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- Volume 22, Issue 3, 2011
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 22, Issue 3, 2011
Volume 22, Issue 3, 2011
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 443 –445 (2011)More Less
According to the Development Indicators 2010, 49% of persons in South Africa live below a poverty line of R524 per month (approximately 75 US dollars per month). The official unemployment rate in South Africa was in the vicinity of 25% (excluding discouraged work-seekers) in 2010. Most concerning is the unemployment rate of 51% for youth in the age group of 15-24 years. About two thirds of all unemployed are below the age of 35 with significantly higher unemployment rates for black youth. To add to this mix, South Africa's levels of income inequality are amongst the highest in the world. According to the National Planning Commission's recently published Diagnostic Overview, the "poorest 20% of the population earns about 2.3 percent of national income, while the richest 20 percent ears about 70 percent of the income".
Author Pius N. LangaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 446 –451 (2011)More Less
It is a great honour to be asked to speak at this colloquium on Law and Poverty. I understand the Constitution of the Republic of South Africa, 1996 (the "Constitution") as urging us to eradicate poverty, and for me and others here, the instrument we have available to us is the law. The theme has particular resonance to me, and to those of us who have battled poverty in various ways and on a number of terrains. I thank you, the organisers of this colloquium, for the opportunity to address this subject at this forum.
Author Solange RosaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 452 –565 (2011)More Less
In order for socio-economic transformation to have a real impact on the lives of the poor and marginalised, meaningful participation in the development of law and policy as well as administrative decision-making, is required. Opportunities for informed participation can lead to transparent, accountable dialogue and debate on key policy choices to address the impact of poverty and inequality. This resonates with a participatory constitutional democracy, which requires decisions to be considered in the light of certain fundamental norms and values. The policy discourse in South Africa around solutions to poverty eradication has evolved over the past five years from a "welfare state" approach to a "developmental state" approach which must have the strategic capacity to mobilise society around the developmental agenda and bring technical and organisational capacity to bear in order to create fundamental change. The developmental state theory in South Africa is being grounded in principles of representative democracy, participatory democracy and accountability of the state.
Social exclusion, global poverty, and scales of (in)justice : rethinking law and poverty in a globalizing worldAuthor Nancy FraserSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 452 –462 (2011)More Less
Most discussions of law and poverty are pitched at the national level and tacitly presume what this paper terms "the Westphalian frame", which envisions the arena for addressing poverty as a modern territorial state. As a result, they imagine the victims of poverty as citizens of a bounded political community and picture the law that might help to rectify poverty as national law. Finally, they see the agency that might effect redress as a modern national state with sovereignty over a delimited territory.
This paper argues that the Westphalian framing of poverty and law is problematic in a globalizing world. Its constitutive assumptions are belied by the increasingly salient fact of "global poverty". Generated by transborder processes, the harms suffered by "the global poor" largely escape the parameters of national law and the control of national states. To locate them within the Westphalian frame is in fact to misframe them. This paper maintains that sensitivity to the problem of scale is a sine qua non for understanding some of the most characteristic forms of poverty in the 21st century. The question of scale is treated as a problem requiring interrogation.
Discussions of law and poverty need to reckon with the existence of a plurality of scales of (in) justice and need to contemplate the possibility that some forms of poverty cannot be overcome by appealing exclusively to national law. This paper suggests that some injustices are best located at the intersection of several scales.
This argument is made in several steps. After some preliminary reflections on terminology, a general conceptual account of social exclusion is presented. In this first step, a three-dimensional view of (in)justice, encompassing (mal)distribution, (mis)recognition, and (mis)representation is proposed. In a second step, the problem of scale is introduced. In a third step, this paper considers how such injustices might best be combated. In a brief coda on terminology, it is argued for reflection on the political implications of analytical categories, especially the terms "global poverty" and "the global poor".
