APF

Final Main replying Affidavit

Friday 14 September 2007

IN THE HIGH OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case no: 06/13865

In the matter between

LINDIWE MAZIBUKO First applicant

GRACE MUNYAI Second applicant

JENNIFER MAKOATSANE Third applicant

SOPHIA MALEKUTU Fourth applicant

VUSIMUZI PAKI Fifth applicant

and

THE CITY OF JOHANNESBURG First respondent

JOHANNESBURG WATER (PTY) LTD Second respondent

MINISTER OF WATER AFFAIRS AND FORESTRY Third respondent

REPLYING AFFIDAVIT

TABLE OF CONTENTS FIRST AND SECOND RESPONDENTS’ ANSWERING AFFIDAVITS 3 RESPONSE TO KAREN BRITS 3 THE ARGUMENTS ABOUT HOW MUCH WATER SHOULD BE FREE 3 The duty to provide free water at all 3 The current minimum of 6 kilolitres is not reasonable or constitutional 3 The current amount is not “adequate” 3 The duty to provide more than 6 kilolitres per household 3 The interpretation of the National Standards Regulation 3 The intended future increase to 10 kilolitres per month 3 THE ARGUMENTS ABOUT SERVICE CHOICES 3 THE ARGUMENTS ABOUT USING PRE-PAID WATER METERS 3 The alleged purpose of Operation Gcin’amanzi 3 Prepaid meters are not “part of the roll-out” of free water 3 Pre-paid water meters are a retrogressive measure 3 The alleged support for Operation Gcin’amanzi 3 Prepaid water meters do not “safeguard the rights of residents” 3 THE ARGUMENTS ABOUT REMEDY 3 The time period in PAJA 3 The relief we seek 3 THE ARGUMENT ABOUT STANDING 3 RESPONSE TO SPECIFIC PARAGRAPHS IN MS BRITS’ AFFIDAVIT 3 RESPONSE TO KATHERINE EALES 3 RESPONSE TO SPECIFIC PARAGRAPHS IN MS EALES’ AFFIDAVIT 3 RESPONSE TO RASHID SEEDAT 3 THE ARGUMENT THAT 6 KILOLITRES WAS A REASONABLE START 3 THE ARGUMENT ABOUT UNMANEGABLE DEMOGRAPHICS 3 THE ARGUMENT ABOUT A “PER PERSON PER DAY” ALLOCATION 3 THE ARGUMENT ABOUT COMPETING DEMANDS 3 THE ARGUMENT ABOUT THE “EVOLVING SOCIAL PACKAGE” 3 THE ARGUMENTS ABOUT PEOPLE LIVING WITH HIV/AIDS 3 RESPONSE TO SPECIFIC PARAGRAPHS IN MR SEEDAT’S AFFIDAVIT 3 RESPONSE TO RANDIR SINGH 3 THE ARGUMENT ABOUT TECHNICAL DIFFICULTIES WITH THE METERS 3 THE ARGUMENT THAT THE METERS ARE USER-FRIENDLY 3 THE ARGUMENT THAT OPERATION GCIN’AMANZI WAS AN ESSENTIAL PROJECT 3 THE ARGUMENT THAT THERE WAS CONSULTATION BEFORE OPERATION GCIN’AMANZI WAS INTRODUCED IN PHIRI 3 THE ARGUMENT THAT THERE IS CUSTOMER SATISFACTION WITH PRE-PAID WATER METERS 3 RESPONSE TO SPECIFIC PARAGRAPHS IN MR SINGH’S AFFIDAVIT 3 RESPONSE TO GERALD DUMAS 237 RESPONSE TO ANTHONY STILL 239 RESPONSE TO NEIL MACLEOD 245 RESPONSE TO MICHAEL RABE 253 RESPONSE TO JOHANNESBURG CITY COUNCILLORS 259 RESPONSE TO PHIRI RESIDENTS 264 THIRD RESPONDENT’S ANSWERING AFFIDAVITS 3 RESPONSE TO BARBARA GAY SCHREINER 3 DWAF’S FUNDAMENTAL MISCONCEPTION OF THE CHALLENGE 3 THE ARGUMENT ABOUT NON-JOINDER 3 The National Treasury 3 All water services authorities 3 All the residents of Phiri 3 THE ARGUMENT THAT FREE BASIC WATER AND BASIC MINIMUM STANDARD OF WATER SUPPLY MUST BE DISTINGUISHED 3 THE ARGUMENT THAT POLICY IS NOT BINDING 3 THE ARGUMENT ABOUT THE FEASIBILITY OF INCREASING THE SUBSIDY 3 THE ARGUMENT ABOUT INTERPRETATION OF THE REGULATION 3 RESPONSE TO SPECIFIC PARAGRAPHS IN MS SCHREINER’S AFFIDAVIT 3

I, the undersigned, JENNIFER MAKOATSANE do state under oath that: 1. I am the third applicant in this matter. I am a 36-year-old unemployed female, currently residing at 428a Matilili Street Phiri, Soweto, Gauteng, 1818. Lindiwe Mazibuko, the first applicant who deposed to the founding affidavit, no longer lives in Phiri. She accordingly no longer pursues her claim against the respondents in her own interest. She does, however, still pursue her claim against the respondents on behalf of the children and elderly members of her former household who could not bring this application themselves, as well as on behalf of the residents of Phiri who are in the same position as the other applicants are, and in the public interest. I refer in this regard to paragraph 8 of her founding affidavit and her confirmatory affidavit included in this reply.

2. I have personal knowledge of the facts in this affidavit, except where the contrary is clear from the context. All the facts are, to the best of my belief, true.

3. I am authorised to depose to this affidavit on behalf of all the applicants. I refer in this regard to the confirmatory affidavits of the other applicants included in this reply.

4. The purpose of this affidavit is to reply to the answering affidavits file by the first respondent (the City), the second respondent (Johannesburg Water), and the third respondent (DWAF). The respondents filed answering affidavits that consist of 9 lever arch files of documents, much of which is repetitive or irrelevant to this application. It is clear that the respondents have attempted to frustrate our application simply by flooding us with reams of unnecessary paper which would make it difficult for us to respond. I am advised that answering affidavits ought not to contain irrelevant or unnecessarily argumentative matter and that the court ought to take a dim view of the respondents’ approach to this application.

5. In this case, it was particularly unnecessary to file a mass of paper in answer because the majority of the allegations in the founding affidavit are common cause, or are not disputed by the respondents. The crux of the application accordingly ought to be a matter of legal argument.

6. I will not attempt to deal with every allegation contained in the vast answering papers. Where I fail to deal with specific allegations, it must be understood that I deny them.

7. I point out that I have been assisted in drafting this affidavit by my legal representatives and by the Centre for Applied Legal Studies at the University of the Witwatersrand. They have helped me to respond to the dense legal and policy arguments in the answering affidavit and to the many factual issues of which neither I, nor the other applicants, have any personal knowledge. Any submissions of law I make in this affidavit are made on the advice of my legal representatives. FIRST AND SECOND RESPONDENTS’ ANSWERING AFFIDAVITS RESPONSE TO KAREN BRITS

8. Before dealing with the specific allegations contained in the affidavit of Karen Brits, which is the first and second respondent’s main answering affidavit, I will deal with some of the general issues raised by her.

9. Ms Brits in her affidavit refers to the contents of other affidavits. I will deal with those allegations when I respond to each of those other affidavits. Her affidavit also contains much legal argument. I do not respond to these arguments in detail, but am advised that they will be addressed at the hearing of this matter.

10. The first and second respondents’ arguments as it appears from the affidavit of Ms Brits is essentially the following:

11. The arguments about the amount of water that should be free:

11.1. First, it is argued that there is no constitutional or legislative duty to provide any amount of free water at all. Only central government policy makes provision for free water to the poor, and this policy is “flexible”.

11.2. Second, the first and second respondents argue that the current minimum amount is reasonable and in line with the City’s constitutional and statutory obligations.

11.3. Third, the amount is considered to be an adequate amount to provide free, and if not, the applicants can buy more

11.4. Fourth, there is according to the respondents no legislative requirement to increase the amount of 25 kilolitres per person per day free water provided by the City. Such an increase is only “envisaged” in central government policy. It would require “very careful targeting and consideration” to provide more.

11.5. Fifth, the applicants misinterpret the Regulations relating to Compulsory National Standards and Measures to Conserve Water issued under the Water Services Act of 1997 (the National Standards Regulation). It is in any event impossible to implement a per person per day amount.

11.6. The City argues that, in any event, it has a medium-term plan to increase free water from 6 kilolitres to 10 kilolitres per month, and plans to have interim measures to provide this now for “targeted beneficiaries”.

12. The arguments about service choices given to customers. Essentially Ms Brits says that the choices are reasonable and in line with the respondents’ constitutional and statutory obligations. This argument involves 12.1. The proper interpretation of the Water Services By-Laws; and 12.2. The argument that pre-paid water meters are “service level 3 meters” 13. The arguments about the use of pre-paid water meters, which the respondents claim is reasonable and in line with the respondents’ constitutional and statutory duties. In this regard, the first and second respondents argue the following: 13.1. Operation Gcin’amanzi was introduced to address particular problems with the delivery of water services. It is accordingly reasonable and rational, and so is the use of prepaid water meters. 13.2. Prepaid meters are a part of the roll-out of a free basic allowance and does not restrict the rights of users to sufficient water. 13.3. Operation Gcin’amanzi is supported by the “vast majority” of residents of Phiri. 13.4. Prepaid water meters safeguards the rights of residents. In this regard, the respondents make the following allegations and submissions about the way they say the pre-paid water meters operate: 13.4.1. The automatic discontinuation of the water supply of a customer with a pre-paid water meter when that customer runs out of credit is not an automatic disconnection; 13.4.2. The respondents allege that the pre-paid water meters give notice of pending disconnection and that this makes the process administratively fair; 13.4.3. There is reasonable opportunity to make representations before the water supply is discontinued; 13.4.4. Vendors are accessible and provide easy access to more water; 13.4.5. The meters are easy to use and the respondents provide sufficient aftercare; 13.4.6. The meters are not faulty; 14. The arguments about the remedies we seek. In this regard, the first and second respondents say the following: 14.1. Neither the decision to use of pre-paid water meters, nor the amount of free water can be challenged by the applicants, because this is an application under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and more than 180 days have expired since the decision was taken. 14.2. The remedies we seek will have adverse implications for the City because it will disrupt the respondents’ strategic planning. It should therefore not be granted. 15. The respondents also take issue with our application on a procedural ground, namely that we do not have standing to bring the application in the public interest.

16. I will deal with each of these arguments before dealing with the contents of Ms Brits’ affidavit by paragraph. THE ARGUMENTS ABOUT HOW MUCH WATER SHOULD BE FREE

The duty to provide free water at all

17. Ms Brits says in paragraph 25.1 that there is no constitutional or statutory duty on the state - in this case the City or Johannesburg Water - to provide free water at all.

18. She says that the City in fact provides free water, but only because it considers this to be necessary “given the socio-economic circumstances prevailing in the City” and not because it has any duty to do so.

19. She also says in paragraph 25.8 that the applicants conflate the statutory minimum water supply (the provision in the National Standards Regulation for a “minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household”) with the concept of free basic water.

20. Ms Brits says in paragraph 25.3 to 25.8 that the duty in the National Standards Regulation to provide the statutory minimum water supply does not mean that the City has to provide this minimum water supply for free. She admits that the regulation says that 25 litres per person per day (or 6 kilolitres per household) must be provided to everyone, but contends in paragraph 25.5 and 25.6 that whether any of that should be provided free is “flexible”.

21. Her understanding of the respondents’ duties in this regard is incorrect. The statutory minimum water supply regulation must be considered in light of the Constitution of 1996, and in particular section 27 of the Constitution which provides for the right of access to sufficient water. What this means in the context of this case will be more fully addressed in legal argument at the hearing of this matter. It does, however, mean at least the following three things:

21.1. First, whatever the minimum, every person must have access to this minimum - those who can pay for it, and those who cannot. A policy in terms of which the basic statutory minimum is made available only to those who can afford it, would be unconstitutional. The minimum should accordingly be free to those who cannot afford to pay for it. Ms Brits’ argument is wrong because it misunderstands what “access” means. For “access” to water to be meaningful, it must mean not only that water must be made physically available, but also that it must be affordable to everybody. “Access to water” accordingly does not simply mean providing everybody with the opportunity to purchase water. Instead, it must mean that everybody must be able to acquire sufficient water even if they have no money with which to purchase it. 21.2. Second, the “statutory minimum” is only a “minimum” which local governments must provide to residents. Ultimately, however, the true standard the respondents must meet is to provide residents with access to “sufficient” water in terms of the Constitution. It is our submission that the amount set out in the regulation is not “sufficient” for the people of Phiri, and that the City accordingly needs to provide them with more. It is not enough for the respondents blindly to provide whatever the national regulation sets as the minimum. The respondents must comply with the obligation in section 27 even if it means providing more than what is set as the minimum in the regulation. 21.3. Third, the policy measures taken to realise this right must be reasonable. Ms Brits admits in paragraph 25.3 that central government policy requires the provision of free water of at least 25 litres per person per day. She says, however, that the policy that provides that the minimum water supply should be free is simply a “vision” which is flexible, and does not need to be implemented. Ms Brits says at paragraph 30.12, 30.32 to 30.35 and 30.37 that policy documents that deal with the progressive realisation of free basic water are not “binding”. She says that the City may set its tariffs for water regardless of the regulation of the statutory minimum water supply. The City’s policies, including the tariffs set for the statutory basic minimum, will not, however, be “reasonable measures” under the Constitution if the City blatantly disregards national policies in this regard. 22. The respondents have not argued that they cannot afford within the City’s available resources to provide the statutory minimum water supply (or more) for free to those who cannot pay for it. To the contrary, according to the City of Johannesburg’s published Summary of Total Revenue and Expenditure For the Medium Term, the City ran an audited budget surplus of R1.558 billion for the year 2004/05. For 2006/2007 the surplus is anticipated to be over R100 million (see “JM1”). In the absence of the City arguing otherwise, I adduce that the City is able to afford within its available resources to provide the statutory minimum water supply (or more) for free to those who cannot pay for it.

23. Ms Brits is, for all these reasons, wrong to suggest that there is no constitutional or statutory duty to provide a minimum amount of free water to the poor. These issues will be addressed in greater detail in legal argument. The current minimum of 6 kilolitres is not reasonable or constitutional

24. The City claims in paragraph 11.2 that the current minimum amount is reasonable and in line with its constitutional and statutory obligations. It appears, however, from Ms Brits’ own affidavit, that the current minimum amount is neither reasonable, nor rational.

There is no rational basis for the amount

25. In the first instance, it appears that there is simply no rational basis for the determination of the amount.

26. It is apparent from paragraph 25.17 that the amount - as allocated either to a “household” or a “unit” - was not rationally considered by the City at the time of its decision at all. Ms Brits acknowledges that the amount was never “independently interrogated” by the City. The amount was not considered by the City, but instead the City focused its attention on the “mechanisms” to be used to distribute it. While the City was accordingly eager to focus on the pre-paid water meters it was keen to install in Phiri, it was not concerned with what level of free basic water would meet the constitutional standard of progressive realisation of the right of access to sufficient water.

27. It also appears from paragraph 25.17 that the amount was never rationally adapted to what different types of households needed.

28. It is denied that “a great deal of research” has been done into the subject of the current minimum amount of 6 kilolitres, as is suggested in paragraph 25.18. The only evidence of research undertaken by the City on this subject is that produced in mid-2006, five years after the initial introduction of free basic water.

29. Ms Brits makes the unsubstantiated claim in paragraph 30.68.1 that the City has been guided by research into the minimum amount of free basic water. On its own account, the City accepted, without conducting any locally-relevant research, the DWAF minimum standard free basic water allocation. The only research it has conducted into water consumption patterns has been done recently, in connection with this application. The amount is irrationally linked to “households” 30. The amount is also not rational, to the extent that it is allocated “per household”.

31. In paragraph 21.3, Ms Brits acknowledges that in the poorer areas of the City, a consumer unit may consist of a number of households. She nevertheless claims that the 6 kilolitres free water is provided “per household” and that the amount is provided to “every household” in the City. These two allegations cannot be reconciled, and it is denied that it is true.

32. The City provides the 6 kilolitres free basic water only to account holders - in other words to a consumer unit. On Ms Brits’ own admission, this can include more than one household. It appears from the affidavits setting out the applicants’ individual circumstances, that this is borne out by the applicants’ own experience. The amount is also used for sanitation 33. The amount is furthermore not rational, because, although this was never the intention of the national policies, in fact the residents of Phiri must also address their water-borne sanitation needs out of the basic minimum water supply.

34. We say in our founding affidavit that it has been clear since the policy was articulated in the Reconstruction and Development Programme (RDP) that the basic minimum water supply was only intended for direct consumption and not for sanitation too. Ms Brits denies the applicants’ allegation that the RDP promise of 25 litres per person per day was not intended to include water for sanitation purposes. She says that our interpretation of the RDP is “not necessarily” the right interpretation. She bases this cautious denial on the fact that “basic sanitation” in the RDP must be interpreted to mean dry sanitation, which in the South African context she says, “by definition”, it is.

35. I deny that basic sanitation is “by definition” dry sanitation. For me and my fellow residents of Phiri, basic sanitation has always been water-borne sanitation.

36. Even if she is right, however, her argument does not support an interpretation of the RDP as meaning that, where waterborne sanitation is in fact supplied (as it is in Phiri) provision for such sanitation purposes should be included in the RDP’s proposed daily allocation of 20-30 litres per person of “clean, safe water”. It is apparent that the RDP promise of “clean, safe water” is meant for direct consumption. This is clearly distinguished from “adequate/safe sanitation”.

37. This distinction was carried through in the same year, 1994, in the Water Supply and Sanitation Policy White Paper, which clearly distinguishes a minimum water supply of 25 litres per person per day for “direct consumption”, from the water required for adequate sanitation. The current amount is not “adequate”

38. Ms Brits says in paragraph 25.18 that, in any event, and “given the circumstances of the City”, the amount of 25 litres per person per day is an “adequate” amount to provide free. The applicants deny that the amount is “adequate” or sufficient.

39. In the first instance, we deny that the City in fact provides “25 litres per person per day”. Instead, the City provides the amount of 6 kilolitres per consumer unit. In a household like that of Lindiwe Mazibuko, which consists of 20 people, 6kl per household per month translates to 10 litres per person per day, which is less than half the stated target of 25 litres per person per day (which in itself is half of what would be sufficient to meet each or our basic water needs on a daily basis). On properties where there is more than one household per property, the amount of 6 kilolitres would obviously be insufficient.

40. Whether or not the amount of 6 kilolitres per stand is sufficient as contemplated in the Constitution does not depend on the “circumstances of the City”, as is suggested in paragraph 25.18. Instead, what is sufficient must be determined objectively in line with what people need to live a life of dignity.

41. Ms Brits admits in paragraph 25.1 that “all people may use more water” than 25 litres per person per day. By implication, the City therefore assumes that even though people use more than 25 litres per day, they do not need that additional water. There is no evidence, however, that supports or explains this assumption.

42. In fact, Ms Brits admits in the same paragraph that people with special needs in fact “may require more than this on a daily basis” and that the 25 litre daily allowance is merely a “minimum starting point”. The City, despite this admission, has no policy on persons with “special needs”. The applicants point out in our founding papers that many of the residents of Phiri would fall within the category of “persons with special needs”, including those members of our households with HIV and AIDS, children, the elderly, persons who suffer from illness - generally speaking poor, black, unemployed persons who require access to more water than what the respondents provide free at the moment. The duty to provide more than 6 kilolitres per household

43. We explain in our founding papers that the first and second respondents should, in light of its constitutional duty, increase the minimum amount of free basic water to 50 litres per person per day. This is the minimum amount that we need in Phiri to survive, and live our lives with dignity.

44. Ms Brits does not say that that the City cannot provide more than 6 kilolitres per stand. Nowhere is it stated that the City could not afford such an increase. She only says in paragraph 25.7 that it would require “careful targeting and consideration”. This is not a valid reason not to increase the amount of free water. In any event, the respondents provide no evidence that any such “careful targeting” was undertaken before or after the introduction of the 6 kilolitres limit.

45. It is further clear that the City can in fact provide more free water, as, in paragraph 26.10.2 it proposes a “medium term plan” to increase the amount to 10 kilolitres per month. Not only does this acknowledge that the 6 kilolitres currently provided for is insufficient, but it also shows the City’s ability to provide more. I will say more about the intended “medium term plan” below.

46. The City’s failure to “fine tune” the amount required by different types of households, or even to apply its mind to determine the appropriate amount to be given free to the indigent residents of Johannesburg, as it is admitted in paragraph 25.17, shows its failure to comply with the constitutional duty “progressively to realise” the right of access to sufficient water.

47. Ms Brits says in paragraph 25.18 that the City has not “come across” a compelling argument to deviate from the guideline of 25 litres per person per day is an “adequate minimum amount” to provide free per person. In the first instance, the City does not provide 25 litres per person per day to every person in Phiri. It provides 6 kilolitres per consumer unit per month, which consumer unit can consist of many households, many of which consist of more than 8 people. It accordingly already gives the residents of Phiri less than what, on its own terms, it considers as “adequate”.

48. It is further not surprising that the City was not persuaded to provide more than 25 litres per person, seeing that it admits that it never applied its mind to what the appropriate amount would be in Johannesburg, or in Phiri, or for households with particular needs in Phiri. On its own evidence (see e.g. paragraph 32 of Ms Eales’ affidavit), the City was aware that other municipalities provide substantially more than 6 kilolitres per household per month, while other municipalities have engaged in targeting through area, or suburb density.

49. The City also does not respond to the very compelling argument that the Johannesburg, with its audited surplus of over R1.5 million in 2006, is precisely the kind of municipality that, in line with the Free Basic Water Implementation Strategy, should increase the free basic water amount. This is particularly true in light of the City’s large revenue base and its ability to recoup costs of higher free basic water levels both through removing the current provision of the free amount of 6 kilolitres to households who can pay for water, and by cross-subsidising tariff amounts above the free basic water amount. The respondents acknowledge in their answer that both these mechanisms are in principle available to the City.

50. We refer in paragraph 18 and 19 of our founding affidavit to the RDP as part of the policy framework against which the minimum free water supply must be considered. Ms Brits denies in paragraph 30.10 that the RDP is relevant to this application and challenge us to explain why it is.

50.1. The “progressive realisation” of the right of access to water required by the Constitution must be considered against the backdrop of the RDP.

50.2. The RDP, like the Constitution, contemplates that there should be a progression in the minimum free water from the short-term to the medium - and long-term. While the RDP said in 1994 that 25 litres should have been provided in the short-term, it promised an increase over the medium-term to 50-60 litres per person per day. 50.3. Ms Brits says that the RDP has merely “ANC policy” and is not binding on the respondents. This is denied. In the Minister’s response to the applicants’ request for access to information in terms of s 18(1) of the Promotion of Access to Information Act 2 of 2000 (attached as LM40 to the founding affidavit), it was said that the determination of the amount of free basic water at 6 kilolitres per person was “guided” by the RDP. The RDP is accordingly a relevant and appropriate point of departure in our challenge against this policy, and particularly in relation to our challenge to the amount of free basic water. The interpretation of the National Standards Regulation

51. Ms Brits argues in paragraph 30.31 that it must be emphasised that the National Standards Regulation is expressed disjunctively, i.e. that it provides for the basic minimum of 25 litres per person per day or 6 kilolitres per household per month.

52. The interpretation of the regulation is a matter of legal argument. I point out, however, that the interpretation of the regulation contended for by Ms Brits does not mean that it should not be read to mean “the highest of 25 litres per person per day or 6 kilolitres per household per month”, as the applicants contend. The intended future increase to 10 kilolitres per month

53. In paragraph 25.10, Ms Brits says that, in any event, the respondents plan to introduce a “revised poverty relief package”, which, as it appears from paragraph 25.11, it is alleged will be implemented from 1 July 2008. In terms of this proposal, the City proposes to increase the current minimum amount of 6 kilolitres per day.

54. The proposed policy is no more than a plan that the City has for the future. It has not yet been implemented, and the current application can accordingly not be evaluated in light of what the City now proposes for the future.

55. Ms Brits explains in paragraph 25.11 to 25.12 that due to a number of “uncertainties”, it would not be possible to “introduce” the revised social package “before 1 July 2008”. It is accordingly clear that there is no assurance that this plan will be in place, either in the proposed or in a different form, before that date or at all. This court must accordingly consider this application in light of the City’s policies as they actually exist, and not in light of hypothetical policies that are not yet in place.

56. I also point out that the City, apparently in December 2006 (see paragraph 28.13.2), decided that interim measures (to be introduced pending the finalisation of the revised social package in July 2008), would be implemented in “the first quarter” of 2007. This has not, however been done. I have tried to access these interim measures, but have been told that they do not exist.

56.1. As stated above, my household was registered as indigent in 2005. 56.2. In March 2007 my lawyers advised me that, because we are registered as indigents, our household should receive the benefits of the “interim measures” which were to be implemented from March 2007 according to paragraph 38 of Mr Seedat’s affidavit, as well as paragraph 32.1 of Mr Dumas’ affidavit. I was told that this meant I would be entitled to get an extra monthly free basic water allocation of 4 kilolitres (bringing the total amount to 10 kilolitres per month), as well as an annual allocation of 4 kilolitres for emergencies. 56.3. Noticing no change in my free basic water allocation, during March 2007 I went to the Senoane Administration Office to make enquiries about this interim policy, in terms of which our household should have benefited. 56.4. The duty clerk took down my details but was unable to confirm whether my household was registered on the indigent register. 56.5. When I asked the clerk about additional free basic water allocation, he knew nothing about either the additional monthly amount or the emergency allocation. He said that he had never heard about any such measure or policy. 56.6. I have been checking my free basic water allocation each month since March, but we still receive only 6 kilolitres, like we always have since the PPM installation. 57. It is accordingly clear that the interim measures have also not been implemented by the City as promised.

58. The City’s own acknowledgement that a new plan is necessary does not obviate the need for this Court to rule on the relief sought in this case. The court has the duty to interpret the constitutional right of access to sufficient water, and to pronounce on what the constitutionally correct medium- and short-term policy would be. The fact that the policy has not yet been finalised, as is clear from the paragraph 25.11 (incorrectly numbered as 26.11) means that the court’s declaratory powers will have none of the disruptive effect on the City’s policy framework suggested by the respondents.

59. The allegations made by Ms Brits regarding the proposed new social package nevertheless have a number of implications for the current application.

60. In the first instance, the very notion of this revised plan acknowledges a number of shortcomings in the current provision of water services to the poor.

60.1. First, it recognises (see paragraph 25.10.2, wrongly numbered as 26.10.2) that the current minimum amount of free water is insufficient, by proposing that it ought to be increased by two-thirds. I admit that it ought to be increased (although the applicants contend for a greater increase than suggested in the proposed policy.) The current minimum of 6 kilolitres per household per month can accordingly, on the City’s own version, not be defended as amounting to “sufficient water” under the Constitution.

60.2. Second, it accepts (see paragraph 25.10.1, wrongly numbered as 26.10.1) that the current system of registering indigent residents in order to establish who qualifies for, among other things, free water, is a flawed system, both conceptually and administratively. Ms Brits admits in this paragraph that the current system is administratively cumbersome, non-inclusive and that it involves a taint of stigmatisation. She admits at paragraph 30.75 that the most vulnerable people often do not respond to calls to register fro benefits. I agree that these are some of the problems with the indigent register and confirm that this is one of the reasons why the current policy fails to comply with the standard of rationality required by the Constitution. 60.3. Third, Ms Brits admits in paragraph 25.10.2 (wrongly numbered as 26.10.2) that redirecting the free basic water supply away from those households who are not poor is an appropriate way to address the need to provide greater access to free water for the poor. Considering that on Ms Brits’ own version at paragraph 21.2 51% of households earn less than R 1 600, this means that 49% earns more. Redirecting free water from those who earn more to those who earn less could accordingly significantly address the relief sought by the applicants. Yet, this has not been done since the inception of the free basic water policy. 60.4. Fourth, the City acknowledges in paragraph 25.13 that, not only is a revised medium-term plan necessary, but short-term measures are needed to give “wider access to free water” pending the roll-out of the medium term plan. I admit that there have been no such measures in place since the introduction of Operation Gcin’amanzi or the free basic water policy. The absence of such a short-term plan in the current policy shows that the policy under attack does not amount to a reasonable measure to ensure progressive realisation of the right of access under the Constitution, in that it does not provide for the immediate and desperate need of those who do not have the “wider access to free water” contemplated by the respondents. 61. The respondents cannot, in the face of these implicit concessions, be seen to defend either the current minimum level of free water, the use of the indigent register by the City or the City’s failure to re-direct free basic water from the rich to the poor or to deny the fact that it has to date failed to provide the necessary short-and medium-term interventions.

62. Even to the extent that the proposed plan may ultimately be implemented in the form suggested by Ms Brits, there are, however, a number of flaws in the City’s “present thinking” about both the revised social package and the intended interim measure as set out in paragraphs 25.20 to 25.22. The current proposal does not meet the applicants’ challenge.

The problems with a “per stand” increase

63. I deny that it is advisable to provide for an increase in the allocation per stand, rather than per individual in order to realise the “intention of national policy and the City’s policy” “to ensure at least 25 free litres per day for poor and vulnerable people” as is stated in paragraph 25.20.

64. In this application, the applicants ask for a per person per day allocation of free basic water rather than a household allocation in order to meet the needs of large, multi-dwelling, households, and in order to ensure that individuals, who are the bearers of the constitutional right of access to sufficient water, are not left without the water they need.

There is no proposed increase in the basic amount per person

65. The so-called increase in free basic water which forms part of the “present thinking” regarding the proposed revised social package does not provide more water to every person. It is clear from the contents of paragraph 25.20 that the increase only recognises that more people live on each stand than what the City originally acknowledged. The increase accordingly provides no relief to families of 13 people or greater, like that of Lindiwe Mazibuko. It is clear from paragraph 25.22.1 (incorrectly numbered as 26.22.1) that the respondents do not know what percentage of households will not be assisted through this proposal.

The increase does not allow for special needs

66. It is also a faulty assumption in paragraph 25.20 that providing free water per stand rather than per household would enable the household to respond better to whatever “special needs there is in a household”. Again, the additional amount would only give greater flexibility to small households, and not to bigger households. Bigger households would need the additional amount just to ensure that each member of the household gets their 25 litres per person per day. There would be no room for addressing any further “special needs”.

The increase is only for registered indigents

67. It appears from the contents of paragraph 25.20 and 25.22.2 (incorrectly numbered as 26.22.2) that the proposed interim measures proposed by the City would extend the 10kl free basic water only to registered indigents.

68. The indigency register is not an appropriate means test because, among other things, the register vastly under-represents the number of needy households. In paragraph 31.4.2 of Mr Seedat’s affidavit, it is stated that as of 31 January 2006, the indigent register reflected 118 000 indigent households. The City’s information set out in paragraphs 21.1 and 21.2 of this affidavit is that 51% of the approximately 1 006 930 households in 2001 earned below R1 600 per month, which would qualify them to register (according to the current policy as set out in Mr Seedat’s affidavit). This means that, even by 2001 census calculations, the indigency register massively under-represents the actual amount of indigent households and would not reach a significant proportion of the intended beneficiaries.

69. The serious under-representation of needy households on the current indigent household is evidence that the indigent register is an inappropriate targeting mechanism. The register is also an inappropriate means to assess special needs such as HIV/AIDS, because this would involve disclosure of HIV/AIDS status at the point of registration. Moreover, many poor people are not aware of the need to register in order to receive a FBW allocation. Finally, even if poor people are aware of the register many do not register because the negative consequences of registering outweigh the benefits. I refer here to the fact that over and above the same Free Basic Water and Free Basic Electricity allocations, as are extended to all households (whether on the register or not), the only additional benefits to registered households are a rates rebate and subsidised refuse and sanitation. However, these benefits come at the price of compulsory installation of water and electricity prepayment meters subject to roll-out in the area. Similarly, as Mr Seedat explains in paragraph 31.4.4 of his affidavit, the benefit of debt write off is contingent on PPM installation and the debt is reinstated for any household that refuses to accept a PPM or tampers with it. For many poor households, such as my own, the disadvantage of having a prepayment meter far outweighs the few benefits that accrue through registration. The attachment of onerous and detrimental conditions to the indigency policy is a further reason to regard the indigent register as an inappropriate mechanism for targeting relief to poor households.

70. I accordingly deny that a policy linked to an indigent register will ensure that all poor people will receive the necessary allocation. The respondents’ targeting of “registered indigents” in its interim measures and its allegation that the register is a “useful basis” on which to rely, also contradicts its own admission in paragraph 25.10.1 (wrongly numbered as 26.10.1) that the indigent register is a flawed mechanism that ought not to be used in supplying water to the poor.

71. I also point out that I am the only one of the applicants that lives in a household who has registered as being “indigent”. My late father, Zachariah Logango registered our household as indigent before he passed away, in 2005.

72. Due to the administrative and conceptual problems with the register referred to by Ms Brits, the other applicants have not applied to be registered.

The proposed system for special representations

73. Ms Brits’ “anticipation” in paragraph 25.21 that there would be a “parallel” representation system described in paragraph 25.22.3 (incorrectly numbered as 26.22.3) whereby households with more than 13 members, or people with “special needs” can “argue” for an additional allocation over and above is nothing more than speculation. The applicants can accordingly not respond to this proposal at this preliminary stage.

74. No indication exists as to what sort of “additional allocation” would be made, or on what basis it would be granted or refused. The factors that may ultimately be considered as “special needs” by the City may be widespread phenomena in areas characterised by extreme poverty such as Phiri, due, for example, to the prevalence of HIV and AIDS in the area. It is accordingly unrealistic to place the onus on every household with such a so-called “special need” to approach the City for a greater allocation of free basic water.

The “emergency” allocation

75. The proposal of an annual allocation of 4 kilolitres for “emergencies” in paragraph 25.22.4 (incorrectly numbered as paragraph 26.22.4) does not address the fundamental problem with the proposed plan, namely that it will be distributed through the mechanism of a pre-paid water meter.

76. I deny the allegation that 4kl per household per year would cover any emergency. No evidence is provided in this regard. Ms Brits says in paragraph 28.10.20 that the purpose of the emergency token which the respondents plan to provide in future was that it could be used when a pre-paid water meter gave a warning that the water was about be discontinued. The evidence is, however, that indigent people in Phiri, including all the applicants, live in conditions under which our water is discontinued every month because we run out of the free basic water supply. This “emergency supply” would accordingly have to be drawn on each month in order to supplement the inadequate free basic water amount of 6kl per household per month. The 4kl token per year cannot possibly address this problem.

77. Ms Brits says in paragraph 28.13.1 that it has been of concern to the City that emergencies do occur routinely where consumers are left without sufficient water to cope with the emergency. (I refer in this regard to Mr Paki’s affidavit attached to the founding affidavit as LM 33). If this is so, Ms Brits fails to explain why, despite the City’s concern, nothing has been done to remedy this since prepayment meters were first installed in July 2004.

The minimum of 25 litres remains insufficient

78. In any event, the proposal does not address the underlying problem that 25 litres per person per day is insufficient to meet the basic needs of residents in an urban environment.

THE ARGUMENTS ABOUT SERVICE CHOICES

79. Ms Brits says in paragraph 11.2 that the “service choices” the City gives residents are reasonable and in line with the respondents’ constitutional and statutory duties.

80. She also says in paragraphs 30.41 and 30.53 to 30.54 that pre-paid water meters are simply a type of meter which provides a “metered full pressure connection stand” and as such falls within Service Level 3. It appears, accordingly, that the respondents argue that Phiri residents are in fact given the “choice” to have a Service Level 3 meter because they can have pre-paid water meters installed.

81. This is not correct. Pre-paid water meters are not Service Level 3 meters. 81.1. First, section 3 of the Water Services By-Law clarifies that the unilateral installation of prepayment meters is a punitive measure for contravening the conditions of service for a Service Level 2 water supply such as a standpipe. Service Level 3, a metered full-pressure connection, is a superior level of service. Therefore the assertion in paragraph 30.41.3 that prepayment meters are simply a Service Level 3 measure is nonsensical. 81.2. I deny that section 31A of the By Laws confirms that prepayment meters are “simply” a variation of a Service Level 3 supply as is suggested in paragraph 30.41.3. Section 31A(2) clearly distinguishes conventional meters or Service Level 3 meters in section 3(2)(c )(i) from punitive prepayment meters in section 3(3)(a). 81.3. In “SD9” and “SD10” to annexure “LM41” of the founding affidavit, Johannesburg Water distinguishes a “metered full pressure water connection” from the prepayment meter and the standpipe. Their allegation that a prepayment meter is simply a continuation of a Service Level 3 water supply is therefore absurd. Ms Brits admits this by not responding to these allegations contained in Mr Delaney’s affidavit at all. 82. In any event, whatever the classification, I deny that Ms Mazibuko, along with the applicants and other Phiri residents, was given the option of “continuing” her water supply as is suggested by Ms Brits in paragraph 30.53. We were informed that our water pipes were going to be fixed and later received notification that our existing Service Level 3 water supply would be changed to a prepayment metered system.

83. We had to accept a prepayment meter or no water at all. Later on our household and other residents were provided with a third choice: prepayment meter, standpipe or no water at all. I deny that the ‘choice’ between a pre-paid water meter and total disconnection was a legitimate or even lawful offer.

84. I note that Ms Brits does not allege that any of the Phiri residents were offered the choice of a credit meter. This is a standard option offered to residents in wealthy neighbourhoods.

THE ARGUMENTS ABOUT USING PRE-PAID WATER METERS

85. Ms Brits says in paragraph 11.2 that the manner in which the City provides water services is reasonable and in line with the respondents’ constitutional and statutory obligations. It appears to say so for a number of reasons. The alleged purpose of Operation Gcin’amanzi

86. Ms Brits says in paragraph 11.3 and 26.1 to 26.2 that Operation Gcin’amanzi was introduced to address particular problems with the delivery of water services in deemed consumption areas. She lists a few reasons for the problem of unaccounted for water in those areas. I refer to the applicants’ supplementary affidavit at paragraph 41 and 42 where reference is made to a more complete exposition of the reasons as appears from the record. In paragraph 44 to 49 of the supplementary affidavit deals with the fact that pre-paid water meters do not address most of these problems.

87. Ms Brits says in paragraph 12 that Operation Gcin’amanzi was aimed at “improving” and “extending” water services in historically neglected areas. I deny that this is true.

87.1. As is set out in our supplementary affidavit at paragraphs 38 to 43, it appears from the respondents’ own record that the stated aim of Operation Gcin’amanzi was “demand reduction” in order to “realise the additional profit that would result from such a reduction”. It is apparent from Ms Brits’ answer at paragraph 40.9 that the respondents do not deny this. 87.2. “Demand reduction” in poor areas and the increased profits to be made from such a reduction is a far cry from “improving and extending” water services in poor areas. 87.3. The justifiability of Operation Gcin’amanzi should be evaluated in terms of its true aims as they appear from the record at the time, and not in light of the version which the respondents now wish to put forward. 87.4. In any event, it is apparent from the name, meaning “Operation Save Water”, that it was really aimed at the reduction of water consumption. 88. The City is accordingly being dishonest about what the real aim of Operation Gcin’amanzi was. The real aims are set out in paragraphs 38 to 43 of the applicants’ supplementary affidavit. It is explained in paragraph 44 to 49 why pre-paid water meters are not rationally connected to the real aims of Operation Gcin’amanzi.

