To genuinely contribute to a ‘right to the city,’ a crucial challenge for water rights advocacy is to transcend narrow juristic narratives that, as Karen Bakker (2007:447) argues, tend to be “individualistic, anthropocentric, state-centric, and compatible with private sector provision of water supply.” This challenge became acute in South Africa on 8 October 2009, when in Mazibuko versus Johannesburg Water, the Constitutional Court overturned two lower-court rulings that had earlier been celebrated by the urban social movements of Soweto and comparable organizations across South Africa and the world, as well as academics (Bond and Dugard 2008 and Mazibuko & Others v the City of Johannesburg & Others, 2008). That court case provides the basis for rethinking both rights and commons so that both the ecological and the community-control factors are foregrounded, alongside contestation of the deeper logic of capital accumulation that explains the drive to water commodification within which activists campaign for water rights.
Some such campaigns win, but others lose. The Mazibuko case revolved around the amount of water each person needed (on average) each day – the Soweto plaintiffs demanded 50 liters, and the City insisted that 25 was sufficient – and whether the water would be delivered through ordinary credit meters (as the plaintiffs demanded), or on a pre-payment basis (as Johannesburg was doing in low-income areas). The latter was argued to be in violation of the Constitution, antidiscriminatory provisions in the Water Services Act and the Johannesburg water bylaws.
This case was the most important test, so far, of possibly the world’s most advanced water rights Constitutional clause: “everyone has the right to an environment that is not harmful to their health or well-being... everyone has the right to have access to... sufficient water” (Republic of South Africa, 1996). The strongest hopes for Mazibuko were expressed by the talented lawyer who was central to developing strategy on the case, Jackie Dugard (2010a):
Rights can be useful to the left, regardless of the ultimate outcome of litigation per se. Advocating a pragmatic approach to rights, I suggest that in contemporary South Africa, with its extreme socio-economic and racial inequalities, while in the normal course of events the law does indeed serve the interests of elites, rights-based legal mobilisation can have a predominantly positive impact on social movements representing disempowered groups, including the poor…. If strategically used, rights2 based legal mobilisation may in certain circumstances offer the left an additional tactic in a broader political struggle. In some instances the additional tactic might be a last resort, but it remains a useful one.
These words preceded the October 2009 defeat (for Dugard and colleagues’ immediate reaction, see Centre for Applied Legal Studies, 2009 and Coalition Against Water Privatization, 2009). The benefits and costs of litigating Mazibuko require full and frank debate, and only then can the political lessons for the broader ‘right to the city movement’ be elaborated. For example, in her review of Mazibuko, Cristy Clark (2011, this volume) insists that “the right to water will largely be a hollow right for poor communities unless it includes a complimentary right of community participation in water management.” That is one lesson, but unless capable of breaking beyond the bounds of neoliberal public policy, it is one acceptable to many water privatisers (as Bakker 2007:448 points out) and other neoliberal advocates of a smaller state.
Moreover, as Chad Staddon, Thomas Appleby and Evadne Grant (2011) argue, it was “a further blow to the plaintiffs [that] the Court ruled that it was inappropriate for Courts to get involved in setting prescriptive levels of water provision,” suggesting that putting this kind of public policy power in the hands of (quite conservative) judges may be inappropriate. Even more generally, Staddon, Appleby and Grant (2011) suggest, “Since it is generally only failed or authoritarian states that do not provide access to water resources complainants are left in the contradictory position of having to complain to the very states which have denied them in the first place!”
In addition to these political concerns, the full set of hydropolitical connections between social and ecological are often not properly conceptualized within a water rights framing. The politics of water rights are, therefore, better contextualized from a classically-Marxist right to the city standpoint advocated by Lefebvre and updated by Harvey, given that both political-economic and political-ecological concepts can be deployed within the strategies of urban social movements. This we see initially by way of understanding the limitations to the Mazibuko case.