Author Lucy A. WilliamsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 463 –482 (2011)More Less
This paper attempts to provide a broad thematic framework for discussing critical and sometimes controversial issues in the field of law and poverty. Using gender as the lens through which to view a late 20th century version of social contract theory, the paper discusses how blindness toward gender consequences of social policy and legal rules: (i) obscures the roots of poverty that are in part constructed by common law background legal rules of property, contract, tort, and family law; (ii) induces decision makers to ignore the conditions of and sex segregation in low-wage labour markets and the lack of upward mobility for poor women, thus appearing to legitimate the central, but flawed, assumption of neo-liberal poverty reduction policy (namely, that formal sector waged work can and will provide adequate family support); (iii) renders invisible non-formal sector "subsistence work" and "caregiving work," as defined herein, and in particular ignores the contribution of this work to economic productivity and efficiency as conventionally understood; and (iv) fails to appreciate that the legal definitions characterising many poor women workers as "non-workers" reinforce an artificial dichotomy between waged work and social assistance receipt (a distinction often framed as independence versus dependence) and eliminates by magical thinking the alienation and subordination experienced by low-wage workers, particularly women, from poverty discourse.
I articulate three central themes or assumptions that can usefully inform our discussions going forward. First, legal rules and discourses play a significant role in constructing society's understanding of poverty. Second, the rules historically in place in our societies work to keep people in poverty rather than to ameliorate their situation. And, third, contemporary neo-liberal social contract discourse - based in part on these embedded legal understandings - is an ideological initiative that legitimises and sustains gender subordination (among other forms of illegitimate hierarchy and domination).
Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate povertyAuthor Sanele SibandaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 482 –500 (2011)More Less
This article interrogates the relationship between constitutionalism and poverty eradication. Motivating this inquiry is the fact that in South African constitutional scholarship poverty eradication is not articulated as a benchmark or even a measure to determine the ultimate success or failure of social transformation. By this the article makes the claim that within constitutional discourse engagement with poverty seems to be mainly confined to, and mediated through, rights discourses rather than being seen as forming an integral part of the raison d'être of post-apartheid constitutionalism.
The main argument of this article is that whilst transformative constitutionalism is rightly regarded as the preferred approach to reading and understanding the Constitution, it suffers from certain pitfalls that render it ill-suited to delivering a project of poverty eradication. In particular, I shall be arguing here that one major pitfall is that transformative constitutionalism, whilst claiming to be post-liberal, is deeply imbedded in and comfortably co-exists with liberal discourses. In essence I shall be arguing here that (i) transformative constitutionalism finds a clear textual basis in the Constitution; (ii) academic commentators have gone to great lengths to articulate its vision and goals; and (iii) the courts have sought to enforce its principles and aspirations in adjudication, however the prevalence of a liberal democratic constitutional paradigm, has had the effect of defining the goods of constitutionalism in narrower terms than is in fact necessary or desirable.
In making this argument the article shall critically engage with transformative constitutionalism, in particular its limits and pitfalls. In so doing, it shall draw upon a Fanonian critique to illustrate the pitfalls of elite dominated transformations. In addition to this the article engages the crisis of constitutionalism in post-independence Africa. It is against this background that the article makes calls for a constitutional conversation that more directly connects between constitutionalism and poverty eradication.
Author Emilios ChristodoulidisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 501 –520 (2011)More Less
The article argues against the significant structuring effect of the distinction between the political and the social as it informs theories of constitutionalism, and with specific reference to South Africa. The distinction underlies the constitutional separation of political from socio-economic constitutionalism and concerns directly the "social question", or, in other words, the question of poverty. The article traces the distinction back to the theory of Hannah Arendt that has been so extraordinarily influential to the conceptualisation of "the political" today. It argues that the distinction political / social is not incidental but instead constitutive of the way in which Arendt offers a phenomenology of the political, on the back, as it were, of the exclusion of the social. The article argues that the leverage that this separation offers to the political imaginary comes at a crucial cost, because it diminishes the power of social and economic rights to offer political redress to the continuing devastating effects of poverty in South Africa, and across the countries of the South.
