Oliver Njuh Fuo The Right of Access to Sufficient Water in South Africa Murdoch University Law Review (2013) 20(2) 21 The Right of Access to Sufficient Water in South Africa: Comments on Federation for Sustainable Environment and Others v Minister of Water Affairs [2012] ZAGPPHC 128 Oliver Njuh Fuo* It is common knowledge that although the Constitution entrenches the right of everyone to access sufficient water, there are several challenges that continue to impede the full realisation of this right. Recently, environmental pollution by mining companies, a violation of the constitutional environmental right, has emerged as a major impediment to realising the constitutional right of access to sufficient water. The challenge posed by environmental pollution to the enjoyment of the right of access to sufficient water is highlighted in Federation for Sustainable Environment and Others v Minister of Water Affairs [2012] ZAGPPHC 128. The purpose of this article is twofold. Firstly, to comment on the judgment of the North Gauteng High Court in Federation for Sustainable Environment and Others v Minister of Water Affairs; and secondly, to comment on the litigation strategy employed by the applicants in this case. This article argues that, to promote the realisation of the right of access to sufficient water, communities and civil society organisations should also direct litigation at mining companies responsible for water pollution in order to compel them to at least refrain from violating the enjoyment of socio-economic rights, including the right of access to clean water. It is suggested that this strategy is consistent with the obligation imposed on non-state actors to at least refrain from violating socio-economic rights and the now established ‘polluter-pays principle’ in environmental law. 1. Introduction For those familiar with constitutional developments in post-apartheid South Africa, it is common knowledge that s 27(1)(b) of the Constitution of the Republic of South Africa, 1996 1 guarantees everyone a justiciable right of access to sufficient water. This constitutional right has previously been the subject of litigation and subsequent academic discussion in the famous Mazibuko Case. 2 * LLD Fellow at Faculty of Law, North West University (Potchefsroom Campus), South Africa, 20999410@nwu.ac.za. 1 Constitution of the Republic of South Africa, 1996. Hereafter, the Constitution. 2 The judgments of the High Court, Supreme Court of Appeal and the Constitutional Court are respectively cited as Mazibuko v The City of Johannesburg Case No 13865/06; City of Johannesburg and Others v Lindiwe Mazibuko and Others Case No 489/08 [2009] ZA SCA 20; and Mazibuko and Others v City of Johannesburg and Others 2010 (3) BCLR 239 (CC) (O'Regan J) ('Mazibuko'). For a discussion of the various court judgment, see for example: Linda Stewart (Jansen van Rensburg), ‘The Right of Access to Adequate Water [discussion of Mazibuko v The City of Johannesburg Case No 13865/06] (2008) 19(3) Stellenbosch Law Review 415, 415-435; Jackie Dugard and Sandra Liebenberg, ‘Muddying the Waters: The Supreme Court of Appeal’s Judgment in the Mazibuko Case’ (2009) 10(2) Economic and Social Rights Review 11, 11-17; Louis Kotze, ‘Phiri, the Plight of the Poor and the Perils of Climate Change: Time to Rethink Environmental and Socio-economic Rights in South Africa? 1(2) 2010 Journal of Human Rights and the Environment 135, 156- 160; Linda Stewart, ‘Adjudicating Socio-Economic Rights Under a Transformative Constitution’ 2010 28(3) Penn State International Law Review 487, 487-512.