Legal Opinion on disconnections/pre-paid meters

Sunday 15 May 2005 by Dale

February 2004


Prepared for:



Sean Flynn, esq. Director Institute on Law and Development, Essential Services Project [email protected] 1707 Columbia Rd NW #505 Washington D.C. 20009 USA



INDEX 2 INTRODUCTION 3 Client 3 Institute on Law and Development 3 Questions Presented 3 Summary of conclusions 4 STATUTORY AND REGULATORY BACKGROUND 5 Water Services Act 6 Municipal Systems Act 7 Municipal Bylaws 8 Disconnection procedures 8 Debt collection proceedings 10 Consumer complaints 10 Prepaid metres 11 THE RIGHT TO WATER 12 Duties of the State 12 APPLICATION OF CONSTITUTIONAL RIGHTS TO WATER LIMITATIONS 14 Reasonableness and Two-Stage Approaches 14 Limits to ‘Sufficient’ Water under Section 27 16 Complete disconnection 16 Limitation devices 17 Sufficient water in the context of differing needs 17 Average estimates of the amount of water needed to meet health needs 18 Section 36 Justifications for Water Limitations 20 “The nature of the right” 21 The government’s interest and means 21 Interest in cost recovery 22 Complete cut offs 23 Limitation devices 24 The UK’s ban on all water limitations 24 Collateral and collective service deprivations 25 Lack of law of general application 25 Lack of reasonableness 26 Hearing Rights 27 Constitutional rights to fair and reasonable procedures 27 Statutory rights to fair, reasonable and equitable procedures 27 Proportionality 28 Adequate service of notice 29 Content of notice 30 Scope of hearing 32 A right to appeal 34 Burdens of proof 35 A better model of fair procedures 35 Disconnections by Prepaid Metres 37 Right to a hearing 37 Proportionality 38 Equality 39 CONCLUSION: ENJOINING WATER LIMITATIONS 40

INTRODUCTION Client 1. This opinion was prepared for the Coalition Against Water Privatisation. Institute on Law and Development 2. The Institute on Law and Development is a non-profit legal and policy consulting firm based in Washington D.C. The Institute is dedicated to assisting civil society groups and governments use law as a tool to encourage just and sustainable social and economic development. The Essential Services Project is a project of the Institute that focuses on the analysis of laws and policies concerning the delivery of utility and municipal services. 3. I am a graduate of the Harvard Law School and am licensed to practice law in the State of Maryland. My knowledge of South African legal doctrine derives from a variety of professional and academic relationships, beginning with my role as Visiting Counsel to the Director General of Land Affairs in 1998. Subsequently, I served as a clerk to Chief Justice Arthur Chaskalson (2000-2002), lectured in Advanced Topics on Constitutional Law at the University of Witwaterstrand in 2001 and in June-September 2003 was a legal consultant to the South African Competition Commission. Questions Presented 4. I was requested to provide a legal opinion discussing the constitutionality of various practices of public and private actors in South Africa related to the limitation of water services for reason of non-payment. Specifically, I was asked to prepare an opinion discussing the following topics: a. May the disconnection of water services be held to be per se unconstitutional? b. Do trickle valves and other devices that limit access to water to 25 litres per person per day limit the right to access to sufficient water? c. What are the constitutional implications of limiting or transferring debt to collateral services, such as limiting electricity for non-payment of a water account? d. It is it constitutionally permissible to deny a community a service for the failure of some portion of that community to pay a particular service bill? e. What rights do citizens have to a hearing before their water service is limited? f. What are the constitutional implications of the use of automatic shut-off valves in pre-paid metres? Summary of conclusions 5. This opinion concludes that the current laws and practices of disconnecting or limiting water for non-payment of water bills may be unconstitutional in the following respects: a. Limiting water for non-payment of water bills by the poor may unjustifiably infringe the right to have access to sufficient water, particularly where other means to ensure cost recovery are available that are less invasive of the rights of the poor. b. Limiting or cutting off access to collateral services for non-payment of water bills may infringe constitutional norms barring arbitrary government action and requiring proportionality between the means used and the ends sought to be achieved. c. Limiting water through prepayment meters poses additional constitutional and statutory problems because such meters cut off water with no opportunity for a hearing that may be necessary to protect the rights of the poor to be free from arbitrary and unjustified limitations of their right to access to sufficient water. d. The compulsory installation of prepayment meters in poor black areas, but not in historically white neighbourhoods, may violate the equality clause in section 9 of the Constitution. e. An additional ground calling the constitutionality of water limitations for non-payment into question involves the constitutionality of carrying over large arrears on the accounts of poor people, in many cases reaching back to before the 1994 democratic elections. This practice may violate the injunction that limitations of rights be “reasonable and justifiable in an open democratic society”.