Author Henk BothaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 521 –541 (2011)More Less
The article juxtaposes two judicial understandings of democracy in relation to their implications for the poor. Some constitutional judgments conceive of democracy in formal terms as the capacity of duly elected legislatures to enact law within their constitutional area of competence. These judgments are loath to impose requirements that would guarantee the participatory nature of the lawmaking process, and reluctant to raise questions about the ruling party's use of their numerical majority to stifle political opposition or shield officials from legislative oversight. Other judgments conceive of democracy in dialogic, participatory and pluralistic terms. It is argued that this second judicial conception of democracy is better placed to challenge laws and practices which effectively insulate social and political power from mechanisms designed to promote democratic accountability, or allow the wealthy and powerful to pass off their particular interests as the common good. This vision of democracy needs to be supplemented with a better understanding of the ways in which electoral rules and the party system tend to intersect with inequality, corruption and patronage to entrench the exclusion and silencing of the poor.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 566 –590 (2011)More Less
The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. Unlike socio-economic rights, which are still fighting for full recognition within the human rights arena, the right to equality is well established and could therefore be a primary vehicle for establishing a human rights approach to poverty. This in turn requires a deeper understanding of the relationship between poverty and the traditional constituency of equality rights, namely inequality on the grounds of race, gender or other status. The first part of the paper examines the relationships between poverty and inequality first from the perspective of distributive inequality and then from that of status inequality. While the relationship between poverty and distributive inequality remains contested, deepening understandings of substantive equality have illuminated the continuities between status inequalities and poverty. The paper then develops an analytic framework within which both poverty and status inequality might be located. In the last section, drawing on the experience in Britain, the US, Canada, and South Africa, the paper considers three possible ways in which a right to equality could function in relation to poverty: including poverty as a ground of discrimination; using equality to challenge under-inclusive or discriminatory anti-poverty measures; and "fourth generation" models of equality, which include positive duties. It concludes that viewing poverty through the lens of substantive equality allows us to illuminate the ways in which poverty, like status discrimination, generates stigma, social exclusion and loss of autonomy. Conversely, status inequality will only be fully addressed by addressing distributive inequalities. It is in these cases that the right to equality has most traction. However, in the jurisdictions examined here, there remains a deep reluctance to regard the right to equality on its own as generating social rights if the latter are not explicit in the constitution. The result is that while the right to equality potentially makes a valuable contribution to aspects of poverty based on mis-recognition and social and political exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.
Author Catherine AlbertynSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 591 –613 (2011)More Less
Central to the transformative project of the South African Constitution, although not always recognised as such, is the need to address the distinctive forms of poverty and inequality experienced by women. This article explores the extent to which, and how, poor women have been included within the constitutional project, firstly, by describing the complexity of poor women's lives and then through a brief analysis of cases and jurisprudence on equality and socio-economic rights. Underlying these two facets of the article are two key questions: What does the experience of poor women tell us about the meaning of transformation and a transformative Constitution? How can we seek a more transformative (and gendered) understanding of equality and socio-economic rights jurisprudence? The article argues that the lived realities of poor women remind us that the kind of transformation - and transformative legal strategies - that are necessary to generate meaningful change require attention to structure and agency, to redistribution and recognition, to individual and community, to public and private (especially care-giving roles in family), to inequality and poverty. To achieve this through equality and socio-economic rights jurisprudence entails greater care in the choices made by lawyers in selecting and arguing cases, and in advancing critical arguments that push the boundaries of progressive and strongly egalitarian forms of liberalism. It also requires a more gendered jurisprudence in courts where attention to women's socio-economic context is combined with a conscious attempt to give meaningful content to the values informing constitutional rights, the gendered interests at stake and the manner in which application of legal principles, such as reasonableness and fairness, can be shaped to include women. In the end transformation requires the construction of a society in which women and men are afforded equivalent, substantive conditions for exercising the choices that matter to them, about how to live their lives, maintain their relationships, raise their children and pursue their aspirations.