89. In the second instance, however, even if the aim was to “improve and extend” water services, this is not what pre-paid water meters do.

90. I also point out that Johannesburg Water’s stated reasons for installing prepayment meters do not correlate with the rationale and procedures for pre-paid water meters that appear from section 3 of the Water Services By-Law, namely that prepayment meters ought only to be used as a punitive measure for having contravened the conditions of Service Level 2. Prepaid meters are not “part of the roll-out” of free water

91. Ms Brits says in paragraph 11.4 that pre-paid water meters do not restrict the rights of users to sufficient water. Instead, she says the pre-paid water meters are in fact “part of the roll-out” of a free basic allowance. She persists in paragraph 30.58 with using the misleading term “freepay” to describe these meters.

92. The City has chosen to distribute all water to poor people in Phiri by way of pre-paid water meters. This water includes the amount of free basic water which the City gives to every resident - rich or poor. The rich get all their water - including their free basic water - on an unrestricted metered basis. To dress up pre-paid water meters as the way in which the City “rolls out” free basic water is accordingly dishonest.

93. It is of course true that in the case of people who cannot afford to pay for water, like the applicants, we mostly use only the free basic water allowance and nothing, or little, more, while rich people use much more than their free basic water. The fact that our consumption is so close to the minimum level of water which every person needs to survive means that it is essential that the mechanism chosen to dispense that water to us must be above constitutional reproach. It is not. In fact, as is pointed out in our founding affidavit and what is stated above, many of its characteristics in fact infringe our constitutional rights.

94. Considering that all account holders in Johannesburg, including those with credit metered supply, presently receive 6 kilolitres free basic water, there is no reason to impose prepayment meters on poor households. It is apparent from this that a credit metered system, as the less restrictive mechanism, can provide free basic water just as effectively and without the additional costs of the installation of the prepayment meters. Pre-paid water meters are a retrogressive measure

95. Ms Brits denies in paragraph 30.70.1 that Operation Gcin’amanzi and pre-paid water meters result in people having access to less water than before. This is not true.

96. Since the applicants cannot afford to buy water, we are limited to the free basic water amount or slightly above it. Previously, my water supply was not disconnected, regardless of how much water I used. Now my water supply is disconnected every time I am unable to buy additional credit above the free basic water amount.

97. This application does not request a return to the deemed consumption system. We are not asking for unlimited water for free, or even for the previous deemed consumption amount of 20 kilolitres for free. Rather we are asking for a reasonable, rational and universally acknowledged basic amount for free in order to meet our basic water needs.

98. If the current free basic water allocation to richer households in Johannesburg is withdrawn in order to increase the allocation of free basic water to needy households, and if greater cross-subsidisation of the poor by the rich is introduced, there should not be an unsustainable adverse effect on water resources as a result of such an increase, The alleged support for Operation Gcin’amanzi

99. Ms Brits says in paragraph 26.4 that “extensive public consultation” preceded the introduction of Operation Gcin’amanzi and pre-paid water meters. At paragraph 14 she says that Operation Gcin’amanzi and the use of pre-paid water meters are supported by “the vast majority of residents” in Soweto. She denies in paragraph 30.69.1 that residents are angry about the negative impact of the pre-paid water meters on their lives.

100. I deny both that there was appropriate public consultation and that there is vast support for pre-paid water meters in Phiri.

101. Ms Brits refers in paragraph 30.69.4 to the fact that the City is “bound to operate” on the basis that it should obtain 90% or at least 80% support from the community before it can “go ahead” despite the objections of a minority. The respondents do not, however, show (and it cannot be suggested) that this was the approach they followed before implementing Operation Gcin’amanzi in Phiri. It was implemented in the face of great resistance and without first obtaining the support which was, on the respondents’ version, necessary.

102. In paragraph 30.4 it is suggested by Ms Brits that the fact that pre-paid water meters now have been widely implemented in Phiri suggests acceptance by the community of the meters. It is illogical, and also cynical, to rely on this kind of “acceptance” as proof of “support” for pre-paid water meters.

103. I admit that, despite our most fervent objections which we articulated since the outset, and in which we still persist in this application, the majority of residents have had to accept the installation of pre-paid water meters in Phiri. Considering the alternative, there was nothing else we could have done.

104. I deny that the installations were made with the informed consent and agreement of the vast majority of Phiri residents or that the fact that they relented to the installation meant that they had accepted Operation Gcin’amanzi or the prepayment meter system.

105. I note Ms Brits allegations in paragraph 30.4.5 that pre-paid water meters have now been rolled out to other poor, predominantly black areas. This was done despite the sustained protest and substantial resistance against the use of these meters to provide water to the poor. I attach, as “JM2”, copies of some examples of the vast number of media and research reports which have been consistently critical of the respondents’ policy in this regard.

106. The respondents rely on supporting affidavits of both councillors of the City, and certain residents of Phiri to show the “widespread support” for Operation Gcin’amanzi. I deny the relevance of any of these affidavits. I also point out that the affidavits of the councillors, which I deal with separately, consist largely of hearsay.

107. The residents, in turn, are clearly not independent from the respondents. Eight of the eleven deponents from Phiri derive their income from Johannesburg Water. Six of these deponents - Bruce Lebethe, Khanyisile Mdluli, Felicia Mabuza, Lenda Nyakane, Nzima Mlangeni, and Sifiso Gumbi are either employees with or contractors for Johannesburg Water and, as such cannot be regarded as independent sources of information on community attitudes to pre-paid water meters. Two others also derive their income directly or indirectly from the Second Respondent which undermines the independence of their testimony on prepaid water meters: Sello Mopai, employed previously as a community facilitator by the Second Respondent, now works for Lesira Trading, one of the suppliers of the prepayment meters, while Thabang Makhetha is a vendor for the Second Respondent .

108. Ms Brits also refers in paragraph 30.69.3 to the “focus group” research discussed in Ms Eales’ affidavit. She says in paragraph 28.4 to 28.6 that it “emerged particularly strongly from the focus groups that there is in fact strong support for Prepayment Meters”. I deal with Ms Eales’ affidavit separately, but point out that of the four focus group reports annexed to KE11 only three deal with prepayment meters at all and in two out of the three, the respondents are opposed to prepayment meters. In the focus group held in Eldorado Park on 6 November 2006, all respondents strongly preferred conventional metering to prepayment meters (page 12, KE11).

109. Drawing such strong conclusions from one focus group and ignoring the others is a seriously flawed research methodology. The following quotations from focus group participants, as appears from the research report, illustrate that Ms Eales and Ms Brits have overstated the conclusions: “Pre-paid is pay as you go, so if you don’t have money you will not drink water.” (Eldorado Park resident, 6/11/2006)

“With pre-paid if I haven’t got money then I haven’t got water.” (Eldorado Park resident, 6/11/2006)

“We do not have enough water. They are selling water and it is not fair. Most of us are not working and cannot afford to buy water.” (Stretford resident, 6/11/2006)

“(R)ecently they have installed the prepaid water system or the card system so when you go to families they will tell you they don’t have enough water so you are limited in terms of the amount of water you will be using. For laundry and cleaning the house you’ll have to use the same water and a small amount of water. When you bath the patient you have to use the same water to wash the bed sores on him just to save water because they cannot afford it.” (Focus group respondent, 14/11/2006)

Prepaid water meters do not “safeguard the rights of residents”

110. Ms Brits alleges in paragraph 11.3 that the respondents provide water to the poor in a manner that “safeguards the rights of residents. I deny that this is this case in Phiri. The use of pre-paid water meters in supplying water to the residents of Phiri does not safeguard our rights - in fact our rights are infringed because of the nature of pre-paid water meters.

The pre-paid water meters cut off water automatically

111. Ms Brits argues at paragraph 28.10.19 that the fact that the water supply to a customer with a pre-paid water meter is stopped when that customer runs out of credit does not amount to an automatic disconnection.

112. This is essentially a matter for argument. I point out, however, that when an indigent customer in Phiri with a pre-paid water meter does not pay for additional water, that household’s water supply is stopped. Similarly, when a customer with a credit meter in a wealthy neighbourhood does not pay for water, that customer’s water supply is stopped. In both cases there is a disconnection of the water supply. The difference is however the timing, manner and impact of the disconnection. In the case of the indigent customer with the pre-paid water meter the disconnection of the water supply is automatic, immediate and without any fair process or opportunity to make any representations, and the indigent person has no access to any water until they pay. The disconnection of the customer in the wealthy neighbourhood is neither automatic, nor immediate, but only after a fair process has been followed and with the opportunity to make representations to the respondents before the disconnection occurs. The wealthy customer also has access to water while this process takes place.

There is no warning

113. Ms Brits alleges at paragraphs 28.10.19, 28.10.20, and 30.79.6 that the pre-paid water meters give warning of a pending disconnection and that this makes the disconnection process administratively fair. She argues that this constitutes “notice” of a disconnection as required by the Water Services Act.

114. It is denied that the water meters in Phiri give any warning of the pending disconnection of the water supply. Neither my pre-paid water meter, nor those of the other applicants give such a warning. I also refer to the research done by CALS in this regard, which found that in a randomly selected sample of residents in Phiri, none of the pre-paid water meters in question gave such a warning. I refer in this regard to the replying affidavit of Muzi Ngwenya, which is included in this reply as “JM3”.

115. His research shows that: 115.1. None of the 18 households in his research sample had been informed of any pre-paid water meter warning system by Johannesburg Water, either at the time of installation or subsequently. 115.2. None knew of any warning given by the meter. The only indication that the water would be discontinued was when the water supply started becoming intermittent just before it stopped. It was only through having experienced discontinuations in this manner that they deduced that the intermittent supply meant imminent discontinuation. 115.3. Of the 18 households interviewed, five said that after the intermittent supply, only 2 litres came out of their taps. Two other households said that no more than 2 liters came out at that stage. Two households said that about 20 to 25 liters came out after the water started slowing down. Four households reported that there was no slowing down of the water supply whatsoever before it was disconnected. For these four households, the water supply provides no signal at all before terminating. The other two households do not usually run out of water because of the size of the household (both have less than three people). 116. In any event, I deny that even if such an electronic warning - either visual or auditory - had been given, it would amount proper “notice” in terms of section 4(3) of the Water Services Act. This will be address in legal argument.

There is no opportunity to make representations

117. Even if the meters did provide an adequate warning of an imminent discontinuation of the water supply, there is currently no reasonable opportunity to make representations before the water supply is in fact discontinued. Ms Brits acknowledges in paragraph 28.10.20 that such an opportunity would only exist “in future”.

Vendors are not conveniently located and are not open 24 hours per day

118. The premise of Ms Brits’ defence of the pre-paid water meter in paragraph 28.10.20 is that once a warning of imminent disconnection is given, a consumer would be able to obtain additional water in order to avoid being left without water. Not only does this miss the point that we cannot afford to purchase such additional water, Ms Brits is also wrong on her assumptions regarding the availability of such credit at short notice.

119. The credit facilities are not conveniently located and they are not usually open after hours. In Mr Singh’s affidavit at paragraph 43.5 to 43.6, he makes reference only to two vendors that are open 24 hours. These vendors (the Zenex garage in Naledi and the Engen garage in Meadowland) are very far from Phiri. It would be completely impractical for any of the applicants, who don’t have cars, to access these facilities at night.

120. The vendors are in many instances not located in places that are easily accessible to residents without transport. The Peoples Centres referred to in paragraph 30.63.3 are not located close to any of our homes, and it would not be safe to access them at night. The meters are not easy to use and are faulty 121. Ms Brits alleges in paragraph 30.67.1 to 30.67.4 that pre-paid water meters are easy to use and that the respondents provide sufficient aftercare and training.

122. I deny that this is so. The prepayment system is not only complicated, but we have not in fact received either training on the operation of the prepayment meter, or the benefits of the “Aftercare” programme set out in the affidavit.

123. I note that Ms Brits concedes that the prepayment meter system is “under constant review and improvements are ongoing”. She accordingly acknowledges the fact that the system as introduced in Phiri was flawed. I resent being used as a guinea pig in trial runs of such an unreliable and unstable system for dispensing water. There is no explanation for why Johannesburg Water could not have, and did not, perfect the system before exposing us to such an underdeveloped and flawed prototype.

124. In any event, I reiterate that, by virtue of its failure to comply with administrative justice standards, it is unlawful no matter what technical improvements are made. THE ARGUMENTS ABOUT REMEDY

The time period in PAJA

125. Ms Brits says that we cannot be granted the relief we seek because we have brought this application unreasonably late, and that this is a failure to comply with section 7(1) of PAJA. This allegation is made at a number of places in her affidavit, including the following: 125.1. in relation to the decision to limit free basic water to 6 kilolitres per household at paragraph 40.3.1 to 40.3.4 and 42.9 to 42.10, 125.2. in relation to the decision to use pre-paid water meters at paragraphs 40.8. 126. I am advised that this application is not brought under PAJA and that section 7(1) is in any event not applicable to the application. Even if PAJA were applicable, however, the nature of the decisions in question is such that they constitute an ongoing failure to comply with the City’s constitutional and statutory duties. A challenge to such an ongoing wrong is accordingly not met by the provisions of section 7(1). Section 7(2)(c) is similarly irrelevant to this application, as it has not been suggested that there were internal remedies which the applicants failed to exhaust. An application for condonation is accordingly not necessary in the circumstances.

127. I understand that this is a legal argument which will be addressed in greater detail at the hearing of this matter.

128. To the extent, however, that we may be wrong in our arguments in this regard, the applicants have brought a separate application for condonation, a copy of which is included in this reply, marked as “JM4”. The relief we seek

129. Ms Brits says in paragraph 12.1 and 30.4.2 that, if successful, this application will have “enormous adverse implications for the City and the residents” because it will “fundamentally disrupt the core aspect” of the respondents’ strategic planning for provision of water services. I deny that this is so.

130. In relation to the minimum free basic water supply, it is apparent from Ms Brits’ own affidavit that the City is in any event planning an increase in the minimum free amount. If we are successful, it will simply be required to provide for a bigger increase than what it had planned. It is apparent that, although this has not yet been implemented, the respondents have accepted that free basic water ought to be redirected from the rich to the poor. An order by this court that the free basic water minimum to the poor ought to be increased as prayed for could accordingly be implemented on this basis without significant increases in the current total free basic water provided to the entire city.

131. In relation to the use of prepaid water meters, it is denied that this is “a core aspect” of the City’s plan for provision of water services. It appears from the record that the City only introduced Operation Gcin’amanzi in order to reduce consumption in previous deemed consumption areas. It has in fact only been implemented in very poor areas. On the record, it is apparent that the City would first try out pre-paid water meters in a pilot project to determine its success. Phiri was the Operation Gcin’amanzi pilot project. If this court declares it to be unlawful, the City will simply not be able to roll out the project to any other poor areas, and would have to change to a more appropriate system in Phiri. Such a policy change is inherent in any pilot project and must have been foreseen when the City decided to follow a pilot study approach.

132. In any event, it appears from Mr Singh’s affidavit, to which I respond below, that Johannesburg Water is in any event planning to replace all our pre-paid water meters in Phiri, due to the fact that they are faulty. There will accordingly in any event be a need to replace the meters and no greater costs or inconvenience will accordingly have to be incurred.

133. If the court were to grant the relief that we seek, it will accordingly not have the disruptive effect that the respondents claim.

134. In any event, the residents of Phiri have objected to the installation of pre-paid water meters since the plan was announced. Any prejudice flowing from the failure to consider the residents’ valid objections must be of the respondents’ own making. THE ARGUMENT ABOUT STANDING

135. In paragraph 30.4.1 Ms Brits denies that the application is brought on behalf of anybody other than the 5 applicants.

136. The respondents’ understanding of section 38 of the Constitution is simply wrong.

137. I confirm that the elderly members and the children in our households are not able to bring these applications on their own behalf, because of their age and inability to access the legal process. Providing “evidence” in relation to each of these person on whose behalf we act, presumably in the form of an affidavit in each of their names, would defeat the purpose of representative actions on behalf of those who cannot act for themselves.

138. It is further clear that the class of people in Phiri who would benefit from the order we seek are in a poor position to seek legal redress and cannot all bring this application on their own behalf. It would also be impractical to join them. They are all in the same position than we are and the same issues of law and fact arising from the respondents’ policies affect us all. We approach this court on behalf of this disadvantaged community on a mater of great public importance to ensure that the City complies with its constitutional duties to provide the poor with access to water. The applicants through our legal representatives and the assistance of CALS will fairly and adequately protect the interest of this class of people.

139. It is undeniable that this is an appropriate case to recognise the applicants’ standing on these broader bases under section 38 of the Constitution. Legal argument will be presented in this regard. RESPONSE TO SPECIFIC PARAGRAPHS IN MS BRITS’ AFFIDAVIT

Brits Paragraph 1 to 5 140. I admit the allegations regarding the deponent’s authority and note the respondent’s approach to the answering affidavit.

Brits Paragraph 6

141. I admit the summary of the position of the applicants to the extent that it reflects what is contained in our founding papers.

Brits Paragraph 7

142. I note that the City has made efforts to address poverty, and admit that there is still “a long path for the City to travel in raising the levels of dignity and standards of living for the poor in the City”. The fact that we need to bring this application confirms this need. The relief we seek will indeed raise the levels of dignity and standards of living for some of the poorest people in the City.

Brits Paragraph 8 to 9

143. I admit that the Mayor of Johannesburg gave the speech quoted herein. I note that ensuring affordable access to adequate water supply does not appear among the City’s “key challenges” listed in the speech.

144. I deny that the City has a consistently pro-poor agenda.

145. Regardless of what the respondents’ stated intentions are, the City’s policy on using pre-paid water meters in Phiri has left the poor who live in the area - which is predominantly, if not exclusively, black - with less choices and more hardship than the rich - who live in areas that are predominantly white. The “tale of two cities” characterised by social inequality to which the mayor refers in his speech accordingly remain entrenched despite the mayor’s public statements to the contrary.

146. The policy on free water has also resulted in the poor, who cannot afford to pay for water, to live in conditions which infringe upon their human dignity.

Brits Paragraph 10

147. I admit that the City is presently “taking a number of steps” regarding basic services. Each step, including the policy on using pre-paid water meters in Phiri, and the provision of free basic water, must be evaluated against the City’s duties in terms of the constitution, legislation and national policy. I deny that the “steps” taken in this regard comply with these duties.

Brits Paragraph 11

148. I deny these allegations. I have dealt above with the legal arguments contained in this paragraph. Further argument will be addressed on these issues in court. Brits Paragraph 12 149. I have dealt above with the significance of the “aims” of Operation Gcin’amanzi to this application. I deny that Operation Gcin’amanzi is primarily aimed at “improving and extending water services”. As is set out above, the real aim was “demand reduction” in order to “realise the additional profit that would result from such a reduction”. It is apparent from Ms Brits’ answer at paragraph 40.9 that the respondents do not deny this. Brits Paragraph 12.1 150. I deny that implication that the policy decision to introduce Operation Gcin’amanzi was based on the careful consideration of the “research” and “planning” allegedly done in this regard. The record filed by the respondent simply does not reflect this. I refer in this regard to paragraphs 28 and further in the applicants’ supplementary affidavit.

151. I have already dealt with the alleged “adverse implications” which Ms Brits says will follow if we are successful in our application. I deny, first, that the implications will be “enormous” as suggested by Ms Brits, and second, that this is relevant to the question to be determined by this court.

152. I also deny that it was “unavoidable” to file such lengthy answering affidavits, as is set out above.

Brits Paragraph 12.2 to 14

153. I respond to the other affidavits filed by the respondents below.

Brits Paragraph 15 to 20

154. I admit the legal and policy framework set out in these paragraphs to the extent that it is accurately summarised. I also take note of the plans that the City has for the next few years as set out Ms Brits. I point out in this regard that this application must be evaluated on the basis of what the City has in fact done in respect of water provision for the poor - if current policies are unconstitutional, political promises and future plans cannot save them from unlawfulness.

155. I also note that in the 2006/2007 financial year the City has a capital budget of R3.2 billion. Of this, 2.16% (R69 million) has been allocated to “the provision or upgrading of water and sanitation services in low income areas”. In contrast, 8.09% (R259 million) has been allocated to Operation Gcin’amanzi, around R500 million has been allocated to projects relating the 2010 FIFA soccer world cup, R228 million has been allocated to Programme Phakama, to create a “single customer value chain and a single revenue value chain”, and R284 million is allocated to the Johannesburg Roads Agency. From this budgeting it is not immediately apparent that the City’s priority is to increase the access of poor residents to water.

156. I further note that, according to a recent report in the Mail & Guardian of February 9 to 15 2007, the City of Johannesburg had only spent 9.2% of its capital budget by September 2006, a point at which it should have spent 25% in order to “fulfill its mandate to provide basic services”. I attach a copy of this report as “JM5”. It would appear from this and from the City’s large budget surplus (“JM1”) that the City of Johannesburg has the necessary resources to provide sufficient free basic water to poor households, but that it has not been able to spend the requisite budget in order to do so. Ms Brits does not allege that the City cannot afford providing the relief which the applicants seek.

Brits Paragraph 21 to 22

157. I deal with the affidavit of Mr Seedat separately.

158. I note form paragraph 21.2 that the City is aware that 51% of households earn less than R 1600 per month and that many of these households are located in Soweto. I also note that the Ms Brits admits that a consumer unit to whom the City provides a service may consist of many households - including tenants, backyard households - and that this is common in poorer areas.

159. I have no knowledge of the allegations in paragraph 21.5 regarding the CASE report. The report has not been included in the answering affidavit, and I accordingly do not admit or deny it.

Brits Paragraph 23

160. I take note of Ms Brits’ exposition of where water comes from in Johannesburg.

161. I admit that water is scarce in South Africa and that there are several ways of conserving water, many of which will not have an adverse effect on poor urban households. There are many ways in which water conservation can be affected. As set out in “AM2” of the respondent’s answering affidavit, “a solution to the problem of water scarcity lies in the maintenance, rehabilitation and upgrading of existing water infrastructure to curtail losses in transit and storage”. Another option would be for South Africa to “import products (such as maize and lucerne) that are relatively inefficient users of water, and focus its exports on products that are more efficient water users”. More appropriate to this application, and in terms of the pricing mechanism that Mr Macleod refers to in his answering affidavit, an effective way of managing demand and securing equitable pricing of water for poor people is to attach a very high price to luxury water consumption. In the proposed exponentially rising tariff curve, there should be a sufficient free basic water amount followed by a concave tariff structure that prices domestic water in a way that penalises luxury domestic consumption.

162. I admit that it is necessary to have indigency measures that ensure that those who cannot afford potable water must be progressively able to access sufficient water.

Brits Paragraph 24

163. I set out my response to Ms Eales’ and Mr Dumas’ affidavits separately.

Brits Paragraph 25

164. I have explained above why we deny the allegations in this paragraph and why we say that the respondents do have a duty to provide free to everyone in Phiri not only the statutory minimum supply, but 50 litres per person per day.

165. I note that Ms Brits says that the City’s compliance of access to free water must be “balanced against the other considerable demands” on the respondents’ resources. She does not, however, say that either the City or Johannesburg Water cannot afford to provide the amount of free water we seek.

166. Ms Brits also in paragraph 25.1.2 refers to the fact that the respondents subsidise low volume users in respect of the additional amounts that they purchase over and above free amounts. I deny that this subsidisation ensures that “the poor are able to access additional water” over and above the current free basic water amount. I cannot afford to buy the difference between the current free basic water supply and the amount of water that would be sufficient to meet my basic needs.

Brits Paragraph 25.2

167. I set out my response to Ms Eales’ affidavit separately. I deny that the validity of the City’s approach is confirmed in legislation and policy.

Brits Paragraph 25.3 to 25.6

168. I deny Ms Brits’ contention in these paragraphs that there is no constitutional or legislative duty to provide free basic water. I deal with the legal argument contained in these paragraphs above.

169. I admit that the respondents are required by “central government policy” to provide basic water for free. The duty to provide sufficient water to everybody, and to provide it free to those who cannot afford it, however, arises from the constitutional right of access to free water. Brits Paragraph 25.7 170. Ms Brits says to provide more than the 6 kilolitres per person to poor people in Johannesburg would “require very careful targeting and consideration”. She does not say that it would not be possible, or that the respondents cannot afford to do so, but simply that it would need careful deliberation. The constitutional, legislative and policy framework requires at least such careful deliberation of the respondents when it comes to questions as essential as the need to provide access for the poor to sufficient water.

171. I deny that in the six years since the free basic water policy was implemented in Johannesburg, any such targeting has occurred. It is still the case that every household, no matter how rich or poor, receives 6kl FBW per month.

172. I admit that in order to conserve water, the “aging and in many cases significantly deteriorated infrastructure” should be addressed. I deny that indigent households should have to bear the burden of any costs involved in addressing such legacies of inadequate infrastructure.

173. Ms Brits also refers, without any substantiation, to the “culture of non-payment” which the City “inherited”. She does not explain how or why this alleged “culture” means that the City cannot provide the people of Phiri with free access to an increased amount of free basic water.

174. To the extent that households such as my own did not pay the full amount of our previous water bills, this is because many of us could not afford the flat-rate which we were charged at that stage.

Brits Paragraph 25.8

175. I deny that the City is not seeking to “avoid its constitutional, statutory and moral obligations”. I have dealt with the relationship between “free water” and “access to water” above, in the context of what “access” must properly be interpreted to mean.

Brits Paragraph 25.9

176. I respond to the affidavits of Mr Macleod and Mr Palmer separately.

Brits Paragraph 25.10 to 25.13

177. I deal above with the issue of the proposed “Social Package Policy” which is “under development”. In summary, the proposed policy is at this stage simply a proposal, the implementation of which has already been “rescheduled” due to a number of “uncertainties”. The current application cannot be evaluated in terms of the City’s future plans. In any event, the proposed policy does not address the applicants’ concerns, and serves to underline the many weaknesses in the current free basic water policy. I deal with these issues above. I also respond to Mr Seedat’s affidavit separately.

Brits Paragraph 25.14

178. To the extent that this paragraph suggests that large households require less than 50 litres per person per day, this is denied. I respond to the research referred to in this paragraph, along with my response to Ms Eales’ affidavit separately.

Brits Paragraph 25.15 to 25.16

179. I deny that all poor households receive 6 kilolitres free basic water per month. The City fails to provide 6 kilolitres free basic water per month to non-account holders such as the households that are tenants in backyard rooms, such as on my property.

180. I admit that the free basic water policy is not currently means tested. This means that even rich account holders receive 6 kilolitres free basic water per month.

181. I note that the Mayoral Committee intends to remove this benefit from wealthy households only from July 2008.

Brits Paragraph 25.17

182. I admit that at the time the free basic water policy was initiated the City was not providing any amount of water free.

183. It is evident from this paragraph that the City did not examine whether 6 kilolitres was a sufficient amount of water to meet basic needs before introducing its free basic water policy. The respondents also admit to not adapting the amount to needs of different types of households.

184. I also note that the City admits that it did not “fine-tune” the free basic water policy as is required by national policy. This is in stark contrast to the City’s implementation of free basic electricity, which it did “fine-tune” to the needs of Johannesburg residents - whereas the Department of Minerals and Energy stipulates that 50 kilowatt hours of free basic electricity should be provided below a consumption threshold of 150 kilowatt hours per household per month, the City of Johannesburg initially raised this threshold to 1020 kilowatt hours per month, which is a more generous allocation reflecting the needs of a densely populated urban area. It failed to take a similar approach to water supply, leaving the residents of Phiri like me without sufficient water.

185. I respond to Mr Still’s affidavit separately.

Brits Paragraph 25.18

186. I deal above with the respondents’ allegation that the current minimum amount is “adequate” and deny that the amount is sufficient as contemplated in the Constitution.

187. I again deny that the City has done “a great deal of research into this subject”, as is set out above.

188. I also deny that the respondents’ “indigency measures and special needs policy decisions”, as currently formulated, bridges the gap between the free basic water supplied by the respondents and what would be sufficient for the applicants and other poor residents of Phiri to live a life of dignity.

189. I respond to Mr Seedat’s affidavit separately.

Brits Paragraph 25.19

190. Ms Brits says that, although the City does not intend to deviate from the current basic amount, it recognises that there is the need to introduce some “flexibility” as well as some “short and medium term interventions”. It is clear that these measures are necessitated because the current amount is not sufficient, and because the current amount was never reasonably and rationally determined to take into account the needs of communities like Phiri.

191. I in any event deny that the respondents provide 25 litres per person per day free. As is stated above, they instead provide 6 kilolitres per consumer unit per month. In big households, or on properties with multiple households, the amount provided to each person would accordingly be less.

Brits Paragraph 25.20 to 25.22

192. I admit that the City’s allocation of 6 kilolitres per account holder per month does not ensure 25 litres being provide free to every person per day.

193. I deny, as I have set out elsewhere, that 25 kilolitres water per person per day is sufficient to meet basic needs.

194. I have considered above the implications for this application of the city’s intended policy changes proposed to be implemented in July 2008. The respondents’ “present thinking” about their future plans for the indigent is speculative and irrelevant as none of the proposed relief mechanisms exist at present. The “present thinking” is any event flawed for a number of reasons set out above. I deny that the proposed plan, if ultimately implemented as set out in paragraph 25.22, would address the applicants’ challenge to the current application. I have dealt with all these issues above.

Brits Paragraph 25.23

195. I respond to Ms Eales’ affidavit separately.

Brits Paragraph 26.1

196. I deny that Operation Gcin’amanzi and the use of prepayment meters is “done in a manner that safeguards the rights of residents” for the reasons set out elsewhere in this affidavit. I also deal with the alleged purpose of Operation Gcin’amanzi above.

Brits Paragraph 26.2 to 26.3

197. I admit that there were unaccounted for water problems related to the deemed consumption system. I refer to the applicants’ supplementary affidavit at paragraph 41 and 42 where reference is made to a more complete exposition of the reasons for unaccounted for water as appears from the record. Paragraph 44 to 49 of the supplementary affidavit deals with the fact that pre-paid water meters do not address most of these problems.

198. I address the affidavits of Mr Still, Mr Rabe, Mr Dumas and Mr Singh separately.

Brits Paragraph 26.4

199. I deny that appropriate public consultation preceded the introduction of Operation Gcin’amanzi and pre-paid water meters. This is addressed more fully in my response to the affidavits of Mr Rabe and Mr Singh.

Brits Paragraph 26.5

200. I deny the contents of this paragraph. Prepayment meters, as implemented in Phiri, violate the Constitutional and statutory rights of consumers and constitute a retrogressive measure. Further legal argument will be presented on this issue at the hearing of this matter.

Brits Paragraph 27.1

201. I admit that the Operation Gcin’amanzi pilot in Phiri has resulted in prepayment meters being installed widely in Phiri. As I set out above, I deny that such installation has been out of choice. I have no knowledge of the other factual allegations made in this paragraph and deny their relevance.

Brits Paragraph 27.2

202. I admit that Phiri was the pilot for Operation Gcin’amanzi. I refer to paragraphs 64 to 74 of the applicants’ supplementary affidavit in which we deal with the fact that there was no rational or lawful basis to select Phiri as the pilot area for Operation Gcin’amanzi.

Brits Paragraph 27.3

203. I admit that OGA has “really transformed the provision of water services in the areas in which it has been implemented”. I deny that this transformation has been positive or lawful, notwithstanding any reduction in the unaccounted for water.

Brits Paragraph 27.4

204. I have no knowledge of these statistics, presented by Ms Brits as the “successes” of Operation Gcin’amanzi. While saving water is a noble outcome which the applicants support, such savings can be achieved in undesirable ways or at a human cost that it unacceptably high.

205. In the case of saving water through the use of pre-paid water meters in the poorest of the poor areas in Johannesburg, saving of 2.4 billion litres of water every month has come at an unacceptable human cost in terms of dignity and health to poor people.

206. The record filed by the respondents show that the problem of unaccounted for water in deemed consumption areas was due to a number of reasons - including operational water supply issues, disrepair of the network and plumbing, lack of management capacity etc. I refer in this regard to the applicants’ supplementary affidavit at paragraphs 41 to 43. Operation Gcin’amanzi was ostensibly introduced also to address these problems. Ms Brits does not state which savings are attributable to improved operational water supply and better network and plumbing, better management or other improvements in the system, and which are attributable to the use of pre-paid water meters, which is essentially only a credit control mechanism.

207. I deny that the so-called “successes” of Operation Gcin’amanzi are attributable to the use of the mechanism of pre-paid water meters, as opposed to other aspects of Operation Gcin’amanzi.

Brits Paragraph 27.5 (incorrectly numbered as 28.5)

208. Ms Brits does not substantiate her allegation that the cost savings obtained through Operation Gcin’amanzi have been reinvested “to expand and increase the assistance” to needy households. I deny that it is true. Even if were true, it would amount to giving to the poor with one hand while taking away with the other hand.

Brits Paragraph 28.1 to 28.2

209. I respond to the affidavits of Ms Eales and Mr Singh separately.

Brits Paragraph 28.3

210. I deny that the views of City’s councillors are relevant. Whatever they may be, councillors’ views are not the views of residents of Phiri with pre-paid water meters. The constitutionality of pre-paid water meters and the City’s free basic water policies are in any event a matter of objective determination - not a matter of whether politicians view it as being “acceptable” to those affected by the policies.

211. In addition, I note that Ms Brits refers to an initial lack of acceptance of the pre-paid water meters. This confirms my experience of never being in favour of pre-paid water meters and of only ‘accepting’ one after suffering without water.

212. I respond to the councillors’ affidavits separately.

Brits Paragraph 28.4 to 28.6

213. I note that the “research” in question was not designed for the purpose for which the respondents now wish to use it. It was not aimed at soliciting views on pre-paid water meters.

214. I deny that “it emerged particularly strongly from the focus groups that there is in fact strong support for Prepayment Meters”. Of the four focus group reports annexed to “KE11”, only three deal with prepayment meters at all and in two out of the three, the respondents are opposed to prepayment meters. In the focus group held in Eldorado Park on 6 November 2006, all respondents strongly preferred conventional metering to prepayment meters (page 12, “KE11”).

215. Mr Brits does not substantiate why she says that the “comparisons done between households with prepayment meters and credit meters showed convincingly that households with Prepayment Meters do not restrict their water use in ways which compromise their health or dignity, relative to households with credit meters”. I deny from my own personal experience, and those of the other applicants, that this is so.

216. It is not apparent how the response of the focus groups was assessed to determine whether their “health or dignity” was being compromised by the water limitations imposed by pre-paid water meters.

217. The research that was meant to “gain qualitative insight into how low income households use water” - the “water diaries”, was not included in the answering affidavit.

218. I note the research finding that “households with Prepayment Meters re-use water more, especially at the end of the month”. This is evidence that the free basic water amount is insufficient to meet household needs and that due to pressures related to the costs of additional water, households are compelled to compromise on their water usage in ways that, in my household, impair dignity and health. I note that one focus group respondent (in a focus group of caregivers held on 14/11/2006 at an undisclosed location) states that, in order to ensure her patient’s sustained access to water, s/he has to re-use bath water to wash the patients’ bedsores.

Brits Paragraph 28.7

219. I note from this paragraph that the respondents piloted the project in one of the poorest areas in Johannesburg, and that it is only now considering whether or not to introduce it in other, higher income areas. The decision to pilot in the poorest of the poor areas what is essentially a credit control mechanism through which water supply is immediately disconnected at the point of unaffordability has had a severe impact on the quality of life of residents of Phiri.

220. I admit that a high level of support ought to be established in an area before pre-paid water meters are introduced, because of the serious implications of the mechanism for access to sufficient water. It cannot be suggested that a high level of support for pre-paid water meters was established in Phiri before they were introduced to the area. In fact, it does not appear from the respondents’ record of the decision that any consideration was given to impact that the introduction of pre-paid water meters in Phiri would have on its residents. I refer in this regard to paragraphs 64 to 74 of the applicants’ supplementary affidavit.

Brits Paragraph 28.8 to 28.9

221. I admit to all the problems Ms Brits outlines in respect of pre-paid water meters in this paragraph. I deal with each separately, in response to Ms Brits’ detailed analysis below, as well as in my response to Mr Singh’s affidavit.

Brits Paragraph 28.10.1 to 28.10.4

222. I admit the constitutional and statutory provisions to which Ms Brits refers, to the extent that they are correctly reproduced in these paragraphs.

Brits Paragraph 28.10.5 to 28.10.6

223. I admit the contents of these paragraphs. It is entirely appropriate and consistent with the Constitution and national legislation that there should be cross-subsidisation within tariffs so that richer people (equated as higher volume consumers) should pay more for water than poorer consumers (equated as lower volume consumers). Further legal argument will be heard on this matter in court.

Brits Paragraph 28.10.7 to 28.10.8

224. I admit that the City’s power to require payment for water is subject to the constitutional rights of residents. I refer to the arguments above regarding the City’s constitutional duty to provide access to free water.

Brits Paragraph 28.10.89 to 28.11

225. I admit the statutory provisions to which Ms Brits refers, to the extent that they are correctly reproduced in these paragraphs.

226. I admit that the right of access to sufficient water may be limited if those limitations are reasonable and justifiable as contemplated in section 36 of the Constitution. I deny that the imposition of pre-paid water meters in Phiri is a reasonable and justifiable limitation of our right of access to sufficient water. I respond to the City’s alleged rationale for preferring pre-paid water meters in our reply to Ms Eales’ affidavit below.

Brits Paragraph 28.10.12 to 28.10.14

227. I admit the statutory provisions to which Ms Brits refers, to the extent that they are correctly reproduced in these paragraphs. I admit that it is national policy to provide at least the statutory basic minimum water supply free to the poor, and that it is the city’s policy to provide only 6 kilolitres water free to every account holder in Johannesburg.

228. I deny that the respondents are not required by law to provide the statutory minimum basic water supply free to people who cannot afford to pay for it. I refer to what is set out above in this regard.

229. I deny that the City is not able effectively to target a sufficient amount of free basic water only to poor households due to “the cost and technical obstacles in administering the system”. This is apparent from the City’s own admission in paragraph 25.10.2 (wrongly numbered as 26.10.2) that this can be done.

230. The respondents’ own evidence (see paragraph 32 of Ms Eales’ affidavit) also shows that other municipalities such as Volksrust provide substantially more than 6kl per household per month of FBW and, on the evidence of Ms Brits, other municipalities have been able to engage in some targeting of the poor through identifying area and suburb density.

Brits Paragraph 28.10.15 to 28.10.16

231. I admit that the water supply of credit meter consumers can only ever be terminated once the City’s fair and equitable procedures have been followed and only to the extent that their free basic water supply is not compromised.

232. I note that this protection is not available to pre-paid water meter consumers because, following the exhaustion of the free basic water supply, the pre-paid water meter automatically disconnects the water supply without adequate notice or opportunity to make representations. No “fair and equitable procedures” are accordingly followed in relation to residents on whom pre-paid water meters have been imposed.

Brits Paragraph 28.10.17 to 28.10.18

233. I deny the allegations and the interpretation of section 4(3)(c) contained in this paragraph. The automatic disconnection in a pre-paid water meter system denies a consumer both adequate notice and a reasonable opportunity to make representation. Legal argument will be presented on why the use of pre-paid water meters do not comply with the basic standards of administrative justice encapsulated in section 4(3), or with the right to administrative justice in the Constitution and PAJA.