6. The provision of water and sanitation services are local government matters that are subject to concurrent national and provincial legislative competence under Schedule 4 of the Constitution. Section 155(7) of the Constitution grants the national and provincial governments “the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority” through legislative and other means. 7. Municipalities may regulate their own affairs, where not inconsistent with national and provincial legislation, through municipal bylaws. 8. I have not reviewed any provincial legislation regarding water disconnections. Water Services Act 9. Section 4 of the Water Services Act, No. 108 of 1997, provides that “Water services must be provided in terms of conditions set by the water services provider” and that such terms must provide for “the circumstances under which water services may be limited or discontinued” and the “procedures for limiting or discontinuing water services”. 10. Section 4(3) of the Act states that procedures for the limitation or discontinuation of water services must - (a) be fair and equitable; (b) provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations, unless- (i) other consumers would be prejudiced; (ii) there is an emergency situation; or (iii) the consumer has interfered with a limited or discontinued service; and (c) not result in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services. 11. Regulation 3 of Government Notice R509 of 8 June 2001 (‘Regulations relating to compulsory national standards and measures to conserve water’) provide that the minimum standard for basic water supply is “a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month.” This amount is considered “basic water services” under section 4(3)(c) of the Water Services Act. Municipal Systems Act 12. Sections 96 and 97 of the Municipal Systems Act, No. 32 of 2000, require all municipalities to maintain and implement a credit control and debt collection policy, which “must” provide for “termination of services or the restriction of the provision of services when payments are in arrears”. 13. Section 95 of the Act places responsibilities on municipalities to establish a transparent billing system and mechanism for challenging bills, including requirements to: (b) establish mechanisms for users of services and ratepayers to give feedback to the municipality or other service provider regarding the quality of the services and the performance of the service provider; . . . (e) ensure that persons liable for payments, receive regular and accurate accounts that indicate the basis for calculating the amounts due; (f) provide accessible mechanisms for those persons to query or verify accounts and metered consumption, and appeal procedures which allow such persons to receive prompt redress for inaccurate accounts; (g) provide accessible mechanisms for dealing with complaints from such persons, together with prompt replies and corrective action by the municipality; (h) provide mechanisms to monitor the response time and efficiency in complying with paragraph (g); and (i) provide accessible pay points and other mechanisms for settling accounts or for making pre-payments for services.

