and potable
water. Moreover, its obligations in this regard are confined to measures within the limits
of the resources available to it. In light of the relatively inchoate and somewhat nebulous
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