Brits Paragraph 28.10.19

234. I deny that a pre-paid water meter disconnection is not an automatic disconnection. I further deny that poor households with no ability to pay for additional water above the free basic water amount have control over the automatic disconnection once the amount of free basic water amount runs out.

235. I also deny that any of the applicants were offered the options of being provided with our free basic allocation on a daily basis. All our pre-paid water meters work on the basis that we are only credited with the free basic water allocation on a monthly basis.

236. I further deny that the pre-paid water meters used in Phiri provide any warning of a pending discontinuation. I refer above to the fact that neither my pre-paid water meter, nor those of any of the other applicants provide such a warning. I also refer above to the research done by Mr Ngwenya in this regard, which confirms that this is true for many people in Phiri. The pre-paid water meters in his sample either provided either no warning or insufficient warning in the form of an interrupted water supply provided when there was very little water left.

237. To the extent that any of the PPMs provide such an electronic warning, I deny that this complies with administrative justice requirements.

238. All the applicants, as well as all the other residents of Phiri in Mr Ngwenya’s research sample, have LesiraTeq meters installed in our homes. I specifically deny that a visual warning is given of the pending discontinuation, or that any warning is given when there is still 150 litres remaining. I have no knowledge regarding the other brands of pre-paid water meters listed in this paragraph. It is not apparent that any of these brands are relevant to this application.

Brits Paragraph 28.10.20

239. I deny that pre-paid water meters provide adequate warnings of the exhaustion of their water supply. I deny that at the time the water becomes intermittent (usually with only a few litres left) that there is enough time to obtain additional credits to avoid being left without water. Allusions to what sort of representation system may be provided in future, or what emergency measures the respondents may in future provide, are irrelevant to this application. I deal in more detail above with these issues.

240. As explained above, my pre-paid water meter provides no warning, and neither does the pre-paid water meters of many other people in Phiri. Furthermore, even if there was a warning, the credit facilities are not conveniently located and they are usually not open after hours. This means that customers are not provided with “sufficient opportunity to purchase additional credit if necessary” as is alleged. In any event, the premise of this paragraph is that we would be able to afford purchasing more credit once a warning was given. This is, however, not the case.

Brits Paragraph 28.10.21 241. As I have set out above, the pre-paid water meter discontinues water automatically. I admit that the precise cut-off point is set according to the City’s policy of restricting the free basic water amount to 6 kilolitres per household per month. If I have no money to pay for additional credit above the free basic water amount, the pre-paid water meter disconnects my water supply automatically after 6 kilolitres.

242. I have dealt above with the fallacy that pre-paid water meter is the vehicle for the provision of free basic water to the poor as is suggested by Ms Brits in this paragraph and elsewhere.

243. It is not necessary or desirable to use pre-paid water meters in order to provide free basic water to the poor. In fact, the combination of using pre-paid water meters to provide water to the poorest residents, and providing a free basic water minimum which is simply not enough, has a devastating effect on the poor and cannot be described as “clarifying and extending access to the right” to water.

Brits Paragraph 28.10.22

244. I note that an increase of the free basic water minimum to 10kl has not yet been realised even though it had already been “considered” in the December 2004 Human Development Strategy. It is evident from this that the respondents do not take seriously their duty to ensure the progressive realisation of the right of access to sufficient water for the poor.

Brits Paragraph 28.11 to 28.12

245. Ms Brits in these paragraphs clearly acknowledges that there have been technical problems with the pre-paid water meters since their introduction in Phiri, including the fact that they are difficult to understand, unreliable and not appropriate for use in the urban township context. This accords with the many problems which the applicants have experienced in this regard, as is set out in our affidavits.

246. I have no knowledge of the efforts to address these problems with the meters or to improve responses to queries. None of these efforts have, however, avoided the problems that the applicants have experienced in this regard. The extent to which such problems persist is set out in the founding affidavit and the affidavit of Ms Malekutu (“LM 33”). My response to Mr Singh’s affidavit is set out separately.

247. Neither I, nor the other applicants, have ever received the benefit of the “extensive aftercare” services of the respondents. The unidentified plans that Johannesburg Water may have to improve things on this front in future are not relevant to this application. Brits Paragraph 28.13

248. I note that Ms Brits says that the City has been concerned “for some time” about the implications of an emergency situation for pre-paid water meter users whose water has been disconnected. This allegation is difficult to believe, considering that nothing has been implemented since the introduction of the pre-paid water meters to address this problem. Even the current “interim proposals”, which the applicants deny will resolve the problem as is set out above, have not in fact, been implemented from March 2007 as is alleged by Ms Brits. Although my household is registered on the indigent register, we have not received our “emergency allocation”.

Brits Paragraphs 29

249. I note the contents of this paragraph. I will reply to Ms Brits on behalf of the other deponents whose affidavits are under consideration. I refer in this regard to their confirmatory affidavits included in this reply as “JM6”, “JM7”, “JM8” and “JM9”.

Brits Paragraph 30 to 30.3

250. I note the contents of these paragraphs.

Brits Paragraph 30.4.1

251. I deny that the respondents’ interpretation of section 38 of the Constitution is correct. I set out above why the applicants have standing to bring this application on all the bases set out in our founding affidavit.

Brits Paragraph 30.4.2 to 30.4.3

252. I deny that the relief we seek would have the disruptive effect suggested by Ms Brits. I also deny that the respondents can validly rely on any potentiaI disruption to avoid an order that their policies are unconstitutional. I have dealt with these issues above.

Brits Paragraph 30.4.4 to 30.4.5

253. I have also dealt above with the allegations in these paragraphs regarding the so-called widespread acceptance of the pre-paid water meters based on the fact that it has been widely implemented. These allegations are denied. The table at paragraph 30.4.5 does not include qualitative data on customer satisfaction, levels of consultation or genuine choice about the installation of the prepayment meter system. Rather the table merely points to numbers of meters installed.

Brits Paragraph 30.4.6 to 30.4.8

254. I deal separately with the affidavits of the Councillors and the Phiri residents. I deny that this evidence is relevant or reliable, as is set out above.

255. I deny that the surveys undertaken by Johannesburg Water as well as focus group discussions conducted by the City “show widespread acceptance of the prepayment meters from residents”. I deal with this in further detail in my response to Mr Singh’s and Ms Eales’s affidavits.

Brits Paragraph 30.4.9

256. I admit that some of the applicants are affiliated with the Coalition Against Water Privatisation, which is opposed to the implementation of Operation Gcin’amanzi in Phiri. I deny that any of the applicants have been involved in any “vandalism, violence and intimidation” in opposition to the implementation of Operation Gcin’amanzi.

257. I do not see the relevance of Ms Brits’ perceptions of the Anti-Privatisation Forum to our claim. As poor people who have little means to challenge those policies of the respondents that are in violation of our rights, those of our families and members of our community, we are grateful to accept the support of organisations who are willing to take up our cause.

Brits Paragraph 30.5 to 30.9

258. I note the contents of these paragraphs.

Brits Paragraph 30.10

259. I have dealt above with the relevance of national policy to assess the reasonableness of the respondents’ policies to provide access to water to the poor. I specifically deny that the RDP is not relevant to this matter. I explain above the importance of the RDP to this application, in particular the challenge to the free basic water minimum amount.

260. I have dealt above with the fallacy of Ms Brits’ suggestion that the RDP promise of minimum water supply must have been taken to include water provided for waterborne sanitation. I deny that such an interpretation is sustainable.

Brits Paragraph 30.12 to 30.13

261. I have dealt above with the relevance of national policy to assess the reasonableness of the respondents’ policies to provide access to water to the poor. In particular, I deny that the White Paper is irrelevant to this application. In paragraph 114 of its answering affidavit, the third respondent has admitted the direct relevance of the White Paper to the formulation of the free basic water policy and consequently to this application.

262. It is not merely the fact that the White Paper provides separately for water and sanitation that suggests that the White Paper contemplated a separate provision for the water requirement for sanitation.

263. It is also the fact that the White Paper (like the RDP) provides for an allocation for a basic water supply of 25 litres for “direct consumption, for the preparation of food and for personal hygiene.” It is clear that the water requirement for sanitation is not included in these purposes.

Brits Paragraph 30.14 to 30.15

264. The contents of these paragraphs are noted. The interpretation of section 4(3)(c) is a matter for legal argument.

Brits Paragraph 30.16 to 17

265. The interpretation of the National Water Act and PAJA is a matter of legal argument.

Brits Paragraph 30.18 to 30.24

266. The contents of these paragraphs are noted.

Brits Paragraph 30.25

267. I deny that the government’s policy on free basic water “originated with promises made by the ANC during the December 2000 local government elections”. The third respondent acknowledges in ”LM40” that the origins of the policy lie in the RDP of 1994.

Brits Paragraph 30.26

268. I have dealt above with the relevance of national policy to assess the reasonableness of the respondents’ policies to provide access to water to the poor.

Brits Paragraph 30.27

269. It is notable that Ms Brits does not say that the respondents cannot afford to comply with the Free Basic Water Implementation Strategy by providing more than the minimum of 6 kilolitres per household per month.

270. As is stated above, Johannesburg municipality, with its audited surplus of over R1.5million and its large revenue base is precisely the kind of municipality that is able to adjust the free basic water amount upwards.

Brits Paragraph 30.28

271. I note that Ms Brits admits that cross-subsidisation is used by the City. There is accordingly no reason why the City cannot engage in greater cross-subsidisation to ensure sufficient free basic water supply to the poor.

272. I reiterate the averments made in our founding affidavit that regardless of existing subsidisation, we are unable to afford water above the FBW amount. I refer here to the point raised in Professor Bond’s supplementary replying affidavit annexed to this reply as “JM10”, that households that consume water at the highest tariff, in other words, those with luxury consumption, do not spend the same proportion of their income on water as low-income households do.

Brits Paragraph 30.29

273. I note the contents of this paragraph. The references to “some municipalities” not having the “capacity to implement the policy to a full extent immediately” cannot, however, reasonably be understood to include the City of Johannesburg, with significant resources and capacity to advance the free basic water allocation above the minimum amount.

Brits Paragraph 30.30

274. I note the contents of this paragraph.

Brits Paragraph 30.31

275. The interpretation of the regulation is a matter of legal argument.

Brits Paragraph 30.32 to 30.38

276. I have dealt above with the relevance of national policy to assess the reasonableness of the respondents’ policies to provide access to water to the poor.

277. I have also dealt with planned revised Social Package Policy above.

278. I deny that basic sanitation does not fall under the constitutional right of access to sufficient water. The right is not specified as relating to drinking water only.

Brits Paragraph 30.39 to 30.40

279. The contents of these paragraphs are noted.

Brits Paragraph 30.41.1 to 30.41.3

280. The contents of these paragraphs are admitted.

281. Section 3 of the Water Services By-Law states that the unilateral installation of prepayment meters is a punitive measure for contravening the conditions of service for a Service Level 2 water supply such as a standpipe. Service Level 3, a metered full-pressure connection, is a superior level of service. Therefore the assertion in paragraph 30.41.3 that prepayment meters are “simply a type of meter which provides a ‘metered full pressure connection’ to the stand” is nonsensical.

282. Moreover, it is clear that the by-law provides no legal basis for the unilateral installation of prepayment meters for consumers who contravene the conditions of service for a Service Level 3 water supply, such as our clients had prior to the installation of prepayment meters.

283. To the extent that prepayment meters are installed as a punitive measure, the basic principles of administrative justice, including the right of adequate notification and reasonable opportunity to make representation, must still apply.

284. I deny that Section 31A confirms that prepayment meters are “simply” a variation of a Service Level 3 supply. Even section 31A(2) distinguishes conventional meters i.e. Service Level 3 meters in Section 3(2)(c )(i) from punitive prepayment meters in Section 3(3)(a).

Brits Paragraph 30.41.4

285. The contents of this paragraph are admitted.

Brits Paragraph 30.42 to 30.44

286. The contents of these paragraphs are noted. I deny the relevance to this application of any policy that is not yet in force.

Brits Paragraph 30.45

287. I deny that the explanation is inaccurate. I deal with Mr Seedat’s affidavit separately.

Brits Paragraph 30. 45.1

288. I note the contents of this paragraph, in particular the statement that the installation of pre-paid water meters were compulsory when households applied to be registered as indigents. It is apparent from this that those indigent customers were not given any choice in service options, but were forced to accept pre-paid water meters.

Brits Paragraph 30.45.2

289. I deny that the alleged benefits which the special have reached me or the residents of Phiri. Trading my arrears for a prepayment meter has come at the price of unacceptable violations of a number of Constitutional rights, including my right to access sufficient water and to just administrative action. I deal above with the flaws in the indigent register.

Brits Paragraph 30.46

290. I respond to Ms Eales’ affidavit separately.

Brits Paragraph 30.47.1 to 30.47.3

291. I have dealt with the alleged purposes of Operation Gcin’amanzi above. I agree that the deemed consumption system was not good. It meant that I was charged a lot for water, as though I consumed 20kl each month, regardless of how careful I was about my water usage. I was often unable to pay my water bills and, as such, arrears built up over time. In addition, the deemed consumption system meant that I was unable to detect leaks, and therefore to fix them, in the way that credit metered customers are able to when they see a “spike in the monthly bill”.

292. To the extent that I did not pay the full amount for our water bills every month, I deny that this was because of a “culture of nonpayment”. Rather it was because the deemed amount rate was too expensive for indigent people such as me to afford. These problems with the deemed consumption system were not of our making.

Brits Paragraph 30.48

293. I deny that the benefits listed herein are not obtained in a credit metered system. I deal with Mr Still and Mr Rabe’s affidavits separately.

Brits Paragraph 30.49.1

294. I deny that it is Ms Mazibuko’s claim that she “suddenly became aware of Operation Gcin’amanzi” on 17 March 2004. Instead, she says at paragraph 79 of the founding affidavit that she was visited by a field worker from Johannesburg Water on 17 March 2004.

295. Ms Mazibuko was not aware of prepayment meters in August 2003. The fact that the Anti-Privatisation Forum actively opposed Operation Gcin’amanzi from August 2003 is neither here, nor there. I repeat that Ms Mazibuko was ever involved in vandalism or destruction of Operation Gcin’amanzi property.

Brits Paragraph 30.49.2 to 30.49.9

296. I note the fact that there was a formal stage in Operation Gcin’amanzi which provided for public participation. I repeat, however, that there was insufficient consultation and that, whatever meetings or visits did occur, did not constitute true consultation. The meetings, visits and notices were not designed to allow resident an informed choice, but rather to inform residents of a decision to change the water supply in Phiri to a prepayment meters.

Brits Paragraph 30.49.10 to 30.49.13

297. I admit that Ms Mazibuko was visited by a “community facilitator”, and refer in this regard to paragraphs 79 to 82 of her founding affidavit.

298. I reiterate that she was not given a choice between a prepayment meter or a standpipe, although I understand that, later on, some residents were given this choice. She was never given the choice of a credit metered water supply. She was not given seven days notice of the disconnection of her water.

299. I have dealt with fallacy of Ms Brits’ suggestion that widespread implementation of pre-paid water meters means widespread support. I also point out that the fact that there were so few “outright refusals” is consistent with the applicants’ insistence that we were never given a choice to begin with.

300. Although I have no personal knowledge of the alleged attempts to try and persuade those who did not wish to have pre-paid water meters installed, the need for those efforts is entirely consistent with the staunch resistance of Phiri residents to the use of those meters, and entirely inconsistent with the allegation of widespread support for Operation Gcin’amanzi.

301. The contents of paragraphs 85-90 have not been dealt with by the respondents at all. The contents of these paragraphs must accordingly be taken to be admitted.

Brits Paragraph 30.50 to 30.51

302. I note the general principle of restricting access to reservoirs but I reiterate that after having been disconnected, along with many Phiri residents, Ms Mazibuko resorted to using the reservoir as the only available source of water, which Johannesburg Water officials blocked on 8 July 2004.

303. The contents of paragraphs 91 and 92 must be taken to be admitted.

Brits Paragraph 30.52

304. I welcome the City’s efforts to rectify the billing chaos and note that the elimination of problems with the billing system obviates the need for prepayment meters as a means to bypass billing problems. 305. The allegation that a resident’s water will not be cut off with the installation of a prepayment meter is disingenuous. As is stated in our founding affidavit, the installation of a prepayment meter results in numerous and ongoing cut-offs of our water supply, which did not happen previously. Brits Paragraph 30.53 to 30.54

306. Ms Brits again attempts to describe prepayment meters as a variation of Service Level 3, which I deny. In “SD9” and “SD10” to annexure “LM41” of the founding affidavit, Johannesburg Water distinguishes a “metered full pressure water connection” from the prepayment meter and the standpipe. Their allegation that a prepayment meter is simply a continuation of a Service Level 3 water supply is therefore absurd. I have explained above, and Ms Brits admits, that section 3(3)(a) of the By-Law clearly envisages prepayments as a punitive measure for having violated the conditions of service of a Service Level 2 water supply.

307. In any event, whatever the classification, I deny that Ms Mazibuko, along with other Phiri residents, was given the option of “continuing” her water supply. We were informed that our water pipes were going to be fixed and later received notification that our existing Service Level 3 water supply would be changed to a prepayment metered system.

308. We had to accept a prepayment meter or no water at all. I deny that the ‘choice’ between a pre-paid water meter and total disconnection was a legitimate or even lawful offer.

309. I note that Ms Brits does not allege that any of the Phiri residents were offered the choice of a credit meter. This is a standard option offered to residents in wealthy neighbourhoods.

310. Furthermore, I deny that refusal to accept either of these options gave Johannesburg Water the right to disconnect my existing water supply, as they did. The total disconnection of water, as well as the subsequent downgrading to a prepayment meter, constitutes a retrogressive measure. Previously we could access sufficient water for my household’s basic needs. We can no longer do so.

Brits Paragraph 30.55.1 to 30.55.2

311. I have explained above that the City does have the duty to provide free basic water free to those who cannot afford to pay for it. I have also refuted above Ms Brits’ suggestion that there is no need to comply with flexible” national policy regarding the provision of free water services.

Brits Paragraph 30.55.3

312. I have no knowledge of the unsupported LesiraTeq meter statistic, but note that it is not denied that Ms Mazibuko’s free basic water supply usually finishes between the 12th and 15th of each month.

313. Even on Ms Brits’ unsubstantiated version, the free basic water amount only provides people in Phiri with water for two-thirds of each month. In an indigent household this may mean a week to ten days without water, which carries significant health and other risks. It is clearly unacceptable and unconstitutional to continue with a water supply system that provides residents with water for only two-third of every month.

Brits Paragraph 30.55.4

314. As is stated above, future plans of the City are speculative and, as such, not relevant to this application.

Brits Paragraph 30.56

315. I respond to Mr Singh’s affidavit separately.

Brits Paragraph 30.57

316. I note that Ms Brits’ admits the respondents’ approach to the acts of desperation of the residents of Phiri in the wake of the installation of pre-paid water meters.

Brits Paragraph 30.58

317. I explain above that dressing up pre-paid water meters as a mechanism that provides free water is disingenuous.

318. It is apparent from Ms Brits’ affidavit, and from Johannesburg Water’s own promotional material (“LM24”) that the public was told that an objective of Operation Gcin’amanzi and pre-paid water meters was to “make water free for those who use less than 6000 litres per month”. In other words, prepayment meters were promoted as being a mechanism to allow the free basic water amount to be dispensed. What the promotional material neglects is the fact that, in rich suburbs, households with credit metered systems automatically get the 6 kilolitres for free. Through this omission, Johannesburg Water implied that the only way to receive free basic water is through a prepayment meter. This is simply untrue.

Brits Paragraph 30.59

319. Ms Mazibuko has no knowledge of what “data” was “collected” relating to her water consumption. She does, however, recall having purchased very little water in that first month of the prepayment meter. She had to suffer on this insufficient amount because she could not afford to buy additional water.

Brits Paragraph 30.60.1

320. I note the contents of this paragraph.

Brits Paragraph 30.60.2

321. Ms Brits does not explain the origin or identify the author of KB33. I deny that it is a record of the consumption of Ms Mazibuko’s household. Her pre-paid water meter is not registered in her name, as seems to be indicated on KB33. Her mother, Ms Sibeko Mazibuko, signed the contract for the prepayment meter.

322. It is admitted, however, that when Ms Mazibuko’s household can afford the extra costs, and using water only for basic needs in order to try to have a continuous water supply for the whole month, they might use in the region of 12 kilolitres. However, this does not imply that even this 12kl amount is sufficient to meet her household’s basic water needs.

323. Ms Mazibuko and her family restrict their use of water to basic needs. Any additional payment for water above 6 kilolitres entails sacrifices in terms of other basic needs such as food, medical expenses, transportation and clothing.

Brits Paragraph 30.6.3

324. As pointed out above, I admit that the deemed consumption system was very expensive, and that it had other disadvantages for consumers and for water conservation. Because it was expensive, many of us were unable to pay the full amount charged each month, meaning that arrears built up gradually over the years. The applicants, including Ms Mazibuko, could not afford the deemed consumption amount of R131.25 per month. However, we also cannot afford the lesser amounts that we have to pay over and above the 6kl amount.

Brits Paragraph 30.60.4

325. This paragraph repeats paragraph 30.55.3. I repeat our response thereto.

Brits Paragraph 30.60.5

326. I have dealt with the proposed Social Package Policy above.

Brits Paragraph 30.61.2 to 30.61.5

327. Ms Brits in these paragraphs repeats what is stated elsewhere.

328. I have explained above why Ms Brits is wrong to deny that the discontinuation of water supplied through a pre-paid water meter is not a water disconnection.

329. As stated above, I deny that we have a choice of having our free basic water allocation issued on either a daily or monthly basis.

330. Ms Brits denies Ms Mazibuko’s allegations that, once the free basic water allocation is finished, the water supply is discontinued without the opportunity to make representations to a person regarding the reason for being unable to pay or the reasons why the consumer needs the water to remain connected. She does not, however, substantiate this denial, other than to state that “in future” there will be an opportunity to make representations to the respondents regarding indigency or special needs. I have explained above that respondents’ intended plans for the future are irrelevant to this application. I have also explained the problems with the intended plan and the proposed interim plans, including the planned emergency allocation.

331. I deny again that our pre-paid water meters give any warnings of imminent disconnection. I deal with this above.

332. I note that Ms Brits here acknowledges that national policy sets the thresholds for the minimum amount of free basic water that ought to be made available. I have dealt above with the fact that the amount of 10 kilolitres was already being considered in December 2004, but that, nevertheless, the respondents have still not implemented such an increase.

333. I have also dealt above with the fact that Ms Brits admits that free basic water can be re-directed from wealthier households to poor household. Nevertheless, the respondents have not done so in order to provide for the poor.

334. Ms Brits’ allegation that the reduction of bad debt and the savings from reduced wastage results in greater investment in poverty assistance is also not substantiated.

Brits Paragraph 30.62

335. I reiterate that whatever amount Ms Mazibuko currently has to spend on water is unaffordable and results in sacrifices made in respect of other basic services.

336. Ms Mazibuko, like so many Phiri residents, was also unable to afford the deemed consumption rate, which is why arrears built up. At least with that system, however, she was not automatically disconnected whenever she could not afford to pay for water.

Brits Paragraph 30.63.1 to 30.63.3

337. I deny again that our pre-paid water meters give any warning of imminent discontinuation or that the vendors referred to me are close to me or conveniently located for residents without transport.

338. I deny that the low level of utilization of the night-time facility at the Peoples Centres in Soweto was evidence of the lack of a need to purchase additional water credit after hours. Rather it is an indication of the lack of transport and safe passage to and from these Peoples Centres, which are often located far from residents’ houses. As a single woman I am afraid to walk to the Peoples’ Centre after dark, even if my water has run out.

Brits Paragraph 30.64

339. I note that Ms Brits does not deny Ms Mazibuko’s experience that vendors run out of water credits. Whatever monitoring systems are theoretically in place, I reiterate that on many occasions the vendors simply do not have any water credit to sell. This process is failing us.

340. I submit that, while such a complicated pay-as-you go supply chain might work for cellular phone airtime, it is wholly inappropriate for water, which is a vital resource and basic necessity for life. It would be better for us to be able to control our own consumption and access via a credit metered system.

Brits Paragraph 30.65

341. I reiterate that we are left without water for lengthy periods, and that after each cut-off, the water is so soiled that cannot be consumed. I deny that this is an “unusual” occurrence as is suggested.

Brits Paragraph 30.66

342. I note Ms Brits’ admission. One of the reasons for the imposition of pre-paid water meters is apparently to address bad debt. To the extent that this resulted from the admitted chaos in the City’s accounting system, I deny that the indigent of Phiri ought to carry the burden through the imposition of pre-paid water meters.

Brits Paragraph 30.67

343. I have denied above the allegations that the meters are easy to use and not faulty. None of the applicants has had the benefit of training or the aftercare programme. I note that the problems experienced by the applicants are not denied.

Brits Paragraph 30.68.1 to 30.68.3

344. It is noteworthy that the alleged research undertaken by the respondents has not been attached to this affidavit, nor does it form part of the record of the decisions by the respondents to limit the free basic water supply to 6kl per household per month.

345. I note that Ms Brits says that the City’s policy for the provision of free basic water is informed by the socio-economic circumstances prevailing in the City. I deny that the current amount of free basic water, i.e. 6 kilolitres per household per month, is sufficient given the socio-economic conditions prevailing in Phiri.

346. Moreover, given my state of unemployment, even at below-cost subsidy tariffs, I am unable to access a sufficient amount of water without unacceptable sacrifices to other basic household needs.

347. It is entirely appropriate there should be progressive cross-subsidisation of water tariffs. Indeed, more sharply progressive rising block tariffs, when combined with removing the free basic water allocation to richer households, would finance the provision of a greater free basic water allocation to needy households.

Brits Paragraph 30.68.4 to 30.68.6

348. I have responded above to the City’s medium term plan and Social Package Policy.

Brits Paragraph 30.69

349. I have denied Ms Brits’ allegations that there is widespread support for Operation Gcin’amanzi and for the use of pre-paid water meters.

Brits Paragraph 30.70

350. I deny that prepayment meters do not result in access to less water. I have dealt with this above.

351. I reiterate that, where “enormous arrears” were accumulated, this was the result of a combination of billing chaos and the high cost of the deemed consumption rate.

Brits Paragraph 30.71.1

352. I deny the allegation that there is no reference in the research report to “backyard shacks”. There is indeed reference to backyard shacks, on pages 11 and 12 of LM37.

353. To the extent that the research report conflates households with stands, this is in response to the conceptualisation and implementation of free basic water, which completely disregards backyard shacks and informal dwellings on stands.

354. Although the calculation is deemed to be 6 kilolitres per household per month, in practice, the allocation is 6 kilolitres per accountholder, which equates as 6 kilolitres per stand per month. The occupiers of backyard shacks are households that are unacknowledged by the City. They do not receive separate 6 kilolitre allocations and must rely on the main household on the stand’s allocation. I have referred to this irrationality in the amount of free basic water above.

355. I deny that the research methodology is questionable. The participants who speculate that government is “coming with prepaid because it wants to make us poor” also have no official information as to why “government is coming with prepaid water”. I am advised that the use of questions to elicit a yes or no answer in a questionnaire is a common and accepted research device.

356. I deny that the applicants all live in households comprising 10 persons. I deny that we receive a sufficient amount of free basic water. I deny the relevance of proposed policy as is set out above.

Brits Paragraph 30.72

357. I note the contents of this paragraph.

Brits Paragraph 30.73

358. I have dealt with the relevance of the RPD and national policy generally above.

Brits Paragraph 30.74

359. I have explained above why we do have access to less water than before. I also deny that Ms Mazibuko never paid for water. Rather, she didn’t pay for water when she could not afford to do so.

Brits Paragraph 30.75

360. I note that to date the City has given the same amount of free basic water to all residents, apparently because it was the “cheapest and simplest administrative mechanism for introducing free basic water.”

361. It is apparent that, although this has not yet been implemented, the respondents have since accepted that free basic water ought to be redirected from the rich to the poor. As stated above, an order by this court that the free basic water minimum to the poor ought to be increased as prayed for, could accordingly be implemented on this basis without significant increases in the current total free basic water provided to the entire city. Alternatively, if universal (non-targeted) access is preferred, it must be adjusted so that each person can receive at least 50lcd for free. Issues of water scarcity and cost-effectiveness and/or recovery could be addressed through decreasing demand at the luxury level of water consumption, using very high tariffs at this end of the scale.

362. I have above dealt with the inappropriateness of the use of the indigent register.

Brits Paragraph 30.76.1 to 4

363. The unsuccessful attempts to settle this matter amicably have been extensively documented in Annexure (“LM41”) to the founding affidavit, including correspondence back and forth and a round table meeting between the parties.

Brits Paragraph 30.76.5 to 30.76.6

364. I have dealt with the appropriateness of the remedies we seek above.

Brits Paragraph 30.77

365. I note the contents of this paragraph.

Brits Paragraph 30.78

366. The unlawfulness of the disconnection of our water supply is a matter for legal argument

367. I deny again that the notices that the applicants received (see LM9 to LM11 of our founding affidavit) amounted to a valid notice of disconnection or that it provided a reasonable opportunity to make representations.

368. I deny that the respondents followed a fair procedure. This is a matter of objective determination.

369. Ms Brits’ bald denial that we have been denied access to water services must be considered in light of the fact that the respondents have not denied the allegations in paragraph 85 to 90 of the founding affidavit.

Brits Paragraph 30.79.2

370. I have denied that pre-paid water meters can be classified as Service Level 3. I have also explained that we do have access to less water since the installation of pre-paid water meters. I have also denied that the pre-paid water meters dispense free basic water on a daily basis.

Brits Paragraph 30.79.3

371. I respond to Mr Singh’s affidavit separately. I deny that the faults with the applicants’ pre-paid water meters have been addressed “immediately” or at all.

Brits Paragraph 30.79.4

372. I deny that the pre-paid water meters are a reasonable measure as contemplated in section 27 of the Constitution. This is a matter for legal argument. I have dealt with the so-called “support” for the pre-paid water meters, and deny that it is in any even relevant to whether the use of the meters are constitutional.

Brits Paragraph 30.79.5

373. I have dealt with this above.

Brits Paragraph 30.79.6 to 30.79.7

374. I deny that the meters give any notice, alternatively proper notice of discontinuation of our water supply. I have dealt with this above. I have also dealt with the respondents’ future plans to provide for the opportunity to make representations and an emergency allocation.

Brits Paragraph 30.79.8

375. This is a matter for legal argument.

Brits Paragraph 30.80

376. I have dealt with this issue above.

Brits Paragraph 31.1 (Reponse to Ms Munyai)

377. I admit that Ms Munyai’s niece died in April 2004.

Brits Paragraph 31.2

378. I deny that that Johannesburg Water’s erstwhile attorneys at Webber Wentzel Bowens “repeatedly urged Mr Delaney to have his clients accept a standpipe or prepayment meter”. As is clear from annexure SD10, Johannesburg Water at one stage offered a third option of a full metered full pressure water connection commensurate with a level 3 service as opposed to the two other options: a standpipe or a prepayment meter.

Brits Paragraph 31.3.1

379. I note the contents of this paragraph.

Brits Paragraph 31.3.2

380. According to the respondents, one of the reasons for the introduction of Operation Gcin’amanzi was to alleviate the problems of inaccurate and unreliable billing. The fact that these problems continue even after people such as Ms Munyai have had pre-paid water meters installed further undermines the rationale for the imposition of prepayment meters in the first instance. I have explained above that the problems of deemed consumption and inaccurate billing are more effectively and more reasonably remedied by addressing the billing problems than by imposing prepayment meters.

Brits Paragraph 31.4

381. I note the contents of this paragraph.

Brits Paragraph 32.1 to 32.2(Response to Ms Makoatsane)

382. I admit the contents of this paragraph. The applicants’ affidavits show that the goal “to improve the quality of life of those living in the City” has not yet been achieved.

Brits Paragraph 32.3

383. I admit that there are competing demands on the City’s available resources. It will be argued, however, that the Constitution requires of the state to prioritise among those demands the progressive realisation of the right of access to sufficient water. I note that the City does not claim that due to those competing demands it cannot afford to increase the free basic water amount as claimed by the applicants.

Brits Paragraph 32.4 to 32.5

384. I have dealt with the so-called interim measures above, and to the City’s failure to implement them in the first quarter of 2007 as promised.

385. I also point out that personally I have not received any of the benefits of the proposed interim plan, despite being registered as an indigent household.

386. To the extent that the proposed policies are not yet implemented, they are irrelevant to this application. Moreover, the increased allocation to 10 kilolitres per household per month is insufficient to meet our basic needs, as is set out above.

Brits Paragraph 32.6

387. I admit the contents of this paragraph.

Brits Paragraph 32.7

388. I acknowledge that there is a rising block tariff and that a substantial amount of water is provided below cost. I deny that I can afford the current prices for water.

Brits Paragraph 32.8

389. I am unable to afford even the subsidized rate for the extra water I require to meet my basic needs. I deny that 10 kilolitres is sufficient for my basic needs. If the City starts targeting needy households instead of providing 6 kilolitres free basic water to every household, this would free up further resources, allowing the City to increase its free basic water allocation to the poor.

Brits Paragraph 32.9

390. I acknowledge that there is “significant support for indigent consumers built in to the structure of tariffs over and above” the free basic water component. I reiterate that, at the current rate of cross-subsidisation and pricing, I am unable to afford my additional basic water needs. I cannot afford 20 kilolitres of water and I am not asking for a return to the deemed consumption system, therefore this assertion is irrelevant.

Brits Paragraph 33.1 to 33.2(Response to Ms Malekutu)

391. I reiterate that, despite being subsidized, the price of water above the free basic water amount remains beyond the applicants’ means.

Brits Paragraph 33.3

392. I note the references to customer support in the affidavits of Mr Singh and Mr Rabe. I reiterate that whatever avenues might exist for customer complains and technical difficulties, the problems which Ms Malekutu experienced were not resolved. Despite repeated attempts to get Johannesburg water to address the malfunctioning of her prepayment meter, the situation was only rectified in July 2005, almost a year after the problems commenced.

Brits Paragraph 33.4

393. It is unacceptable that problems such as Mr Malekutu experienced should have continued for a year in respect of such a vital resource as water. This can hardly be described as “teething difficulties”. I respond to Mr Singh elsewhere.

Brits Paragraph 33.5

394. I reiterate that, whatever type of meter, it is unacceptable that “teething problems” should last for almost a year, thus depriving her household of access to water. I deny that these kinds of technical difficulties, particularly of non-supply of water, were experienced with the previous system. It is a feature of the pre-paid water meters.

Brits Paragraph 34.1 (Response to Mr Paki)

395. I note that, despite being “concerned for some time about the implications of an emergency situation for a prepayment user whose water credit has been used up or which occurs after 10pm when most vendors ... have closed for the night”, the City only responded with the proposed policy of an emergency allocation in December 2006, more than two years after the inception of OGA. Even now, this proposed policy has not been implemented.

Brits Paragraph 34.2

396. I deny that an allocation of 4 kilolitres “annual ‘buffer’” will necessarily be sufficient to cover any emergencies requiring additional water. I reiterate that, with the current insufficient free basic water allocation, most residents would be compelled to draw on this emergency buffer to meet everyday needs. It is therefore unlikely to be available for emergencies of the kind described in Mr Paki’s affidavit.

397. The tragedy that is described in Mr Paki’s affidavit would not occur in wealthy neighbourhoods where residents would have been able immediately to obtain sufficient water to put out the fire effectively. Pre-paid water meters carry this inherent risk.

Brits Paragraph 35 (Response to Mr Delaney)

398. I refer to response to paragraph 30.76 above. I point out that Ms Brits does not respond to the contents of paragraph 9.2 and 10 of Mr Delaney’s affidavit. In these paragraphs, it is made clear that the respondents always distinguished between pre-paid water meters and “metered full-pressure water connections”. The respondents now seek to argue that pre-paid water meters are metered full-pressure water connections and fall under Service Level 3. This is disingenuous and contradicts their stance in the run-up to the litigation.

Brits Paragraph 36 to 37

399. I will not reply to the City’s response to Dr Gleick. Dr Gleick replies separately, in a supplementary replying affidavit, marked “JM11”. It is denied, however, that any portions of his evidence ought to be struck out or disregarded as irrelevant. He is not only one of the most eminent experts in his field, but his evidence falls entirely within his field of expertise.

Brits Paragraph 38.1 (Response to Dr Martin)

400. I agree that it is difficult to quantify the precise amount of water required by People Living with HIV/AIDS (PLWHA). It is clear, however that 6 kilolitres is insufficient. As I set out in this application, 6 kilolitres per household per month is insufficient for needy households without PLWHA, let alone households with PLWHA, as Dr Martin refers to in paragraphs 12 and 13 of his affidavit. Dr Martin’s opinion is to a large extent based on the findings of Professor Richard Tomlinson in a document on HIV/AIDS prepared for the Corporate Planning Unit in the Office of the City Manager of the City of Johannesburg, dated June 2004. I refer to item no. 5.1 of documents produced for inspection in terms of Rule 35(12). Dr Tomlinson too as advised the respondents that providing only 6 kilolitres is problematic, particularly in households with PLWHA.

Brits Paragraph 38.2

401. I deny that it is questionable “if there is a need for water” for PLWHA. The many water-related requirements of households with PLWHA are set out in section B paragraphs 9 and 10 of Dr Martin’s affidavit. It is the responsibility of all spheres of government to address the issue of HIV/AIDS and, in particular, to ensure that there is no unfair discrimination in respect of PLWHA. In part C, paragraph 11, Dr Martin states that “as Phiri is a poor urban locale with large households and high unemployment, this suggests at least average or above average HIV infection rate per household”.

402. Considering this conclusion, the respondents’ decision to limit free basic water to 6 kilolitres per household only, and to install in Phiri pre-paid water meters, which limits water only to 6 kilolitres of water per household, should not have been made without regard to the prevalence of HIV infection rate per household in Phiri.

403. It is accordingly not sufficient for the respondents to ponder these questions while these households are suffering without water.

Brits Paragraph 38.3

404. I deny that the proposed measures which may or may not be in place next year rectify the situation.

405. I respond to the affidavit of Seedat separately.

Brits Paragraph 38.4

406. I refer to my response to paragraph 38.1.

Brits Paragraph 38.5

407. The assertion that Dr Martin’s statement in paragraph 13 is unrelated to the question of the amount of water needed by PLWHA is incorrect, and taken out of context. In this paragraph Dr Martin quotes from section 6.8 of Professor Tomlinson’s report: “water is problematical because it is uncertain that 6 kilolitres suffices for family consumption and especially so when there are AIDS patients in the house”. Dr Martin does not claim to be an expert in water supply and provision, but rather in the needs of PLWHA, of which sufficient water supply is one. Is so far as his affidavit deals with specific quantities of water, he relies on the findings of the City’s own research expert, Professor Richard Tomlinson.

Brits Paragraph 39

408. I will not reply to the City’s response to Professor Bond. Professor Bond replies separately, in his supplementary replying affidavit, marked “JM10”. It is denied, however, that Professor Bond’s affidavit should not be afforded the weight of expert opinion.

Brits Paragraph 40 (Response to supplementary affidavit of Ms Mazibuko)

Brits Paragraph 40.2.1

409. I deny that the characterisation of the decision to limit the free basic water supply to 6 kilolitres is incorrect. By this I do not mean to imply that I previously received free basic water. The decision to provide free basic water to the residents of Phiri in 2004 was in line with the free basic water allocation of 6 kilolitres per household per month that was already occurring in rich suburbs as from 2001.