Author Danie BrandSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 614 –638 (2011)More Less
In this paper I present a problematisation of deference as a judicial strategy to account for institutional problems with judicial review in socio-economic rights cases. On the assumption that deference operates as an obstacle to effective judicial enforcement of socio-economic rights, I describe certain internal inconsistencies in its conception and use. In particular I point out that the democratic justification often offered for deference - that courts as unaccountable institutions defer to the democratically accountable branches out of concern for democracy - both reflects an impoverished conception of democracy and actively counteracts a more substantive conception of democracy, by confirming and legitimising political discourse that seeks to exclude broad participation in development-related decision making. I describe an alternative approach to take account of institutional problems in socio-economic rights-related judicial review that better accords with and affirms a broader vision of democracy. This approach would have courts both retain rather than relinquish judicial involvement in the resolution of issues that present them with institutional difficulties and actively involve in the resolution of such issues also social actors other than the state. I conclude by presenting a variety of possible judicial techniques through which this approach can be operationalised.
Narrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South AfricaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 639 –663 (2011)More Less
This contribution explores the standard of reasonableness review applied in both administrative justice and socio-economic rights jurisprudence in South Africa. The first part traces the development of reasonableness as a standard of review in administrative law, and the significant shift towards a more substantive conception of review. The implications of this shift for cases involving review of administrative action impacting on socio-economic rights (what we term, "overlap cases") are examined. The second part of the contribution examines reasonableness review in socio-economic rights cases where the cause of action is not formulated in terms of administrative law (what we term, "non-overlap cases"). This typically concerns cases where it is alleged that the legislature or executive branches of government have failed to fulfil the obligations imposed by socio-economic rights. In this section we highlight the failure of existing constitutional jurisprudence on socio-economic rights to develop a substantive account of the normative purposes and values promoted by these rights. We argue that it remains possible for such an account to be developed within the existing framework of reasonableness review applied to positive socio-economic rights claims. The paper concludes with an argument in favour of the development of a single model of reasonableness review across socio-economic rights and administrative justice cases. While the reasonableness standards under the different sections overlap, they should not result in duplication, but fulfil different functions in the review. Taken together, reasonableness offers a model of review of socio-economic rights that promotes a number of key constitutional objectives. These include transparency, the justification of all forms of public action, proper consideration of the factual and normative context, and the development of the substantive dimensions of the socio-economic rights in the Constitution.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 664 –682 (2011)More Less
The Constitutional Court-s socio-economic rights jurisprudence fails to meaningfully address the needs and interests that poor people approach the Court to vindicate. This has resulted in a body of jurisprudence which cannot realistically contribute to the elimination of poverty and inequality and the transformation of social relations. This need not be so. This article argues that the Court's existing approach to socio-economic rights claims can be adapted to contribute substantively to the progressive elimination of poverty and disadvantage. The starting point is to identify the specific needs and interests claimants come to Court to vindicate and weigh them against the state's justifications for its refusal to respond to them. The seeds of such an approach were sown in Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC). However, since Grootboom, the Court has turned away from an evaluation of the intensity of the interests litigants approach it to vindicate, preferring instead to embark upon an abstracted and empty facial evaluation of state policy. This article sketches out an alternative, interests-based approach which, we argue, may be adopted within the confines of the version of separation of powers doctrine the Court appears to have adopted. The article then applies the approach to three practical examples and seeks to demonstrate that it is better suited to responding to the needs and interests of the poor.
An appraisal of international law mechanisms for litigating socio-economic rights, with a particular focus on the optional protocol to the international covenant on economic, social and cultural rights and the African Commission and CourtAuthor Lilian ChenwiSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 683 –705 (2011)More Less
Litigation of socio-economic rights at international level is a viable option where access to justice at the national level is unattainable. International law mechanisms for litigating these rights are therefore useful for marginalised groups and people living in poverty. This is also based on the important role of these mechanisms in ensuring that States meet the obligations they have committed to in human rights treaties, and provide effective remedies in cases of violations. This article assesses, taking into consideration some broad principles, the international law mechanisms for litigating socio-economic rights at the UN and African regional levels, particularly the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ("OP-ICESCR") and the African Court on Human and Peoples' Rights and the African Commission on Human and Peoples' Rights complaints mechanisms. The article illustrates that while these mechanisms have the potential to advance the rights of the poor and marginalised, and in some case have been successful in doing so, they are not without drawbacks that impact on their effectiveness.
