Socio-economic rights and the process of privatizing basic municipal services

Abstract

The socio-economic righ ts in the Bill of Rights bind all organs of state, including municipalities. These rights may also impose posicive obligations. Through the delivery of basic services. municipalities fu lfi l some of these obligations; indeed. the ve ry purpose of municipalities is to be 'developmencal '. Municipa lities usually provide these services themselves but they may also use external se rvice providers, including the private secwr. National government policy also encourages municipali· ties rn privatise their services and municipalities are increasingly doing so. Serious concerns have been raised about the success of privatised service delivery in providing basic municipal services on an equitable and affordable basis. Where the provision of basic services gives expression to certain socio-economic rights, it may be asked whether the process of privacising these services undercuts the rea lisation of these rights. This is a legitimate queslion that focuses on empirical evidence. The issue of privatisation should also be approached from a normative perspective. By placing the provision of basic municipal services in a human rights paradigm. the question is how the application of socio-economic rights - constituting a binding and j usticiable normative framework - can influence and direct the mechanisms of service delivery. including the privatisation or services. In the first section of the paper. che socio-economic r ights obl igations of local government are outlined. It is argued that these obligations intersect with local governmem·s conscitutional mandate to provide basic munici· pal services; through the provision of such services municipalities can give effect to these righcs. In the second section, the legislative framework in cerms of which privatisation may occur is set out While privatisation is not in or of itself inconsistent with the Constitution. the process and the outcome of p rivatisation may have significanc effects on the realisation of socio-economic rights. le is thus argued in the fin a I section chat che process and product of privatising a basic municipal service musr comply wich the normative framework of socio-economic rights.