Municipal Bylaws 14. Each municipality in South Africa may have specific bylaws governing disconnection procedures and other issues related to the provision of potable water. I have reviewed the bylaws only of the City of Johannesburg Municipality. Disconnection procedures 15. It is the policy of the City of Johannesburg Metropolitan Municipality to disconnect or limit water services within 45 days of non-payment of an account, unless special procedures are invoked to challenge a bill or prove indigence. Johannesburg Municipality, Press Release: JOBURG TIGHTENS CREDIT CONTROL, 22 December 2003, www.joburg.org.za/pr/oct2003... 16. Section 9(C)(1)-(3) of Johannesburg’s Water Services By-Laws state that a final demand notice will be sent to any consumer that fails to pay the amount due and payable on or before the final date for payment. The final notice must contain the following: (a) the amount in arrears and any interest payable, and the date by which such arrears and interest must be paid; (b) that the consumer may conclude an agreement with the Council for payment of the arrears amount in instalments within 14 days of the date of the final demand notice; (c) that if no such agreement is entered into within the stated period that the water services will be discontinued or limited and that legal action may be instituted against any consumer for the recovery of any amounts 30 days or more in arrear, without further notice; (d) that the consumer’s name may be made public, and may be listed with a credit bureau or any other equivalent body as a defaulter; (e) that the account may be handed over to a debt collector or attorney for collection; (f) proof of registration as an indigent consumer in terms of the Council’s indigent policy must be handed in to the Council on or before the date for payment contemplated in paragraph (a); and (g) that an indigent consumer is only entitled to basic water services and that an indigent consumer will be liable for payment in respect of water services used in excess of the quantity of basic services. (h) an opportunity for the consumer to make representation in writing, on or before the date of payment contemplated in paragraph (a). 17. Section 9(C)(7) provides that “If representations made by a consumer are unsuccessful either wholly or in part, a final demand notice complying with the provisions of subsections (3)(a) to (g) must be given to the consumer in the manner provided for in subsection (1), stipulating that no further representations may be made.” 18. Section 9(C)(8) provides: “Subject to the provisions of the Act, and subject to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000), having been observed, save that the Council’s reasons for its decision to act must be supplied within seven days after a request therefore; the Council may discontinue water services to a consumer if - a. full payment was not received within the period stated in the final demand notices referred to in subsections (3) and (7); b. no agreement was entered into for the payment of arrears in instalments; c. no proof of registration as an indigent was furnished within the period provided for in the final demand notice contemplated in subsections (3) and (7); d. no payment was received in accordance with an agreement for payment of arrears; e. no representations as contemplated in paragraph (h) of subsection (3) were made within the period provided for in the final demand notice, contemplated in subsection (3); and f. the representations referred to in subsection (7) have not been wholly acceded to by the Council.” Debt collection proceedings 19. Where an account is outstanding for more than 60 days, the defaulting customer’s name may be made public and listed with a credit bureau as a defaulter and handed over to a debt collector or attorney for collection (Section 9(C)(9)). In any collection action, the Bylaws state that the consumer will be liable for administration fees, costs of taking action for recovery of arrears and any penalties in addition to interest on unpaid amounts (Section 9(C)(10)). Consumer complaints 20. In addition the procedures for representations submitted in respoinse to cut-off notices in Section 9(C), Section 9(B) provides that “[a] consumer may lodge a query or complaint in respect of the accuracy of the amount due and payable in terms of an account rendered to him, her or it” and that the Council must investigate the complaint “within 14 days, or as soon as possible after the query or complaint was registered”. The Johannesburg Revenue Department’s Customer Information guide directs complaints to Joburg Connect, 011-375-5555; Fax: 358-3408/9; [email protected] or [email protected], P.O. Box 1450, Johannesburg 2000; 4th Floor Jorissen Place, 66 Jorrisen Street, Braamfontein, Johannesburg 2001 or to a municipal council office. Prepaid metres 21. There is no explicit exemption from the notice and representation provisions of the Bylaws for water disconnections by a prepayment metre. 22. The only explicit authorization of the use of prepayment metres occurs with respect to consumers receiving “Service Level 2” (yard standpipe and a “pour flush toilet which must not be directly connected to the water installation”) that uses more than 6kl of water per month or that has connected a terminal fitting to the standpipe. In such a case, “the council may install a prepayment meter in the service pipe on the premises” (Section 3(3)). 23. The Bylaws define a prepayment meter as “a meter that can be programmed to limit the flow of water into a water installation to the amount which has been previously purchased” (Section 1(1)). 24. Several sections of the Bylaws contain special provisions for the use of prepayment metres. a. Section 8 states that the Council is not liable to pay a consumer for credits left on a metre. b. Section 9 states that overcharges by a prepayment metre will be compensated with free tokens to the consumer. c. Section 31 applies general standards to prepayment metres that apply to other metres. 25. Johannesburg Water, the corporatised entity with responsibility for delivering water services in Johannesburg, has made the conversion of standard meters to pre-paid meters in Soweto a key policy objective. According to its statement on Operation Gcin’amanzi: “Pre-payment water meters will be installed in every residential property [in Soweto] to enable consumers to take ownership of their water usage and to budget effectively. The first 6 000 litres of water dispensed to households every month is absolutely free, in terms of the government’s programme on free basic services.” Johannesburg Water, ‘Rapid Progress With New Water Project For Soweto’, www.johannesburgwater.co.za/... specialprojects_gcinamanzi.html.

