Covenants, Constitution & Commons International, constitutional, and community responses to achieve access to sufficient water for everyone Nathan John Cooper Doctoral Thesis in Law School of Law University of Sheffield July 2016 [Insert access to thesis form x 2 pages] For Sarah: Thank you For Jesse Emanuel, Finlay Joachim, Wilfred Jude, & Magnolia Ruth: “How beauteous mankind is! O, brave new world that has such people in’t!” Abstract This thesis considers how best to achieve access to sufficient water for everyone in South Africa. It encompasses international law, national (including constitutional) law and policy, and finally community organisation, and the ‘vernacular law’1 of the commons. The task of achieving sustainable access to sufficient water for everyone in South Africa is long- standing and considerable, culminating in the inclusion of a right of access to sufficient water in the 1996 Constitution.2 This right has simultaneously provided an overarching moral framework (through the elaboration of relevant human rights norms), while remaining decidedly remote from the experience of many people, for whom insufficient water remains a daily reality. Here, the ability of a right to water to effectively ensure access to sufficient water for everyone is critiqued. In so doing, the practical and conceptual limits of ‘rights-talk’ are considered, in two contexts in particular: International human rights law; and the jurisprudence of the South African Constitutional Court. Crucial to this thesis is a methodology of narrative inquiry, which analyses the stories of people who suffer from access to insufficient water, revealing the disconnection between people’s right to water, and their experience of living without the water they need. Flowing from this narrative is an attempt to reconceive water governance from outside the structural and conceptual closures of the dominant paradigm (characterised by individual rights and commodification) and to explore the potential for alternative practical modes of governance to deliver greater sustainability and equity, for communities living with water poverty. In this thesis, through a blend of contemporary perspectives on vernacular law and multi-level governance, postmodern theories on stories and subjectivity, and empirical observation, a fresh contribution is made to the debate on access to water in South Africa. Key words: Water, South Africa, (Human) Rights, Sustainable Development, Anthropocene, Narrative inquiry, Constitutional Court, Constitutionalism, Commodification, Reasonableness 1 D Bollier & BH Weston ‘Green Governance: Ecological Survival, Human Rights, and the Law of the Commons’ (Cambridge University Press, 2013) 104. 2 Section 27 (1) (b) Constitution of the Republic of South Africa, 1996. Contents Contents 1 Acknowledgements 5 Publications 7 List of abbreviations 8 Prologue 10 1. Introduction 12 1.1 A right to water – definitions and clarifications 13 1.2 Aims and research questions 16 1.3 Methodological approach 17 Interviews: Purpose, methodology and method 19 1.4 Contribution to relevant academic debates 23 1.5 Understanding water paradigms 24 Water as life 24 Water as element(al) 25 Water as necessity 26 Global water 27 Water as commodity 29 Water as commons 30 1.6 Outline of thesis 31 1.7 Main argument and originality of thesis 35 2. Water governance at the international level 37 2.1 Introduction 37 2.2 History of a contested right 38 Conspicuous absence 39 The International Covenant on Economic, Social and Cultural Rights 43 The International Covenant on Civil and Political Rights 49 Emerging consensus and acceptance of a human right to water 53 The Cochabamba movement 55 1 2.3 The content of the human right to water 59 Constitutive elements of the human right to water 59 States Parties’ obligations 63 2.4 The right to water at a regional level 66 2.5 Water as a development goal 69 Water and the Millennium Development Goals 70 Water and the Sustainable Development Goals 72 Water and Sustainable Development 74 2.6 Effective international governance in the present and future global environmental 76 contexts Social-ecological security and the exigencies of the Anthropocene 76 2.7 Chapter summary and concluding comments 78 3. Water in South Africa 82 3.1 Introduction 82 3.2 Access to water in South Africa; resources, scarcity and inequality 83 3.3 History of the development of water law in South Africa 87 1652 to 1994 88 1994 to the present 97 3.4 Wider factors influencing the changing shape of water governance in South Africa 106 Commercialisation 107 Integrated Water Resources Management 109 3.5 Chapter summary and concluding comments 112 4. Socio-economic rights in the Constitutional Court 117 4.1 Introduction 117 Chapter outline 118 4.2 The legitimate role of the judiciary 120 4.3 Establishing a new constitutional ethos in South Africa 123 2 4.4 Role and structure of the Constitutional Court 125 Content and scope of the Bill of Rights 126 A new parliamentary model 127 4.5 The relationship between the Executive, the Legislature, and the Constitutional Court 128 Mandela 128 Mbeki 131 Zuma 136 4.6 Case decisions on socio-economic matters: an illusive (transformative) narrative? 