Court Case Statement

Legal challenge over water policy in poor community in Phiri, Soweto

Friday 14 September 2007

Johannesburg, 11 July 2006

This week an application was launched in the Johannesburg High Court asking the Court to declare that the decisions of Johannesburg Water to limit free basic water supply to 6 kilolitres per household per month and to unilaterally install prepayment meters are unconstitutional and unlawful. The Court is being asked to order Johannesburg Water (Pty) Ltd. to provide a free basic water supply of 50 litres per person per day, and the option of a credit-metered supply installed at the cost of the City of Johannesburg, to the residents of Phiri, Soweto.

The application is brought by five residents of Phiri who are all unemployed and living in conditions of poverty, on behalf of themselves, their households and all residents of Phiri who are in a similar position to the applicants, as well as everyone in the public interest. The application is being launched under the auspices of the Coalition Against Water Privatisation (a collection of community organizations and progressive NGOs struggling against the negative effects of current water policies on the poor) and is supported by the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand and the Freedom of Expression Institute (FXI).

Since March 2004 the applicants, along with thousands of residents of Phiri, have had their water cut off by Johannesburg Water (as part of “Operation Gcin’amanzi”), while others have been persuaded to accept prepayment meters as the ‘only’ option available besides total disconnection. All of these residents had previously been supplied with unlimited water for which a flat-rate was levied. With the imposition of the prepayment meters, and because the free basic water amount is insufficient to meet the basic needs of the typically large households in Phiri (research undertaken by the Coalition Against Water Privatisation in 2004 found the average Phiri household comprises 16 people), Phiri residents are often without water for up to two weeks at a time each month because they cannot afford to purchase additional water once the free basic supply is exhausted.

The Government’s response to a separate application for information under the Promotion of Access to Information Act (PAIA) did not satisfactorily answer how the free basic water amount of 6 kilolitres per household per month was arrived at. Based on expert evidence, including that of Dr Peter Gleick, a world expert on water rights, the application argues that the amount of free basic water supplied to the residents of Phiri is insufficient to meet basic needs, not least because it is based on an amount per household per month rather than per person per day (in a household of 8 people, the 6 kilolitre per household per month amount translates as 25 litres per person per day). Dr Gleick’s expert opinion is that 50 litres per person per day should be the minimum starting point to provide people in the applicants’ position with access to sufficient water, which is guaranteed in section 27(1)(b) of the Constitution of the Republic of South Africa. Moreover, another expert, Professor Desmond Martin, President of the HIV Clinicians Society, attests to the need for more water on a daily basis for people living with HIV/AIDS than for non-HIV infected individuals, in order to ensure their health, standard of living and dignity.

In the application, the first applicant, Lindiwe Mazibuko, explains how, living in a household of 20 unemployed, elderly and young people (and relying largely on her mother’s pension of R820 per month), she suffers from the inadequacies of the free basic water supply and the worsening of her daily life of grinding poverty caused by the prepayment water meter installed in her Phiri house in October 2004. As she attests in her affidavit, the free basic water supply usually lasts the household only until around the 12th day of each month (with 20 people, the 6 kilolitre amount is only enough for each member of the household to flush the toilet less than once every two days or to have a body wash once every four days, leaving no water for drinking, cooking, cleaning etc.). With a prepayment meter, once this free basic amount is exhausted, the water supply is automatically disconnected, leaving the household without water until they can buy water tokens. But, as no-one in the Mazibuko household is employed, there is frequently no money to purchase water tokens and the household must borrow money or go without water until the next pension grant is available. Grace Munyai, the second applicant, is a care-giver to her niece, who is living with AIDS. The additional water required to take care of Ms Munyai’s niece necessitates a 3km walk to fetch water (from an area of Soweto that still has an unlimited water supply), as the free basic water amount is insufficient to ensure dignified and hygienic conditions and the household has no income to buy water tokens after the exhaustion of the free basic supply.

Responding to such intolerable conditions, and alongside consistent community mobilisation and resistance, between March 2004 and July 2006, letters of demand have been sent to Johannesburg Water and settlement meetings have been pursued, all to no avail. It is in this context that the current application has been served on the City of Johannesburg, Johannesburg Water and the Minister of Water Affairs and Forestry. The applicants, with their support organisations, believe this case to be of critical importance in securing the Constitutionally-guaranteed rights of poor people to access sufficient water.

Centre for Applied Legal Studies (CALS) University of the Witwatersrand Johannesburg Contact: Dr Jackie Dugard (011) 717-8619, [email protected]

Coalition Against Water Privatisation Johannesburg Contact: Dr Dale McKinley (011) 726-7487, [email protected]

Freedom of Expression Institute (FXI) Contact: Virginia Setshedi (011) 403-8403, [email protected]


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