Phiri Water Rights Case Heads to the Constitutional Court on 2 and 3 September 2009

Friday 28 August 2009 by Nic

Centre for Applied Legal Studies Press Statement 26 August 2009

The Mazibuko appeal against the SCA judgment of 30 April 2009 will be heard in the Constitutional Court, where the applicants will argue that prepayment water meters in Phiri should be declared unlawful, and that the City’s Free Basic Water policy is insufficient to meet the basic needs of poor Phiri households.

Between 2 and 3 September 2009 the Constitutional Court will hear an appeal challenging the constitutionality and lawfulness of prepayment water meters (PPMs) and the sufficiency of the City of Johannesburg’s free basic water (FBW) allocation to poor residents in Phiri, Soweto. The Court is being asked to order the City to provide Phiri residents with a FBW supply of 50 litres per person per day, and the option of a conventional metered water supply that exists throughout Johannesburg’s richer suburbs.

The application is brought by Phiri residents who are all unemployed and living in conditions of poverty on behalf of themselves and everyone in the public interest. The five year legal battle has been supported by the Coalition Against Water Privatisation (CAWP) and the Anti-Privatisation Forum (APF). The applicants are represented by the Centre for Applied Legal Studies (CALS), which is a human rights research, advocacy and public interest litigation centre at the University of the Witwatersrand. The respondents are the City of Johannnesburg, Johannesburg Water (a publicly-owned water corporation) and the national Department of Water Affairs and Forestry (DWAF, now called the Department of Water and Environmental Affairs).

Since March 2004, the applicants, along with thousands of residents of Phiri, have been forced to accept standpipes (outside yard taps) or PPMs as the ‘only’ options besides complete disconnection of their previous water supply. All of the residents had previously received an unlimited amount of water for which a flat-rate was levied. With the imposition of the PPMs, the residents’ water supply is automatically disconnected when they do not have sufficient money to purchase water credit. PPMs provide none of the usual procedural protections against administrative errors and household emergencies, which are offered by conventional credit meters in the rest of Johannesburg. These protections – the purchase of water on credit with reasonable notice of being in arrears and of possible disconnections, along with an opportunity to make representations prior to disconnection – are in place in conventional water supplies precisely to avoid the Phiri situation, where people are forced to go without water because of circumstances beyond their control, including abject vulnerability and poverty.

Since the advent of PPMs – and because the FBW allocation is insufficient to meet the basic needs of multi-dwelling poor households - Phiri residents are often without water for up to two weeks each month because they cannot afford to purchase additional water credit once the inadequate FBW supply is exhausted. The applicants are asking for 50 litres of FBW per person per day, which is based on the calculation of Dr Peter Gleick, a world expert on water rights and sufficiency. Dr Gleick’s expert opinion, relied on by the United Nations’ Committee on Economic, Social and Cultural Rights, is that in conditions such as Phiri, the minimum amount of water to ensure a healthy and dignified basic standard of living is 50 litres per person per day (lpppd), broken down as follows:

Minimum for drinking: 5 lpppd

Basic sanitation: 20 lpppd

Basic bathing: 15 lpppd

Basic food preparation:10 lpppd

TOTAL 50 lpppd

According to Jackie Dugard, senior researcher at CALS, “the applicants and their support organisations believe this case to be of critical importance in securing the constitutionally-guaranteed right of access to sufficient water (section 27(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996), and socio-economic rights more generally, to poor people”.

The applicants’ counsel are Wim Trengove SC, and Nadine Fourie.

Background to the Constitutional Court appeal

- Case launched in the Johannesburg High Court, 6 July 2006

- Johannesburg High Court hearing, 3 – 5 December 2007

- High Court judgment, 30 April 2008

PPMs unlawful and unconstitutional; City ordered to provide all similarly-positioned residents of Phiri with 50 lpppd

- Supreme Court of Appeal hearing, 23 – 25 February 2009

- Supreme Court of Appeal judgment, 25 March 2009

PPMs unlawful (City given two years to rectify); FBW policy unreasonable (City ordered to rectify FBW policy and in interim to provide all Phiri residents on indigency register with 42 lpppd

See the CALS website for more on the Mazibuko case.

For more information contact:

Jackie Dugard: 084 240 6187 / 011 717 8619 or [email protected]

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