410. The national policy in any event sets the minimum free basic water allocation 6 kilolitres per household per month. The policy, however, also says that municipalities who can should provide more. (See DWAF Implementation Policy, Record File 1 p 144 paragraph 3.3 ff) Some municipalities provide more than 6 kilolitres. The respondents decided to limit the free basic water allocation to 6 kilolitres per household.

Brits Paragraph 40.2.2 to 40.2.7

411. I note that Ms Brits is vague about when exactly the decision to limit free water to 6 kilolitres was taken. The fact that none of the many deponents can recall exactly how and when the decision was taken shows that little consideration was given to the decision. This decision would have a major impact on the lives of poor people, particularly seen in conjunction with the decision to use pre-paid water meters to dispense water to the poor. The respondents’ carelessness in relation to this decision is therefore extraordinary.

412. I also note that from the allegation at paragraph 40.2.6 that it was decided simply to implement the lowest possible amount provided for in the national policy, and only to assess later whether the amount was sufficient. This approach was in violation with the respondents’ constitutional obligations.

413. It is simply not true, as is suggested in paragraph 40.2.7 that it was not possible to assess whether the minimum of 6 kilolitres was sufficient for poor people in Phiri before implementing the fact. There is no evidence in this regard before the court.

414. In addition, the fact that pre-paid water meters would limit the water to poor people to only the basic minimum, it was incumbent upon the City to establish that the amount was sufficient before setting the limit at the lowest possible minimum.

415. I respond to Mr Seedat, Ms Eales and Mr Still elsewhere.

Brits Paragraph 40.3

416. Ms Brits says that we cannot set aside the decision to limit free basic water to 6 kilolitres because we have not brought the application within the time limit in section 7(1) of PAJA.

417. I have explained above that this application is not brought in terms of PAJA, that, even if it were, section 7(1) does not apply because the subject of our challenge is of an ongoing nature, and that section 7(2)(c) does not apply to this application at all. I also refer to the application for condonation, which we bring as a matter of caution.

418. In any event, and considering our personal circumstances, the delay is not extraordinary. In light of the public interest in this matter and the dire consequences if we are not allowed to challenge this decision, the delay ought to be condoned.

419. I deny that if this decision was set aside, that the result would be that residents would have to repay the free water over the period.

420. I deny that setting aside this decision, and ordering that poor residents of Phiri be provided with a free basic water supply of 50 litres per person per day rather than 6 kilolitres per household per month, will have “no useful impact” or that it would cause “chaos” in the water services system of the second respondent.

Brits Paragraph 40.4

421. I note in paragraph 40.2.3 that Ms Brits (with reference to Mr Still) says that the decision can be “traced” to the decision to approve the Service Delivery Agreement with Johannesburg Water in February 2001 “or possibly” to the decision to approve the first Business Plan of Johannesburg Water on 28 June 2001.

422. In fact, it is clear from Mr Still’s affidavit at paragraph 13 that he, as an employee of Johannesburg Water and not the City at the time, does not know when the City took the decision.

423. The record shows that the first decision made by the City in this regard was taken on 28 June 2001. Ms Brits does not deny the allegations made by Ms Mazibuko in paragraphs 6, 7 and 8 in this regard.

424. It is not clear which “documents” listed in paragraphs 11 to 20 Ms Brits alleges had not been published by 28 June 2001. The Regulations Relating to Compulsory National Standards were published on 10 June 2001, and the DWAF Free Basic Water Implementation Strategy Document in May 2001.

425. The City’s interim Business Plan dated 10 June 2001, (File 1 p 37), as well as its Business Plan dated January 2002 (File 1 p 37), refer to the fact that “there are currently no statutory minimum levels of services standards in force for basic water and sanitation in South Africa”. This was clearly simply wrong. It is also contradicted by paragraph 40.2.4 of Ms Brits’ affidavit (with reference to Mr Still’s affidavit) which admits that the “the negotiation team from the ‘Utility’ [Johannesburg Water] as well as from the City, saw 6 kilolitres as being something that national government policy required to be implemented”.

426. I respond to Mr Still, Ms Eales and Mr Seedat separately.

Brits Paragraph 40.5

427. The decision to set the free basic minimum water supply at only 6 kilolitres per household has infringed my rights and the rights of the other indigent residents of Phiri, including our right of access to sufficient water under the Constitution, and the right of access to a basic water supply in terms of the Water Services Act read with the Regulations.

428. I note that the City admits that the decision was not taken in a procedurally fair manner.

Brits Paragraph 40.6

429. I note that in this paragraph the link between the National Standards Regulations and the City’s free basic water policy is admitted.

430. Section 3(b) of the Regulations provides for an allocation of either 25 litres per person per day or 6 kilolitres per household per month. Legal argument will be addressed regarding the proper interpretation of the National Standards Regulations.

431. There is nothing in the Regulation that suggests that, if more than one household resides on one plot, only 6 kilolitres should be allocated to the multiple households.

432. I note that on the City’s own version on average 10 people, and not 8, live on such plots. As such, the decision to provide 6 kilolitres to multiple dwelling stands, rather than 25 litres per person, is in itself unlawful.

433. I have dealt above with the irrelevance of the future Social Package policy to this application. I also note the fact that Dr Gleick in paragraph 22 of his affidavit (included in the founding affidavit as LM 42) shows that the Basic Water Requirement (BWR) appropriate to maintain the health of residents in Phiri is 50 litres per person per day, and not 25 litres.

Brits Paragraph 40.7

434. I note the City’s assertion that there was no single decision to introduce pre-paid water meters.

Brits Paragraph 40.8

435. Ms Brits says that we cannot set aside the decision to discontinue deemed consumption and install pre-paid water meters in Phiri because we have not brought the application within the time limit in section 7(1) of PAJA.

436. I have explained above that this application is not brought in terms of PAJA, that, even if it were, section 7(1) does not apply because the subject of our challenge is of an ongoing nature, and that section 7(2)(c) does not apply to this application at all. I also refer to the application for condonation, which we bring as a matter of caution.

437. In any event, as I have explained above and in the application for condonation, the delay ought to be condoned.

Brits paragraph 40.8.3 to 40.8.4

438. I deny that setting aside the decision would not be in the best interests of the residents of Phiri or would have “no useful impact”.. The meters installed in Phiri are unlawfully limiting these residents’ access to sufficient water. If their water supply is restored by way of credit meters, it is undeniable that they would be better off. They would be allowed an opportunity to make representation of their inability to pay for additional water beyond the free basic water allocation and thereby to avoid disconnection.

439. In any event, I have explained that the City specifically introduced the pilot project only in Phiri to determine its success. If this court declares that decision to have been unlawful, the City will simply not be able to roll out the project to any other poor areas, and would have to change to a more appropriate system in Phiri. Such a policy change is inherent in any pilot project and must have been foreseen when the City decided to follow a pilot study approach.

440. I have responded above to the allegations about vast support for pre-paid water meters elsewhere. No study has been done to see whether residents of Phiri would be dissatisfied with a return to credit meters. Objectively, there should be no reason for them to be dissatisfied with such a decision.

441. To the extent that there are any adverse consequences to replacing pre-paid water meters it would be of the City’s own making.

Brits Paragraph 40.8.5 to 40.8.6

442. I note that Ms Brits has in fact not responded to the contents of paragraph 36.1 to 36.5 of Ms Mazibuko’s supplementary affidavit.

Brits Paragraph 40.9

443. I note the contents of this paragraph.

Brits Paragraph 40.10.1 to 40.10.2

444. I deny that allegation that the decision to introduce pre-paid water meters as taken after “fundamental investigation and consideration”. No such investigation and consideration appears from the record. Nowhere, either in the affidavits or on the record, is it explained that the stated goals of Operation Gcin’amanzi could not be achieved through the use of credit meters.

445. I have dealt with the alleged purposes of Operation Gcin’amanzi above.

446. I deal with Mr Still’s affidavit separately. I point out that the reasoning for Operation Gcin’amanzi must be assessed with reference to the respondents’ record for the decision and not on the basis of the after the fact justification.

Brits Paragraph 40.10.3

447. I deny the conclusion that because prepaid technology might be acceptable and appropriate for cell phones that it is either accepted or appropriate technology for a vital resource such as water. As I have set out above, a complex, ‘pay-as-you-go’ technical and supply chain is entirely inappropriate for water. I note that the City has not furnished any proof of a generalized acceptance of prepaid electricity, to which it refers.

Brits Paragraph 40.10.4

448. I deny that whether or not the City “remains satisfied with the use of Prepayment Meters” is relevant to the question whether the decision to implement the meters is lawful. I, however, note the City’s satisfaction despite the fact that the dire consequences of the system have been explained in our affidavits in this application.

Brits Paragraph 40.11 to 40.11.1

449. I have dealt with the aims of Operation Gcin’amanzi above. I point out, however, that the City has nowhere made out a case that pre-paid water meters were either necessary to address the multifaceted aims of Operation Gcin’amanzi, or that it was even the best way, in which to meet the many aims of the programme. In particular, it has not been shown why the use of credit meters, which is what the applicants pray for in this application, would not also address these aims.

450. I deny that reaching these aims “as at little cost as possible” necessarily results in a constitutionally sound policy. The human costs, and the costs to the rights of residents ought also to have been of concern. In any event, no case has been made out by the respondent that the use of credit meters would have been unaffordable, or that it could not be addressed through other budgeting means.

Brits Paragraph 40.12.1 to 40.12.3

451. I deny that Phiri “fulfilled all the technical and social requirements” to be the appropriate pilot site. I admit that Phiri was in need of an upgrade of infrastructure. I deny, however, that this means that it was the appropriate site for the implementation of pre-paid water meters.

452. The decision to introduce pre-paid water meters in Phiri, and not in an affluent suburb where residents would not be subject to constant disconnections because they cannot afford more than the free basic water minimum, has not been explained.

Brits Paragraph 40.12.4

453. I have denied that there had been adequate consultation over the installation of prepayment meters, or that from the outset Operation Gcin’amanzi had the support of the residents of Phiri.

454. I deny the allegation that “80 percent of the residents [in Phiri] had signed up” before “the bulk infrastructure replacement elements” proceeded. The respondents have provided no proof of this allegation.

455. I have also denied the fact that there had been proper individual consent to the installation.

Brits Paragraph 40.12.5

456. Ms Brits does not deny that the Johannesburg Water Plan 2004/2005 shows that before Operation Gcin’amanzi was implemented, 45 kilolitres of the 55 kilolitres consumed per stand was considered by Johannesburg Water to be lost to due to “excessive leaks/ wastage”. It now says that this “leaks and wastage” would have included “commercial” and “physical” losses. This is denied. It is clear from the record (File 2 p 758) that the reference to “leaks/wastage” was at that stage considered by Johannesburg Water to be related to physical losses.

457. Even if the respondents’ version is accepted, it is clear that the respondents cannot claim, as it now does, that the so-called “successes” of Operation Gcin’amanzi are due to the impact of pre-paid water meters (which is aimed at addressing commercial losses), rather than the upgrade in infrastructure (which is aimed at addressing physical losses).

458. I deny that it is “a-historical” to imply that JW knew before implementing Operation Gcin’amanzi that consumption could be reduced to 10 kilolitres on average. As is set out in paragraph 72 of the applicants’ supplementary affidavit, Johannesburg Water’s Business Plan, 2004/2005, dated 11 May 2004 already spoke of the fact that “only 10 kilolitres per month per stand accordingly was actual consumption”. In any event I deny that consumption, whether technically possible or not, ought to be reduced to 10 kilolitres on average for Phiri households.

459. If the objective of Operation Gcin’amanzi was to ascertain how much water was consumed in each household, I deny that installing a prepayment meter was the only way to achieve this. The installation of credit meters would have achieved the same objective but is a less restrictive way that would not have infringed on my rights to access sufficient water and administrative justice.

Brits Paragraph 40.12.6

460. I deny that, once wastage through water leaks had been addressed through fixing decaying infrastructure, it was necessary to install prepayment meters to deal with additional “wastage”. In the rest of Johannesburg (outside Orange Farm and Soweto), water efficiency is ensured through repair of leaking water pipes and the use of credit meters. The respondent does not, anywhere, justify why credit meters, as deployed elsewhere in Johannesburg, were not installed in Phiri. The respondent refers to “informal research the City has conducted in other parts of Johannesburg”, without providing any evidence of this so-called “research”.

461. Even if such research exists, which I deny, I deny that research conducted in other parts of Johannesburg can be applied to the specific situation in Phiri, with large, very poor households. As I have stated elsewhere, I do not dispute that the deemed consumption system was inefficient. Nor do I suggest it should not have been changed. I deny that, once it was clear that deemed consumption was ineffective, prepayment meters were a appropriate and lawful mechanism to achieve what credit meters achieve elsewhere.

462. Considering that the respondents on their own version did not know how much of the wastage in Phiri was due to infrastructural leaks, it could not have known that any additional “incentive” on poor people to reduce their consumption was necessary.

Brits Paragraph 41 (Response to relief sought by the applicants)

463. I deny that I am not entitled to the relief sought in this application. I set out my reply to the respondent’s answers briefly below. These points will be argued in greater detail at the hearing.

Brits Paragraph 42.1

464. I have dealt with the issue of the limitation of free basic water to 6 kilolitres above. I have outlined how my rights and those of the other applicants and the residents of Phiri were adversely affected.

Brits Paragraph 42.2 to 42.4

465. I note the contents of these paragraphs and Ms Brits’ allegation that the decision is a continuously evolving one.

466. I deny that “much thought and attention” was given to the decision to limit free basic water to 6 kilolitres. In fact, I explain above that the amount was never rationally considered at all.

Brits Paragraph 42.5

467. I note the characterisation by the respondent of the decision as having been made in the interest of “water consumers and residents of the City of Johannesburg”. The nature of such a decision is a matter of legal argument. I note, however, that the respondent admits that the decision to set the free basic water allocation at 6 kilolitres was not the subject of public review or research.

Brits Paragraph 42.6

468. The contents of this paragraph again prove the absence of rational consideration of the decision at the time. I deny that “getting something off the ground” is a rational basis for a fundamental policy such as to provide free basic water to needy people. I note that, to date, no modifications to that benefit have been implemented.

Brits Paragraph 42.7

469. I deny that any mechanisms for providing additional water above the 6k kilolitre amount have been implemented to assist me. I deny that making enquiries regarding the sufficiency of the free basic water after the decision had been made is an appropriate approach to something as crucial as water supply to the poor. I deny, in particular, that it is appropriate when viewed in conjunction with the decision to use pre-paid water meters, which is a blunt instrument that cuts off water at exactly the free basic water minimum.

Brits Paragraph 42.8

470. I have dealt with the alleged distinction between free basic water and access to sufficient water. I deny that, when dealing with people who cannot afford to pay for water, that such a distinction is relevant. I deny that the respondents’ policy on free basic water fulfil their constitutional duty to provide access to sufficient water.

471. I deny that the decision to set the FBW amount at 6kl per household per month is rational or sufficient to meet the basic needs of large households such as my own. I deny that the below-cost subsidization of low volume users, as currently formulated in Johannesburg Water’s water tariffs, ensures that poor people, such as the applicants, “are able to access additional water”. Notwithstanding the below-cost subsidisation, I still cannot afford to purchase the additional water that I need to meet my household’s needs without making unacceptable sacrifices to my other basic needs. This is why I am asking for a higher free basic water allocation.

472. I deny that it automatically follows that the poor are very low-volume users. In stands with multiple households such as my own, we are compelled to use quite a lot of water just to meet the basic water needs of each person living on the stand. This is why this application asks for a per person allocation of free basic water. The fact that many of us have PLWHA living in our households, that we take care of elderly and sick people in our homes and that we are unemployed and accordingly permanently at home all impact on how much water we use.

473. I deny that the other methods for “providing access to sufficient water” that the City mentions in this paragraph either exist or are of any material benefit to me.

Brits Paragraph 42.9 to 42.10

474. I admit that it has been extraordinarily difficult for the people of Phiri who have been affected by the use of pre-paid water meters and the low free basic water minimum set by the respondents to challenge the decision and that it has taken a long time.

475. I deny, however, that this decision is challenged in terms of PAJA or that the deadline in section 7(1) of PAJA applies to this application.

476. To the extent that it may, however, been necessary, the applicants have out of caution also filed an application for condonation together with this reply. I deny that section 7(2)(c) is applicable to such an application.

Brits Paragraph 42.11

477. I deny that the residents of Soweto would suffer any prejudice should a greater free basic water amount be allocated. Moreover the respondent has failed to make out any case as to how it would be prejudiced by increasing the free basic water amount. I deny any such prejudice, particularly in light of its admissions that cross-subsidisation and re-direction of the free basic water minimum from the rich to the poor are legitimate and practical mechanisms available to the respondents.

Brits Paragraph 42.12

478. I note the contents of this paragraph.

Brits Paragraph 43.1 to 43.2

479. The reasons for the implementation of the pre-paid water meters must be assessed in light of the record filed by the respondents, and not their version after the fact. I have explained that it was really a “demand control” mechanism.

480. I reiterate that the respondent has failed to justify why the infrastructural problems listed in paragraphs justified the decision to install prepayment meters, as opposed to credit meters, in Phiri.

Brits Paragraph 43.3

481. I deny that the implementation of prepayment meters has “gone without challenge”. We started challenging the decision even before its completion, in 2004. This is apparent from the affidavit of Mr Delaney included as LM41 to the founding affidavit.

482. It has been difficult for us to challenge the decision, due to the fact that we have no money and little access to legal resources, and are plagued by many other socio-economic challenges, as is set out in our individual affidavits. We have, however, brought this application as soon as it was possible to do so.

Brits Paragraph 43.4

483. I refer to my response in paragraphs 0 to 475 above.

Brits Paragraph 43.5

484. In addition to what is stated in our founding and supplementary affidavits, I have explained above that pre-paid water meters are not acceptable for a number of reasons. The so-called purposes Operation Gcin’amanzi (to “improving” and “extending” water services in historically neglected areas) are disingenuous and are not reasonable, or rationally related to the use of pre-paid water meters. It is also misleading to suggest that prepaid meters are the vehicles for free water. Operation Gcin’amanzi is not supported by the “vast majority” of residents of Phiri, but the reliance of the respondents on the so-called “evidence” of such support is in any event misplaced. Pre-paid water meters also do not safeguard the rights of residents, because the cut off water automatically, without warning or notice, there is no reasonable opportunity to make representations before the water supply is discontinued, and because the vendor system is flawed. Despite the respondents’ suggestions to the contrary, the meters are in fact not easy to use, faulty, and there is sufficient “aftercare”.

485. I have dealt with the other issues raised here above, and respond to Eales separately.

Brits Paragraph 43.6

486. I refer to my response in paragraphs 0 to 475 above.

Brits Paragraph 43.7

487. I deny that there would be “prejudicial consequences” if our relief were granted. The respondents have not made out a case in this regard.

488. To the extent that any prejudice does arise, it would not be enormous, and would be of the respondents’ own making. It is clear from the affidavit of Mr Delaney that the applicants have made the respondents aware of the serious problems with pre-paid water meters since 2004. On the respondents’ version, their implementation was finalised in 2006. To the extent that its own decision to proceed with the installation and use of pre-paid water meters against our consistent objections will result in prejudice if it has to be undone, this is a problem of the respondents’ own making.

Brits Paragraph 43.8

489. I deny that setting aside the decision to install prepayment meters in Phiri would have no useful impact. If this order is granted and the full-pressure credit meters which we had before restored, we would not be in the situation where our water was routinely and automatically cut off for a significant part of each month, without fair process, warning or an opportunity to be heard. We would not be at risk of having no water when emergencies arose. Even those of us with money to spend on water would not have to go to inconveniently located water vendors, without the benefit of transport, to ensure a consistent supply. We would not be subject to the vagaries of an undependable and technically complex system unreliably supported by the respondents’ bureaucracies.

490. The respondent has not provided evidence on how providing the residents of Phiri with the kind of credit meters that exist elsewhere in Johannesburg would “cause chaos in the water services system”.

491. In any event, considerations of administrative convenience should not outweigh the central question of the lawfulness of prepayment meters, which the respondents have failed to address.

Brits Paragraph 43.9

492. I note the contents of this paragraph.

Brits Paragraph 44

493. I admit that prepayment meters are a completely different service. This does not mean that our old service was not discontinued when the new system was introduced. I deny that the applicants “signed up for” a prepayment meter. Ms Mazibuko, for example, refused to accept a prepayment meter between July and October 2004 and, only was forced to concede to the installation because she could not survive without any water. This was the experience of many Phiri residents.

494. I deny that Johannesburg Water is entitled to impose “conditions on the manner in which it provides water services” where those conditions or measures are unlawful. Further argument on this will be addressed at the Court hearing.

Brits Paragraph 45.1

495. I deny that there was no forced installation of prepayment meters, as is discussed in the founding affidavit of Ms Mazibuko, and referred to again in this affidavit.

496. I deny that the applicants and other residents of Phiri were given a valid choice between different service levels. I explain this above. The respondents are not entitled to limit the choice of services in an unlawful manner. Neither Ms Mazibuko nor I was offered Service Level 2 (comprising a yard standpipe) as an option, although other residents of Phiri apparently were. It was only after resistance by the community that some Phiri households such as Ms Munyai’s, were given the option of a standpipe. None of us was ever given the option of a conventional credit-metered water supply, which is what we are asking for.

497. I deny that the “choice” I was given between a prepayment meter and total water disconnection was lawful.

Brits Paragraph 45.2 to 45.3

498. As I set out earlier, a prepayment meter is not Service Level 3, but rather a punitive measure for violating the conditions of service of Service Level 2. I deny that the installation of a prepayment meter did not diminish my access to water, or that it provides me with access to sufficient water. I deny that the free basic water supply is made available on a daily basis.

499. I deny that the pre-paid water meters are “reasonable”, and deny that this is a question to be determined in terms of what Ms Brits, or the respondents, believe in this regard. I have dealt with the fallacy of the suggestion of “majority support” for the meters. I deal with Ms Eales separately.

Brits Paragraph 45.4

500. I have dealt above with the fact that our pre-paid water meters do not provide any warning of pending disconnections, either timeously or at all. Even if it did give a warning in the form of a flashing light or some similar electronic device, I deny that this is proper warning for purposes of fair administrative process.

Brits Paragraph 45.4.1

501. I deny that there is sufficient opportunity to purchase additional credit when the water runs out. In addition, I have explained the problems with the accessibility of vendors and the absence of any opportunity to make representations regarding my indigency or special need. The respondents’ future plans in this regard are irrelevant. To the extent that the proposed policies referred to are implemented, no evidence has been provided that an intended annual allocation per household of 4 kilolitres will be sufficient to deal with any emergency. I have explained the conceptual problem with this “emergency” allocation.

Brits Paragraph 45.5

502. As I set out above, I deny that the installation was in “no way forced”. I deny that 80 percent of the residents of each block had signed up to a particular level of service before it was implemented. These allegations are vague and unsubstantiated. I specifically deny that 80 percent of residents on my block signed up for a prepayment meter before Operation Gcin’amanzi was rolled out.

Brits Paragraph 45.6

503. I deny the relevance of the perception of Councillors when compared with the affidavits of the applicants, and the experience of prepayment meters attested to in the letter to Mr Amos Masondo on 4 May 2004 by Helen Nene on behalf of Phiri residents, to which is annexed the signatures of over one hundred Phiri residents (LM 36). I have dealt with this issue above.

Brits Paragraph 45.7 to 45.8

504. I have dealt with the results of the survey and the focus groups above and in my separate response to Mr Singh, while the supplementary replying affidavit of Dr Gleick (“JM11”) responds to Mr Palmer’s affidavit.

Brits Paragraph 45.9

505. I deny the vast support alleged by the respondents. I also deny that popular support is relevant to the question of unlawfulness and unconstitutionality.

Brits Paragraph 45.10 to 45.11

506. I deny that no basis for the order has been provided.

Brits Paragraph 46.1 to 46.2

507. I deny that the forced installation of prepayment meters was rational and reasonable. The City has not provided any evidence as to why credit meters, which resolve most if not all of the stated problems of deemed consumption, were not offered to the residents of Phiri. Moreover, as set out in our founding affidavit, prepayment meters are unlawful and unconstitutional in that they violate, in an unjustifiable manner, my rights to access to sufficient water and to administrative justice.

508. I deny that no basis for this order has been provided.

Brits Paragraph 47

509. I deny that no basis for this order has been provided. Argument on the interpretation of the regulation 3(b) will be addressed to this court.

Brits Paragraph 48

510. I deny that no basis for this order has been provided.

Brits Paragraph 49

511. I deny that no basis for this order has been provided. Further argument will be addressed at the hearing of this matter.

Brits Paragraph 50 to 52

512. The contents of these paragraphs are noted. The applicants will seek costs against the respondents for opposing this matter, and for the volumes of unnecessary and repetitive matter included in their answering papers.

RESPONSE TO KATHERINE EALES

513. Before dealing with the specific allegations contained in the affidavit of Katherine Eales, one of the answering affidavit s filed on behalf of the first respondent, I will deal with some of the general issues raised in her affidavit. Parts of Ms Eales’ affidavit was reproduced in Ms Brits’ affidavit. I will not repeat my response to those issues here.

513.1. Ms Eales, like Ms Brits, argues in paragraphs 29 to 35 that there is no statutory duty to provide free basic water. She says that the applicants should not confuse free basic water (provided for in policy) and basic minimum water standards (provided for in statute). I have explained above in response to Ms Brits why this distinction is inappropriate in the context of the constitutional right of access to sufficient water, and why the respondents misunderstand the legal force of the national policy. I will not repeat that here.

513.2. Ms Eales also says at paragraph 32 and 33 that the policy is “flexible” and that therefore it is appropriate for the respondents to provide the minimum for free and nothing more. I deny that that this is the appropriate interpretation. It is apparent from the policy itself to the extent that there is any “flexibility” in the policy, that this is to allow municipalities to adapt their free basic water policies to local demand. The City has specifically failed to do so. It has not designed a policy that suits the local needs of the poor residents of Phiri.

513.3. Ms Eales says at paragraph 34 that the free basic water policy is merely a matter of tariff setting. The categorisation of the issue as a “tariff” issue adds nothing to its substance. The City is still required not only to provide the free basic water minimum for free, but also to adjust the amount upwards where it is able to do so.

513.4. She also says that the question of free basic water must be considered in light of the fact that the City subsidises the water above the free basic water mark. I deny, however, that we can afford even this subsidised amount.

513.5. Ms Eales also points to the City’s medium and short-term plans to help the indigent. None of these plans has in fact been implemented. I deal with the City’s intended programmes above in response to Ms Brits.

514. In addition, the following appears from Ms Eales’ affidavit.

514.1. The City’s own policy falls short of the DWAF free basic water minimum standard in that it does not in fact provide 25 litres per person per day, but 6 kilolitres per stand per month. The research included in Ms Eales affidavit shows that on average 10 people live on multiple-dwelling stands in Johannesburg. The people living in these dwellings are accordingly not provided with 25 litres per person per day.

514.2. The City’s own policy falls short of the standard of reasonableness. No research was done or consideration was given to how much water people actually need before introducing the free basic water policy. This, together with the fact that it as implemented through pre-paid water meter, which cuts off water at exactly the free basic water minimum, has had a disastrous impact on the quality of life of poor people.

514.3. The City does not say that it cannot afford to provide the increased amount of 50 litres per person per day. Ms Eales simply says it would require “careful targeting”.

RESPONSE TO SPECIFIC PARAGRAPHS IN MS EALES’ AFFIDAVIT Eales Paragraph 1 to 10 515. I note the contents of these paragraphs setting out Ms Eales’ qualifications and experience.

Eales Paragraph 11 to 26

516. I note the contents of these paragraphs that deal with the City’s role as a water services authority.

517. I point out that Ms Eales does not list among the problems faced by Johannesburg Water the pressing problems experienced by poor people in areas like Phiri with insufficient access to water.

518. I also note Ms Eales assessment in paragraph 21 that the City is in a position to improve service delivery.

519. I note from her exposition of the City’s monitoring functions that these do not include monitoring compliance with constitutional standards, national policies or legislation. Instead, the City appears to monitor delivery only in terms of its own policies, targets and by-laws. Eales Paragraph 27 to 28 520. I note the City’s priorities, but deny that it appears from the City’s budget or the manner in which it has conceived and implemented Operation Gcin’amanzi that it has in fact prioritised water service delivery to the poor. I deal with this above in my response to Ms Brits’ affidavit. Eales Paragraph 29 to 32 521. I deny Ms Eales’ interpretation of the regulation in paragraph 32. I have in my response to Ms Brits’ affidavit dealt with the fallacy of the respondents’ suggested distinction between free basic water (which is provided for in policy documents) and the basic minimum water supply (provided for in legislation).

522. I have also explained the legal force of the national policies dealing with free basic water.

523. I respond below to the “empirical evidence” to which Ms Eales refers in paragraph 30.

524. I admit the contents of paragraph 31 to the extent that it correctly reflects the regulation.

525. I admit that local authorities have the discretion to “provide a greater amount” of free basic water. This application, in part, challenges the way in which the City has exercised its discretion in this regard.

526. In more-capacitated and resourced municipalities such as Johannesburg, this discretion ought to be exercised in favour of adjusting the amount upwards. In the words of the Guidelines for Compulsory National Standards (Record, vol 1, p139), “where poor households have waterborne sanitation the total amount of water seen as a ‘basic’ supply many need to be adjusted upwards (if financially feasible) to take into account water used for flushing”. Eales Paragraph 33

527. I admit that the free basic water policy is meant to be flexible, and should be informed by means of each municipality, and the needs of the communities it serves.

528. I point to the example of Volksrust quoted by Ms Eales. I deny that, if Volksrust can afford to adjust the free basic water amount upwards, that the City cannot do so too. Ms Eales provides no evidence why the City cannot make such an upwards adjustment.

529. I admit that the national implementation strategy requires of the City to implement the free basic water in a way “guards against a slowdown in the extension of basic services to those households with inadequate access to water”.

Eales Paragraph 34

530. I have in my response to Ms Brits’ affidavit dealt with the fallacy of the respondents’ suggested distinction between free basic water and the basic minimum water supply. 531. I deny that the provision of free basic water to the poor in Johannesburg is simply a “tariff” issue. I do note, however, that the Implementation Strategy calls upon the City to determine the tariffs for water, including zero tariffs, based on locally relevant considerations. I point out that, in Phiri our circumstances are such that the current minimum amount is insufficient for our needs, but that we cannot afford to pay for more.

532. I deny that the City has taken these circumstances into account, or that it has used its discretion to adjust the amount upwards to address our needs.

Eales Paragraph 35 to 37

533. I admit the contents of these paragraphs to the extent that they correctly quote the contents of the DWAF Strategic Framework attached as LM5 to our founding affidavit.

534. I deny, however, that Ms Eales’ interpretation of the Strategic Framework is correct as is set out above.

535. I admit that, over and above a sufficient free basic water amount, users should pay according to their ability. I deny, however, that the 6 kilolitre amount is sufficient and that the current tariffs, although below cost, are affordable to unemployed people such as me and the other applicants. Eales Paragraph 38 536. I take note of the “key challenges” which Ms Eales says that the City has faced in complying with its constitutional obligations. Ms Eales does not say, however, how it met these challenges, or that, as a result of these challenges, it could not comply with the national policy requirement to increase the basic quantity of free water above 25 litres per person per day.

537. In any event, I deny that the City has provided 25 litres per person per day free basic water to the poor. Instead, it has provided 6 kilolitres per household per month to every household, regardless of size.

538. In this regard, the City has failed the Free Basic Water Implementation Strategy (Record, p139) which states at paragraph 3.2, that poor households are meant to be “the primary intended recipients of free basic water”.

Eales Paragraph 39

539. I admit that providing a sufficient amount of free basic water to poor households requires careful targeting and planning. I deny that the City’s one-size-fits-all policy providing 6kl to all households per month is the result of careful targeting and planning. I also note that Ms Eales does not say that such careful targeting and planning in order to comply with the City’s constitutional obligation cannot be done.

Eales Paragraph 40

540. I deny that the City is not avoiding its constitutional, statutory and moral obligations regarding the provision of access to sufficient water. The ways in which the City’s free basic water policy and the installation of prepayment meters violate poor residents’ rights will be further addressed in argument.

541. I deny that we “conflate” “free water” and “access to water”. The respondents fail to appreciate what “access” means when dealing with persons who cannot pay for water. I have in my response to Ms Brits’ affidavit dealt with the fallacy of the respondents’ suggested distinction between free basic water and the basic minimum water supply.

Eales Paragraph 41 to 52.10.2

542. I will not respond to that part of Ms Eales’ affidavit dealing with the research conducted by the City. Ross Jennings has filed a separate affidavit (“JM12”) in reply to this section of her affidavit. A separate report by Mr Jennings in which he critiques the City’s research methodology more generally is annexed as “RJ1”. Mr Jennings challenges the research findings referred to by Ms Eales on a number of grounds, including the following:

542.1. The City relies on a relatively small sample size. This renders their findings unreliable.

542.2. The findings are not relevant to large households earning around R 1 100 per month, because it focuses on smaller households with a higher income.

542.3. The research did not in fact explore the “actual needs” of consumers in the City as is suggested in paragraph 43. Mr Jennings points out that nowhere in the quantitative instruments used in the study are the actual needs of consumers explored. The instruments (and the study) seek rather to explore past or current water usage focusing on demographics and household information, water infrastructure, payment issues and water utilisation. 542.4. Ms Eales states that the Palmer Development Group was appointed because of an “insufficient understanding of the way in which consumer unit size and income impact on water consumption”. The study in fact fails to advance the understanding on these issues as it fails to secure comprehensive information on each and every consumer unit (that is, the plot and not the households) sampled. 542.5. Although these studies refer to surveys conducted in middle and high income areas, there are no results for these areas included in the reports. This does not allow for any real comparison to be made between consumption levels in these areas and in low income areas. There can accordingly be no real understanding of how water can be saved based on an understanding of where the most water is consumed. 543. It is accordingly denied that the outcomes of the study are able to “provide input into a revised approach to free basic water as well as a revised tariff structure for water” as Ms Eales suggests in paragraph 45.

544. This is the first research into the appropriate amount of free basic water conducted by the City - conducted only in June 2006 -years after the free basic water policy was decided upon and implemented.

545. Ms Eales acknowledges that, despite having already implemented the free basic water policy, the City in 2006 had “an insufficient understanding of the way in which consumer unit size and income impact on water consumption”. It had nevertheless determined the minimum free basic water supply at 6 kilolitres without any independent assessment of whether it would be sufficient. To compound matters, it also decided to distribute the free basic water amount to the poorest of the poor by way of pre-paid water meters, which would cut off the water supply completely at the precise moment that the free basic water minimum had been reached. To make such a decision, without understanding how much basic water people in fact needed had a disastrous impact on the lives of poor people in the City.

546. The research was conducted in order to test assumptions relating to the proposed Social Package Policy, which has to date still not been implemented. As such, the policy is speculative and irrelevant to this application.

547. It appears from the reports that emerged from the City’s study, in particular the report attached as KE8, that “the average size of single dwelling consumer units in the low income areas surveyed in the City of Johannesburg is 4, while the average size of multiple dwelling consumer units is 10” (KE8 p 9) In an area like Phiri, with a large number of multiple dwelling plots, one would expect the average to be closer to ten than to 4. Even on the City’s own research, accordingly, the current free basic water minimum of 60 kilolitres per household per month does not provide each person with 25 litres per person per day.

Eales Paragraph 53 to 55

548. Ms Eales in paragraph 53 deals with the City’s proposed medium term plan, or the intended revised Social Package Policy. I have dealt with this future plan in my response to Ms Brits. I also respond to the affidavit of Mr Seedat separately.

549. I simply reiterate briefly that: 549.1. The plan is still under development. It is estimated to be implemented only in July 2008. t is accordingly irrelevant to the evaluation of our current challenge. 549.2. It acknowledges the fact that the current indigent register is flawed, that the current free basic water minimum is insufficient and that free basic water ought to be redirected away from the rich to the poor. 549.3. The proposed plan, however, does not increase the amount of free basic water allocated per person. 550. Ms Eales deals with the short term interim measures proposed by the City to be implemented pending the roll our of the revised Social Package in paragraph 54. I have responded to the problems with this interim plan above.

551. Ms Eales claims that there is no direct correlation between consumer unit size and monthly water consumption. She claims that this relates to shared water uses. It appears from the affidavit of Dr Gleick, however, that the biggest proportion of the 50 litre per person per day allocation is for individual needs, rather than shared needs..

Eales Paragraph 56

552. Although Ms Eales states here that the City provides 6 kilolitres free water per “household” per month, the City in fact provides this amount per accountholder - even on those stands where there are multiple dwellings. Eales Paragraph 57 to 63 553. I have responded to all these allegations, which are repeated in the affidavit of Ms Brits.

554. I admit that the current free basic water minimum is provided to all households, regardless of whether they are poor. Ms Eales says that initially this was the most economical and efficient manner of implementing the free basic water policy.

555. It appears, however, that the City has now resolved to redirect the free basic water away from the rich to the poor. The administrative difficulties with implementing such a plan appear, accordingly, to have been resolved.

556. I have dealt above with the City’s failure to “interrogate” the 6 kilolitre amount before implementing it. I have also dealt with the basis for the City’s failure to increase this amount.

557. I note that the Ms Eales says here that it will not in the short term deviate from the “basic premise” that it should provide 25 litres per person per day free. I point out, however, that the City at the moment does not provide for 25 litres per person per day. Instead, it provides free basic water to all households, as acknowledged by Ms Eales in paragraph 62. For those with more than 8 occupants, it provides less per person than the national minimum standard.

558. Mr Jennings has responded to the research contained in Ms Eales’ affidavit. I point out, however, that even within the small sample size of respondents in this study, conducted in six areas other than Phiri, showed that at least 50% of dwellings have more than one household, and that almost 30% of those stands have more than 8 people. The City would, in respect of all those people, be in breach of the national standard. The reality is much worse still because the City’s research did not focus on households earning below R1 100, which are likely to be larger and therefore fare even worse on the 6kl allocation.

559. In the Phiri context, the larger than average households, are the poorest of the poor, so any policy that does not take such socio-economic realities into consideration unfairly discriminates against the poorest of the poor.

560. The City’s own research into water consumption patterns in the City appears to have excluded larger than average households from its ambit In the description of low income households (“KE8”), at paragraph 8.1, the research consultants admit that they excluded the 10 households larger than 8 people. This not only suggests that the data is irrelevant to the circumstances of people in large households such as Ms Mazibuko’s and my own, but also goes to the point that, according to this kind of formulation, above average household sizes fall out of the analytical framework.

561. I reiterate that we in any event deny that the 25 litres per person per day standard is sufficient. We contend that international expertise suggests that a 50 litre per person per day allocation should be the minimum to meet basic needs.

562. Ms Eales also confirms that it appears even from the City’s own research, that the average size of multiple dwelling consumer units is 10 people.

Eales paragraph 64

563. Ms Eales admits that an increase of the free basic water minimum is advisable.

564. The City proposes no increase in the amount provided per person, but merely acknowledges that more people rely on the per household allocations than what the City had estimated. Ms Eales, however, points to the fact that this increase will only be available to those on the indigent register. I have in my response to Ms Brits shown that the City itself recognises the flaws inherent to the indigent register. I accordingly deny that the proposed increase, if implemented, would be rational or effectively address the needs of the intended beneficiaries. I have also above explained why the proposed policy, if implemented, would be an effective way to address special needs.

