the push for water and justice in south africa

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High Court Judge Moroa Tsoka ruled that the city waterutilitys policy of forced installation of prepaid water meters without providing an alternative water supply was unlawfuland unconstitutional. Whats more, the meters were placedonly in poor, black areas to require people there to pay for water before they used it. In essence, the meters were amethod of controlling water on credit. They were not of-fered the choice of a full credit, metered water supply.

This was done despite the acknowledgment by the city thatthe worst debtors were business and government institu-tions, said Jackie Dugard, Ph.D., senior researcher andacting director of the Centre for Applied Legal Studies atthe University of the Witwatersrand. She also serves on thelegal team representing the Phiri* residents who sued thecity and the water utility over the meters. In other words,the targeting of one, previously disadvantaged group, forsuch punitive credit-control amounted to unfair discrimina-tion, which is prohibited by section 9 of the Constitution. 1

According to the decision: The Constitution guaranteesequality. It is therefore inexplicable why some residents of the City are entitled to water on credityet the people of Phiriare denied water on credit. In spite of the fact they are poor, they are expected to pay [for] water before usage.Their counterparts, who are affluent and mainly in rich and white areas, irrespective of how much water they use, areentitled to water on credit. The differentiationcontravenes

the right to equality.

To arguethat the applicants will not be able to afford water on credit and therefore it is good for applicants to goon prepayment meters is patronizing. That patronizationsustained apartheid: its foundational basis was discrimina-tion based on colour and decisions taken on behalf of themajority of the people of the country as big brother felt it

* Phiri is a section of Johannesburgs Soweto township.

was good for them. This is subtle discrimination solely onthe basis of colour. Discrimination based on colour is im-permissible in the terms of the Constitution. It is outlawed.It is unlawful.

However, positive as the ruling is, the residents of Johan-nesburg and all of South Africa cant rest just yet. The City of Johannesburg, Johannesburg Water (Pty) Ltd. and thenational Department of Water Affairs and Forestry haveappealed the ruling.

BackgroundIn 2001, South Africas government began a policy thatguaranteed every household six kiloliters of free watermonthly, based on a calculation of 25 liters (6.6 gallons) perperson per day for a household of eight, said Dale McKin-ley, who works with the Coalition Against Water Privatiza-tion, an organization that assisted the Phiri residents intheir lawsuit. Part of the problem is semantics running up

The Push for Water andJustice in South Africa

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The poorest people of Johannesburg, South Africa saw some measure of hope witha judicial reaffirmation of the countrys constitutional right to water in April 2008.However, their fight is not over because the powers arrayed against them have ap-pealed the decision.


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against reality. A households is actually property, so on amulti-dwelling property such as in Phiri, full of backyardshacks with tenants, everyone on the property has to sharethe 6 kiloliter allocation. 2

The free water allotment went along with policymakers in-tention of pricing water in South Africa more progressively,McKinley explained. The free allocation of water is the firstprice block, and consumption after that is charged on a ris-ing basis. The higher-end pricing blocks are supposed tosubsidize free water while also discouraging overuse. Butthe reality is that the 25 liters a day of free water is just notenough for a person. It forces poor families into the secondor third pricing block, which leaves them with higher water bills than before the free water policy began. Some house-

holds stopped consuming water beyond the free amount, which presents obvious public health and safety issues.Others used more water without paying. That put them intoarrears on their water bills. 3

The city and the utility responded in 2003 with a programcleverly cloaked as Operation Conserve Water.

The utility approached the poor, largely black families liv-ing in the Soweto township and promised to write off theirdebt if they agreed to the installation of pre-paid metersthat shut off after dispersing the free 6,000 liters eachmonth. The catch was that the water would flow again only if the family paid more money. Essentially, they were de-nied water on credit. Again, many people responded by justgoing without water until the beginning of the followingmonth.

Meanwhile, people in the wealthier, mostly white areas of Johannesburg dont have such meters. They obtain wateron credit and can use as much as they like beyond the freeallotment, and they dont have to pay until the end of themonth or bill cycle. Moreover, there are many proceduralprotections prior to disconnection for failure to pay water bills, including months of warning letters. This means thathardly anyone in the wealthier suburbs is ever disconnect-ed, despite many not paying their bills. 4

Over a period of 6 to 8 months in 2003, hundreds of peoplein Soweto physically resisted installation of the meters, with many more people expressing sympathy. The Coalition Against Water Privatization was formed that year out of the resistance. However, the civil disobedience couldnt besustained because of police repression. People were spend-ing weeks in jail and being released only after paying, ormore likely having someone pay, outrageous bail amounts.It was clearly a political strategy to deal with resistance,McKinley said. 5 But citizen opposition likely did work. The water utilitys goal was to install 300,000 such meters, butso far has completed only 109,000. 6

By early 2004, the anti-privatization forces began to look atlegal strategies. After some unsuccessful early moves, they decided to bring a case challenging the constitutionality of pre-paid water meters and calling for an increase in the free basic water allowance. Five people from Phiri came forward

to initiate what in the United States would be a class-actionlawsuit. They were representing the masses of poor peoplein Phiri and other parts of Soweto who had been stripped of their right to water.

Johannesburg Water tried to pre-empt their efforts by of-fering to increase the free allotment if poor residents agreedto sign onto the indigent register. Problem is, people whosigned had to accept a pre-paid water meter. There are500,000 indigent households in Johannesburg, but it has

To arguethat the applicantswill not be able to affordwater on credit and thereforeit is good for applicants togo on prepayment meters is patronizing...This is subtlediscrimination solely on the basisof colour.