Author Frank I. MichelmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 706 –723 (2011)More Less
Suppose we have three factors in play: a national project of post-colonial recovery from distributive injustice, prominently including land reform; express constitutional protection for property rights; and a Constitution whose other main features bring it recognizably within the broad historical tradition of liberal constitutionalism. To what extent does or must that Constitution's overall liberal affiliation or its inclusion of a property clause impede the social-transformation project? The narrower claim of this essay is that the attractions of liberal constitutionalism do not come necessarily laden with a counter-reformative property clause. In what I would call a proper liberal view, the office of a constitutional property clause is to signal recognition of the connection between a decent respect for property and a decent respect for human dignity and freedom; it is not, however, to provide defenses for property rights beyond what constitutional protections for freedom, security, dignity, equality, and legality would anyway provide. It may, even so, be true that the conditions of distributive justice within a national society will not always be achievable by means meeting the demands of an up-and-running liberal constitutional order. The essay's broader claim is that the fault in such cases does not, however, lie in a liberal conception of justice.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 724 –741 (2011)More Less
On 24 December 2010 a new Draft Tenure Security Policy and concomitant Draft Land Tenure Security Bill were published for comment. These new measures focus on farm land in particular and have specific implications for the Extension of Security of Tenure Act 62 of 1997 ("ESTA") and the Land Reform (Labour Tenant) Act 3 of 1996. This contribution briefly explores the reasons for the introduction of these new measures at this point in time, thereafter the Policy and Bill are analysed in detail. In light of our finding that the three main objectives of the tenure reform programme, namely (a) rationalisation; (b) increased security; and (c) the embodiment of constitutional imperatives, have not been achieved, some kind of intervention seventeen years after the tenure reform programme was embarked on, is to be expected. However, it is questionable whether the proposed Policy and Bill in their present formats will address the prevalent short-comings sufficiently. In this regard the contribution identifies two main problem areas: (a) a glaring lack of synergy between the Policy and the Bill; and (b) inherent flaws in the Bill itself. Regarding the first problem, various concepts and constructs identified in the Policy remain unattended to in the Bill. Accordingly, new initiatives proposed in the Policy, for example, the introduction of a permit system, have not been given effect to in the Bill. In fact, neither the acquisition, nor the recording or transfer of rights, have been dealt with in the Bill. The Bill is furthermore drafted poorly, thereby resulting in confusing and ambiguous provisions, for example, relating to the service of notice in eviction proceedings and matters surrounding resettlement areas. In this regard numerous questions remain unanswered. The conclusion is reached that, although intervention in the tenure programme is necessary, the most recent proposals do not embody an all-encompassing approach, resulting in numerous lacunae leaving important issues unaddressed.
Author Gustav MullerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 742 –758 (2011)More Less
Nearly four years ago the Constitutional Court created the concept of "meaningful engagement" in Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). The Constitutional Court described meaningful engagement as a "two-way process" in which a local authority and those that stand to be evicted would talk to each other meaningfully in order to achieve certain objectives. This article questions whether, and to what extent, there is an intersection or duplication between meaningful engagement, in terms of section 26(2) of the Constitution of the Republic of South Africa, 1996, and procedural fairness, in terms of section 33(1) of the Constitution and sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). It is argued that meaningful engagement cannot be synonymous with procedural fairness because the definition of "administrative action" in section 1 of PAJA would limit the application of meaningful engagement by excluding executive action from its ambit. Furthermore, both the envisaged nature and duration of engagement ensures that meaningful engagement transcends procedural fairness. It is therefore argued that meaningful engagement should rather be construed as a deliberative democratic partnership between local government and unlawful occupiers. This partnership demands that all the parties, including legal representatives and NGO's, involved in evictions should re-appreciate their respective roles. Finally, it is posited that meaningful engagement is a welcome addition to South African law because it has the potential of fostering increased understanding and appreciation by unlawful occupiers of the limitations of government while simultaneously enabling government to respond to the plight of the unlawful occupiers with sympathetic care and concern.
