Review of Radical Political Economics 42(2) 175–194 © 2010 Union for Radical Political Economics Reprints and permission: http://www. sagepub.com/journalsPermissions.nav DOI: 10.1177/0486613410368495 http://rrpe.sagepub.com Can Human Rights Transcend the Commercialization of Water in South Africa? Soweto’s Legal Fight for an Equitable Water Policy Jackie Dugard 1 Abstract The South African Constitution guarantees the right to water, which is reinforced by a national Free Basic Water policy. However, water delivery is a local government function, which, in the absence of a national regulator, is largely operated as a commercial service. Using the lens of the Mazibuko water rights case—the first South African test case on the right to water—this article examines the conflict between a progressive rights-based model, which views water as a social good, and the commercialized model, which treats water as a source of revenue instead of a public service. The article finds in the legal iterations of the Mazibuko applicants the potential for a new, more equitable approach to water services. This is despite the set-back occasioned by the ultimate legal defeat in the Constitutional Court in late-2009. JEL codes: I31, H41, K32, Q25 Keywords right to water, social good, commercialization, water services, South Africa We want the water of this country to flow into a network—reaching every individual—saying: here is this water, for you. Take it; cherish it as affirming your human dignity; nourish your humanity …. Water—gathered and stored since the beginning of time in layers of granite and rock, in the embrace of dams, the ribbons of rivers—will one day, unheralded, modestly, easily, simply flow out to every South African who turns a tap. That is my dream. (Antjie Krog, South African author, quoted in the Preamble to the 1997 Department of Water and Forestry Affair’s White Paper on A National Water Policy for South Africa) 1 University of the Witwatersrand, Johannesburg, SOUTH AFRICA Date received: June 22, 2008; accepted: April 13, 2009 Corresponding Author: Jackie Dugard, visiting fellow, School of Law, University of the Witwatersrand; and executive director, Socio-Economic Rights Institute South Africa (SERI), Johannesburg, SOUTH AFRICA. Email: jackie.dugard@wits.ac.za