Eales Paragraph 65 to 66

565. I have addressed the applicants’ criticism of the medium- and short-term policies proposed by the City.

566. I note that the City’s version is that the average size of the consumer units on a stand is 10 people.

567. Ms Eales says that the City cannot undertake a house-by-house audit to asses the number of people living on a given stand. She does not, however, say that it would be impossible to design a more locally specific system by, for example, at least determining average household size on a geographical basis.

568. I agree that the future plans proposed by the City are an “imperfect solution”.

Eales Paragraph 67

569. I have addressed the irrelevance, and the flaws, of the interim measures in my response to Ms Brits.

Eales Paragraph 68

570. According to Ms Eales, the implementation plan accepted in 6 December 2006, some months after we issued this application, provided that the interim measures would be implemented in March 2007. I deny that this implementation has taken place. My household, which is included on the indigent register, has not received any additional benefits under this interim plan.

571. The Social Package is, according to Ms Eales, only intended to be implemented in July 2008. It is accordingly irrelevant to this application.

Eales Paragraph 69 to 71

572. In these paragraphs, Ms Eales sets out (with reference to Mr Still’s affidavit) what the “objectives” were for the Operation Gcin’amanzi project. I deny that these “objectives” can be evaluated separately from what is reflected on the respondents’ record of their decision to use pre-paid water meters.

573. I also note that these objectives are subject to the consumer’s rights in terms of the Constitution and the relevant legislation.

Eales Paragraph 72

574. I deny the inference that free basic water cannot be dispensed in a way other than through pre-paid water meters. I deny that ordinary credit meters would not ensure that poor people receive their 6 kilolitre free allocation per month.

Eales Paragraph 73

575. I deny that the customer surveys referred to in Mr Singh’s affidavit reflect vast support for the use of pre-paid water meters.

Eales Paragraph 74

576. It appears from the contents of this paragraph that the Mayoral Committee, in extending the use of pre-paid water meters in 2005 did not consider at all the devastating social consequences of the pre-paid water meters.

577. I note that the extension was only extended to deemed consumption area - areas on which poor people live - and not to any rich neighbourhoods.

Eales Paragraph 74.1

578. I deny that any of the applicants are “new customers” who would be required to pay deposits for credit meters.

Eales Paragraph 74.2

579. The question of arrears in respect of water services to the poorest of the poor is a function of the affordability of water, rather than the kind of water distribution mechanism used.

Eales Paragraph 74.3

580. I reiterate what I have stated in my response to Ms Brits, namely that, contrary to what Ms Eales says in this paragraph, our pre-paid water meters do not provide us with the option of receiving our free basic water quantity on a daily basis.

Eales Paragraph 74.4

581. I deny that pre-paid water meters provide a “clear and visible” indication of water consumed, and refer in this regard to what is stated above in response to Ms Brits in relation to the functionality of the meters.

Eales paragraph 74.5

582. I deny that pre-paid water meters “facilitate” the identification of those who are indigent. I also deny that a mechanism that controls water demand is an appropriate way in which to identify the indigent.

Eales Paragraph 74.6

583. I deny that the amount of water the poor people of Phiri use is “self-determined”. For those who cannot afford more than the basic minimum, the amount is determined exclusively by the City. There is a basic minimum which we need to use to live our lives with dignity (50 litres per person per day). We cannot, however afford this amount at the City’s current rate without unacceptable concomitant inroads into other basic necessities.

Eales Paragraph 74.7

584. I deny that pre-paid water meters do not infringe our rights of access to a sufficient amount of water.

Eales Paragraph 74.8

585. I deny that it is necessary to use pre-paid water meters to address problems in the City’s billing system. It is inappropriate for the poorest of the poor to carry the brunt of the chaos in the City’s administration by having pre-paid water meters imposed on them.

Eales Paragraph 75

586. I admit that deemed consumption was not a good system, from both a water conservation and from a credit control perspective. To the extent that many Phiri residents, including myself, did not pay their entire monthly bills, this was because the 20kl flat-rate amount was too expensive for us and it was unfair in that it did not reflect what we actually consumed.

587. The City does not, however, have to introduce pre-paid water meters to eliminate arrears. Writing off historical arrears, which the City appears from this paragraph to be able to afford, combined with a free basic water allocation that is actually sufficient for the poor, would achieve the same goal, without leaving the residents of Phiri without access to water for significant portions of every month.

Eales Paragraph 76

588. Ms Eales says that “it emerged particularly from the focus groups that there is in fact strong support for PPMs, as a tool for household budgeting”. I refer to the affidavit of Mr Jennings in which he points out that, from a methodological point of view, focus groups are not representative. Their results are at best indicative, and usually need to be followed by representative quantitative research that ’arbitrates’ the qualitative results that can identify what is broadly representative and what is not.

589. Furthermore, drawing such strong conclusions from one focus group (and ignoring the others) is seriously flawed. From the two focus group transcripts with residents, all respondents except one in Eldorado Park (where they all had credit meters) stated that they preferred credit meters to pre-paid meters. In addition, in refer to the other extracts from the transcripts which I refer to in my response to Ms Brits, which counter Ms Eales’ conclusions about the views of the focus groups.

590. An analysis of the focus group transcript, in particular, the focus group discussion held in Stretford, Ext. 4 on 7 November 2006, shows how people’s stated satisfaction with the prepaid water meter does not necessarily reflect that the prepaid meter is their ideal choice for water delivery. Instead, it shows that the prepaid water meter is seen as the best option open to them in the current situation.

591. Their lived experiences speak, however, to the fact that the prepaid water meter has introduced unwelcome changes in the majority of their lives. Most striking in this focus group is the fact that participants spoke quite openly of the fact that they collect water from other sources (’free taps’ in other extensions, dams, etc.) that do not require payment and even went so far as to say that govt should provide them with tanks to store water for those times that they ran out of money to buy water. This clearly negates the assertion in annexure RS26 to Mr Singh’s affidavit that residents of Stretford, Ext 4 are "actively using less water by taking active steps to save and conserve" (p. 13) and other assertions that residents are generally happy with the prepaid water meters. The focus groups dedicated to individuals working with HIV positive people also contradict the contentions that people are happy with the prepaid water system. These transcripts accordingly show very different attitudes to those showcased in the corresponding reports.

Eales paragraph 77

592. I deny that households with pre-paid water meters do not restrict their water use in way which compromise their health or dignty. I refer in this regard to the applicants’ founding affidavits, as well as the attached report (“JM13”) entitled ”The Problem of Handwashing and Paying for Water in South Africa” regarding the effect of pre-paid water meters on hand washing and hygiene. This report, which involved 107 households in Soweto, found that prepaid water meters impact negatively on people’s handwashing behaviours, raising the risk of water borne disease and lowering people’s hygiene conditions in lower-income communities.

593. I refer to the affidavit of Mr Jennings (“JM12”) in which he explains the methodological flaws in the “water diaries” research. Some of the weaknesses to which he points are the size of the sample, the poor response rates and the impact this has on the ability to extrapolate the results to the general population.

594. The report is littered with phrases such as “there are no significant differences” or “this is not a statistically significant difference”. Where there is a seemingly large difference between those with prepaid meters and those with credit meters, the report states: “When there is a high degree of variation within a dataset, a difference between two numbers that looks large may prove not to be significantly different.”

595. I accordingly deny that reliance can be placed on the focus group results to determine whether the “health and dignity” of residents are infringed by the use of pre-paid water meters.

Eales Paragraph 78

596. Ms Eales refers with approval to the fact that poor water users who have pre-paid water meters “re-use” water more. This is evidence that the free basic water amount is insufficient to meet household needs and that due to pressures related to the costs of additional water, households are compelled to compromise on their water usage in ways that, in my household, impair dignity and health. I note that one focus group respondent (in a focus group of caregivers held on 14/11/2006 at an undisclosed location) states that, in order to ensure her patient’s sustained access to water, s/he has to re-use bath water to wash the patients’ bedsores.

Eales Paragraph 79

597. I have responded to this alleged “acceptance” of the pre-paid water meters in my response to Ms Brits.

Eales Paragraph 80 to 86.2

598. These allegations are repeated, practically verbatim, in paragraph 28.7 and further of Ms Brits’ affidavit. refer to my response to those allegations above,

Eales Paragraph 87 to 94

599. I take note of Ms Eales’ description of the different service levels used by the City. I deny that pre-paid water meters fall within service level 3, particularly when it is an enforced measure. I have explained this in greater detail above in my response to Ms Brits. Pre-paid water meters are a punitive measure for violation of the conditions of service level 2.

Eales Paragraph 95

600. It appears from this paragraph that Johannesburg Water funds its water expansion programme through a revenue stream derived from payment of tariffs.

Eales Paragraph 96 to 98

601. I admit the contents of these paragraphs to the extent that the relevant statutory provisions are correctly reflected.

602. I also admit that the City uses a measure of cross-subsidisation of tariffs as is set out in paragraph 98.

Eales Paragraph 99 to 104

603. I deny that the additional amount of water I require to meet my basic needs above free basic water allocation of 6kl is affordable. This is despite the fact that the pre-paid water meter tariff is marginally cheaper than a conventional meter.

604. Either way, I would rather have a conventional meter with a sufficient free basic water allocation, which protects my administrative justice rights, than a pre-paid water meter that automatically disconnects my water supply.

605. I do not dispute the fact that, under the deemed consumption system, we were over-charged for water. This is because regardless of how careful we were with water consumption, we were always charged a flat-rate for 20kl of R131.25. This system was unfair and I am glad it is gone. However, it would have been more appropriate for deemed consumption to be replaced by a conventional meter system, not a pre-paid water meter. People with conventional meters also get free basic water. It is a policy decision to make pre-paid water meter tariffs slightly cheaper than conventional meter tariffs. There is nothing inherently cheaper about pre-paid water meter water provision. Johannesburg Water could easily re-set the conventional meter tariffs to provide a more concave tariff structure with cheaper rates and slow increases to the point of luxury consumption, which could be much more heavily taxed.

606. I note that the City already employs cross-subsidisation as a funding mechanism to the extent set out in these paragraphs. I refer to the replying affidavit of Paul Berkowitz, an economist, who shows how a universal increased FBW allocation could be costed purely from cross-subsidies, marked as “JM14”.

Eales Paragraph 105

607. The Palmer Development Group research (included as KE14, and repeated as RS3), shows that even with free basic water, free basic electricity and a rates rebate, a City of Johannesburg municipal bill is amongst the highest for poor households and amongst the lowest for wealthier households in the set of five cities compared (Johannesburg, Tshwane, Cape Town, eThekwini and Ekurhuleni). This means that my total bill for basic services is amongst the highest for poor households. I accordingly have relatively less money than poor people in other municipalities to pay for water. Despite the specific pricing of water above the free basic water amount being the second lowest tariff among the five cities surveyed, it is accordingly too expensive for me. .

608. The fact that poor households pay the most for services and rich households pay the least for services as a percentage of income in Johannesburg demonstrates that the City’s pricing of basic services is inequitable, unreasonable and has the effect of being unaffordable for poor households such as my own. As I have stated elsewhere, this is also evidence that, despite providing below-cost water to many consumers, water cross-subsidies are still not progressive enough, with the result that rich people in Johannesburg pay relatively lower prices than in other big municipalities.

Eales Paragraph 106.1

609. Ms Eales states in this paragraph that physical losses - i.e. leaks and bursts - accounted for a significant part of the problem in deemed consumption areas preceding the introduction of pre-paid water meters, resulting in 68% of water supplied in Soweto being lost. It is accordingly apparent that simply addressing leaks and bursts could have resulted in significant water saving. It was not necessary to introduce pre-paid water meters to resolve this problem.

Eales Paragraph 106.2

610. I reiterate that notwithstanding the current subsidised water tariffs, and the fact that Johannesburg Water “has one of the lowest charges per 10kl per month”, the FBW amount is insufficient to meet my basic needs and the additional amount necessary is too expensive for me.

Eales Paragraph 107 to 108

611. I agree that there are some administrative benefits to metering, but deny that pre-paid water metering is necessary to achieve these benefits. Credit meters would achieve the same benefits.

Eales Paragraph 109 to 110

612. I have answered these allegations in my response to the affidavit of Ms Brits above.

RESPONSE TO RASHID SEEDAT

613. Before dealing with the specific allegations contained in the affidavit of Rashid Seedat on behalf of the first respondent, I will deal with some of the general issues raised in his affidavit.

614. Mr Seedat says essentially the following in his affidavit:

614.1. The provision of 6 kilolitres free water for all stands is not an “optimal arrangement”. It was, however, not unreasonable for the City to have started providing only this. (Paragraph 55)

614.2. Household growth and fluctuations in the demographics make a free basic water policy difficult to manage. (Paragraph 20.2).

614.3. The City cannot provide free basic water on a “per person per day” basis, because it cannot determine how many people live on a stand, and because this changes constantly. (Paragraph 20.2.3 to 20.2.5)

614.4. Our claim for sufficient free basic water competes with the demands of those who have no water services at all (paragraph 20.3) and with those lower middle income households who don’t receive poverty relief (paragraph 20.4) Although the City has the largest budget in the country, it must still “exercise care” in how it balances expenditure and income. There are many socio-economic demands on the City. The need for water is just one of them, which needs to be balanced against others. (Paragraph 20.5)

614.5. The City has introduced a number of social packages over the years which aimed to address the needs of poor people. Any enquiry into water for the poor should really be focused on these packages, because these policies really determine what poor people receive. Although these packages have consistently failed to address the problems of the poor, there is a new policy in the pipeline which will aim to improve on its predecessors. (Paragraph 21 to 35)

614.6. The City has been advised not to provide more water to those with special water needs due to the incidence of HIV/AIDS. (Paragraph 32.19). It does, however, have many other initiatives to support those with HIV/AIDS. (Paragraph 40 to 53).

THE ARGUMENT THAT 6 KILOLITRES WAS A REASONABLE START

615. Mr Seedat concedes at paragraph 55 that the current free basic water policy - providing 6 kilolitres per stand to all Johannesburg account holders - is “not optimal”. His admission essentially recognises that what the City currently provides in terms of its free basic water policy is not sufficient.

616. He says, however, that it was “not unreasonable” for the City to have provided this as a starting point. I have explained in my response to Ms Brits above why it was not only unreasonable, but also irrational, to have set the amount of 6 kilolitres. He says that it was “feasible” to provide free basic water at this insufficient level at the time of its introduction. He does not, however, say that providing the poor with a truly sufficient amount would not have been feasible. Nor does he adequately explain why, notwithstanding having provided the 6 kilolitres as a starting point in 2001, the City has not subsequently increased the quantity of free basic water to an adequate amount.

617. Even if one were to consider the policy as only a starting point, Mr Seedat cannot explain why nothing has been done to increase this insufficient level of free basic water since its introduction in 2001. He says at paragraph 55 that the free basic water policy has “graduated” from the less than optimal level through “the evolution of our social package”. On his own admission, however, none of the interim packages have succeeded, and none have actually provided the poor of Phiri with more than 6 kilolitres free basic water per stand. I accordingly deny that there has been any “graduation” of the amount of free basic water at all. I have responded to the latest proposed social package in my response to Ms Brits, and also do so below in response to specific allegations by Mr Seedat.

618. The failure to address the fact “less than optimal” free basic water amount is particularly stark in light of the requirement of the Free Basic Water Implementation Strategy (in place since May 2001) for municipalities to increase the amount where possible.

619. Considering the City’s own admission that the amount is “less than optimal”, the introduction and continued use by the City of pre-paid water meters to dispense this amount is indefensible. For poor families who cannot afford to buy water above the free basic water amount, this means that their water supply will be discontinued at exactly the minimum level, despite the fact that it is not sufficient for their needs.

THE ARGUMENT ABOUT UNMANEGABLE DEMOGRAPHICS

620. Mr Seedat says at paragraph 20.2 that the certain aspects of the demographics of Johannesburg make a free basic water policy difficult to manage.

621. He says that the fact that there is fast population growth, and more importantly household growth, and that there is constant fluctuation in these figures, make it difficult to provide for free basic water. I do not deny that the City faces many problems in providing for free basic water.

622. Whatever the City may not be able to know about the demographics of the City, it is however apparent from Mr Seedat’s affidavit that the City, on its own version, has the following facts to its disposal.

622.1. The concentration of people per square kilometres in Soweto is exceptionally high, and Phiri, in particular, has one of the highest densities across the City. (Paragraph 15.3). Dr Gleick in his affidavit included in the founding papers point to the fact that in areas of high population density, more than 25 litres per person per day is needed for consumption.

622.2. Phiri is an established area, with 75% of its population having lived there for more than 20 years and slow migration to the area (Paragraph 15.7 to 5.8) We are accordingly not new residents of Johannesburg for whom provision needs to be made unexpectedly. The City has known about our plight for a long time.

622.3. Phiri has a high number of households on each plot. In 2006, there are in fact more backyard dwellings (2661) than main dwellings (2312) on the area’s 1875 properties. (Paragraph 15.9) There are accordingly 2.6 households per property. The City’s approach to providing free basic water per stand is accordingly palpably unjustifiable.

622.4. Even on 2001 census figures (rather than on the 2006 figures that were based on aerial photos), on average in Phiri there were 8.8 people sharing one water connection. (Paragraph 17.8) Considering that this in an average, there must have been many plots on which more than 9 people shared one such connection. The calculation of the “per household” allocation (which is in fact a “per stand” allocation) on the premise of 8 people per household is accordingly unreasonable and unjustifiable.

622.5. 51% of Johannesburg households survive on an income of R 1600 or less per month, while 18.74% has no income at all. (Paragraph 18.4) It is clear from this that, even on subsidised levels, paying for water above the free basic water amount is not affordable to the poorest of these households.

623. Even accepting that the City has difficulty in making policies in an environment where the facts are “fluid”, even on these facts, the City’s decision to set the free basic water amount at 6 kilolitres per stand can accordingly not be defended.

THE ARGUMENT ABOUT A “PER PERSON PER DAY” ALLOCATION

624. Mr Seedat says at paragraph 20.2.3 to 20.2.5 that the City does not know how many people live on every stand in Phiri, and that it can accordingly not provide what the applicants ask for - an amount of 50 litres per person per day.

625. I deny that the City cannot establish how many people live on a stand, or that it cannot at least make a geographically relevant determination of how many people on average live on a stand in Phiri (rather than in the whole of Johannesburg, or South Africa). The national regulation requires of all municipalities to provide access to a basic minimum amount of water on a “per person per day” basis. This is accordingly the minimum to which we are entitled.

626. Even accepting, however, that the City does not actually know the number of people who live on a stand and that it must therefore resort to estimations, its current policy cannot be justified. Considering that water is essential for survival, and that we have a constitutional right of access to sufficient water, the City cannot adopt an estimated approach that may or may not meet the national basic minimum per person. It is also not rational or justifiable to approach the estimation in a manner that exposes large households or those with many secondary dwellings or backyard shacks to the risk of not each receiving the basic minimum when they are most likely the very poor who are the intended beneficiaries of the free basic water policy.

627. In addition, if the City approaches the free basic minimum on the basis of an estimation that may or may not provide the basic minimum to every person on that stand, it is also unconscionable to provide such free water by way of pre-paid water meter that is premised on the fact that even the very poor who live in households where each person will not receive the minimum amount will have their water discontinued when the estimated “per stand” amount is finished.

THE ARGUMENT ABOUT COMPETING DEMANDS

628. Mr Seedat says that the applicant’s claim for sufficient free basic water competes with other demands — on the one hand with those who have no water services at all (paragraph 20.3) and, on the other, with those lower middle income households who don’t receive any poverty relief. (Paragraph 20.4)

629. The City has to provide services in a socio-economic environment characterised by massive inequalities. There will always be people who are both richer and poorer than the other applicants and me. Our claim for access to sufficient water can, however, not be deferred until no such inequalities exist. The City’s failure to provide us with access to sufficient water within its available resources cannot be justified by pointing to others who also suffer, or suffer for different reasons. Such an approach would render the duty of “progressive realisation” meaningless.

630. Although Mr Seedat refers in broad and vague terms to the fact that it would be difficult for the City to provide us with the relief we seek because of other demands on its resources, no evidence is provided to establish that the City cannot in fact afford to give us 50 litres per person per day free water. He simply says that even a well-heeled city with a big budget like Johannesburg has to “take care” in the way it spends money. I refer to the attached affidavit of Mr Berkowitz (“JM14”), who explains that the relief we seek could be funded entirely through tariffs.

631. Government always has to make polycentric decisions about competing demands on its resources. It is not sufficient to just allude to this fact to justify its failure to realise progressively the socio-economic rights under the Constitution.

632. These issues will be addressed further in legal arguments. THE ARGUMENT ABOUT THE “EVOLVING SOCIAL PACKAGE”

633. A substantial part of Mr Seedat’s affidavit (paragraph 21 to 38) contains a description of all the social packages which the City has introduced over the years, or that the City plans to introduce, to address the needs of poor people.

634. Mr Seedat says at paragraph 21 that the social package that dictates how much free water the poor receives, and that this should accordingly be the focus of our enquiry.

635. It is, however, apparent from Mr Seedat’s discussion that both indigent policies that have been implemented by the City was, on the City’s own admission, flawed and did not achieve its purpose -

635.1. The 1998 Indigency Management Policy was “faced with administrative and process problems” (paragraph 26); 635.2. The Special Cases Policy of 2002 reached only about one-fifth of its intended beneficiaries, was plagued by “administrative difficulties” and was so flawed that it lead to protest marches due to “frustrations being experienced by a substantial segment of the market” (paragraph 29.1); 635.3. The Indigent Persons Policy of 2005 had a number of “shortcomings”, including cumbersome and ineffective means-testing and lack of verification. Although it was intended to be “a further short-term interim measure until the revised social package policy was finalised” remains the “standing policy” because of difficulties in revising “a more permanent satisfactory social package”.

636. Mr Seedat then mentions two further policies - the revised Social Package and the 2007 interim measures. In paragraph 30.8, he admits however that, despite the origins of the revised Social Package being the study finalised in June 2004 (paragraph 30.5), it was estimated that it would only be implemented in July 2008. At this stage, he concedes, it is nothing but “a consultant’s report” and that it is not yet City policy. (Paragraph 33). He says that the interim measures would, however, be “introduced in the first quarter of 2007”. I have set out in my response to Ms Brits’ affidavit that no such implementation has taken place. My own attempts to obtain benefits under the interim policy have failed, and I was told by the City Council’s offices that no such interim measures exist.

637. These future plans are clearly irrelevant to this application. For what it is worth, however, I have addressed some of the weaknesses with the intended policies in my response to Ms Brits.

THE ARGUMENTS ABOUT PEOPLE LIVING WITH HIV/AIDS

638. The City does not make any provision in its free basic water policy for the fact that people living with HIV and AIDS (PLWHA) require access to significantly more water than the current basic minimum. I refer in this regard to the affidavits of the applicants, as well as those of Dr Gleick and Dr Martins.

639. Mr Seedat says at paragraph 32.19 that, even the Base Document, which provides the basis for the new Revised Social Package, recommends that the City should not provide more water to those with special water needs due to the incidence of HIV/AIDS.

640. He says, however, that he “thinks” that it is “unlikely” that this recommendation will be accepted. (The other “recommendations” in the report are, nevertheless, put before this court as evidence of the firm intentions of the City to address the plight of the poor) Mr Seedat explains that, even if this recommendation is accepted, however, “representations” may under the interim arrangements be made to the City by PLWHA for “additional allocations”. I have explained above that this is not an appropriate way to respond to the special needs of PLWHA, and that , in any event, these interim measures have not been implemented as promised.

641. Mr Seedat says that the City does, however, have many other initiatives to support those with HIV/AIDS. (Paragraph 40 to 53). None of these, however, appear to address the water needs of PLWHA.

RESPONSE TO SPECIFIC PARAGRAPHS IN MR SEEDAT’S AFFIDAVIT

Seedat Paragraph 1 to 14

642. I note the contents of these paragraphs, which deal with Mr Seedat’s position and qualifications, as well as the structure of the affidavit.

Seedat Paragraph 15

643. In addition to what I say above about the demographic information on which the City relies, I note the statistics regarding population trends set out in these paragraphs. I admit the contents of these paragraphs only to the extent that they correctly reflect the Census figures quoted. I note that the most recent Census figures were obtained in 2001, and deny that this information is current and correct for purposes of the considering this application.

644. I note that the central demographic issue in relation to Phiri is household size. Precisely because Phiri is so poor, households are much bigger than the average. While there might be, according to Mr Seedat’s statistics, a declining number of people per household in Phiri, there is, as pointed out in paragraphs 15.9 and 15.10, an increasing number of dwellings per stand. This has important implications for the free basic water location because the current 6 kilolitre amount is provided per stand, and not per household. For example, in the case of Ms Mazibuko this means that her household of fourteen family members has to share its free basic water allowance with two other households (6 people in total), who live on our property.

Seedat Paragraph 16

645. The research conducted by Social Surveys and Palmer Development Group in 2006, annexed as “KE7” to “KE11” to Ms Eales’ affidavit shows that Phiri indeed has above average household size. According to Ms Eales on average 10 people live on multiple-dwelling stands in Johannesburg. According to the APF research included in our founding affidavit, the average household in Phiri consists of 16 people.

Seedat Paragraph 17

646. I admit that the City of Johannesburg’s allocation of free water “per connection” is problematic. The problems, as outlined by Mr Seedat, include the fact that many people live on one property in Phiri, in multiple households. It is precisely for this reason that we ask in this application for a per person allocation of free basic water.

647. The City has, according to Mr Seedat “for some years” regarded the “per connection” allocation of free water as being problematic. It has, however, not implemented any change in the policy since its inception, has consistently failed to comply with basic minimum water supply regulation which entitles each person to a basic minimum, and has not heeded the national policy to increase the minimum where possible. Instead, it introduced and continues to use the blunt instrument of pre-paid water meters to distribute the free basic water minimum in poor areas, with the knowledge that it is insufficient due (among other things) to the “per connection” basis of its allocation.

648. I deny that people such as my tenants who do not own property and are consequently not able to register as accountholders should be denied their constitutional right to access sufficient water. I deny that the validity of the statement in 17.13 that “income forgone in ensuring that each household on a property (and not just each property) gets an allocation of free water would represent an effective loss of resources for the municipality”.

649. First, the City is under an obligation to fulfil the right of everyone - not just property owners - to access sufficient water. Second, “income forgone” by allocating water to each household on a property rather than to each property could be recouped through removing the free basic water allocation from rich households. I deny Mr Seedat’s assertion that the City can either halt any progressive realisation of the right to water or undertake regressive measures (such as the use of pre-paid water meters) to households such as my own, which previously had a Level of Service 3 water supply until it has provided basic access to everyone. Further legal argument on this matter will be heard in court.

650. I have responded above to the intended increase of the free basic water minimum to 10 kilolitres with the “evolution of the social package”. I have also responded to Mr Seedat’s approach to “competing priorities” which the City faces.

Seedat Paragraph 18

651. I admit that, as set out in the Palmer Development Group research “RS3” (which is also repeated as “KE14”), “even with free basic water, free basic electricity and a rates rebate”, “a City of Johannesburg municipal bill is amongst the highest for poor households and amongst the lowest for wealthier households in the set of five cities compared (Johannesburg, Tshwane, Cape Town, eThekwini, Ekurhuleni).”

652. This means that I have, relatively less money than poor people in other municipalities to pay for water. I can in any event not afford the water above the free basic water minimum, despite the fact that it is subsidised by the City.

653. The fact that poor households pay the most for services and rich households pay the least for services as a percentage of income in Johannesburg demonstrates that the City’s pricing of basic services is inequitable, unreasonable and has the effect of being unaffordable for poor households such as my own.

654. As I have stated elsewhere, this is also evidence that, despite providing below cost water to many consumers, water cross-subsidies are still not progressive enough, with the result that rich people in Johannesburg pay relatively lower prices than in other big municipalities.

655. I deny the relevance of references to economic growth and employment as vague and unsubstantiated. The reality is that I have been unable to find a job, and this the case for many people in Phiri.

656. I deny the relevance of the City’s alleged “multidimensional view of poverty” if it continues to fail to provide me with access to sufficient affordable water.

Seedat Paragraph 19

657. I have dealt with the argument about “competing priorities” above. I have also pointed out that Mr Seedat does not show that, in fact, the City cannot afford to increase the free basic water minimum in terms of the relief we seek.

658. I deny that there is any evidence of the City having improved targeting of the FBW allocation in the six years since the inception of the FBW policy in 2001. At present, rich households and poor households still receive the same 6 kilolitres amount of water. The poor in fact receive less per person, because we tend to share the amount between more people.

659. This is despite the fact that the City has managed to employ more precise targeting in the providing access to Free Basic Electricity, which is means tested (with a qualifying threshold). While this point will be further addressed in legal argument in court, I point out here that among the constitutional obligations on the City, affordable access to sufficient water should be one of the priorities because many of the other rights referred to by Mr Seedat depend on being able to have sufficient water.

660. I refer to affidavit of Mr Berkowitz (“JM14”), which responds to the allegation about the City’s budgeting. In my response to Ms Brits (at paragraph 20) I also refer to the City’s budgeting priorities.

661. It appears from paragraph 19.10 that the City does not rely on the equitable share for its provision of free basic water - in fact it considers this national subsidy to be “fairly insignificant” in its funding of free basic water. This contradicts the allegations by Ms Schreiner below regarding the impact of this application on the National Treasury.

662. I note what Mr Seedat’s says in paragraph 19.14 about the impact of unpaid service charges on the finances of the City and accordingly its ability to improve the socio-economic conditions of poor households. I point out the assertion in paragraph 13.1 of Mr Dumas’ affidavit of the bad payment record and poor responsiveness to credit control measures of the government and institutional bodies who are customers of the City. In this context, it is particularly inequitable to burden the very poor with the consequences of the City’s bad debt collection record through the imposition of pre-paid water meters in impoverished areas only.

Seedat Paragraph 20

663. I have responded to Mr Seedat’s “conclusions” contained in this paragraph above.

664. I addition, I deny that I deny that the City’s municipal services tariffs are appropriately addressing the inequalities between rich and poor in Johannesburg. Indeed, the provision of 6 kilolitres of water to rich households can only exacerbate the situation described by Mr Seedat in paragraph 20.3.1, namely that “the ‘northern suburbs’ of Johannesburg still enjoy much better service delivery than other parts such as Soweto”.

665. The failure of the City’s tariff structures to address inequality is acknowledged in the Palmer Development Group report “RS3”. As summarised by Mr Seedat in paragraph 18: “a City of Johannesburg municipal bill is amongst the highest for poor households and amongst the lowest for wealthier households in the set of five cities compared”.

666. I also deny the suggestion in paragraph 20.4.3-20.5.3that, when weighing “the pressures on” the City’s budget, “improving storm water drainage” and “tarring gravel roads” should have the same weight as providing access to sufficient water. I also deny that such activities attract the same constitutional obligations. Further legal argument on this matter will be heard in court.

Seedat Paragraph 21 to 38

667. I have responded to the allegations regarding the “social package” above, and in my response to Ms Brits. I agree with Mr Seedat’s criticisms of the indigency policies introduced by the City since 1998. I deny that the Revised Social Package or the interim measures that may or may not be implemented some time in the future are relevant to this application.

Seedat Paragraph 39 to 53

668. I have responded to the allegations regarding the City’s approach to PLWHA above.

Seedat Paragraph 54 to 56

669. I agree that the provision of 6 kilolitres free basic water per stand is an insufficient allocation. I deny, for the reasons set out above, that it was reasonable for the City to introduce this insufficient level of free basic water as a “starting point”. I also deny that there has been any “graduation” to a higher amount or that any policy has been implemented that complies with the City’s constitutional duties. Mr Seedat’s own admission that “work still needs to be undertaken” on a policy that would provide free basic water to the poor supports our submission in this regard.

RESPONSE TO RANDIR SINGH

670. Before dealing with the specific allegations contained in the affidavit of Randir Singh on behalf of the second respondent, I will deal with some of the general issues raised by Mr Singh.

671. Mr Singh raises the following arguments in his affidavit:

671.1. Pre-paid water meters are complex.(Paragraph 30.1) Although there were some problems with the Meterteq pre-paid water meter used initially in Phiri, new improved meters are now used. (Paragraph 10 to 11) The optimum reliability of these meters has, however, not yet been reached. (Paragraph 30.1)

671.2. Johannesburg Water has spent a lot of time making pre-paid water meters easier to understand, (paragraph 31) including the fact that it now gives warnings of impending disconnection.

671.3. Operation Gcin’amanzi was an essential project, because the inftrastructure overhaul was crucial. (Paragraph 34)

671.4. A process of consultation was followed before Operation Gcin’amanzi was introduced. (Paragraph 35 to 39) Although the communication process wasn’t as good as it could have been, in Phiri, residents were given options of service levels, and they chose pre-paid water meters. (Paragraph 39.6 to 39.11)

671.5. Operation Gcin’amanzi faced intense protest from members of the community when it was first implemented (Paragraph 44). However, Johannesburg Water’s study shows that there is now high customer satisfaction with pre-paid water meters. (Paragraph 47 to 50) THE ARGUMENT ABOUT TECHNICAL DIFFICULTIES WITH THE METERS

672. Mr Singh acknowledges in paragraph 30.1 that pre-paid water meters are more complex than ordinary water meters, and that this affects their reliability.

673. He says at paragraph 10 to 11 that in the beginning of Operation Gcin’amanzi, when it was introduced in Phiri, Johannesburg Water installed meters that were unreliable. Mr Singh admits that the meters that were used had inadequate SABS approval, and that the people of Phiri experienced problems with the meters. He also explains that these meters were installed below ground, which created problems due to poor drainage conditions. Johannesburg Water “intends to replace” all the meters in Phiri to the new upgraded units.

674. These admissions show that the decision to use pre-paid water meters to dispense free basic water, and its continued use, was unreasonable. Water is a necessity for life. It cannot be distributed to the poor in a manner that is unreliable. It is also clear that only poor people are exposed to this more unreliable mechanism of water provision, while the rich have the benefit of more reliable credit meters.

675. Mr Ngwenya explains in his affidavit included in this reply (“JM3”) that all of the applicants, and the random sample of other residents of Phiri whom he interviewed, had Teqnovo meters. This is also the meter that I have in my house. They are all installed underground. I can accordingly not respond to any of the allegations made by Mr Singh regarding any of the other brands used by Johannesburg Water. I deny that any of those allegations are relevant to this application.

676. This also shows that the meters have not yet been “replaced” by the upgraded models, as Johannesburg Water “intended”. Ms Brits says in her affidavit that if we are granted the relief we seek, there will be a disruption of water services, because pre-paid water meters will have to be replaced by credit meters. It appears from Mr Singh’s affidavit that the meters will, in any event, have to be replaced. If this court orders the reinstatement of credit meters, there will accordingly be no additional costs or inconvenience involved.

677. I note, however, that on Mr Singh’s own admission in paragraph 30.1, the optimum reliability of even the new improved meters has, however, not yet been reached. I accordingly deny that it is appropriate to use pre-paid water meters at all in dispensing something as essential as water. It is particularly unconscionable to use the poor to try out unreliable water supply mechanisms.

THE ARGUMENT THAT THE METERS ARE USER-FRIENDLY

678. Mr Singh says in paragraph 31 that Johannesburg Water has spent a lot of time making pre-paid water meters easier to understand, including the fact that the meters now give warnings of impending disconnection.

679. As I said above, all of the applicants, and all of the people in Phiri that Mr Ngwenya has interviewed, have Teqnovo meters. They do not give any visual or audible warnings of impending disconnection. They are not easy to understand or use. I accordingly deny that any of the information provided in Mr Singh’s affidavit on the other brands of meters used by Johannesburg Water is relevant to this application.

680. Mr Singh in paragraph 31 implicitly admits that the meters used initially were not easy to understand and that they did not provide information useful to the customer. These are the kind of meters that were installed in our households, and these are still the meters that we have.

THE ARGUMENT THAT OPERATION GCIN’AMANZI WAS AN ESSENTIAL PROJECT

681. Mr Singh says in paragraph 34 that Operation Gcin’amanzi was an essential project, because the infrastructural overhaul was crucial. I agree that it was necessary to upgrade the infrastructure used in Soweto. I deny, however, that it was necessary to introduce pre-paid water meters as part of this process. The infrastructural problems had nothing to do with the kind of metering used. The installation of conventional meters could have addressed the problems of deemed consumption in Soweto.

682. I have dealt with the purposes of Operation Gcin’amanzi in my response to Ms Brits’ affidavit above.

THE ARGUMENT THAT THERE WAS CONSULTATION BEFORE OPERATION GCIN’AMANZI WAS INTRODUCED IN PHIRI

683. Mr Singh says in paragraph 35 to 39 that a process of consultation was followed before Operation Gcin’amanzi was introduced. He admits that, although the communication process was, however, not as good as it could have been in Phiri.

684. Neither I, nor any of the applicants, have any knowledge of the community liaison process in Phiri which Mr Singh describes. I admit that, from this point of view, Mr Singh is right that the communications in Phiri were not as good as they could have been. We did not have the benefit of the processes described by Mr Singh. We set out in our individual affidavits how we came to be aware of Operation Gcin’amanzi. I was not invited to any “special meetings” to discuss the use of pre-paid water meters.

685. I respond to Mr Still and Mr Rabe’s allegations regarding the implementation of Operation Gcin’amanzi separately.

686. Mr Singh also claims in paragraph 39.6 to 39.11 that residents were given options of service levels, and they chose pre-paid water meters. I deny that the options that Ms Mazibuko and my household were given were legitimate. We had to accept a pre-paid water meter otherwise our water would be cut off. It is clear that there was little to choose between these options. None of the people in Phiri were given the choice that every other resident of Johannesburg has, namely to have a normal credit meter.

687. I also deny that we all agreed to have pre-paid water meters installed ahead of our existing water supply being disconnected. To the extent that we signed contracts this was through being compelled to accept pre-paid water meters to have our water reconnected after suffering for many months without any water.

THE ARGUMENT THAT THERE IS CUSTOMER SATISFACTION WITH PRE-PAID WATER METERS

688. Mr Singh admits that Operation Gcin’amanzi faced intense protest from members of the community when it was first implemented in Phiri (Paragraph 44). I admit that this is so. From this point of view, the first and second respondents’ allegation elsewhere that they did not implement pre-paid water meters until they had achieved 80% acceptance cannot be believed. 689. He says in paragraph 47 to 50 that, despite this initial resistance, Johannesburg Water’s study shows that there is now high customer satisfaction with pre-paid water meters. I deny that there is customer satisfaction.

690. I deny that the research presents the resounding support for pre-paid water meters suggested by Mr Singh.

690.1. On p. 44 of the report, its findings show that 92% of respondents thought free-pay meters were a good idea. "Do you think free-pay meters are a good idea?" is a bad research question that can be interpreted in different ways by different people, opening up the potential for respondents to require clarification from the interviewer. This creates the space for the respondent prompting of the respondent in a particular direction. I refer in this regard to the affidavit of Mr Jennings (“JM12”) and his attached report (“RJ1”), which explain the methodological problems with the Fortune-d Africa research more generally.

690.2. In spite of the report’s attempts to show general satisfaction with the prepaid water meter system in Phiri, its own results show that 30% of respondents felt that the prepaid water meter was forced on them, and that 46% felt that they had no choice but to accept the system (See p. 18 of the report). This is not only a high percentage in its own terms, but also shows that the respondents’’ allegations that they obtained 80% support before installing pre-paid water meters cannot be believed.

