Supreme Court Of Appeal (SCA) hands down judgment on Phiri Water Case

One Step Forward, Two Steps Back

Wednesday 25 March 2009 by Nic

Contradictory nature of judgment means that battle for full right to water and against pre-paid water meters continues

This morning, the Supreme Court of Appeal (SCA) in Bloemfontein handed down its judgment in the years-long Phiri water case. The judgment was the result of an appeal by the City of Johannesburg/Johannesburg Water (hereafter, the ‘City’) and the Department of Water Affairs and Forestry (DWAF) of the previous ruling of the Johannesburg High Court in April 2008, which declared that prepaid water meters were both illegal and unconstitutional and ordered the City to provide residents with 50 litres of free water per day.

The order of judgment by the SCA reads as follows:

“The appeal is upheld and the order by the (High) court is replaced with the following order:

- The decision of the first respondent and/or the second respondent to limit the free basic water supply to the residents of Phiri to 25 litres per person per day or 6 kl per household per month is reviewed and set aside.

- It is declared:

a) That 42 litres water per Phiri resident per day would constitute sufficient water in terms of s 27(1) of the Constitution.

(b) That the first respondent is, to the extent that it is in terms of s 27(1) of the Constitution reasonable to do so, having regard to its available resources and other relevant considerations, obliged to provide 42 litres free water to each Phiri resident who cannot afford to pay for such water.

- The first and second respondents are ordered to reconsider and reformulate their free water policy in the light of the preceding paragraphs of this order.

- Pending the reformulation of their free water policy the first and second respondents are ordered to provide each account holder in Phiri who is registered with the first respondent as an indigent with 42 litres of free water per day per member of his or her household.

- It is declared that the prepayment water meters used in Phiri Township in respect of water service level 3 consumers are unlawful.

- The order in paragraph 5 is suspended for a period of two years in order to enable the first respondent to legalise the use of prepayment meters in so far as it may be possible to do so.”

The SCA’s decision to set aside the City’s present policy of limiting the provision of free basic water to 6kl per month/per household is welcomed. CAWP has, from the very beginning of this case argued that this unilateral limitation is a violation of the constitutional right to adequate water (for the poor). However, the SCA’s determination that 42 litres of water per person/per day constitutes ‘sufficient’ water in terms of the Constitution, while an improvement on the present free basic amount provided, falls short of what is universally accepted and recognised as the minimum amount of water needed for basic human needs and dignity.

Even more problematic though, is that the SCA’s order to the City to provide this amount, is conditional. The very same City that has, at every opportunity, resisted the legitimate claims and demands of poor communities for adequate amounts of free basic water, is effectively allowed carte blanche (through its own assessment of what constitutes ‘reasonableness’ and ‘through available resources’) to determine the timing, character and extent of changes to its existing ‘free water policy’. To make matters worse, the SCA order explicitly states that while the City is ‘reformulating’ its policy, the provision of the increased free basic amount must only be available to those who are registered as indigents with the City. As CAWP and many others have pointed out for the past several years, not only does the indigency process constitute a demeaning and patronising treatment of poor people but the City’s Indigent Register is a complete administrative mess and institutional disaster and those that are registered constitute less than a quarter of poor households in Johannesburg. In making such an order, the SCA allows the City, once again, to unilaterally determine and manage who enjoys their constitutional right to water and when. Crucially, it effectively legalises the treatment of the poor majority as second class citizens.

The SCA’s judgment that pre-paid water meters are unlawful represents an approach that privileges legal technicalities over constitutional right and protection. The basis for the declaration of unlawfulness of the pre-paid meters is the absence of the necessary City by-laws. The order gives the City two years to pass the necessary by-laws so that the pre-paid meters can then be ‘legalised’. In practical terms, this means that the City can thus continue to forcibly install pre-paid meters in poor communities (while providing wealthier residents with full credit metered water systems and thus allowing those with the means to do, to consume as much water as they want as long as they can afford it). This is a legal cop-out. The constitutional issues around discrimination and representation/administrative justice in relation to the pre-paid water meters that were properly addressed in the High Court ruling have simply been ignored. As such, water provision remains in the realm of privileged commodification - the full enjoyment of the right to water still being determined by ones’ class status and geographical location.

On the legal front, the SCA judgment is a case of ‘one step forward, two steps back’. As the Phiri applicants, CAWP and all of its associated members have said since the start of this case, the struggle for the full right to water will continue, on the numerous fronts, regardless of what happens in courts of law. While we are consulting with our legal team as to the next steps forward in this case (which would, of necessity, involve representations to the Constitutional Court), the realities on the ground in poor communities enjoin a continuous battle. In this respect, there will be no let-up. The realisation and enjoyment of real, practical democracy can only be achieved and sustained by the power and actions of ordinary people.


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