The use of groundwater as an option for the realization of the right of access to basic water and sanitation in South Africa

Abstract

The most contentious issue in the present South African Constitution is the realization of the rights entrenched therein. These rights are contentious because they are justifiable in their nature, subject to judicial processes and courts have in many cases interpreted them to impose positive and negative duties against the state. Positive duty means that it is the state responsibility to ensure that at least something is done (positively) in the realization thereo1 and negative duty means that the state must refrain from obstructing the functioning of the right. It is often argued against the realization of the rights that the state has limited resources to put rights in reality because for the rights to be realized they require pumping in of resources. In the discussions of the right to sufficient water and sanitation on which this paper is focusing, various factors make this right a little difficult to be realized. These factors include amongst others the scarcity of water resources in the country and the tension between human and environmental needs in the resource utilization.