690.3. It is significant that the report itself recommends that special measures for water delivery be created for pensioners and the unemployed, and that the amount allocated for free basic water be increased. The City’s own research accordingly points to problems in the current system that require attention.

690.4. While focus groups are said to have formed part of this study, there is no mention of their results in the final report and there are no transcripts included. The reason why this information is not included, may be suggested in the report’s conclusion at p 55 which reveals that

"Although we initially experienced major issues during the focus groups, the bigger sample revealed that a better job has been done in terms of adding value to poor communities by installing free pay water meters." (p. 55). The omission of this part of the study, particularly in light of this comment, renders the results unreliable.

691. In any event, I deny that the research reflects the views of people like the other applicants and me. Mr Singh says at paragraph 47.7 that 88% of the respondents earned under R 6000 per month. We earn around R 1 100 per month. The City’s research was clearly not focused on people like us. People who have more money than us may very well have a different view of pre-paid water meters. The poorest people in Phiri suffer most due to the City’s free basic water policy and the use of pre-paid water meters.

RESPONSE TO SPECIFIC PARAGRAPHS IN MR SINGH’S AFFIDAVIT

Singh Paragraph 1 to 6

692. I note the contents of these paragraphs, which deals with Mr Sigh’s position and the structure of this affidavit.

Singh Paragraph 7

693. I have no knowledge of how many prepayment meters have been installed in the rest of Soweto and Cosmo City. This application only deals with the installation of pre-paid water meters in Phiri.

Singh Paragraph 8 to 9

694. I admit that there were serious problems with the prepayment rollout in Mogale City in 2001. I have no knowledge of whether Lesira-Teq is the type of meter “which Johannesburg Water uses”. I have a Teqnovo pre-paid water meter, and so does all the other applicants.

695. I have no knowledge of whether there were relatively few problems with the rollout of pre-paid water meters in Orange Farm. This application deals only with the use of those meters in Phiri. I do note, however, that pre-paid water meters have only been rolled out in other poor areas.

Singh Paragraph 10 to 12

696. I have dealt with the argument about the technical difficulties with the pre-paid water meters above.

697. I have no knowledge of a Lesira-Teq or Meterteq pre-paid water meter. The kind of pre-paid water meter that was initially installed in my house and is still there, is Teqnovo. This pre-paid water meter is a ground level installation, which according to “RS1” is not recommended. Mr Singh does not deal with this kind of meter anywhere in his affidavit.

698. I admit that faulty, ground level, pre-paid water meters have been installed in Phiri, as set out in Sophia Malekutu’s affidavit (“LM33”).

699. Despite the City’s “intention” to replace ground-level PPMs, I still have a Teqnovo, ground level PPM.

Singh Paragraph 13 to 14

700. I have no knowledge of the Total Prepayment System (TPS). Mr Singh does not specify if Teqnovo is one of the TPS suppliers.

Singh Paragraph 14

701. I deny that the “PPM forum” whose members comprise Tswane, Westonaria and Mogale City is relevant to the situation in Phiri.

702. I deny that it is relevant that Johannesburg Water is “also seeking” to develop an “international standard for how the meter talks to the information transfer unit”.

Singh Paragraph 15 to 19

703. I have no knowledge whether the Lesira-Teq is the most widely used PPM. None of us has this meter..

704. I deny that this information about the Lesira-Teq pre-paid water meter is relevant to this application.

705. As I have said above, our pre-paid water meters are below ground and provide no warning of when the water is running out. No numbers flash on the screen and there is no beeping.

706. On 15 February 2007, I asked the nearest Central Water vendor - Senoane Administration Office (448 Dingaan Street, Phiri) - for information about my Teqnovo PPM. After being referred to an office in Avalon, which is over an hour’s walk from Phiri, I was told that the only information available relates to Lesira-Teq. The vendor at the Senoane Administration Office informed me that the only PPMs in Phiri are Teqnovo and Meterteq.

Singh Paragraph 20 to 28

707. I deny that any of this information regarding SABS standards is relevant to this application. In any event, I note from paragraph 10 that Mr Singh admits that the meters that were installed in Phiri were not adequately tested before installation.

Singh Paragraph 24 to 29

708. I don’t know much about the hardware and software that pre-paid water meters use. I deny, however, that it pre-paid water meter technology is “user friendly”. Paragraphs 108-110 of the founding affidavit, as well as the affidavit of Ms Malekutu (“LM33”), describe how complicated and user unfriendly our pre-paid water meters are.

Singh Paragraph 30

709. I admit that pre-pay meters are very complicated, and more so than ordinary water meters. I deny the appropriateness of the compulsory installation of such a complicated, faulty and sub-optimal technology to dispense water in poor communities such as my own. If I had been given the choice, I would have opted for an ordinary water meter which, as Mr Singh points out, is less complicated than a pre-payment meter.

710. I deny that it is appropriate to use business-like terminologies such as “product cost implications” when it comes to errors in water supply to poor households. Any fault, error or design in a prepayment meter, which has the result of automatically disconnecting the water supply, has serious implications in poor communities.

711. My pre-paid water meter was imposed on me. The compulsory installation of a complicated technology full of “bugs” when a more simple technology in the form of conventional meters is available is not defensible, particularly not when it is only poor people who are subjected to the vagaries of such a system.

Singh Paragraph 31

712. These references to warnings in LesiraTeq or Meterteq pre-paid water meters are not relevant to this application. Our pre-paid water meters provide no warning.

Singh Paragraph 32

713. I deny the relevance of hypothetical future developments, especially since, according to Mr Singh, “detail cannot be made available” at this point.

Singh Paragraph 33

714. I note the contents of this paragraph.

Singh Paragraph 34

715. I agree that the upgrading of infrastructure in Soweto was necessary, particularly from a water savings point of view. I deny that Operation Gcin’amanzi, in so far as it is linked with prepayment meters, was an essential project. I have outlined above how the installation of conventional meters could have addressed the problems of deemed consumption in Soweto.

Singh Paragraph 35

716. I note the contents of this paragraph.

Singh Paragraph 36

717. I admit that where a new system is to be implemented, community liaison is necessary. I deny that the implementation of Operation Gcin’amanzi was preceded by a meaningful community liaison process in Phiri. I further deny that I ever agreed to a pre-paid water meter ahead of my water being disconnected.

718. To the extent that my father ever signed a contract this was because he was compelled to accept a pre-paid water meter because he was never offered the choice of a conventional meter.

Singh Paragraph 37 to 38

719. I have no knowledge of any of these community liaison initiatives, or the training undergone by “community facilitators”.

720. Ms Mazibuko says in paragraph 79 of our founding affidavit, the first time she was aware of Operation Gcin’amanzi was when a community facilitator came to her house in March 2004, informing her that her water supply was “old and rusty” and needed to be replaced. He did not mention anything about a prepayment meter, as is stated in paragraph 80. It was only after she asked the facilitator if he intended to install a prepayment meter, that he reluctantly admitted that this was Johannesburg Water’s objective. I deny that this constitutes appropriate community liaison. In my household, we only received a visit from a community liaison officer after our prepayment meter was installed, to ensure it had been properly installed.

Singh Paragraph 39.1 to 39.2

721. I am not aware of any publicity campaign like the one described in these paragraphs.

722. My father signed for prepayment meters on behalf of our household. He has since passed away. I have no knowledge whether he received the consent form “RS5” annexed to Mr Singh’s affidavit. In Ms Mazibuko’s case, she did not receive the consent form, “RS5”. The first time she was aware of OGA was on 17 March 2004 when a community facilitator gave her the consent form, dated 24 February 2004 (“LM8” of her founding affidavit), entitled “Notice: Decommissioning of the old secondary mid-block watery supply system”. Rather than providing notification of a future decommissioning or an opportunity to choose her preferred water supply, this form states that “at present the JW have completed house connections along your street and will today [their emphasis] decommission the old mid-block secondary water supply system”. Indeed, digging started that very day. Mr Singh does not explain this form, which points to a de facto decommissioning very early on in the OGA process. Nor does Mr Singh deny her version of events set out in paragraphs 79-83, in which she details the lack of choice she had in the run-up to the disconnection of her water supply, in March 2004.

723. Even on Mr Singh’s version, the “consent” given by residents was not based on any information given to them regarding the installation of pre-paid water meters, or regarding service levels generally. At that stage, the residents were not fully informed of the implications of “consenting” to “be part of” Operation Gcin’amanzi.

724. I deny that “80 or 90 percent of the houses” in my block had signed up to a prepayment meter or a standpipe prior to the “disconnection from the old mains”. Considering the vehement opposition to the implementation of the pre-paid water meters in my community, which is alluded to by Mr Singh, this allegation cannot be believed.

725. As mentioned above, my father, who has since passed away, was the one who dealt with the installation of our PPM, and I cannot comment on the decommissioning process with regard to our household. In Ms Mazibuko’s case, a ‘notice’ of decommissioning came before she had been given an opportunity to choose the kind of supply and her water was disconnected later that month.

726. I have dealt with the suggestion of “a high level of acceptance” of pre-paid water meters above in my response to Ms Brits. My so-called “consent” should not be taken to denote acceptance of a PPM and I know this to be true of the other applicants. Our eventual capitulation was not out of choice but rather in order to receive water and sanitation services.

Singh Paragraph 39.3

727. It appears from the contents of this paragraph that Johannesburg Water only agreed to repair and upgrade infrastructure if residents agreed to pre-paid water meters. This in itself is a form of undue pressure. If the respondents were truly interested in saving water, it would have upgraded the leaking infrastructure regardless of whether the residents in question were willing to be subjected to the installation of a pre-paid water meter.

Singh Paragraph 39.4

728. Our household never received visits from a community liaison officer until after our meter had been installed, nor were we invited to a special meeting.

Singh Paragraph 39.5 to 39.8

729. I do not have any knowledge of the contents of this paragraph.

Singh Paragraph 39.9

730. I do not have any knowledge of the complaint lodged with the South African Human Rights Commission, and deny that it is relevant to this case.

Singh Paragraph 39.9

731. I have commented on the process followed in Phiri above. I point out again that the fact that the “bulk of the community would be happy to sign up to OGA and would be overwhelming in favour of PPMs as opposed to Level of Service 2” does not indicate support for pre-paid water meters. It simply indicates that people did not want standpipes, which was the only other choice offered. None of the people of Phiri were offered what every other resident of Johannesburg is offered, namely the choice of an ordinary credit meter.

732. I have no knowledge of a water tanker for other areas in Phiri. No tanker was, however, provided for Block B.

Singh Paragraph 39.11

733. I deny that it is evident from this table (dated February 2005) that “community buy into OGA” occurred prior to disconnection from the old mains and connection to the new bulk infrastructure, as stated by Mr Singh in paragraph 39.2 of his affidavit.

Singh Paragraph 39.12

734. I have addressed the deceptive use of the word “freepay” above. I deny that I received any “misinformation” about the pre-paid water meter system from some source other than the respondents, as is suggested by Mr Singh.

735. I deny that I was under any misapprehension regarding the fact that I would “no longer” have access to free water once pre-paid water meters were installed.

736. I did, however, find the official information on Operation Gcin’amanzi misleading. “Your right to know” (“LM24” to the founding affidavit) informed us that pre-paid water meters are “the most effective way to dispense the 6000 litres of free water”. I consider this to be misleading because there seems to be no reason why this would be true. I also know that residents in richer suburbs of Johannesburg receive free basic water through conventional meters, which are not as faulty. It is for this reason that I think that it was misleading to call pre-paid water meters “Freepay” meters, the suggestion being that it is only through pre-paid water meters that a person can receive FBW.

Singh Paragraph 40

737. I have no knowledge that most customers overwhelmingly prefer the PPM. Soweto residents are not offered the option of a conventional meter, so it is not an accurate reflection to say that they overwhelmingly prefer the pre-paid water meters - a choice between a pre-paid water meter, a standpipe and no water is not a real choice. I point out, referring to the City’s own research in Eldorado Park (“KE11” of the answering affidavit), that where people are offered the choice between a pre-paid water meter or conventional credit meter, they overwhelmingly choose the conventional meter.

Singh Paragraph 41 to 43

738. Much of the contents of these paragraphs are outside my personal knowledge. I deny, however, that the applicants have had the benefit of the “aftercare” and complaints services described here. We encounter many systemic problems that are not remedied by any Aftercare facility. These problem set out in paragraphs 102-105 of the founding affidavit, including running out of water at night time when none of the vendors are open and the automatic disconnection of my water supply without any warning or notice when I have no money at all, would not occur if I had been given my preferred choice of a conventional meter. I also point to the affidavit of Ms Malekutu which paints an entirely different picture about the reality of Johannesburg Water’s response to complaints.

Singh Paragraph 44

739. I have no personal knowledge of the allegations in this paragraph. None of the applicants have been involved in any acts of vandalism or violence. I admit, however, that people in Phiri were, and still are, very angry about the implementation of pre-paid water meters in our area.

Paragraph 45 to 50

740. I refer to what I have said in response to the research conducted by Johannesburg Water above. Mr Jennings responds to the contents of these paragraphs in his replying affidavit (“JM12”).

RESPONSE TO GERALD DUMAS

Dumas Paragraph 13.1

741. I admit Mr Dumas’ evidence that a large number of the City’s accounts are “government and institutional bodies whose payment record and responsiveness to credit control measures” is poor. I note that while alleged poor responsiveness to credit in Phiri was met with the compulsory installation of PPMs, this has not been the case with government and institutional bodies that have defaulted on payments. I submit that this amounts to unfair discrimination based on socio-economic status, as analogous with race and gender since all of us in Phiri are black and many are female.

Dumas Paragraphs 24-27

742. Mr Dumas provides no evidence that conventional meters could not have affected the same or similar levels of reduction of unaccounted for water losses as the compulsory installation of PPMs has. In paragraphs 40-42 of Mr Macleod’s affidavit, he points to the fact that changing from deemed consumption to conventional metering in eThekwini resulted in “significantly lower wastage of water in the area” (paragraph 42).

Dumas Paragraph 32.1.6

743. I note that, according to Mr Dumas, it will cost the City R4.7 million just to recalibrate the PPMs to facilitate the proposed 10kl amount to registered indigent accountholders between March 2007 and June 2008. This seems like a large expense for an essentially technical adjustment to the PPMs of those registered as indigents (this will be a small percentage of all indigents because many registered indigents do not have PPMs and it will also be a small percentage of PPM owners, because many PPM owners are not registered indigents). It suggests that, contrary to what the City has led me to believe, PPMs are not easily adjusted and that the 6kl cut-off point cannot simply be regarded as a policy issue. Clearly, the FBW allocation (and hence the cut-off point for the exhaustion of the water supply if no further credit is obtained) cannot be simply regarded as a City policy issue. It is also a function of the PPM’s technology, which appears to be complicated and expensive to adjust. This in itself implies that the PPMs were never meant to allow the kind of flexible approach to FBW that DWAF recommended, with 6kl as the minimum baseline but to be increased according to needs and municipality capacity.

RESPONSE TO ANTHONY STILL

Still Paragraph 12.3 and 13

744. I accept Mr Still’s statement that Durban Metropolitan Municipality provided the model for the FBW allocation and “there was no attempt by those from the City of Johannesburg to push this amount [FBW] above 6kl”.

745. I admit that the City “saw 6kl as being something government policy required [it] to do”. I admit that the City did not view “the quantum of 6kl per month” as an “issue that was subjected to some sort of review”. I deny the allegation that, in the period of Mr Still’s experience (January 2001 to April 2004), “the City of Johannesburg has initiated many enquiries into the position of the poor within the City and has also asked Johannesburg Water to get involved in assessments of the sufficiency of 6kl free basic water as well as to explore mechanisms for targeting indigent households with additional water”. I put the respondent to the proof thereof.

746. These statements confirm my assertion that there was no rational basis for the City’s FBW policy or for the quantum of 6kl per household per month. Nor was there any attempt on the part of the City to ensure that the policy was implemented in a locally-relevant manner. As such the policy cannot be said to be reasonable, nor flexible, and it is definitely not appropriate to local conditions.

Still Paragraphs 17-19 and 27.1-27.6

747. I admit that a “large part of the UFW [unaccounted for water] problem in Soweto” related to “corroded pipes”, “chaotic piping”, “fractures” and “innumerable leaks”. I admit that as Water Services Provider, Johannesburg Water should have addressed this problem. I deny that the only or best way to resolve this problem was through the compulsory installation of prepayment meters.

748. I admit that the deemed consumption system was not an appropriate water management system.

749. I admit that the deemed consumption system rendered it difficult to “differentiate between this [“culture of non-payment”] and genuine lack of affordability as reasons for non-payment.

Still Paragraphs 27.1-27.6

750. I admit that “the use of metering in general would greatly assist in regularising the water supply situation”. I deny that the objectives set out in paragraphs 27.1-27.6 cannot be achieved through the installation of conventional meters.

Still Paragraph 25

751. I deny that the results of the Stretford 4 project (“RS26”) were uniformly encouraging, particularly from a water rights point of view. For example, on page 7 the survey reports that “another 25% say the water is free for two to three weeks”. If the households in Stretford 4 are as large and poor as my household, they will struggle to pay for the additional water required for their needs for the one to two weeks after their FBW is exhausted. As I have set out elsewhere [response to Schreiner and Brits - reference to WHO table in which 20lcd carries high health risk??], going without water in a densely populated urban setting involves a high health risk. In addition, on page 11 it is apparent that many respondents thought that prepayment meters were a bad idea and that the reason the majority of these respondents gave for thinking prepayment meters are a bad idea is “it’s too expensive/can’t afford it”.

Still Paragraph 28

752. I deny that prepaid water technology is an accepted principle in people’s lives. Moreover I deny the relevance of the use of prepaid technology for cell phones and electricity to the issue of water, as a vital resource. In any case, Mr Still admits that the introduction of prepayment metering for water “represented a major paradigm shift”. He suggests that this shift was against the backdrop of conventional metering, but we have never had that choice. The shift was, in fact, far more extreme in that our paradigm shift was from deemed consumption to prepayment meters without the choice of a conventional meter. I note Mr Still’s assertion that “from the outset it was agreed that prepayment should not be enforced [sic] on customers until such time as majority acceptance (critical mass) was obtained”.

753. I deny that there was any such “majority acceptance” of prepayment meters in Phiri prior to their installation. I put the respondent to the proof thereof. I further deny that the installation of my prepayment meter was by choice. As I have detailed in my founding affidavit, my decision to accept the installation of the prepayment meter was not out of free choice but rather in order to receive any water at all.

Still Paragraph 29

754. I note that no reports from the “study tour in June 2003 designed to learn from municipalities that had some experience with prepayment” are included and I therefore deny the conclusions reached as unsubstantiated. I put the Respondent to the proof thereof.

Still Paragraph 32

755. I deny that Phiri was chosen as the prototype area for the reasons Mr Still sets out. I reiterate my set in paragraphs 64-74 of my supplementary affidavit to my founding affidavit. In particular I would like to note, in the light of information provided by the City in the various answering affidavits, it is very clear that Phiri has much larger households than the average and for this reason alone, is not representative of Soweto as a whole.

Still Paragraphs 33-34

756. I admit that there was resistance within Phiri to OGA and I have set out in my founding affidavit that I resisted the compulsory installation of prepayment meters. I deny the relevance of the references to the Anti-Privatisation Forum as unsubstantiated.

757. I have no knowledge of a court interdict obtained “on 22 August 2003 under case number 19476/2003 against the Anti-Privatisation Forum”. I put the Respondents to the proof thereof. In any event, I deny the relevance of any such interdict to this application.

Still Paragraph 35

758. I have no knowledge that OGA proceeded with “the support and backing of the elected representatives of the community”. In any event, I deny the relevance of support and backing from the councillors to the issue of the legality of PPMs.

759. I deny that however “expensive” the consultation process, that it was adequate. I have set out my detailed denial of any consultation in my own case, in response to Mr Singh. Mr Still states that “individual consent to the project and to the relevant level of service was required”. He further states that “the bulk infrastructure replacement elements project did not proceed in a particular area until 80 percent of the residents had signed up to it. I deny that I individually consented to the relevant level of service before the old system was decommissioned. Ms Mazibuko has set out in the application how she only ‘accepted’ a PPM in October 2004 following months without water. She, too, did not sign up for a PPM before the project went ahead. I further deny as unsubstantiated the allegation that 80 percent of the residents of Block B Phiri had signed up to PPM installation before the “bulk infrastructure replacements element project” proceeded. I put the Respondents to the proof thereof.

RESPONSE TO NEIL MACLEOD

Macleod Paragraph 6

760. I deny that Mr Macleod can provide an independent perspective on the matters raised in this application. By his own admission, he serves on the Board of Johannesburg Water and he, consequently, cannot be regarded as an objective deponent. His affidavit should, I believe, be treated with scepticism.

Macleod Paragraph 12

761. I admit that the basis of Durban’s free basic water policy was a costing rather than a human needs rationale in that Durban realised that “the amount of money that was collected by the Council for the water supply was in fact equivalent to or less than the costs of administering the collection of the amounts from the relevant communities”. To the extent that the eThekwini model was followed by the City of Johannesburg, I deny that this was a rational basis for a free basic water policy, at least from a Constitutional rights perspective. Further legal argument on this matter will be heard in court.

Macleod Paragraph 16

762. As I have set out in my response to the third respondent, the WHO study cited in this paragraph asserts that at the current FBW level (20lcd), the level of health concern is “high”.

Macleod Paragraph 17-18

763. I deny that FBW is an ideal. South Africa is one of the few countries in the world to have a right to water in the Constitution, so FBW is not only appropriate, but Constitutionally-mandated. The right of everyone in South Africa to access sufficient water is meaningless if water cannot be afforded. Further legal argument on this matter will be heard in court.

Macleod Paragraphs 20-26

764. I admit the UNDP quotes outlining the severity of the world-wide water issue and reporting that people in developing countries are suffering from inadequate quantities of water. Deny that the fact that there are others suffering due to lack of water is a justification for the suffering taking place in Phiri.

765. I admit, that WHO/UNICEF set out a survival standard of 20 liters per person and that factoring “in bathing and laundry needs would raise the personal threshold to about 50 litres a day.” We assert that bathing and laundry requirements are necessary to maintain human dignity and hygiene and therefore must be included in the basic provision of water. The 20 litre minimum quantity is set out by WHO for emergency situations and is stated as only being sustainable for a couple months. This type of “emergency” situation does not apply to the residents of Phiri who are trying to live sustainable domestic lives.

766. I admit national budget allocation for water and sanitation is deemed by the UNDP to be of the highest priority. This is further highlighted in the statement: “There are always competing demands for public expenditure, but the high social and economic returns from investments in water and sanitation suggest that they ought to be a priority not a budgetary afterthought.” (UNDP, p.62). Admit that the UNDP report also claims South Africa spends more on water and sanitation than on its military but deny that this is evidence the budgetary allocation is adequate nor that it is being distributed appropriately by the Department of Water and Forestry.

767. I admit that water must be viewed as a human right and that this right has been entrenched in the South African Bill of Rights.

768. I admit that these are some of the key provisions outlined by the UNDP. I deny that they are being met in South Africa. Add that the key provision left out of this affidavit, but first on the list in the report, is clearly defined medium-term targets to provide 50-60 litres of clean water to all households, along with adequate sanitation for all urban households and 75% of rural households” (p.64, UNDP, 2006) . It is obvious that this is deemed to be an important requirement by the UN and one that South Africa has yet to meet, particularly in Phiri.

769. I note that the report states in the same dialogue box that: “as the reforms have rolled out they have generated political debate over design and implementation. Some argue that the 25-litre for free basic water is too low. Supplies in some areas have been erratic, forcing households to collect water from far away. Moreover government pricing policies have led to supply cutoffs for nonpayment in some areas, raising concerns about affordability. Progress in sanitation has been less impressive than in water.” (p.64, UNDP, 2006) Therefore, the impression that the UN is completely admirable of South Africa’s water policy is misleading. The report never claims that the quantity of water is sufficient nor the forced installation of pre-paid water meters is appropriate.

770. I admit that the City’s policy of providing access to water is more than providing an amount of water for free. Unfortunately for those that cannot afford to pay for water, access to this basic right must be provided free or there will be no access at all.

771. It is also admitted that they provide the connection to the basic level of service for free but deny that this means it is alright to force a certain type of connection on people which they do not want, for example pre-paid meters. This is especially true for those households that already have a preferred means of connection such as those in Phiri.

772. I deny that this quote can be found at p.91 of the UNDP 2006 report.

Macleod Paragraph 28

773. I deny Mr Macleod’s interpretation that “before one can begin to provide more water to those people who already have free basic water at present levels supplied to them, one has to prioritise those people and communities who are at present without water at all”. This reflects an incorrect understanding of the progressive realisation of socio-economic rights within available resources. Further legal argument will be heard on this matter in court.

774. I admit that access “can never simply be understood as an amount that is made available for free”. However, I deny that access can be understood without considerations of affordability at all. The City of Johannesburg’s strategy has been to provide everyone, rich and poor, large household and small, with the same amount of FBW. I deny that a proper understanding of the obligation to progressively realise the right of access to sufficient water is to stall all incremental progress to poor households with water services until the bottom line -access to the basic amount - has been provided to everyone, in the way that Johannesburg has implemented FBW. Further legal argument on this matter will be heard in court.

Macleod Paragraph 29

775. I admit that South Africa is a water scarce country. There are many ways in which water conservation can be affected. As set out in “AM2” of the respondent’s answering affidavit, “a solution to the problem of water scarcity lies in the maintenance, rehabilitation and upgrading of existing water infrastructure to curtail losses in transit and storage”. And another option would be for South Africa to “import products (such as maize and lucerne) that are relatively inefficient users of water, and focuses its exports on products that are more efficient water users”. In terms of the pricing mechanism that Mr Macleod refers to, an effective way of managing demand and securing equitable pricing of water for poor people is to attach a very high price to luxury water consumption. In the proposed exponential tariff curve, there should be a sufficient free basic water amount followed by a concave tariff structure that prices domestic water in a way that penalises luxury domestic consumption.

Macleod Paragraph 32

776. I deny that the fact that the universal provision of 6kl to all households in Johannesburg is “a particular difficulty faced by the City”. Rather the policy of universal provision in Johannesburg is a difficulty created by the City. There is nothing in Mr Macleaod’s affidavit that explains why Johannesburg, with all its resources and capacity, could not target FBW, as eThekwini has done. I deny the allegation that the current FBW allocation of 6kl per household per month must be provided to all households irrespective of need, because of the “difficulties of targeting” specific needs as unsubstantiated. I put the respondent to the proof thereof. I deny that considerations of any burden to the administration of targeting the poor should outweigh the priority of providing sufficient water to needy households. To the extent that the installation of PPMs by Johannesburg are in fact a means to avoid “burdensome” administration, the costs to the poor in terms of health and dignity are too high a price to pay in a democracy committed to socio-economic transformation. To the extent that there are greater administration costs attached to targeting the poor, I deny that such costs could outweigh “the actual benefits flowing to the poor”. Mr Macleod does not convincingly explain why Johannesburg can neither target the poor with its FBW policy nor install conventional meters, as have been done in eThekwini.

Macleod Paragraph 33

777. I deny Mr Macleod’s interpretation of Dr Gleick’s reasons for arguing that Johannesburg should increase the FBW allocation above 6kl in Phiri. Among Dr Gleick’s reasons for this assertion is the large household size in Phiri.

Macleod Paragraphs 36-39

778. These paragraphs are dealt with in the replying affidavit of Patrick Bond.

Macleod Paragraphs 40-43

779. I admit that fixing water pipes and installing conventional meters “significantly” lowers “wastage of water”. I admit that the implementation of conventional meters and billing on the basis of the actual water consumption recorded on the meter is better than being billed for deemed consumption, as long as the FBW amount is sufficient to meet basic needs.

780. I note that 92.3% of households were “happy” their conventional metered service. I, too, would be happy with such a service. Indeed, it is what I am asking for in this application.

Macleod Paragraph 44

781. I note that, unlike Johannesburg, when eThekwini encountered “technical difficulties with prepayment meters” the City stopped the roll out of the PPMs. The reasons set out in the OGA implementation report (at page 439 of the Record) appear to relate to the same problems that, in eThekwini were, in the testimony of Mr Macleod, resolved through the installation of conventional metering. I deny that the problems set out in the OGA implementation report could not have been resolved through the installation of conventional metering in Phiri.

RESPONSE TO MICHAEL RABE

Rabe Paragraph 10

782. For reasons set out elsewhere in my affidavit, I dispute the characterisation of Johannesburg Water’s interventions as an “extensive public consultation process”. As I have stated elsewhere, neither I, nor my neighbours, were afforded the opportunity to meaningfully shape the programme in Phiri, or to influence the decision to install prepaid meters as opposed to conventional meters. At best such ‘consultation’ can be regarded as an exercise of formal ticking boxes, as opposed to allowing people to make genuine decisions about service delivery.

Rabe Paragraph 13

783. I dispute Mr Rabe’s assertion that “customers came to realise and understand that the project held out more advantages than disadvantages”. Like me, many of my neighbours continue to view the prepaid water meter as a pernicious attempt to restrict our consumption of water to below a sufficient supply for basic needs as well as foreclosing the possibility of making representation to the service provider before our water is disconnected, as is afforded to people with conventional meters.

784. I also dispute, as misleading, any suggestion that it is only through prepayment meters that residents can receive FBW. Residents in richer suburbs of Johannesburg have been receiving FBW much earlier than us, since 2001, through conventional meters. As I have set out elsewhere, when the deemed consumption system was replaced, it should have been replaced with a choice of conventional meters, which would have the effect of reducing unaccounted for water (as explained in Mr Macleod’s affidavit) as well as providing FBW with procedural protections.

Rabe Paragraph 14

785. I deny that OGA and prepayment meters were the only way to address unaccounted for water. Mr Macleod’s affidavit demonstrates that e-Thekwini municipality had profound success at reducing unaccounted for water through the installation of conventional meters, without one prepayment meter being installed.

Rabe Paragraphs 15-18

786. I have no knowledge of the Mogale City intervention and am therefore unable to comment on whether the decision to “install prepayment water meters” there “was based on social, political and community issues rather than technical issues”. Without further evidence of genuine community consultation and choices offered between prepayment meters and conventional meters, I deny the relevance of these assertions to the current application.

Rabe Paragraph 19.1.2

787. I deny the assertion that indigent consumers “gain the most from prepayment”. In fact, indigent consumers, who are highly vulnerable to the price of water and are often unable to pay anything above the FBW allocation, precisely require the most protection from disconnection of their water supply, as afforded by conventional meters, which provide the FBW allocation but also many procedural connections preceding disconnection of the water supply.

Rabe Paragraph 19.1.3

788. Mr Rabe asserts that “except for new connections no existing consumer has been forced to go onto prepayment”. In Phiri, this was not the case. Our initial choice, as existing consumers, was prepayment water meter or no water connection at all, as is described in detail in Lindiwe Mazibuko’s founding affidavit in this application. It was only in subsequent roll-out that Johannesburg Water began to offer standpipes as an alternative to prepayment meters, but we were never offered a choice between prepayment meters and conventional meters.

Rabe Paragraph 19.1.4

789. Mr Rabe states that “prepayment was strongly marketed at defaulters and ‘water wasters’”. Yet, it is impossible to ascertain in a deemed consumption system with acknowledged corroded infrastructure, whether people are genuinely wasting water or if it is leaking out of corroded pipes. Moreover, as Mr Dumas acknowledged in paragraph 13.1 of his affidavit, the biggest defaulters are big institutions and government, yet prepayment meters are not “marketed” to such important institutions. This reinforces our contention that prepayment meters are a punitive measure against the poor.

Rabe Paragraph 19.6

790. I deny that there is any logic to Mr Rabe’s statement that improvement in payment levels is a meaningful index of “acceptance” of prepayment water meters.

Rabe Paragraphs 19.4-19.16

791. It is instructive to note that social costs for poor households of the “drop in consumption” (paragraph 19.6) or the “savings in water” of consumers with prepayment meters is not a factor that is explored. As I have set out elsewhere in this affidavit, consumption of water at less than 25lcd carries a high risk in terms of health and dignity. It is clear that the City of Mogale did not consider the negative effects to health and to dignity in their considerations. Rather they focused on short-term financial and water-savings gains only.

Rabe Paragraphs 20.1-20.2

792. I deny the claim that prepayment meter technology empowers the consumer. I admit that the introduction of such technology transforms the relationship between the end-user and the service provider. However, in my experience this is to the detriment of the end-user, who becomes substantively disempowered. Rather than facilitating a broader intimacy and accountability in the relationship between service provider and consumer/customer in the form of “customer service”, in foreclosing the possibility of end-users making representation to the service provider before being disconnected in the case of financial difficulty, this relationship is governed by a technocratic, automatic, disconnection that is primarily mediated by the meter itself.

Rabe Paragraph 20.12

793. I deny that limiting poor peoples’ consumption of water to below a minimum standard is necessary to maintain South Africa’s water reserves. From a developmental, as well as human rights perspective, it would be better to facilitate poor peoples’ access to a sufficient amount of water for free and to squeeze demand through raising water tariffs at the top end of consumption. That is to say, water demand can be curbed to sustainable levels by increasing tariffs in rich areas/luxury domestic consumption, as well as to enterprises like golf courses that utilise vast amounts of water without contributing a commensurate social or economic value to the country.

Rabe Paragraph 22.1

794. I note that Mr Rabe admits that prepayment meter technology is “not yet a perfected technology”. Similar admissions have been made by Mr Singh in the case of the kind of prepayment meters rolled out in Phiri. I suggest that the rolling out of substandard technology in poor communities where people are highly vulnerable to external shocks and least able to cope with problems in their water supply is unacceptable in a democratic society. The fact that, in Phiri, such installation was without genuine consultation and without real choices renders the implementation even more unacceptable.

RESPONSE TO JOHANNESBURG CITY COUNCILLORS

ISABEL HLOMENDLINI, ENOCH MTSHALI, BASIMANE RAMADIRO, JOHANNES NEMAUNGANI, AND SIPIWE ZULU

795. I note that the above mentioned deponents are councillors of wards other than Phiri. As such, their testimony is not relevant to the situation in Phiri.

RESPONSE TO VUSI EZEKIAL MCHUNU

Mchunu Paragraphs 1-4

796. I note the allegations in these paragraphs.

Mchunu Paragraph 5

797. Mr Mchunu alleges that the Phiri community is now happy with prepayment meters, after initial resistance. Mr Mchunu’s allegation is vague and unsubstantiated and constitutes hearsay. In any event, it is unclear what proportion of members of the community has indicated that they are happy with prepayment meters. In fact, the letter of Hellen Neni (LM35), which is supported by 125 signatories, directly contradicts his claim. Furthermore, I am not happy with my prepayment meter and nor are the other applicants happy with theirs.

Mchunu Paragraphs 6-7

798. I deny Mr Mcunu’s claim that the whole of Phiri has prepayment meters installed in their households. By Johannesburg Water’s own admission and with reference to other evidence in this affidavit, there are households in Phiri who do not have prepayment meters. Mr Mchunu’s ignorance of this basic fact raises questions as to the reliability of much of his other evidence.

Mchunu Paragraph 8

799. Mr Mchunu claims that no Phiri resident has ever complained to him that his or her FBW allowance is too small or that he or she does not have enough money to pay for additional water. I have no knowledge whether residents have complained to Mr Mchunu or not about the FBW allowance. However, as Hellen Neni’s letter (annexure LM35) to Amos Masondo indicates, many residents of Phiri are dissatisfied with prepayment meters.

800. I deny that the 6kl allowance is adequate for the needs of households of eight or more people. As indicated elsewhere in this affidavit, it is adequate only for households of four people. In Phiri many households, such as my own, are much larger than this, and it is my experience and that of the other applicants that the 6kl is too little to meet our basic needs. The City’s own awareness of this problem has led to a recent policy decision to increase the allowance from 6lcd to 10kl a month.

Mchunu Paragraph 9

801. I again deny Mr Mchunu’s claim that the residents of Phiri are very happy that they have water meters in their homes as vague and unsubstantiated. I reiterate what I said above that Mr Mchunu is not in a position to speak for all Phiri residents (see annexure LM 35 mentioned above). I further reiterate that I am neither happy with the system of prepayment meters nor with the FBW of 6kl as this is inadequate to meet my basic needs.

Mchunu Paragraph 11

802. Mr Mchunu claims that residents of Phiri have benefited from prepayment meters. Again he fails to adduce evidence indicating what percentage of Phiri residents claims this. As I have indicated elsewhere in my affidavit, I have not benefited from the installation of a pre payment meter and nor have the other applicants.

RESPONSE TO PETRUS KUNENE

Kunene Paragraphs 1-5

803. I note the content of these paragraphs.

Kunene Paragraphs 6-7

804. I have no knowledge of Mr Kunene’s allegation that the ward councillors and members of the ward committee held public meetings twice a month in 2002 to inform the community about the benefits of the project. I was not aware or informed of any meetings of this nature, and the first I heard of the prepayment meters was when employees of Johannesburg water arrived at my house to disconnect the water supply.

Kunene Paragraph 10

805. I deny Mr Kunene’s allegation that the residents of Phiri are happy with the new system and their meters in so far as it implies that all residents are happy with the system. Mr Kunene’s allegation is not substantiated and constitutes hearsay. Moreover, Mr Kunene provides no evidence of the proportion of the community who support the project and are happy with prepayment meters as alleged by him. It is my experience that there are many residents in Phiri who do not support the project and who are unhappy with these meters, as indicated by Hellen Neni’s letter (annexure LM35). As I have attested to elsewhere in this affidavit, I am not happy with my prepayment meter and have never supported the project. The same may be said for the other applicants.

Kunene Paragraph 11

806. I have no knowledge whether any residents approached Mr Kunene to complain that the 6kl FBW per month was insufficient. However, I reiterate what I have stated elsewhere that I find that the 6kl FBW is inadequate to meet my needs.

Kunene Paragraph 13

807. Mr Kunene alleges that most people are not paying anything for water each month. However, he provides no evidence for his claim. Furthermore, as he is no longer a councillor I question his ability to speak with any authority on this issue.

808. I admit Mr Kunene’s statement that those residents who are spending more than R70 a month on water are those who have tenants on their stands. As I have attested to elsewhere in this affidavit, the vast majority of households in Phiri have tenants on their stands. Despite this, no separate FBW allocation is made for these tenants and the FBW has to cover the main household and all tenants. This underlines the significant problem with basing the FBW allocation on a basis of one household per stand.

RESPONSE TO PHIRI RESIDENTS

SIFISO JOSEPH GUMBI, BRUCE LEBETHE, KHANYISILE RACHEL MDLULI, FELICIA MABUZA, LENDA MATSHIDISO NYAKANE, AND NZIMA HEAVY MLANGENI.

809. I note that in their affidavits the above deponents state that they are either employees of, or contracted to work for, the Second Respondent, Johannesburg Water. I respectfully submit that the fact that they depend on the Second Respondent for their livelihood affects the independence and credibility of their testimony, and therefore I have not responded to their affidavits. Argument on this point will be presented at the hearing

810. I note further that two of the above deponents, Bruce Lebethe and Lenda Matshidiso Nyakane, are not Phiri residents but are residents of Orange Farm. As they are unable to speak to the situation in Phiri, their evidence is irrelevant.

RESPONSE TO SELLO PATRICK MOPAI

811. The above deponent was previously employed by the Second Respondent, Johannesburg Water, as a community facilitator and is currently employed by Lesira Trading, one of the suppliers that provides water meters to the Second Respondent. I respectfully submit that this fact affects the independence and credibility of his testimony and therefore I have not responded to his affidavit. Argument on this issue will be presented at the hearing.