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registered only about 80,000 of them. So, this was just an-other part of the plan to identify poor people and then forcethem to accept pre-paid water meters and, ultimately, fur-ther restrict water consumption. 7

Corporate Water Privatization in South AfricaSouth Africas ruling ANC party has drastically changed its tune with regard to water since it came to power in 1994. Going back

four decades, the ANC had supported the creation of the Freedom Charter, which recognised water as a public good whose com-modi cation would inherently discriminate against the majority poor, wrote McKinley in his essay Water is Life: The Anti-Privati -sation Forum & the struggle against water privatisation. 9

After apartheid ended, this mandate for everyone having the right to water was written into the Bill of Rights in South Africasconstitution.

But the ANC changed course after coming to power, wrote McKinley. It gave water bureaucrats the authority to provide wateronly if there was a full cost recovery of operating, maintenance and replacement costs. The government went even further andlocated the policies of water and other basic needs within a neo-liberal macro-economic policy framework that ensured water(and all basic needs/services) would be turned into market commodities, to be bought and sold on the basis of private ownershipand the pro t motive.

The ANC followed the neo-liberal economic advice of the World Bank, the International Monetary Fund and various western gov -

ernments. In line with that, it drastically decreased grants and subsidies to local municipalities and city councils and supportedthe development of nancial instruments for privatised delivery. This effectively forced local government, with Johannesburg atthe forefront, to turn towards commercialisation and privatisation of basic services as a means of generating the revenue no lon -ger provided by the national state.

Johannesburg, like other local governments, privatized public water utilities by contracting with multinational water corporationsto service and manage water delivery.

A new corporate water utility, Johannesburg Water Company, was established. The city government maintained formal publicownership, but it outsourced the management and operations to French multinational Suez Lyonnaise des Eaux, which was donethrough the Johannesburg Water Management Company. Almost as if on cue, JOWCO increased water tariffs, necessarily hittingpoor communities in and around Johannesburg the hardest. The rst price hike instituted was an astronomical 55%. The priceincreases were only further catalysed by the need to recover additional huge costs associated with the corruption-riddled, WorldBank-funded Lesotho Highlands Water Project, designed mainly to provide new sources of water for the Johannesburg Metropoli -

tan area. Similar privatisation programmes in both urban and peri-urban areas across South Africa soon followed...As a result,water has ceased to be a public good that is accessible and affordable to all South Africans. Instead, water has become a marketcommodity to be bought and sold on a for-pro t basis.

According to Richard Mokolo, leader of the Crisis Water Committee formed to resist water privatization effort in the Orange Farmtownship: Privatisation is a new kind of apartheid. Privatisation separates the rich from the poor. 10

Fortunately, when the Suez contract was up for renewal in 2006, the City of Johannesburg bowed to massive public pressure andended the partnership. But now Johannesburg Water runs what is really an internal private company, which has oated loans to

nance the pre-paid water meters under Operation Conserve Water.

We thought we might get someof what we were asking for, McKinley said. But we got thecorrect interpretation of theconstitutional right to water.


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Cautious VictoryFortunately, the people of Phiri didnt go for it, but insteadpressed their case in court. After the arguments were heardin December 2007, a decision came the following April.

We thought we might get some of what we were askingfor, McKinley said. But we got the correct interpretationof the constitutional right to water.

Not only were the water meters struck down, but JudgeTsoka increased the free daily water allocation from 25 to50 liters per person.

However, in late May 2008, the city and Johannesburg Water PTY turned to the Supreme Court of Appeal to over-turn the decision, and it is possible that the Phiri residents would lose on at least some of the grounds because thiscourt historically is conservative. But not all would be lost.The residents would then appeal to the highest judicial ven-ue in South Africa the Constitutional Court. The residentslikely would prevail there because the case clearly involvesthe undermining of a constitutional right. 8

On the upside, the city and Johannesburg Water cant claiman inability to offer more water. Thats because the utility already indicated, publicly and prior to Judge Tsokas rul-ing, that it had enough water to increase the free basic allot-ment.

On the downside, both the pre-paid water meters that havealready been rolled out and the existing free water alloca-tion will remain until the conclusion of the appeals process.

That doesnt surprise McKinley or anyone else involvedin the movement: We will still continue to resist furtherimplementation of pre-paid water meters. We will continueto mobilize people.

That applies even after a victory in the Constitutional Court.

Just because a court orders something, we have to make

sure Joburg Water implements the court order, he said.We want to expand this beyond Johannesburg.

Endnotes

1 Dugard Ph.D., Jackie. Personal interview. Senior Researcher and ActingDirector, Centre for Applied Legal Studies at the University of the Witwa-tersrand. She also serves on the legal team representing Phiri residents who sued over the pre-paid water meters. May 31, 2008.

2 McKinley, Dale. Personal interview. Coalition Against Water Privatiza-tion, May 28, 2008.

3 Ibid.

4 Op cit., Dugard interview.

5 OpCit, McKinley interview.6 Op cit. Dugard interview.7 Op Cit. McKinley interview.8 Ibid.

9 McKinley, Dale T. Water is Life The Anti-Privatisation Forum & theStruggle Against Water Privatisation. Available at: www.waterjustice.org/uploads/attachments/pdf59.doc

10 Bond, Patrick. Africa Files: The battle over water in South Africa,2003. Available at: www.africafiles.org/article.asp?ID=4564

About Food & Water WatchFood & Water Watch is a nonprofit consumer organizationthat works to ensure clean water and safe food in the UnitedStates and around the world. We challenge the corporatecontrol and abuse of our food and water resources by em-powering people to take action and by transforming thepublic consciousness about what we eat and drink.

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