Author Sue-Mari MaassSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 759 –774 (2011)More Less
Recently the government has emphasised the importance of rental housing as a form of housing accessible to the urban poor. The current landlord-tenant regime promotes equal bargaining power and contract-based tenure (occupation) rights for tenants. It is questionable whether this free-market approach would provide satisfactory tenure security for the urban poor. In terms of section 26 of the Constitution, the state must be actively involved in the provision of housing and the state must assist the most vulnerable who face homelessness. Public rental housing might be a suitable housing option for vulnerable occupiers because the state can regulate, assess and control the market to the extent that it is involved in the provision thereof. The success of such a form of housing depends on the enactment of effective legislation that affords tenure security while also being context-sensitive to the personal needs of the individual households. The purpose of the Community Residential Units Programme is to introduce a formal public rental sector. However, the tenure rights of these public sector tenants would be similar to those of private and social sector tenants, which is problematic since these tenancies are based on contract. Legislation has not been promulgated to give effect to this programme. If the aim of the government is to provide housing in the form of rental housing, the question is how such housing would constitute adequate housing. Security of tenure is a key component of the right to adequate housing. One of the challenges in urban land reform is to create statutory forms of tenure that would include substantive tenure security, although such protection should be extended and applied to a diverse variety of tenure options. Security of tenure implies uninterrupted legal occupation devoid of uncertainty regarding termination of such legal occupation.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 775 –803 (2011)More Less
The endemic problem of unemployment poses a serious challenge to the realisation of South Africa's constitutional goals and values. One of the most glaring gaps in the assistance provided to the unemployed in South Africa is the exclusion of the long-term unemployed from any income-replacement measures. While the state's focus, when it comes to people of working age, is on job creation (rather than extending the range of social grant recipients), policy interventions to reduce unemployment tend to operate largely in the absence of a proper legal framework. For example, there is no designated right to work in the Bill of Rights. No legislation deals specifically with employment creation initiatives and few court cases have considered this issue. Without a right to work, there is a real possibility of a successful constitutional challenge to the current situation. Although this article acknowledges indirect ways to give constitutional recognition to such a right, a more direct approach is favoured in the form of the insertion in the Constitution of a limited, qualified right to unemployment security, including the right of access to employment opportunities and work. This would allow the state to limit an unemployed person's right to social assistance - the root of a potential constitutional challenge - on the basis that the state is striving, within its available resources, to progressively take reasonable legislative and other measures to create employment opportunities. In the absence of such an explicit right, the state may find it very difficult to use its attempts to create more jobs as a justification for its failure to pay social grants to the entire uncovered adult population. Significantly, constitutionalising such a right would embody transformative constitutionalism. It is argued that the Constitution should be the starting point in the quest for meaningful social change.
Author Khulekani MoyoSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 804 –822 (2011)More Less
This contribution seeks to propose an accountability framework for States and non-State actors involved in the provision and management of water services. The article contends that States have a legal obligation under international human rights law to fulfill, respect, protect and promote the human right to safe and sufficient water for personal and domestic uses. While acknowledging both the potentially deleterious and beneficial implications of privatisation of water services, this article suggests two mutually reinforcing approaches to foreclose any breaches of the right. The first approach advocates for the strengthening of the State's duty to protect, in particular the putting in place of independent monitoring and regulatory mechanisms to ensure that the minimum conditions imposed by the right to water are not abridged. The difficulty of enforcing positive human rights obligations against non-State actors is now extant in literature. The second approach argues for a doctrinal progression towards the imposition of direct obligations on non-State actors engaged in the provision of water services, not only to impede the realisation of the right to water but also a positive obligation to provide minimum amounts of water for personal and domestic uses particularly in respect of poor and marginalised members of society.