Response to Thabang Makhetha

812. The above deponent is a vendor for the Second Respondent, and sells water to customers on behalf of the Respondent for a fee of 10% of the cost of the water purchased. I respectfully submit that this fact affects the independence and credibility of his testimony, and I therefore have not responded to his affidavit. Argument on this issue will be presented at the hearing.

RESPONSE TO CYNTHIA BUTHELEZI

Buthelezi Paragraphs 1-6

813. I note the contents of these paragraphs.

Buthelezi Paragraphs 8-9

814. The applicant claims to live in a consumer unit of eight persons and that the 6kl per month FBW is sufficient for the month, most months.

814.1. According to the testimony of the expert and my own experience, 6kl per month is inadequate to provide water for bathing, washing dishes, or doing laundry, for a household of eight persons, but is more suited to a household of four persons. This is reflected in the water measures taken by Ms Buthelezi to survive on the 6kl a month FBW allowance. These measures constitute a survival strategy adopted by many Phiri residents of households of her size who are forced to reduce their water consumption to fit within the FBW allowance, even if this means compromising their basic needs and health.

814.2. The WHO guidance introduced by the Third Respondent indicates that this low level of clean water consumption carries a high health risk.

RESPONSE TO PATRICIA NGCOBO

Ngcobo Paragraphs 1-2

815. I note the contents of these paragraphs.

Ngcobo Paragraph 3

816. I note that Ms Ngcobo testifies that her household contains 13 people. I submit that this large household size is typical of Phiri households, and reflects the irrationality of the eight-person household assumption on which the 6kl FBW allowance is based.

Ngcobo Paragraphs 4-7

817. I note that Ms Ngcobo does not state her household’s monthly income, although one adult is employed and three adults are self-employed. She does state that she earns R4000 a month from her child-care business. Accordingly, it is clear that Ms Ngcobo’s household is not among those very poor households that the FBW allowance was primarily intended to benefit.

818. One of the major problems with prepayment meters, that is, the inability of very poor households to afford additional water over the 6kl FBW allowance, does not impact on this household. They fortunately have the income required to purchase the additional water necessary to meet their basic needs of 53cld.

Ngcobo Paragraphs 7 and 12

819. I note that Ms Ngcobo testifies that the FBW allowance lasts approximately seven days. With thirteen people in the household, this indicates an average water usage of 66lcd (derived from 6000 litres divided by 13 persons divided by 7 days). If the deponent’s three young day-care charges are considered to be residents of the household as well, the average use figure would b 53lcd (derived from 6000 litres divided by 16 persons divided by 7 days). I submit that this is evidence of the reasonability of a 50lcd figure to provide for basic water needs, in combination with water-saving behaviour.

Ncobo Paragraph 13

820. I note that the deponent testifies that her family members ‘do not always flush the toilet’ and that she washes herself in a dish bowl. Despite these water saving measures, Ms Ngcobo testifies that the FBW allowance does not even come close to meeting her household’s water needs.

RESPONSE TO SIZAKELE POTRINA MSWANE

Mswane Paragraph 1-2

821. I note the contents of these paragraphs

Mswane Paragraph 3

822. I note that Ms Mswane testifies that her household contains 11 persons. I submit that this large household size is typical of Phiri households, and, as I have mentioned above, reflects the irrationality of the eight-person household assumption on which the 6kl is based.

Mswane Paragraph 4

823. I note that Ms Ngcobo’s household contains two persons who are HIV positive and who are being treated at Helen Joseph hospital. I submit that this health profile is typical of many households in the Phiri community, and raises particular concerns about the extreme water rationing occurring since the implementation of PPMs.

Mswane Paragraph 9

824. I note that Ms Ngcobo testifies that her family stretches the 6kl per month water allowance to last the first 23 days of each month. This indicates an average water consumption of approximately 24lcd (derived from 6000 litres, divided by 11 persons, divided by 23 days).

824.1. This extremely low level of water usage is considered by the WHO to carry a high degree of health risk.

824.2. I submit that this household’s strategy of reducing water consumption to unhealthily low levels in order to conserve money is typical of many Phiri households, and is the case in my household.

THIRD RESPONDENT’S ANSWERING AFFIDAVITS RESPONSE TO BARBARA GAY SCHREINER

825. Before dealing with the specific allegations contained in the affidavit of Barbara Gay Schreiner, which is the third respondent’s main answering affidavit, I will deal with some of the general issues raised by the third respondent. The minister herself has not filed any affidavits in answer to our case. Only DWAF has filed answering affidavits.

826. Ms Schreiner’s affidavit contains much legal argument. I do not respond to these arguments in detail, but am advised that they will be address at the hearing of this matter.

DWAF’S FUNDAMENTAL MISCONCEPTION OF THE CHALLENGE

827. I point out at the outset that DWAF has in its answer fundamentally misunderstood the nature of our application.

828. The only relief in which the third respondent has an interest is that set out in prayer 6(a) and 7 of the applicants’ notice of motion, namely that 828.1. the proper interpretation of Regulation 3(b) is that it sets the minimum standard for basic water supply at the highest of 25 litres per person per day, or 6 kilolitres per household per month; and 828.2. in the alternative, i.e. if it cannot be interpreted in this way, that it is unconstitutional and invalid. 829. The third respondent has made out no case why the Regulation must not be interpreted to mean the highest of the two amounts.

830. It is our submission that any other interpretation would be indefensible because it automatically discriminates unfairly against large poor households.

831. For this reason, we do not think that the national policy complies with the Constitution. Although we are not in a position to know precisely what “sufficient” water means for every different community in South Africa, or what would be a reasonable measure to make this amount available to everybody, we submit that an absolute minimum amount of 50 litres per person per day should be the starting point for national policy and for every municipality. This starting point, or basic minimum amount of FBW, should then be interrogated by each municipality, according to its socio-economic and financial profile, in order to arrive at locally-appropriate FBW policy. What we do know, in the context of the City of Johannesburg, is that, considering the number of people in our households, the nature of life in Phiri, the unemployment rate, the incidence of HIV/AIDS, and all the other facts set out in Dr Gleick’s affidavit, that the basic minimum in the Regulation is not “sufficient” for the residents of Phiri, whether at the 25 litres per person per day or the 6 kilolitre per household per month interpretation. The City of Johannesburg, which is one of the country’s biggest and richest municipalities, has provided no evidence that it is not able to afford an increased, more adequate, FBW allocation.

832. The applicants ask that the first and second respondents, who have the discretion and the constitutional duty to determine their own free basic water policy, to give us an amount that would comply with the Constitution. We have determined, with the assistance of Dr Gleick, that a supply of at least 50 litres per person per day to the people of Phiri would comply with the Constitution. As explained in our response to the first and second respondents’ answering affidavit, they have not made out a case why they cannot provide us with this amount.

833. The third respondent does not say that the City of Johannesburg and Johannesburg Water cannot provide an amount above the basic minimum to the people of Phiri. It would be surprising indeed if it had made such a statement, considering that it is DWAF’s policy that municipalities who can, ought to provide more than the minimum.

834. In so far as this application is concerned, the relevant issues raised in Ms Schreiner’s affidavit are essentially the following five, two of which are already addressed in our response to the first and second respondents’ answering affidavit:

834.1. The preliminary issue of non-joinder; 834.2. The distinction between free basic water and the minimum standard of basic water; 834.3. The fact that policy is not binding; 834.4. The feasibility of providing a greater national subsidy to local government; and 834.5. The interpretation of the Regulation contended for by DWAF. THE ARGUMENT ABOUT NON-JOINDER

835. In paragraph 5, Ms Schreiner raises the non-joinder of 835.1. the National Treasury; 835.2. All water services authorities; 835.3. All residents of Phiri. The National Treasury

836. The National Treasury does not have a material or substantial interest in the orders which the applicants seek. It is accordingly not a necessary party.

837. The first and second respondents have not made out the case that they cannot afford to provide the relief we seek, and the first respondent has not suggested that it would need an increase in is equitable share to provide the relief sought. It has not even shown that it uses any of its current equitable share towards providing free basic water or that it wouldn’t be sufficient to provide a higher level of free basic water.

838. I deny that in order to provide the relief we seek, the first and second respondents would necessarily have the need to resort to the equitable share. In fact, as is set out in the affidavit of Paul Berkowitz (“JM14”), the relief we seek can be met entirely through water tariffs.

839. The National Treasury is accordingly not a necessary party to the litigation, and there is nothing on the papers which suggest that the order we seek cannot be implemented without prejudicing the National Treasury.

840. Rule 10A of the Rules of this Court requires only the joinder of the member of the executive charged with the administration of the law in question. The applicants have not based any part of our case on the Division of Revenue Act.

841. The applicants would not oppose an application to intervene brought by the National Treasury, but do not consider its joinder necessary.

All water services authorities

. 842. There is no need to join all the water services authorities listed in BGS2. The applicants merely ask the court to determine the proper interpretation of the regulation, and, if our interpretation cannot be sustained, to declare the regulation unconstitutional. The other relief we seek only has implications for the first and second respondents.

843. Where the court pronounces on the proper interpretation of a statutory provision, not every person who may in future rely on that statute is required to be joined. This would render any constitutional litigation impossibly cumbersome.

844. Instead, the very purpose of Rule 10A is to give the member of the executive tasked with the implementation of the legislation under review the opportunity to put before the Court all the evidence relevant to the enquiry. All the residents of Phiri

845. To suggest that the applicants ought to have joined every resident of Phiri, and to argue that the failure to do so amounts to a “material non-joinder” is mischievous in the extreme. The joinder of each resident would clearly be untenable in practice, and wrong in principle. Ms Schreiner’s allegation in this regard is either deliberately obstructionist or misunderstands the nature of class actions under the Constitution.

846. Even requiring evidence that “all residents of Phiri associate themselves with this application” as suggested in paragraph 5 and 147 of Ms Schreiner’s affidavit would defeat the broader standing provided for in section 38 of the Constitution.

847. I have dealt with this issue in response to the first and second respondents’ arguments about standing.

THE ARGUMENT THAT FREE BASIC WATER AND BASIC MINIMUM STANDARD OF WATER SUPPLY MUST BE DISTINGUISHED

848. The main argument advanced in Ms Schreiner’s affidavit can be found at paragraphs 22 to 24, 26 to 27, 96, 99, 149, 156.2, 167.3, 172.1. 173.1, 175.1, 176.1. She says that the free basic water policy (contained in “non-binding” policy) must be distinguished from the minimum water standards in the (legally binding) National Standards Regulation. According to her, the fact that the Water Services Act provides for a right of access to basic minimum water supply as quantified in the National Standards Regulation does not mean that this basic minimum should be free.

849. This same argument is made by the first and second respondents. I have explained in response to their answer that the Water Services Act and the Regulations must be understood in light of section 27 of the Constitution which provides for the right of access to sufficient water. This means at least that, whatever the minimum, every person must have access to this minimum - those who can pay for it, and those who cannot. “Access” to water means not only that water must be made physically available, but also that it must be affordable to everybody. Everybody must be able to acquire the basic minimum standard water supply even if they have no money with which to purchase it.

850. This issue will be addressed further in legal argument. I deny, however, that Ms Schreiner’s allegations in this regard are correct.

THE ARGUMENT THAT POLICY IS NOT BINDING

851. In arguing that there should be a distinction between free basic water and the basic minimum standard of water supply, Ms Schreiner also makes the point, a number of times, that the duty to provide free basic water is only contained in policy documents, and not in statutes. I refer in this regard to paragraphs 25, 105, 149.5, 150.1, 155.1, 157.1 and 158.2.

852. The same point is also made by the first and second respondents. I have explained in the response to their affidavit that the enquiry whether or not the first and second respondents’ policy complies with the constitutional right of access to water will include the question whether it amounts to “a reasonable measure” taken to achieve the progressive realisation of the right. Whether or not the first and second respondents comply with the national policies regarding free basic water will, among other things, determine whether their measures have been reasonable. Whether or not the City’s approach to free basic water is reasonable is accordingly a constitutional enquiry, to be determined with reference to the national policies. For the Department to portray its own national policies as carrying no legal force is accordingly not only a surprising stance for government to take on oath, but is also wrong.

THE ARGUMENT ABOUT THE FEASIBILITY OF INCREASING THE SUBSIDY

853. Ms Schreiner explains in paragraph 128 to 131 the existence of national subsidies “intended to support the operating costs of basic water services”. She submits in paragraph 159.1, without reference to any evidence in this regard, that it is “the position of national government” that it is not feasible for government to increase the subsidy provided to all water services authorities so that they can, in turn, provide an increased amount of 50 litres free basic water to every person.

854. I deny that this statement shows that national government cannot, in fact, afford such an increase. More importantly, in this application we are asking this court to order the City of Johannesburg and Johannesburg Water to provide the people of Phiri with a minimum amount of 50 litres per person per day for free. There is no suggestion in the first and second respondents’ papers that they would require an increase in their subsidy in order to comply with such an order. In fact, there is no evidence that any of the City’s equitable share is spent on free basic water. I have also referred to the affidavit of Mr Berkowitz which shows that the respondents could meet the cost of such an increase through tariffs, without resorting to the national subsidy to which Ms Schreiner refers.

855. The feasibility of an increase in the national subsidies is accordingly a non-issue in this application.

856. We do, of course, ask that the national regulation be interpreted to mean “the higher of” 25 litres per person per day or 60 kilolitres per household. There is, however, nothing in Ms Schreiner’s affidavit to suggest that this would necessitate an increase in the national subsidies provided to local governments.

THE ARGUMENT ABOUT INTERPRETATION OF THE REGULATION

857. Despite this being the heart of our case against the third respondent, Ms Schreiner says very little about the proper interpretation of the Regulation and whether it refers to the “higher” of 6 kilolitres per household per month or 25 litres per person per day. She also says nothing about why, if it does not mean the higher of the two quantities, the Regulation is not unconstitutional.

858. Ms Schreiner simply states at paragraph 28 that DWAF submits that there is “no basis” to adopt the interpretation contended for by the applicants. She says at paragraph 57 that the regulation provides for “either” one or the other, without expressing a view on whether it is required to be the higher of the two amounts.

859. In paragraph 122 and 156.3 Ms Schreiner says that DWAF determined 25 litres per person per day as the minimum supply for water supply by way of standpipe, while 6 kilolitres per household per month would be provided for yard or household connections.

860. The Regulation does not make this distinction, and there is nothing in the wording of the Regulation that suggests that such a distinction ought to be made. In fact, the Regulation refers to both quantities having to be provided “within 200 metres of a household”, which suggests that neither quantity is specifically related to either a household or a standpipe point.

861. I accordingly submit that this interpretation contended for by the third respondent should be rejected.

862. In any event, even if interpreted as suggested on the basis of this distinction - the per person allocation being applicable to household connections and the per household allocation being applicable to standpipes - this would not save the Regulation from unconstitutionality. Such an interpretation would still result in members of households with more than 8 people with household or yard connections being granted less free water than what is considered the basic minimum standard water supply, namely 25 litres per person per day. Interpreting the Regulation in this matter would result in an irrational and arbitrary distinction between people on the basis of their household size, which in turn is unfairly discriminatory as is set out in our founding affidavit.

863. The only attempt to justify this distinction is found in paragraph 123 to 124 of Ms Schreiner’s affidavit in which she argues that the distinction is made because it is “more practical” for water service institutions to count the number of households to be served rather than the actual number of individuals. In addition, she says, it takes into account the fact that individuals migrate from one premises to another and is therefore more certain.

864. This does not justify the limitation on the right of those who are part of bigger households.

865. In any event, this alleged “impracticality” is contradicted by Ms Schreiner’s own suggestion that the 25 litres per person measure is applicable to standpipes. If a per person allocation is administratively impractical to apply to a household connection, how much more “impractical” would it be to apply to standpipe connection? A standpipe connection serves a group of people the size of which is equally difficult to determine, and which also fluctuates.

866. The interpretation suggested by the third respondents is accordingly unsustainable, and in any event unconstitutional.

RESPONSE TO SPECIFIC PARAGRAPHS IN MS SCHREINER’S AFFIDAVIT

Schreiner Paragraph 1 to 4

867. I admit the contents of these paragraphs.

Schreiner Paragraph 5

868. I deny that there has been a material non-joinder, or that any of the parties listed are necessary parties to this dispute. I have explained above why this submission cannot be sustained.

Schreiner Paragraph 6 to 10

869. I note the structure of the affidavit and the approach of the third respondent’s approach to the application.

Schreiner Paragraph 11 to 12

870. I note Ms Schreiner’s contention that “DWAF is acutely conscious of the plight of poor people in South Africa who cannot afford to pay for water”. It cannot be understood why DWAF then opposes the efforts of one such community of poor people in Phiri, Soweto, who cannot afford to pay for water to get our local government to give us a sufficient amount of water for free.

871. I note that national government is “committed to giving consideration” to increase the national subsidy over time to “make it feasible” to increase the free basic water amount to poor households. I deny that this is the relief that the applicants are seeking, or that it would be necessary to increase the national subsidy - either to the City of Johannesburg specifically, or to water services authority generally - for the order we seek to be implemented. I explain this above.

Schreiner Paragraph 13

872. I admit that free basic water is one element of a broader approach to alleviating poverty. I deny, however, that these other elements of the “social wage” eliminate the need for the first and second respondents to provide access to sufficient water to poor households who cannot afford to pay for it.

Schreiner Paragraph 14

873. I admit the contents of this paragraph.

Schreiner Paragraph 15

874. I admit that rural populations lag behind in water delivery and need to be serviced. I deny that this means that the specific needs of the urban poor should not also be addressed. It also does not mean that metropolitan municipalities like ours must not fulfil its constitutional duty towards urban poor people like us.

875. The fact that there is such a disparity between rural and urban people is just one of the reasons why municipalities like the first respondent has the obligation to provide free basic water on a localised level, with reference to local needs.

Schreiner Paragraph 16

876. I admit that very few countries follow South Africa’s policy of a zero initial tariff. What local governments do within this policy must, however, be measured against our own Constitution, and those local governments’ obligations under the Constitution.

877. The amount of water provided at the initial zero tariff must accordingly be “sufficient” to meet the basic water needs of everybody - including those who live in medium and large households, under the peculiar conditions that are present in Phiri.

878. Since that the average Phiri household consists., on our submission, of 16 persons, the free water allowance of 200 litres per household per day (6 kilolitres per household per month) means that the average household receives 12.5 litres free basic water per person per day; approximately half the amount of daily water considered necessary for survival. Even on the City’s own admission that there are 10 people living in the average household, the third respondent must acknowledge that this would leave each person with only 20 litres per person per day - also less than what DWAF itself considers the basic minimum water needed for survival. It is accordingly extraordinary that DWAF, which considers itself to be “a world leader:” on free water opposes an interpretation of its own regulation which would ensure no more than the basic minimum to each person.

Schreiner Paragraph 17 to 20

879. I admit the contents of these paragraphs, except to deny that water services authorities have a direct or material interest in this application.

Schreiner Paragraph 21

880. I admit that one possible source of funding for an increased free basic water allowance would be an increase in the annual equitable share allotment.

881. I deny that this is the only source of funding available, as water services authorities can realise substantial internal cost savings by targeting the free basic water allowance only to poor households, by right-sizing the free basic water allowance to reflect household size, and/or by cross-subsidising the FBW allowance by increasing rates charged to wealthy water users.

882. In relation to the City and Johannesburg Water specifically, the City has not claimed that it needs an increase in the national subsidy in order to implement the order we seek. In fact it appears from the affidavit of Mr Berkowitz that such an increase would not be necessary. I accordingly deny the relevance of this paragraph, or that the application would have any implications for the national fiscus.

Schreiner Paragraph 22 to 24

883. I have explained above why the respondents are wrong in trying to distinguish free basic water and the basic minimum standard of water supply when it comes to people like us who cannot afford to pay for basic water.

884. I refer to the exact formulation of the National Standards Regulation in our founding affidavit.

885. The National Standards Regulations defined a minimum national standard for basic water services. Whether or not the minimum amount in the Regulations is constitutionally sufficient for the people of Phiri must take into account specific local circumstances.

Schreiner Paragraph 25

886. I have dealt above with the respondents’ suggestion that the national free basic water policy has no legal force because it is not in legislation.

887. Section 5 of the Standards for Water Services Tariffs does not simply “empower” water services authorities to provide free water. It requires water services authorities to provide free water in certain circumstances. Section 5 provides that “A tariff set by a water services institution for the supply of water to a household through a communal water services work or through a consumer installation designed to provide a controlled volume of water must be set at the lowest amount, including a zero amount, required to ensure the viability and sustainability of the water supply services”. 888. The Third Respondent’s consistently downplays the legal responsibilities of water services authorities to provide free water to poor households. Such an approach undermines the realisation of the right of all persons to access to sufficient water.

Schreiner Paragraph 26

889. I deny that the applicants misconstrue the National Standards Regulation, and have explained why the distinction made by the respondents is between free basic water and a basic minimum water supply is wrong.

Schreiner Paragraph 27

890. I deny that the declaratory relief sought by paragraphs 6 and 7 of our Notice of Motion is misdirected. This declaratory relief is simply directed at the interpretation of the basic minimum amount as being the highest of the two quoted amounts, and the unconstitutionality of the regulation if it cannot be interpreted in this way.

Schreiner Paragraph 28

891. I note that the third respondent contends that there is “no basis” to adopt the interpretation of the Regulation which the applicants contend for. It has not, however, provided any basis on which to refute the contention that it would be irrational and discriminatory to provide more water to individuals who happen to live in smaller households.

892. The applicants do not contend that the National Standards Regulation is unconstitutional, if understood as stated above. We contend the Regulation is unconstitutional only if it allows the provision of the lower of the two amounts.

893. The respondents’ proposed interpretation, namely that the National Standards permits a household connection to supply less than 25 litres per person per day to households that happen to have more than nine or more persons, is unsupported, unreasonable, and inconsistent with the constitutional obligation to ensure sufficient water access.

Schreiner Paragraph 29 to 33

894. I admit the contents of these paragraphs to the extent that it correctly reflects the relevant constitutional provisions, and the distinction between the approach in the interim Constitution and the Constitution.

895. What “sustainability” means in this regard is a matter for legal argument. I submit that the constitutional requirement of “sustainable” service delivery means that the State must deliver services in a way that is consistently accessible to beneficiaries. In the context of water, this means that tariff structures must be affordable to all households. As the Strategic Framework for Water Services states in its Preface: “Sustainability. Access to a tap and toilet is of no use if the water stops flowing or the toilet no longer works. Sustainability requires that services are affordable.”

896. Apart from sustainability, the Constitution also sets out a number of other criteria which should characterise local service delivery that the Third Respondent neglects to mention. These include the constitutional demands of equity, participation, reasonability, and procedural fairness.

Schreiner Paragraph 34

897. I admit that the Water Services Act is intended to implement the right of access to sufficient water. I deny that the regulations passed by the Third Respondent, as interpreted by the respondents, give effect to the right.

Schreiner Paragraph 35

898. I admit that the National Standards Regulations establish only a minimum standard for basic water supply services and note that it is the intention of government to progressively move people up the water services ladder.

899. This commitment to move people up the “water ladder”, however, deals primarily with the type of access point (first a communal tap, then a yard tap, then a household tap), and not with the progressive improvement in the volume of water to which people have access.

900. The lack of progressive improvement in the volume of water supply contradicts international best practice, as expressed by the 2003 World Health Organization (WHO) guidance cited by the third respondent at paragraphs 137-140. I attach the full report here as “JM15”.

901. The Executive Summary to the 2003 WHO guidance makes clear that increasing the volume of water available to households is crucial to public health gains; that 25 litres per person per day is insufficient to meet basic human needs such as bathing, laundry, and gardening and carries a “high” degree of health risk; and that governments should invest resources in increasing the volume of water available to at least 50 litres per person per day even where universal access has not yet been achieved.

Schreiner Paragraph 36 to 38

902. I admit the contents of these paragraphs to the extent that the provisions of the National Water Act are reproduced correctly.

903. Section 2 of the National Water Act defines “promoting the efficient, sustainable, and beneficial use of water in the public interest” as one among several aims of water resource management.

904. Three other goals identified in the Act are: “meeting the basic human needs of present and future generations”, “promoting equitable access to water” and “redressing the results of past racial and gender discrimination.”

Schreiner Paragraph 39 to 43

905. I admit the contents of these paragraphs to the extent that the relevant statutory provisions are reproduced correctly.

906. I admit that the Water Services Act establishes the duty of water services institutions (WSIs) and water service authorities (WSAs) to provide for measures to realise the right of access to basic water supply and basic sanitation.

907. I point out that in addition to the duties listed here, chapter VIII of the Act charges DWAF with the responsibility to monitor water services institutions to ensure compliance with national standards and policy statements. That Chapter also empowers DWAF to intervene where water service authorities fail to meet these standards and policies.

908. We submit that DWAF has neglected its monitoring and intervention responsibilities, with grave consequences for poor people’s constitutional right of access to sufficient water.

Schreiner Paragraph 43

909. I admit the contents of this paragraph and note that the applicants seek, through this application, to enforce the section 11(1) duty on the first respondent as water services authority.

Schreiner Paragraph 44 to 52

910. I admit the contents of these paragraphs to the extent that the relevant provisions are correctly reproduced.

Schreiner Paragraph 53

911. I admit that minimum standards are legally binding on each water services authority. I deny that it “operational efficiency and economic viability” are conclusive to the determination of the national standards established by the minister.

912. In fact, section 9(3) of the Water Services Act specifies two other crucial considerations which should inform national standards, namely “the need for everyone to have a reasonable quality of life” and “the need for equitable access to water services.”

913. National standards must also take into consideration the constitutional right of access to sufficient water.

Schreiner Paragraph 54 to 55

914. I have no knowledge of the “objectives” or the “key principles” set out in this paragraph. They do not appear from the Water Services Act or the Regulations.

915. I note that the third respondent also emphasises the need for municipalities to provide services appropriate for local circumstances.

Schreiner Paragraph 56

916. The National Standards Regulations provides for “minimum standard” for “basic water supply services.” The exact wording is referred to in our founding affidavit.

Schreiner Paragraph 57

917. It is admitted that the regulation provides for “25 litres per person per day or 6 kilolitres per household per month” as an absolute minimum. In order for the regulation not to be discriminatory and arbitrary and in breach of the right of every person to access to sufficient water, it must, however, be interpreted to mean the highest of the two amounts in any given situation. Any other interpretation would be unconstitutional.

Schreiner Paragraph 58

918. I admit the contents of this paragraph.

Schreiner Paragraph 59 to 67

919. I admit the contents of these paragraphs to the extent that the provisions of the Tariff Regulations are correctly reproduced.

920. I deny that the present Tariff Regulations are adequate to achieve the “aims” stated in paragraph 60.

921. First, the current Tariff Regulations accord almost unlimited discretion to water services institutions. There is no nationally mandated standard to ensure tariff affordability.

922. Second, the current Tariff Regulations promote cross-subsidisation based on consumption volume, rather than on household income. I deny that the tariff is related to the amount of water used by an individual “consumer” as is suggested in paragraph 63. The tariff is related to the amount of water used by a consumer unit. Thus a household of twenty persons each consuming 10 litres per person per day will pay the same rate as a household of one person consuming 200 litres per person per day.

923. This does not necessarily promote equitable cross-subsidisation. It is not necessarily true that wealthier households consume more water. Although wealthy households tend to consume more water per person, this does not necessarily translate into more water per household, because of the dramatic variations in household size found in South Africa. A poor household of ten persons can easily fall within the highest tariff block, despite using water very conservatively. A wealthy household of only one person can use water for luxury purposes, and still easily fall within the lowest tariff block.

924. The block tariff system thus fails to promote socially equitable, financially viable, and environmentally sustainable tariffs because it targets cross-subsidies to small households rather than to poor households.

925. In light of the wide range of consumer unit sizes in South Africa, the correlation between block tariff levels and individual consumption is quite weak. Accordingly, I deny that the stated purpose of “the more you use, the more you pay” is achieved by the block tariff structure.

926. We contend that the primary purpose behind the tariff regulation was to promote administrative convenience by eliminating any obligation to target free basic water to actual household size or financial circumstances.

Schreiner Paragraph 69

927. I admit that the post-apartheid approach to water policy has emphasized universality and progressive realization of the right in a manner consistent with constitutional requirements, at least on a rhetorical level. I deny that this approach has been followed in with respect to Phiri, where poor families have experienced retrogressive limitations on their right to water in a manner inconsistent with constitutional requirements.

Schreiner Paragraph 70

928. I admit that a large number of people lacked adequate access to safe water as of 1994.

929. The “approach taken in the RDP” is not accurately reproduced here. The RPD included that section 2.6.3 provided that “the fundamental principle of our water resources policy is the right to access clean water - ‘water security for all’”. Ms Schreiner seems to focus only on the policy in so far as it relates to types of access points. The RDP also, however, deal with the volumes of water to be provided to all.

930. The RDP’s short-term aim is to provide every person with adequate facilities for health. This would be achieved by establishing a national water and sanitation programme which aims to provide all households with a clean, safe water supply of 20 - 30 litres per person per day within 200 metres, an adequate/safe sanitation facility per site, and a refuse removal system to all urban households.

931. In the medium term, the RDP aims to provide an on-site supply of 50 - 60 litres per person per day of clean water, improved on-site sanitation, and an appropriate household refuse collection system. Water supply to nearly 100 per cent of rural households should be achieved over the medium term, and adequate sanitation facilities should be provided to at least 75 per cent of rural households. Community/household preferences and environmental sustainability will be taken into account.

932. The RDP’s long-term goal is to provide every South African with accessible water and sanitation.

933. The RDP did not endorse reducing water access to 25 litres per person per day for poor communities where adequate infrastructure already existed.

934. DWAF’s contention that provision of 50-60 litres per person per day anywhere must be delayed until the 20-30 litres per person per day goal is achieved everywhere has absolutely no basis in the RDP. The RDP framework clearly states that Government will begin to pursue the medium-term goal of providing on-site supply of 50-60 litres per person per day at the same time as it focuses on meeting the goal of extending the 20-30 litres per person per day water supply to “nearly 100 per cent” of households.

935. It is apparent that Ms Schreiner’s contention seeks to evade the respondents’ responsibility for planning to achieve the medium-term goals, even though more than 12 years have passed since the adoption of the RDP.

936. Ms Schreiner says that it was “initially” decided in the RDP that the operating costs should be paid for by the communities concerned. This is directly contradicted by section 2.6.10 of the RDP, which promised a centrally funded infrastructure programme, as well as a “national tariff structure” designed to cover long-term operating costs through cross-subsidization of rural and poor communities by urban and wealthy ones.

Schreiner Paragraph 71

937. I admit the contents of this paragraph.

Schreiner Paragraph 72

938. I admit the stated factors influence the amount of water consumed by a household. I note that the Third Respondent has neglected to mention other significant factors influencing household water consumption, including inability to afford prescribed tariffs, health needs of household members, presence of children in the household, and especially, the number of persons using water.

Schreiner Paragraph 73

939. I admit that where water is provided at low or no cost relative to household income, the convenience of the supply point greatly influences the amount of water actually consumed.

940. I deny the implication that the reduced water consumption associated with inconvenient access points is a point in favour of these methods. Where inconvenient access points result in consumption of less than 50 litres per person per day, human dignity and health are compromised.

941. This point is clearly made by the WHO report to which Ms Schreiner refers at paragraphs 137-140, which emphasises the need to make water access points more convenient in order to encourage healthy water use.

Schreiner Paragraph 74

942. I have no knowledge of how government arrived at 200 metres as the minimum standard for standpipe distance and deny its relevance to the situation of Phiri, where water provision has long been provided through household connections.

943. It appears from paragraphs 73 and 77 that the communal standpipe policy was selected in order to reduce water delivery costs by discouraging water use above 30litres per person per day.

944. I note that the WHO guidance on water service delivery (refrerred to by Ms Schreiner at paragraph 138) considers this level of water access to carry a high degree of health risk.

Schreiner Paragraph 75

945. This paragraph appears to paraphrase the description of “the water ladder” found in the 2003 National Strategic Framework for Water Services. It is not, however, entirely accurate.

946. The 2003 Strategic Framework promises continuous improvement up the water ladder, and emphasizes that “water services authorities are expected to assist communities to achieve intermediate and higher levels of service wherever practical, affordable, and sustainable without compromising the national policy priority of universal access to at least a basic level of service.” (p. ii)

947. I note that Ms Schreiner in this paragraph revised these promises downward, indicating that “subsequent phases of service provision to bring water closer to the household... will be considered,” but not until after universal service has been achieved.

948. It is evident that, despite the promises of the 2003 Strategic Framework, the respondents are not presently committed to moving households up the water ladder from communal standpipe service.

949. This approach is not consistent with the RDP. As previously explained, the RDP promised simultaneous efforts to achieve universal water access through communal standpipes and to pursue upgrades to higher levels of service.

Schreiner Paragraph 76

950. I admit this paragraph to the extent that the 2003 Strategic Framework is accurately quoted.

951. The promises of the 2003 Strategic Framework quoted here are not compatible with Ms Schreiner’s statement now that improvements up the water ladder will be considered only after universal service at the communal standpipe level is achieved.

952. Either way, moving the Phiri community down the “water ladder” cannot be consistent with the 2003 Strategic Framework, national policy, the RDP, or the Constitution.

Schreiner Paragraph 77

953. It appears from this paragraph that the third respondent recommended limiting new water connections to communal standpipes as a cost-saving measure. DWAF apparently intentionally sought to restrict the expansion of water access in order to discourage poor consumers from accessing more than 20-30litres per person per day of subsidized water.

954. While withholding higher levels of water access may positively impact WSI budgets, it has negative ramifications for people’s health and dignity.

Schreiner Paragraph 78

955. I admit that “it was (and still is) undoubtedly desirable to increase the levels” of water service available to poor communities.

956. I admit that government “has huge water provision backlogs.” I note that the RDP envisioned full realisation of the 25 litres per person per day goal by 2001, and the 2003 Strategic Framework suggested it could be achieved “within the next few years” (p. ii). Nevertheless, the Sussens Affidavit indicates that the new target of 2008 is likely to be missed due to inadequate funding. (paragraph. 42)

957. I deny that the backlogs in expanding water service infrastructure to disadvantaged communities justify limiting poor households to an inadequate water supply where infrastructure already exists.

958. The two issues are unrelated. Funding for an increased FBW volume need not come from infrastructure funds, but can come from internal cross-subsidisation, or from the cost savings achieved by a targeted and/or right-sized FBW approach.

959. The backlogs are unlikely to be eliminated any time soon. The situation of poor households surviving on 25 litres per person per day is not sustainable and must be remedied now.

960. I deny that DWAF has adopted a “some for all, not all for some policy”. The intention of the “some for all” statement was to address the inequities of the apartheid system, where some households got all the water they cared to use, while other households got none at all.

961. DWAF’s one-size-fits-all approach to the free basic water has completely perverted the redistributive intent of the “some for all” principle, by interpreting “some for all” to mean that even wealthy households should receive free basic water, even if it means providing an inadequate amount to those households that really need it.

962. As a result, poor households are still denied access to sufficient water, while DWAF incomprehensibly claims that an increased volume could only come at the expense of those households still waiting to be connected.

Schreiner Paragraph 79

963. The RDP recognized that although South Africa is technically a water-scarce country, inequitable distribution was the real reason that 12 million people’s basic water needs were unrealised at the time.

964. This is also emphasised by the UNDP Human Development Report 2006, entitled “Beyond scarcity: Power, poverty and the global water crisis” included as BGS3 in the respondents’ record.

965. The introduction to that Report explains: “There is more than enough water in the world for domestic purposes, for agriculture and for industry. The problem is that some people - notably the poor - are systematically excluded from access by their poverty, by their limited legal rights or by public policies that limit access to the infrastructures that provide water for life and livelihoods. In short, scarcity is manufactured through political processes and institutions that disadvantage the poor.” (p. 3) Schreiner Paragraph 80

966. I have no knowledge as to the number of additional persons provided with infrastructure for water supply since 1994, and find no evidence of this figure to substantiate it.

Schreiner Paragraph 81

967. Ms Schreiner again provides no evidence of this figure. I can accordingly not admit or deny it.

968. I do, however, note the ambiguity in the Third Respondents’ reference to 3.3 million people “without access to a basic water supply,” in addition to 4.9 million people with “access to a water supply which does not meet the basic service levels.” I am not certain what is meant by a “basic water supply” if not a water supply which meets basic service levels.

969. Even accepting the Third Respondents’ figures, a total of 3.3 million plus 4.9 million people out of a population of 48.6 million people yields a ratio of 83% access; not 93% as claimed here. Indeed, the attached table claims that 83% of the population is equal or above the RDP goal as of 2006.

970. Other independently published data confirm the impression that progress in expanding access to water services has been painfully slow. Although the Respondents attach over 275 pages of the UNDP Human Development Report 2006 to their submissions, they chose to omit the portion of the report that presents statistics on cross-national progress in expanding access to water infrastructure.

971. The omitted pages (attached as ”JM16”) indicate in 1990, 83% of South Africa’s population had “sustainable access to an improved water source,” while in 2004 the figure had risen to 88%. (p. 307) I note that at this rate of progress, it will be more another three decades before universal water access is achieved.

972. The same pages reveal that many nations achieved more rapid progress over this time frame than did South Africa. According to these figures, seventy nations now rank above South Africa in terms of access to water. These include many poor and water-scarce countries such as Egypt (98%); Mexico (97%); Iran (94%); Tunisia (93%); and Botswana (95%).

973. Based on this data, I deny any implication that DWAF has been making rapid progress on expanding water access to poor South Africans, and that the demands of Phiri residents for a constitutionally sufficient water supply can wait until the goal of universal access is achieved.

974. I further note that DWAF has not offered any figures for the number of households that have water infrastructure, but lack actual water access due to their inability to afford water above the current free basic water.

Schreiner Paragraph 82

975. I again find no evidence for this figure, and can accordingly not admit or deny that access to sanitation infrastructure has improved from 49% to 69% of the population since 1994. I note, however, the same objections to these figures as stated to the figures offered on access to water supply infrastructure. I further note that the UNDP Report introduced into the record by the Third Respondent states that the proportion of South Africa’s population with “sustainable access to improved sanitation” has actually decreased between 1990 and 2004, from 69% to 65%. (p. 307)

Schreiner Paragraph 83

976. I have no knowledge of government’s plans to eradicate the bucket system by 2007 and deny its relevance to the case of Phiri, which already has water-borne sanitation.

977. I deny any implication that Phiri’s relative progress in terms of sanitation infrastructure means that its need for sufficient water, including the water necessary to actually use these toilets, carries lesser importance.

Schreiner Paragraph 84

978. I admit that large backlogs exist with respect to water supply and sanitation, although I deny that the attached tables provide truly accurate figures. I further deny that these backlogs - whatever their actual size - can justify the retrograde measures implemented in Phiri, which have resulted in a downward movement on the water services ladder.

Schreiner Paragraph 85

979. I admit that government is still seized with the challenge of ensuring roll out of basic water services to all people living in South Africa.

980. I also admit that a major challenge has been ensuring that this roll out is undertaken in a sustainable manner. As the Strategic Framework for Water Services stated, “Access to a tap and toilet is of no use if the water stops flowing or the toilet no longer works. Sustainability requires that services are affordable.” (p. ii) 981. I deny that the imposition of prepayment meters, in conjunction with inadequate household allowances, is a sustainable approach to water access.

