Friday 14 September 2007
IN THE HIGH COURT OF SOUTH AFRICA (Witwatersrand Local Division)
In the matter between:
LINDIWE MAZIBUKO First applicant
GRACE MUNYAI Second applicant
JENNIFER MAKOATSANE Third applicant
SOPHIA MALEKUTU Fourth applicant
GEORGE MLAMBO Fifth applicant
PINKIE MOHLABI Sixth applicant
VUSIMUZI PAKI Seventh applicant
JOHANNESBURG WATER PTY (LTD) First respondent
THE CITY OF JOHANNESBURG Second respondent THE MINISTER OF WATER AFFAIRS AND Third respondent FORESTRY
I, the undersigned,
PETER HENRY GLEICK
do hereby make oath and say:
1. I am the President of the Pacific Institute for Studies in Development, Environment and Security, 654 13th Street, Oakland, CA 94612 USA.
2. The facts contained herein are, unless otherwise stated or indicated by the context, within my own personal knowledge and to the best of my belief both true and correct.
3. I am an environmental scientist by training. My fields of specialization are hydrology, climatology, water management and policy, and sustainable development.
A Qualifications and Experience
4. My qualifications include the following:
4.1 A Bachelor of Science (BS) in Engineering and Applied Science from Yale University, 1978.
4.2 A Master of Science (MS) in Energy and Resources from the University of California, Berkeley, 1980.
4.3 A Doctorate (PhD) in Energy and Resources from the University of California, Berkeley, 1986.
5. My employment history is as follows:
5.1 From 1978 to 1981 I was a Research and Teaching Associate at the University of California and Lawrence Berkeley Laboratory.
5.2 From 1980 to 1982 I was a Deputy Assistant to the Governor of California in the Energy and Environment Office of the Governor of California.
5.3 From 1983 to 1986 I was a Research Associate at the Energy and Resources Group at the University of California, Berkeley.
5.4 From 1986 to 1988 I was a MacArthur Foundation Fellow in International Security at the Social Science Research Council/MacArthur Foundation. During this time I was also a post-doctoral Fellow at the Energy and Resources Group at the University of California, Berkeley.
5.5 From 1988 to 1990 I had a MacArthur Foundation Research and Writing Fellowship, which is a Fellowship in International Peace and Security.
6. In 1987 I co-founded the Pacific Institute for Studies in Development, Environment and Security and I am the Institute’s President.
7. The Pacific Institute for Studies in Development, Environment, and Security is a non-governmental, independent organization that engages in:
7.1 detailed research, evaluation, and analysis in the areas of global environmental problems, economic and sustainable development, and international security and policy. 7.2 the formulation of strategic interventions and policies to address water-related problems at the local and international level.
7.3 Work on the human right to water, and basic human needs for water supply and sanitation.
8. On the facts of the case, as presented to me, I maintain that a flat level of 6 kiloliters of water per household per month is insufficient to meet minimum basic requirements in the urban context of Phiri, Soweto for all households. I base this assertion on my substantial comparative research into water sufficiency, combined with an analysis of the international right to water and its obligations in the South African context.
B The International right to water
9. There is an international right to water, implicit in the following declarations and treaties:
9.1 Article 25 of the 1948 Universal Declaration of Human Rights (UDHR), which states: “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing ...”
9.2 Article 11 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which states: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
10. A more explicit recognition of a right to water is found in the following:
10.1 The 1986 Declaration on the Right to Development (DRD), which in Article 8 states: “States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources.”
10.2 The 1989 International Convention on the Rights of the Child (CRC), which, in Article 24 (paralleling Article 25 of the UDHR) provides that a child has the right to enjoy the highest attainable standard of health. Among the measures States are required to take to secure this right are measures to “combat disease and malnutrition ... through, inter alia, ... the provision of adequate nutritious foods and clean drinking water.”
11. Moreover, regional and national conventions and constitutions are increasingly recognizing this international right to water. For example, Article 11 of the 1988 American Convention on Human Rights provides that “everyone shall have the right to live in a healthy environment and to have access to basic public services.”
12. The scope and meaning of the right to water are further clarified in General Comment 15 on the right to water (Articles 11 and 12 of the ICESCR) of the United Nations’ Committee on Economic, Social & Cultural Rights (2003), as follows:
12.1 Paragraph 3: “Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.”
12.2 Paragraph 11: “Water should be treated as a social and cultural good, and not primarily as an economic good.”
12.3 Paragraph 12: “While the adequacy of water required for the right to water may vary according to different conditions, the following factors apply in all circumstances”: a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene ... Some individuals and groups may also require additional water due to health, climate and working conditions.
