Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johnnesburg

The South African Bill of Rights1 is remarkable in many respects, one of which is the inclusion of an array of socio-economic rights. The South African Constitutional Court (‘Constitutional Court’ or ‘Court’) has produced a series of path-breaking socio-economic rights judgments interpreting them. One of the most recent of these is Mazibuko v City of Johannesburg,2 the Court's first judgment on the right of access to sufficient water. The decision is also controversial.3 Although Mazibuko has not yet attracted the level of commentary that accompanied its forebears, there is a perception that it marks a retreat from the Constitutional Court's earlier decisions in Government of the Republic of South Africa v Grootboom,4Minister of Health v Treatment Action Campaign5 and Khosa v Minister of Social Development.6 This note broadly endorses this view. The Court's previous socio-economic rights decisions were characterised by a willingness to apply an increasingly more searching standard of review. However, the Court's judgment in Mazibuko is marked by a high level of deference, especially in respect of the compatibility of the challenged policy with municipal by-laws and national primary legislation and in its application of the constitutional equality right. That said, there are factors that differentiate Mazibuko from the Court's earlier decisions, such as the fact that the complainants had not been excluded or overlooked by the relevant social programme. These factors do not justify the level of deference applied in Mazibuko, but they do suggest that the implications of the judgment for the future enforcement of socio-economic rights by the Constitutional Court should not be overstated.