Schreiner Paragraph 86

982. I admit that cooperation by national and local government is required to realise the constitutional right of access to water. I admit that consideration of the impact of basic water supply policies on WSAs is appropriate. I deny, however, that this should be of greater concern than the needs of poor families to access water.

Schreiner Paragraph 87

983. I deny that the basic water supply programme has been undertaken in compliance with the constitutional roles and responsibilities of local government. The City of Johannesburg has failed its constitutional responsibility in terms of section 153(a) to “structure and manage its administration, and budgeting and planning processes, to give priority to the basic needs of the community. . . .”

984. I deny the suggestion that the constitutional principles of cooperative government require DWAF to maintain a “hands-off” approach toward local water provisioning. The 1997 Water Services Act specifically accords Central Government, acting through DWAF, with the authority to establish minimum service standards to protect the right to water, to monitor WSA performance, and to intervene where necessary to ensure compliance with minimum standards.

985. I accept that DWAF’s regulations have sought to maximize local discretion on water policy. This is why the focus of our challenge is the manner in which the local government in question has implemented the policy locally.

Schreiner Paragraph 88

986. I deny that the block tariff structure adequately addresses these aims in light of the dramatic variation in consumer unit size.

Schreiner Paragraph 89 to 90

987. Again, I admit that, in terms of the current regulations, the challenge against the local free basic water policy is properly aimed at the individual municipality in question.

Schreiner Paragraph 91

988. I admit that “WSA’s must ensure the realization of the right to adequate, affordable and sustainable levels of basic water supply and sanitation services to all people living in South Africa”.

989. I deny that this goal is achieved when a household in Phiri is placed on “the first step up the basic water services ladder” - i.e. 25 litres per person per day of water service through a communal standpipe. This level of service is neither adequate nor sustainable, and does not meet the constitutional standard of a “sufficient” water supply.

Schreiner Paragraph 92

990. I admit the contents of this paragraph to the extent that the Strategic Framework is correctly quoted.

991. I deny, however, that poor households must languish on the first rung until everyone has caught up. Instead, the Strategic Framework makes it clear that continuous improvement should be pursued “wherever practical, affordable and sustainable.”

992. I also deny that a WSA can meet its constitutional obligations by only meeting the minimum standards. Progressive realisation requires the reasonable pursuit of sufficient access. Moreover, the movement of disadvantaged communities down the water ladder from an adequate water supply to one barely meeting minimum standards cannot be justified within the framework of progressive realisation.

Schreiner Paragraph 93

993. I note the contents of this paragraph, but point out that DWAF elsewhere indicates that it is only willing to “consider” improvements in the provision of a higher level volume of basic water at some point in the future.

Schreiner Paragraph 94

994. I note the contents of this paragraph, and the undertaking for central government to increase the basic level only “once all households have access to a basic (i.e. communal tap) water service”.

Schreiner Paragraph 95

995. I admit that a national Free Basic Water policy exists. I note that although the intention of the FBW policy was to provide water “free of charge to communities who cannot afford a basic supply,” DWAF encourages the block-tariff approach, which provides the first 6kl of water free to all users, regardless of household size or income.

Schreiner Paragraph 96

996. I deny that the White Paper gave effect to the RDP’s commitments. Although the RDP committed to a medium-term national target of 50-60 litres per person per day the White Paper reinterpreted the short-term target of 20-30 litres per person per day as the “basic minimum” water supply national government was obliged to ensure. It also shifted financial responsibility for improvements above this level to local and regional governments or to poor communities themselves.

997. Although the RDP promised a programme of national cross-subsidies to ensure affordability for poor and rural communities, the White Paper rejected the idea of a national tariff scheme (p. 22); insisted that national subsidies would be eliminated, except to fund the construction costs of communal standpipes (p. 18); and advocated internal cross-subsidies based on the amount of water consumed, rather than water user characteristics (p. 22). Under this approach, full cost-recovery was urged for water use above 25litres per person per day (p. 22).

998. I admit that DWAF is empowered to initiate and implement an immediate programme of water supply and sanitation provision.

Schreiner Paragraph 97

999. I admit that the 1994 White Paper sought to revise the RDP’s promise of an adequate water supply down to a promise of only a “basic minimum water supply” of 25 litres per person per day.

1000. I deny that the conservative recommendations of the 1994 White Paper reflected the RDP vision or were ever adopted by national government.

1001. The 2001 National Standards Regulation establishes “a minimum standard for basic water supply services.” The basic water supply is intended to be provided above this minimum standard wherever possible, consistent with the RDP vision and international best practice.

Schreiner Paragraph 98

1002. I deny that the White Paper established 25 litres per person per day within 200 metres as short term goal with a “medium to long term goal” of 50-60litres per person per day on-site. The RDP established 20-30litres per person per day within 200 metres as a short term goal, and 50-60 litres per person per day on-site as a “medium term” goal.

1003. The White Paper adopted the 25litres per person per day within 200 litres standard, while extending the timeline for achievement to seven years. (p. 14). It contained no reference to the 50-60litres per person per day goal. It specifically suggested that Government resources be used only to reach the 25litres per person per day goal, with local communities bearing the cost of further improvements.

Schreiner Paragraph 99

1004. I admit that the White Paper related to a “basic supply of water,” and did not use the term “free basic water”. I have, however, explained above that the distinction sought to be made by the respondents between the two concepts is misguided from a constitutional point of view when dealing with the position of those who cannot afford to pay for a basic water supply.

Schreiner Paragraph 100

1005. I admit that the 1994 White Paper was replaced by the 2003 Strategic Framework for Water Services.

1006. This paragraph admits the recommendations of the White Paper were not informed by public consultation.

1007. I deny that the White Paper’s quantification of basic water supply as 25 litres per person per day was retained by the 2003 Strategic Framework.

1008. The 1994 White Paper proposed 25litres per person per day as the ceiling for a basic water supply. In contrast, the 2003 Strategic Framework incorporates the 1998 Water Services Act’s definition of 25litres per person per day as a nation-wide floor for basic water services, which must be increased where water-borne sanitation is used, or where it is financially feasible to provide a more appropriate amount.

1009. The Strategic Framework urged WSAs to provide poor households with “at least 50 litres per person per day” in free basic water where affordable. (p. 29). This is consistent with an understanding of 25 litres per person per day as the “minimum standard for a basic water supply”, not the definition of a basic water supply itself as originally advocated by DWAF.

Schreiner Paragraph 101

1010. The National Standards Regulations were adopted in 2001; the Strategic Framework was issued in 2003.

Schreiner Paragraph 102

1011. I admit the contents of this paragraph.

1012. This shift from the “lifeline tariff” approach to the “free basic water” approach must be placed in the context of two broader historical trends.

1013. During the 1990s, there was a growing international realisation that the once-fashionable emphasis on cost-recovery and user-fees was having the effect of excluding very poor persons from basic services. It was realised that water would never be “accessible” to all unless it was free for the very poor, who already lack sufficient disposable income to meet other basic needs.

1014. The second historical shift occurring around 2000 was a turn-around in credit control in the South African water sector. Formerly usage fees were assessed in theory, but often not collected in practice. As the sector became more conscientious about collection, the need for a more formal “free water” policy arose.

Schreiner Paragraph 103 to 104

1015. I admit the contents of these paragraphs.

Schreiner Paragraph 105

1016. I have dealt above with the respondents’ fallacious argument that the policies on free basic water are not binding because they are not contained in legislation.

Schreiner Paragraph 106

1017. I note the contents of this paragraph.

Schreiner Paragraph 107

1018. I admit that the primary intended recipients of FBW are poor households. I note that, nevertheless, the first and second respondents have made this available to all households.

1019. I deny that the policy as implemented through DWAF’s block tariff system succeeds in primarily benefiting poor households. The policy’s greatest benefits go to smaller households, who may enjoy a free basic water allowance of up to 200 litres per person per day (for a household of one person).

Schreiner Paragraph 108

1020. I note the contents of this paragraph, but I deny any implication that the free basic water policy cannot be targeted to poor households because no commonly accepted definition of poverty exists.

1021. In this respect I note that the Third Respondent itself has accepted the household income guideline of R800 per month (now R1100 per month) as a guide to identifying free basic water policy’s intended beneficiaries. The “Free Basic Water Implementation Strategy Document Version 1” issued by DWAF in May 2001 (annexed as “JM17”) states that “At present the Equitable Share of national revenue transferred to local government is based largely on income level as an indicator of poverty (currently R800 a month but likely to increase in the near future). This definition will be the default definition of poor households unless otherwise specified.” 1022. I note Ms Schreiner’s emphasis on making a locally relevant determination of what the poor in every municipality require. I deny that any such locally relevant determination was made by the first and second respondents before determining the free basic water policy applicable to Phiri.

Schreiner Paragraph 109

1023. I admit that the free basic water policy should be understood as part of a broader package of essential social services. I deny any implication that other elements of the social wage are adequate to cushion the impact of an inadequate free basic water allowance for medium and large poor households.

Schreiner Paragraph 110

1024. I admit that water has the distinct property of being “a resource essential for life” and that the supply of clean water “incurs substantial costs for which a funding mechanism is required

Schreiner Paragraph 111

1025. I admit that “an ideal system would have one approach to paying for the essential water use and another for luxury or productive use”. I deny that the block tariff system succeeds in this aim, because of the vast differences in consumer unit size found in South Africa.

Schreiner Paragraph 112

1026. I note that Ms Schreiner admits that there are significant numbers of poverty-stricken people who are unable to afford even minimal payment towards water. The applicants and other indigent residents of Phiri are in this position.

Schreiner Paragraph 113

1027. I admit the contents of this paragraph.

Schreiner Paragraph 114 to 115

1028. I note that the RDP and White Paper guided the free basic water policy.

1029. I point out that the 20-30 litres per person per day figure was presented in the RDP as a short-term goal, to be replaced in the medium term by universal provision of 50-60 litres per person per day. The contention that 25litres per person per day was an appropriate standard for a basic water supply appeared only in the 1994 White Paper.

1030. I admit that the Durban precedent of 6000 litres per household per month was influential to DWAF’s selection of the 6 kilolitre figure.

1031. It must be noted, however, that the Durban Metropolitan Municipality selected the 6000 litres figure not based on any estimate of poor households’ water needs, but on the determination that for accounts consuming less than 6000 litres per month, the administration costs of collecting fees were greater than the revenue obtained.

Schreiner Paragraph 115

1032. Ms Schreiner says that the Durban example was “tested” to find out whether it would “generally meet the criteria for a free basic water supply.” It is not explained how this was “tested” and no evidence of the results of such “tests” are provided. I deny that proper independent research was conducted into what a constitutionally sufficient amount would be.

1033. It is apparent from this paragraph that DWAF in any event first selected a household figure that was selected for its administrative efficiencies (6 kilolitres), and thereafter considered whether the figure would meet the criteria for a basic water supply.

1034. It is also apparent from this paragraph that the 6000 litre figure was not actually “tested” against any data on actual water consumption by poor water users, or any study of the actual composition of poor consumer units.

1035. This post hoc justification of an arbitrary figure, rather than an attempt to reasonably calculate an adequate household allowance, is the first reason why there is no rational basis for the 6 kilolitre figure for free basic water.

1036. I deny that it was appropriate to consider “whether the provision of an average amount would cover the majority of the population.” The free basic water policy was not intended to benefit “the majority of the population” but to benefit very poor households.

1037. The complete failure to design a free basic water policy with reference to data on the actual circumstances of the targeted beneficiaries is the second reason why the decision was irrationality and unjustifiable.

Schreiner Paragraph 116

1038. I note that DWAF assumed an average urban household size of four people for the purposes of evaluating the 6kl proposal. It is therefore clear that it was always the intention that the average urban family would have 50 litres per person per day to its disposal. The applicants agree that 50 litres per person per day would be an appropriate amount at which to set the free basic minimum water supply, and this is the order we seek.

1039. In fact, however, in poor households the average number of persons is higher, and the amount of free water available to each person accordingly less. The third respondent’s original intention has accordingly not been met by the manner in which the free basic water policy has in fact impacted in poor communities.

1040. DWAF’s reliance on the average census figures, instead of targeting the quantification specifically at the average household size of poor people shows a failure to design the FBW policy with attention to the specific circumstances of the targeted beneficiaries.

1041. It appears from this paragraph that the third reason why the 6kl figure was not rationally determined was because DWAF assume that each water connection serves exactly one household. In the context of very poor water users, this is not a reasonable assumption. The Census 2001 definition of a household makes clear that “People who occupy the same dwelling, but who do not share food or other essentials, are enumerated as separate households.” 1042. Thus there may be several poor households occupying a single dwelling, and they may share their water access point with additional poor households occupying back-yard shacks. The erroneous nature of this assumption would have been obvious had DWAF conducted any empirical research on the characteristics of poor consumer units.

Schreiner Paragraph 117

1043. I admit that all households are not of average size, and that the 6 kilolitres figure fails to provide even 25 litres per person per day for consumer units of more than eight persons.

Schreiner Paragraph 118

1044. It is evident from this paragraph that DWAF was aware that the 6kl figure would fail to meet the 25 litres per person per day minimum standard for approximately 7% of South African households - in other words more than 7 million people.

1045. This estimate is derived from Census 2001 figures in the following way.

1045.1. The total population figure of 44 819 778 persons is divided by the average household size of 3.8 to yield 11 794 678 South African households. 1045.2. Of these households, 7% - or 825 627 - have 9 or more persons. Multiplying 825 627 households by the conservative figure of 9 yields 7 430 647 persons. 1046. The actual number should, however, be higher because many of these households have more than 9 members. In addition, many households of 8 or fewer persons must share their 6kl allowance with additional persons where multiple households comprise a single consumer unit. It is not possible to estimate the number of persons in this situation from census data.

1047. I reiterate that the large households and multiple-household consumer units whose needs are not met by the 6 kilolitre allowance are likely to be precisely those very poor water users that the free basic water policy was intended to benefit.

Schreiner Paragraph 119

1048. Ms Schreiner states that there is “a need to balance the proportion of potential beneficiaries who receive less benefits than intended with those who receive more”. It is apparent that in this case, those who receive the least free water per person per day are the poorest of the poor who live in big households or in dwellings with multiple households. The rich who live in small households receive much more free water per person per day than the basic minimum of 25 litres. The Palmer Development Group’s research for the Second Respondent (annexure R58) indicates that In many poorer areas of Soweto there is a consistent pattern of an average of 7-8 people living on one plot, while the figure for higher income areas is 4-5 people.

1049. I note that Ms Schreiner considers the failure rate of 7% - more than 7 million people - to be an acceptable level of targeting efficiency. I deny that it is acceptable, considering that those 7 million are the poorest people, like those who live in Phiri.

1050. A one-size-fits-all approach to the free basic water allowance is inefficient and inequitable, allocating excessive benefits to small wealthy households while systematically failing to meet the needs larger poor households.

1051. An equitable free basic water policy must be right-sized to ensure that the quantity of free basic water provided to poor households meets a minimum per person standard, taking into account the wide variation in consumer unit size found in South Africa.

Schreiner Paragraph 120

1052. I admit that the free basic water allowance does not meet the needs of all users. I admit that part of the problem is the fact that the quantity of free basic water does not taken into account disability of other special needs, or the fact that there are many sites with multiple dwellings.

1053. I deny, however, that the free basic water allowance is inadequate only in those specific circumstances.

1054. As stated above, the 6 kilolitres allowance fails to provide even 25 litres per person per day for 7 million persons living in households or 9 or more persons.

1055. The 6kl allowance is also inadequate for urban households of 5-8 persons because it fails to provide the minimum 50 litres per person per day required to meet laundry, bathing, gardening, and water-borne sanitation needs.

1056. I deny that the municipal indigent policy is an adequate mechanism to address the systematic failures of the 6 kilolitres allowance. This is addressed in the context of the City’s indigence policy in my response to Ms Brits above.

Schreiner Paragraph 121

1057. I deny that the “relatively smaller size of urban households” means that no additional free basic water allowance is needed to meet these households’ water needs, given the large amounts of water required for proper functioning of water-borne sanitation, and the inability to access surface water for laundry, gardening, or bathing purposes.

1058. Ms Schreiner does not point to any evidence that supports her contention that urban households are smaller than rural households. She also presents no evidence that poor urban households are relatively small. In the struggle for scarce urban housing, poor persons are especially likely to live in dense consumer units. As I mentioned at paragraph 1055, the Second Respondent’s own research indicates that the average size of poor urban households to be between 7-8 persons, which cannot be termed ‘relatively small’.

1059. I reiterate that our research referred to in our founding affidavit shows that the average household size in Phiri is 16 persons; four times DWAF’s assumed average of 4 persons.

Schreiner Paragraph 122

1060. I deny that the decision-making process by which the free basic water minimum was determined was rational or justifiable. In determining the amount, DWAF failed to inquire whether the 6kl figure was appropriate to the particular circumstances of poor households. The decision was not based upon any empirical research into household structure or water consumption patterns among the poor. It also failed to consider the fact that a single consumer unit often comprises multiple households, particularly in poor communities.

1061. It is also apparent that the decision was made with full awareness that the 6kl figure would fail to provide the basic minimum per day for the more than 7 million persons living in households of 9 or more persons.

1062. This decision-making process does not meet the constitutional requirements for reasonable policy-making because:

1062.1. There was no rational basis to believe that a one-size-fits-all, 6kl household allowance would meet the needs of the intended beneficiaries. 1062.2. The one-size-fits-all approach is inefficient and inequitable, as it accords 200 litres per person per day of free basic water to a person living alone, but only 20 litres per person per day of free basic water to a person living in a household of ten. 1062.3. The one-size-fits-all approach is not flexible to the specific circumstances of vulnerable persons, including the variation in average household size between provinces and communities, the variation in household size within communities, and the greater water needs of persons living in urban environments. Schreiner Paragraph 123 to 124

1063. I note that DWAF pursued a one-size-fits-all household allowance approach because it considered it to be administratively more “practical” and more “certain”. I deny that it is either.

1064. I have explained above why DWAF’s approach neither supports the third respondents’ contended interpretation of the regulation, nor justifies the infringement caused by such a one-size-fits-all approach on the rights of the poor who live in bigger households.

1065. I note in any event that DWAF does not contend that it ever studied or considered any specific mechanisms to right-size the free basic water allowance to the circumstances of particular communities or households. I accordingly deny that the third respondent has shown that a per person determination would in fact be impractical as suggested.

1066. I submit that in fact, it is the one-size-fits-all household allowance which is most inefficient. This approach results in significant wastage by providing an excessive amount of free basic water to small households, many of whom don’t need the allocation, while failing to meet the basic needs of medium and large households. I submit that DWAF’s push for a simplistic, national household allowance has completely undermined the efficiency and effectiveness of the free basic water policy.

1067. I deny that the benefit of administrative certainty outweighs the failure to achieve the policy’s objective of ensuring poor households’ access to a sufficient water supply.

1068. I submit that DWAF’s emphasis on administrative convenience to the neglect of ensuring the policy meets the needs of poor persons demonstrates a lack of the constitutionally required concern for the poor.

Schreiner Paragraph 125

1069. I take note of Mr Muller’s confirmatory affidavit. However, I consider it to be irrelevant to our case.

Schreiner Paragraph 126

1070. I admit that the use of water-borne sanitation, like in Phiri, means that the free basic water supply must also be used for sanitation purposes.

1071. I admit that DWAF pursues as a “first step” towards universal access to adequate sanitation, the use of ventilated improved pit (VIP) latrines to the exclusion of water-borne sanitation in order to economise on water delivery costs. I point out, however, that in Phiri we have water-bone sanitation.

1072. I draw attention to the admission in this paragraph that water-borne sanitation requires a water supply service higher than 25 litres per person per day.

Schreiner Paragraph 127

1073. I admit that communities where water-borne sanitation is provided have special water needs.

1074. I deny that 10 litres is sufficient to flush a typical water-borne toilet. This is the lower level given on the second Respondent’s website on “Water Saving Tips”. The figure given is between 10-12 litres per flush - the upper number constituting almost half the 25 litres per person per day allowance.

1075. I deny that it is reasonable to expect persons using water-borne sanitation to limit themselves to one flush per day, particularly in a hot climate where standing waste water would create a hygiene risk, and where there are members of the households that suffer from AIDS or AIDS related illnesses which leads to diarrhoea. I refer in this regard to the affidavit of Dr Martins included in our founding papers.

1076. The assertion that one flush per person per day is adequate to maintain functioning water-borne sanitation is unfounded and accordingly denied. I draw attention to the affidavit if Professor Bond which indicates that the inefficient sewage systems found in South African townships require a greater-than-average water supply to maintain functionality.

1077. I deny that households limited to 25 litres per person per day can reuse washing and laundry water to flush their toilets. The WHO chart cited at paragraph 138 of Ms Schreiner’s affidavit indicates that 25 litres per person per day is adequate to meet only the survival needs of drinking, hand-washing, and cooking, but is not sufficient for laundry and bathing. As the urban poor accordingly do not have sufficient water for laundry and bathing on WHO estimation, re-using such water can accordingly not be the solution to the sanitation problem.

1078. I note that Johannesburg Water’s own policies and educational material (samples of which are found at annexures “LM28” to “LM30” of applicants’ founding affidavit) make no mention of the recommendation to reuse other water to flush toilets.

1079. I deny the assertion that “the provision of additional water to households who already had domestic connections and water-borne sanitation would aggravate inequities with those who had neither safe water nor adequate sanitation.” By definition, inequity exists between persons who have sufficient water and adequate sanitation, and persons who do not. DWAF cannot mean to suggest that for this reason, the poor of Phiri should be denied either in the interests of equity.

1080. I deny that it is inequitable to provide a higher amount of water to urban residents reliant on water-borne sanitation, and with no access to surface water with which to bathe, wash laundry, or water gardens. Equity requires taking into account differing needs. Instead, knowing how much the people of Phiri need with reference to these realities, and nevertheless not increasing the amount of water to which they have access amounts to a grave and callous breach of our rights of access to sufficient water.

1081. I note this statement suggests that DWAF discourages local municipalities from providing more than 6 kilolitres to any household until all households are connected. This is inconsistent with the intended framework of the free basic water policy, in terms of which municipalities are encouraged to provide greater free basic water allowances than the national minimum, taking into account local conditions and available resources.

Schreiner Paragraph 128 to 131

1082. The contents of these paragraphs are admitted to the extent that they correctly reflect the provisions regarding the equitable share given by national to local government. I explain above, however, why these provisions are irrelevant to the current application.

Schreiner Paragraph 132

1083. I note the contents of this paragraph.

Schreiner Paragraph 133 to 134

1084. I admit that the income and service levels profiles of municipalities differ. I set out above in my response to Ms Brits’ affidavit that, considering the financial position of the City of Johannesburg, and its capacity to cross-subsidise, it should be one of the municipalities which could provide more to the urban poor.

1085. I deny that urban municipalities, including the first respondent, have been “successful in implementing free basic water strategies locally”. The first respondent, in particular, has not managed to implement the policy in a manner that is sensitive to local needs.

Schreiner Paragraph 135

1086. I note the contents of this paragraph, but deny that DWAF has effectively supported and assisted municipalities to implement the FBW policy. There is no regulating agency within DWAF tasked with ensuring that municipalities comply with the free basic water policy. DWAF also does not monitor municipal budget allocations and expenditure to ensure that a sufficient portion of the equitable share grant is spent on FBW.

1087. Most significantly, although the National Standards Regulations established 25 litres per person per day or 6 kilolitres per household as the minimum standard for a basic water supply, which needs to be increased where it is possible to do so, DWAF appears to have consistently misinformed water services authorities that their constitutional obligations are satisfied if they provide a maximum of 6 kilolitres per household, regardless of household size.

Schreiner Paragraph 136

1088. I admit that many South African households still lack access to any water supply. I deny that this is a relevant constraint to ensuring access to a constitutionally sufficient water supply in communities such as Phiri which already have the necessary infrastructure.

Schreiner Paragraph 137

1089. I deny that there was no international guidance on minimum quantity standards for domestic water supply prior to 2003.

1090. This allegation contradicts the claim found in DWAF’s Free Basic Water Implementation Strategy document of May 2001 that “South African standards relating to a ‘basic’ level of water supply, that is, a level sufficient to promote healthy living, come from the World Health Organisation standard of 25 litres per person per day.” (p. 6) 1091. I further note the seminal research published by Dr Gleick in 1996, documenting the need for at least 50 litres per person per day to meet basic human needs including laundry and bathing. I note that this publication is cited by both the 2003 World Health Organization publication referred to by Ms Schreiner in paragraph 138 (at p. 23), as well as the 2002 United Nations General Comment on the Right to Water (at footnote 14).

1092. I admit that the establishment of minimum quantity standards for water access has been a relatively recent phenomenon, occurring only in the 1990s. I submit the earlier lack of emphasis on defining minimum or adequate water quantities reflects the international community’s assumption that countries would provide as much water to poor persons as was technologically possible, and that the respondents’ efforts to restrict poor households’ water consumption is inconsistent with international best practice.

Schreiner Paragraph138

1093. I admit the chart reproduced here to the extent that it reflects the position set out in the 2003 WHO publication.

1094. I note that the WHO chart reproduced in the Third Respondent’s affidavit states that access to only around 20 litres per person per day carries a “high” level of health concern and makes “laundry/bathing difficult to assure.”

1095. In contrast, access of around 50litres per person per day carries a “low” level of health concern and means that “laundry and bathing should also be assured.” This is consistent with the testimony of Dr Gleick that 50 litres per person per day is the minimum amount required to ensure sufficient water for all basic needs.

1096. The WHO report defines “optimal access” as 100 litres per person per day or above, at which a “very low” level of health concern exists.

1097. I admit that this approach closely reflects that taken ten years earlier by the drafters of the RDP, establishing a short-term “survival” goal of 20-30 litres per person per day, rising to 50-60 litres per person per day in the medium term and eventually to 100 litres per person per day.

1098. I deny that the WHO guidance is compatible with Ms Schreiners’ assertion that 25 litres per person per day is a constitutionally sufficient water supply.

Schreiner Paragraph 139

1099. I admit that providing some level of access to improved water sources remains “the highest priority for the water and health sectors.”

1100. I deny, however, that commitment to this priority is inconsistent with simultaneous efforts to moves serviced households levels toward higher volume levels.

1101. According to the WHO document cited by the Third Respondent: “Ensuring basic access [within 1km] to the currently unserved and increasing the numbers of people with intermediate access [around 50 litres per person per day, on-site] are complementary activities. There remains no doubt that ensuring at least a basic level of access remains a key international goal. At the same time, investment should not focus solely on this level of access, but should also be targeted on addressing moving increasing numbers of people to an intermediate level of access.” (p.26) 1102. I accordingly deny that DWAF’s slow progress in achieving universal access to improved water can be used as an excuse to limit other poor households to 25 litres per person per day.

1103. I further deny that commitment to expanding access to the currently unserved justifies the retrograde step reducing the amount of water available to poor households that previously enjoyed access to a sufficient water supply to a level which jeopardises their health and dignity.

Schreiner Paragraph 140

1104. I admit that the WHO document emphasizes that full health and social gains from water supply occur when water is continuously available inside the home.

1105. I deny that the document quoted supports DWAF’s emphasis on ensuring that every household has a water supply within 200m, to the exclusion of providing larger quantities of water through household connections.

1106. The WHO advice specifically says that limited or no health gains are achieved by bringing a relatively distant piped water supply (within 1km) closer to the user but still outside the household (within 200m; the current DWAF target). That document states, in its Executive Summary, that: “The public health gains derived from use of increased volumes of water typically occur in two major increments. The first relates to overcoming lack of basic access [defined here as access to a standpipe within one kilometer], where the distances and time involved in water collection result in use of volumes inadequate to support basic hygiene and may be marginally adequate for human consumption. Further significant gains occur largely when water is available at household level. ... Health gains derived from increased access between these two major steps appear limited, although other gains in relation to increased time for activities such as child-care, food preparation and productive activity (including education) may be significant and progressive.” 1107. This clearly indicates that the two priority goals from a public health perspective must be (1) ensuring that all households have access to water within one kilometer; and (2) moving households with limited water access up to household-level access at an adequate volume.

1108. DWAF’s stated policy priority of bringing communal taps closer to users surely has benefits in terms of time savings and reducing women’s work burdens. From a public health perspective, however, the WHO guidlines indicate that it is a less effective intervention than promoting household-level access at an adequate volume. Accordingly, DWAF should not be allowed to use its backlog in reaching the 200m goal to justify delays in increasing the volume of water available to poor households.

1109. I specifically draw attention to the portions of the document cited by Respondents which state that “Health and other benefits from improved water supply are significantly greater when there is a supply of continuous access to safe drinking water within the home,” and that “Assessment of progress toward this level of access should be a target of policy in all countries....” Schreiner Paragraph 141

1110. I admit that the UNDP Human Development Report 2006 identifies “about 20 litres a day” as the minimum threshold for basic needs.

1111. I deny that this “minimum threshold” figure of water quantity for survival needs is an appropriate guideline for defining a “sufficient” water supply in terms of the South African constitution.

1112. In this respect I draw attention to the statement adopted at the international symposium on “Water, poverty and productive uses of water at the household level” held in Johannesburg from 21-23 January 2003, to which Minister Kasrils wrote the foreword, on pages 39-41: “When extremely low ‘survival’ norms are set, such as South Africa’s benchmark short-term target of 25 lpcd, opportunities to engage in productive activities are severely constrained. So given, that 25 lpcd is not enough, how much is? ....Given the need to tailor norms to local realities, we nonetheless feel confident in suggesting, in all but the most extreme cases (such as desert dwellers), a norm in the range of 50-200 lpcd, as identified by those present at the Johannesburg symposium, as being both adequate and sustainable from a water resources point of view. . . .[T]he figure of 50-200 lpcd. is one that I believe to be both realistic and reasonable, and based on a growing body of experience. Survival norms of 15-25 lpcd should be recognised as appropriate in only the most extreme emergency or drought scenarios”. 1113. I also reiterate that according to the WHO guidance cited by the Third Respondent itself, a water supply of 20 litres per person per day is inadequate to provide for laundry or bathing needs, and carries a high degree of health risk.

1114. I further submit more recent guidelines from the WHO, which corroborates the Johannesburg symposium’s statement that 20 litres per person per day is appropriate only in emergency situations, namely the WHO’s 2005 publication on “Minimum water quantity needed for domestic use in emergencies.” The following chart appears in that document, and indicates that 20 litres per person per day is sufficient only for drinking and cooking, while 50litres per person per day is required to meet washing and cleaning needs, and 70litres per person per day is required to provide for growing food and waste disposal. Again, these figures are presented as guidance for planners dealing with emergency situations, such as providing for refugee populations in areas with limited water infrastructure:

Schreiner Paragraph 142

1115. I have previously addressed the claim that the UNDP recognizes South Africa as a world leader in water access, in response to paragraph 81 of Ms Schreiner’s affidavit. In fact, South African ranks 71st in the world in water access, despite our constitutional recognition of water access as a basic human right.

Schreiner Paragraph 144 to 146 (Response to Ms Mazibuko)

1116. I note the contents of these paragraphs.

Schreiner Paragraph 147

1117. I have dealt with Ms Schreiner’s allegations regarding the applicants’ standing above.

Schreiner Paragraph 148

1118. I note the contents of this paragraph.

Schreiner Paragraph 149

1119. I have dealt with the significance (and legal force) of the policy standards set out in the RDP above.

1120. I have also explained the fallacy in the distinction which the respondents seek to make between free basic water and the basic minimum water supply.

1121. I reiterate the argument made in Ms Mazibuko’s founding affidavit regarding the interplay between sanitation and water provision. It is apparent that the 20 to 30 litres “safe, clean water” per person per day provided for in the RDP was not intended to be used for waterborne sanitation purposes.

Schreiner Paragraph 150

1122. I have dealt with the significance (and legal force) of the White Paper above.

1123. I also reiterate that it is apparent that the White Papers’ basic water supply requ8rement is mean for drinking purposes, and is distinct from sanitation.

Schreiner Paragraph 151 to 152

1124. I have dealt with the constitutional and statutory framework within which the application must be considered above. This is also considered in greater detail in our founding papers.

Schreiner Paragraph 153 to 154

1125. I take note of the contents of these paragraphs.

Schreiner Paragraph 155

1126. I have dealt with the legal force of the national policy on free basic water above.

Schreiner Paragraph 156

1127. I have explained the fallacy of Ms Schreiner’s suggested distinction between free basic water and the basic minimum water supply.

1128. I have also set out our response to Ms Schreiner’s suggested interpretation of the regulation above.

Schreiner Paragraph 157

1129. I have dealt with the legal force of national policy on free basic water above.

Schreiner Paragraph 158

1130. I note the quotation from page 26 of the Strategic Framework, which I admit to the extent that it is correctly reproduced.

1131. I note that the Framework refers to the need to pay for services over and above free basic water and free basic sanitation. This obviously assumes however, that the residents in question are in a position to pay for such water. Ms Schreiner has acknowledged that many people cannot pay even the small amount towards water.

1132. I have explained the legal force of national policy in this regard.

Schreiner Paragraph 159

1133. I have dealt in detail above with the suggestion that government can comply with its constitutional obligations by failing to increase the volume simply because it still has to provide basic water and sanitation services to some. I deny that ensuring that all water services authorities provide a basic water supply and basic sanitation is mutually exclusive with ensuring that poor urban households are provided with sufficient water.

Schreiner Paragraph 160

1134. I admit that there are also other social packages provided by government, but deny that these packages can address appropriately the difference between the sufficient water supply under the Constitution and the 6 kilolitres which we currently receive.

1135. I have challenged the first respondents’ indigence policy above.

Schreiner Paragraph 161

1136. I deny that what is stated in paragraph 56 of Ms Mazibuko’s affidavit is an incorrect interpretation of the Strategic Framework. I have dealt with the legal force of the national free basic water policy above.

Schreiner Paragraph 162

1137. I have in detail responded to the process in terms of which DWAF quantified the free basic water minimum amount.

1138. I deny the financing implications to national government, and explain this in greater detail above. In any event, the applicants do not seek an order to increase the free basic water supply nationally to 50 litres per person per day. The relevance of these allegations is accordingly denied.

Schreiner Paragraph 163

1139. I admit that the free basic water lays down a minimum, and not a maximum amount.

1140. We do not challenge the national free basic water policy, but instead challenge the manner in which it has been implemented locally.

1141. I deny, however, that the fact that there are people within in the jurisdiction of other water services authorities who do not yet have access to basic services means that we are not constitutionally entitled to access to sufficient water, to be determined with reference to our own particular local needs.

1142. I have dealt in detail with the applicants’ response to the first and second respondents’ indigence policy.

Schreiner Paragraph 164 to 165

1143. I note the contents of these paragraphs.

Schreiner Paragraph 166

1144. I admit that the request for information in “LM38” related to basic water supply. I point out, however, that a further request, “SD19” related to “information about the origin of the Department of Water Affairs and Forestry’s ‘Free Basic Water’ policy, in particular, how the amount of 6 kiloliters per household per month was arrived at.

Schreiner Paragraph 167

1145. I deny that the applicants seek an “all for some” free basic water policy. Instead, we request a sufficient allocation to meet our specific needs, in terms of our constitutional right.

1146. I further point out that the current one-size-fits-all free basic water policy is not only irrational and without any basis in research into peoples’ needs, but it is also inequitable in that it benefits those who live in smaller households (often not the poor) due to its “per household” quantification, and, due to its universal application, provides rich households with the same amount of free basic water as poor households.

1147. I point out again that the applicants do not seek to set aside the national basic minimum, except to the limited extent that it cannot be interpreted to mean the “highest” of 25 litres per person per day, or 6 kilolitres per household per month. Instead, we seek an order against the first and second respondents to provide the people of Phiri with the increased amount of 50 litres per person per day.

Schreiner Paragraph 168

1148. I deny that prepaid meters would fall within the ambit of acceptable credit control measures. As set out elsewhere in my founding affidavit and in this replying affidavit, prepayment meters are an unreasonable and unjustifiable limitation of the right of access to sufficient water (particularly when combined with a too low free basic water supply) and also of the right to administrative justice in that, inter alia, they provide no adequate notice of disconnection nor opportunity to make representation prior to automatic disconnection. The pre-paid water meters violate the provisions in the Water Services Act regarding the process which must be followed when discontinuing a customer’s water supply. It is accordingly surprising that DWAF endorses pre-paid water meters as an “acceptable credit control measure”.

Schreiner paragraph 169

1149. I note the contents of this paragraph, but point out that the third respondent also has monitoring and regulatory duties to ensure the proper implementation of the free basic water policy.

Schreiner Paragraph 170

1150. I note that national government’s policy is not to increase “the minimum standard for basic water supply until all persons have been placed on the first rung of the water ladder” (basic supply facility). I have set out above my denial of this particular interpretation of the obligation to realise progressively the right of access to sufficient water.

Schreiner Paragraph 171

1151. I note the contents of this paragraph.

Schreiner paragraph 172 to 173

1152. I will not reply to Ms Schreiner’s response to Professor Bond, who replies separately, in his supplementary replying affidavit (“JM10”).

Schreiner paragraph 174

1153. The Third Respondent’s denial that “the manner in which the quantification of FBW was done was arbitrary and irrational” is bald and unsubstantiated. I have set out above that the national free basic water quantification was not based on any determination of peoples actual water needs . Rather, over and above discussions around the RDP and White Paper processes it appears to have been most directly based on the practice of Durban Metropolitan Municipality of providing 200 litre drums outside informal shacks, which Durban had found to be cheaper to provide for free than to administer. I deal with other aspects of the irrationality of the quantification process above.

Schreiner Paragraph 175

1154. I have explained above the fallacy of the respondents’ distinction between free basic water and basic minimum water supply.

1155. I reiterate that the interpretation and implementation of the National Standards Regulation, to the extent that it does not provide for the higher of 6 kiloliters per household per month rather than 25 litres per person per day, unfairly discriminates against large poor households in that more people have to survive on less basic water. In South Africa generally and in Phiri particularly poverty is analogous with race and gender, because black people and women predominantly carry the burden of poverty.

1156. The National Standards Regulation is accordingly inconsistent with the Constitution. Further legal argument on this matter will be heard in court.

Schreiner Paragraph 176.1

1157. I have dealt with the fallacy of the respondents attempted distinction between free basic water and a basic water supply.

1158. I deny that, in seeking the court to interpret the National Standards Regulation, the court will have to intrude into the domain of the executive branch of government and in so doing violating the doctrine of separation of powers. I submit that interpretation of legislation and regulations is wholly consistent with the judicial function. Further legal argument on this matter will be heard in court.

1159. deny the interpretation of the regulation contended for here by Ms Schreiner. I have explained this I greater detail above, and legal argument will be addressed on this issues at the hearing of this matter.

Schreiner Paragraph 177 to 219 (Response to Dr Gleick; Response to Professor Bond)

1160. I will not reply to Ms Schreiner’s response to Professor Bond, who replies separately, in his supplementary replying affidavit (“JM10”).

WHEREFORE the applicants seek the relief as set out in the notice of motion attached to the founding affidavit.


D E P O N E N T

I CERTIFY that this affidavit was signed and sworn to before me at on this the day of 2007, by the deponent who acknowledged that she knew and understood the contents of this affidavit, had no objection to taking this oath, considered this oath to be binding on her conscience and who uttered the following words: "I swear that the contents of this affidavit are true, so help me God". I certify that the Regulations contained in Government Notice R1258 of 21 July 1972, as amended, have been complied with.

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