13. Finally, and most explicitly, South Africa’s 1996 Constitution clearly recognizes the right to water in Section 27(1)(b).
C Translating the right to water into specific legal obligations in the South African context
14. When viewed in terms of international law as well as in the South African context, Section 27(1)(b)’s right of access to sufficient water should continually be progressively realized. In addition, because of its inherent link to other rights including the rights to life and healthcare, the right to water should not be constrained by water resource limitations, provided that “sufficiency” is appropriately defined to take into consideration Basic Water Requirements (BWR), dealt with in section D below.
15. This is because when individuals are unable to meet basic water needs for reasons beyond their control, including discrimination and economic impoverishment, age or disability - as is the case with residents in Phiri - States must provide for basic needs. Meeting this minimum need should take precedence over other allocations of water for economic development.
16. While this might require a redirection of current priorities in Johannesburg City, the overall economic and social benefits of meeting basic water needs far outweigh any reasonable assessment of the costs of providing for these needs. A 1993 study by international water experts estimates that water-related diseases cost society approximately $125 billion per year, just in direct medical expenses and lost work time (Pearce and Warford, 1993 ). This estimate excluded indirect costs associated with loss of educational opportunities or any other poorly quantified or hidden costs. Yet the cost of providing new infrastructure needs for all major urban water sectors has been estimated at around $25 to $50 billion per year (Christmas and de Rooy, 1991 ; Rogers, 1997 ; Jolly, 1998 ).
D Defining the right: What is sufficient?
17. The amount of free basic water provided to the residents of Phiri i.e. 6 kilolitres per household per month, or an average of 25 liters per person per day based on a household of 8 persons, will be insufficient to meet basic needs for all households because (a) some households will have more than 8 persons; and (b) even 25 liters per person per day will be insufficient for some basic needs defined by international standards (as noted above in Paragraph 12.3).
18. Clearly, the right to water cannot imply a right to an unlimited amount of water, nor must that water be provided free. Specifically in the context of the state’s obligations to ensure access to water to economically and other disadvantaged groups, the right to water must relate to a sufficient amount of water to meet Basic Water Requirements. Based on substantial international comparative research I argue that the Basic Water Requirement (BWR) for human needs is 50 liters per person per day (lpcd). This amount is appropriate for cleaning, hygiene, drinking, cooking, and basic sanitation.
19. This general and internationally recognized standard is entirely reasonable, justifiable, and appropriate as a minimum standard in a poor, urban context such as Phiri for reasons outlined below. My research points to the fact that across the world, average domestic usage in urban houses with inside water connections and kitchen-gardens not dissimilar to that found in Phiri, is between 150 and 400 liters per person per day. For this reason the amount of 50 lpcd should be viewed as a minimum basic need and not as an end-goal.
E Likely water usage requirements in Phiri, Soweto
20. On the facts presented in this case, Phiri is a poor urban area, with large households and high unemployment, meaning high domestic water requirements to meet basic needs.
21. Under the circumstances, the 6 kiloliters per household per month provided for free is insufficient to meet Phiri residents’ basic needs, not least because basing the amount provided on household units rather than on a per capita daily calculation automatically disadvantages any household of more than 8 people. In any Phiri household with more than 8 people, the 6 kiloliter amount would be inadequate to satisfy the stated intention of providing 25 lpcd. Even in a household of 8 people, the amount of 6 kiloliters is insufficient to meet basic water needs of 50 lpcd.
22. A more appropriate and fair calculation should be based on BWR on a per person per day basis. The BWR standard of 50 lpcd is appropriate in Phiri to maintain the health of residents, as follows:
22.1 In the hot, dry, climate of Soweto, a 70-kilogram human will sweat between four and six liters per day, meaning a minimum drinking water requirement of 5 lpcd.
22.2 A basic requirement for sanitation of 20 lpcd would be the minimum to ensure healthy living conditions in a densely populated area like Phiri. If the houses are connected with inefficient conventional sewerage systems such as is common in South African townships, the minimum water requirement for sanitation increases to more than 75 lpcd.
22.3 Living in an urban area, Phiri residents cannot rely on rivers for bathing, meaning a basic requirement for bathing of 15 lpcd.
22.4 Given that much of residents’ food is likely to be bought from lower quality outlets, thorough washing and cooking of food is essential to ensure healthy eating. I suggest a basic requirement for food preparation and cooking of 10 lpcd.
PETER HENRY GLEICK
I hereby certify that the deponent has acknowledged that he knows and understands the contents of this affidavit, which was signed and sworn to before me at Oakland, California in the USA on this day of 2005; the regulations pertaining to affidavits having been complied with.
State of California County of Alameda City of Oakland
Signed and sworn before me this