139 Soobramoney v Minister of Health 140 Government of the Republic of South Africa v. Grootboom 143 Manqele v Durban Transitional Metropolitan Council 152 Residents of Bon Vista Mansions v Southern Metropolitan Local Council 154 Minister of Health and Others v Treatment Action Campaign and Others 157 Mazibuko and Others v City of Johannesburg and Others 161 4.7 Critique 169 ‘Judicial Managerialism’ or (legitimate) judicial restraint? 169 Transformative Constitutionalism 171 ‘Liminal Constitutionalism’ 173 4.8 Reaching the limits of ‘rights talk’ 174 4.9 Chapter summary and concluding comments 179 5. Water stories, community organisation and ‘commons thinking’ 181 5.1 Introduction 182 5.2 Story-telling: Listening to people’s lived experiences 186 Enacting a methodology of narrative inquiry 188 ‘The Medium is the Message’: the importance of narrative inquiry for commons thinking 190 5.3 Stories from water-poor people – glimpses of the commons 191 A recap of the content of the right to water 191 Stories from rural KwaZulu-Natal 192 Stories from Durban 202 Stories from Malawi 207 Summary 215 3 5.4 The commons in theory and in practice 217 Historical and contemporary examples of communing 218 Critiquing the commons 224 Property and the right to water 229 5.5 Interrogating the inviolate: Property, commodification, and Human Rights 231 5.6 Challenges and solutions 237 5.7 Chapter summary and concluding comments 239 6. Conclusion: Achieving access to sufficient water for everyone, forever 243 6.1 Introduction 243 Structure 245 Reconnecting the local, the national, and the global 249 6.2 A note on originality 250 6.3 Pre/Postmodern hints towards hydro-socio-eco responsibility 251 Ubuntu, rights and commons 251 Revisiting water governance in the Anthropocene’s dark light 254 6.4 Limitations of this thesis, and future research directions 256 6.5 Concluding thoughts 258 Table of cases 261 Table of legislation 263 Bibliography 268 Appendices 288 List of interviews 288 Model information letter 290 Framework for semi-structured interviews in water-poor communities 292 4 Acknowledgements Many people, in so many different ways, have helped me to research, write, and complete this thesis. I am grateful to each of you: Sarah, Jesse, Fin, Wilf and Maggie, thank you for your patience and for all the sacrifices you’ve made to give me the time and space to write. I am sorry that, so often, I’ve had to “go to workies” rather than spending time with you all. But thank you for cheering me on, and for believing in me. Mum & Dad, and David & Erica, thanks for the many ways that you have helped us get through this pressured time. Dad, I’m also grateful for all the hours you’ve spent proofreading my work, and for the valuable insights and perspectives you have offered. Mark Taylor, long before beginning this thesis, you affirmed my intellectual potential, and encouraged me to pursue an academic career. You also gave me my first job in academia, without which, I would not have got this far. Thank you. Duncan French – supervisor, mentor, colleague, boss, and friend - thank you for all the ways in which you have helped me to see this thesis through. Thanks for believing in me and in the importance of my research: for championing me, supporting me and encouraging me throughout. Thanks also for your example, which it is my ambition to emulate - managing to be an excellent scholar, and a good dad. Louis Kotzé, sedert ons eerste ontmoeting was jou warmte, gasvryheid en vriendskap 'n groot vreugde en seën vir my. Baie dankie vir jou belangstelling in my en my familie, en in my werk. Jou passie vir jou navorsingsveld, en die uitmuntendheid van jou akademiese werk is 'n inspirasie, en dit is 'n voorreg om as vriende en kollegas saam te werk. My opregte dank vir al die ure wat jy bestee het om my tesis te lees, en om my aan te moedig om op koers te bly en die verdekselse ding klaar te kry! Mag daar nog baie geleenthede wees om saam te werk, en glasies wyn saam te drink. Richard Kirkham, your commitment to high quality and hard work has challenged me to raise my game. I would not have finished this without your supervision. Thank you. Matthew Hall, for generously giving your time and your expertise, and for encouraging me that it’s OK for lawyers to tell stories! I am extremely grateful. David Townend, thanks for hours spent debating property, human rights and morality. Your commitment to legal scholarship as a moral endeavour has inspired and enthused me to continue my work. Many of your thoughts have been woven into this thesis.