THE RIGHT TO WATER 26. All legislation and practices by all spheres of government must comply with the Bill of Rights of the Constitution. 27. Section 27 of the Constitution of the Republic of South Africa, 1996, recognises a right of everyone to have access to sufficient water. 28. Like other social and economic rights in the Constitution, the right to have access to sufficient water has two parts. Section 27(1) defines a right of everyone to have access to “sufficient food and water”. Section 27(2) defines the duty of the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right. Duties of the State 29. Each right in the Bill of Rights is subject to the duties defined in section 7, which enjoins the state to “respect, protect, promote and fulfil” each right. Section 7 was modelled after the traditional human rights duties recognised under international law, which courts and other entities “must consider” in interpreting the South African Bill of Rights. Section 39(1)(b). a. The duty to respect is “negative” in nature, requiring the state to refrain from “improper invasion” of the right. Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa para 78 (1996). b. The duties to protect, promote and fulfil are “positive” in nature, requiring affirmative action by the state, through legislative and other means. By the terms of Section 27(2), these duties must be met through “reasonable” measures that are within the state’s available resources. The State is not obliged to go beyond available resources or to realise these rights through the full scope of positive efforts immediately. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) para 93-94. c. The duty to protect the right to water requires the State to prevent third parties from interfering with the enjoyment of the right. The United Nations Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the International Covenant on Economic, Social and Cultural Rights, has described the duty to protect the right to water as requiring measures to prevent third parties “from compromising equal, affordable, and physical access to sufficient, safe and acceptable water.” United Nations Committee on Economic, Social and Cultural Rights. General Comment No. 15. E/C.12/2002/11, para 24. d. The duty to promote requires the state to make available sufficient educational and other means to facilitate the enjoyment of each right. In relation to the right to water, the duty to promote may require the state to provide education and promote access to water saving technology that can assist households meet their water needs within their available resources. e. The duty to fulfil is the broadest positive obligation, requiring the state to adopt all necessary legislative and other measures needed to achieve the full realisation of the right. The duty to fulfil includes an obligation to provide essential goods and services directly to those unable to realize the right through means at their disposal. CESCR, General Comment No. 15, para 25.


30. The duty of the state to respect the right to water is directly implicated by any purposeful action by a governmental entity or agent that limits or halts the ability to consume potable water through municipal delivery systems. At bottom, any challenge to a disconnection policy will require a balancing of individual interests to have continuous access to an amount of water sufficient to meet all other protected values and rights in the constitution and the state’s interest in maintaining an effective mechanism of cost recovery to ensure that all in society can enjoy these rights. This balance will include consideration of alternative methods of cost recovery that may be less invasive of the rights of citizens to access a vital resource. Reasonableness and Two-Stage Approaches 31. Traditionally, issues involving direct state action that limits a right, implicating the duty to respect the right, are considered under a two stage approach. In the first stage, the court uses a “generous” and “purposive” interpretation of the right to analyze whether it was limited by the action in question. In the second stage, the court analyses whether any limitation was reasonable and justifiable in reference to the factors described in section 36. 32. In cases involving a failure of the state to meet its positive obligations to fulfil a social and economic right, the Constitutional Court has decided matters with reference only to the language in the internal qualification that the state “must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of each social and economic right. In this inquiry, the Court has held that “the real question in terms of our Constitution is whether the measures taken by the state to realise the right . . . are reasonable”. Grootboom para 33. 33. The Constitutional Court has left some ambiguity in how it will approach cases of invasions of the negative aspects of social and economic rights with language that these “rights themselves are limited by reason of the lack of resources.” Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) para 11; Treatment Action Campaign, para 31. These statements, however, were made in the course of discussing the state’s duties to “realise these rights”, not to protect them. Treatment Action Campaign, para 32; Grootboom para 94. 34. The case of limitation of access to existing water supplies implicates the negative rather than positive aspect of the right. I therefore believe that the proper analysis for a court will be to apply the traditional two stage approach, rather than the reasonableness inquiry applied to the alleged failure to adequately meet positive obligations. Limits to ‘Sufficient’ Water under Section 27 35. In the first stage of constitutional analysis, a court must decide if a right in the Bill of Rights has been limited. Thus, the first question under section 27 is whether access to “sufficient” water has been limited. 36. At this stage, the Constitutional Court tends to use a generous and purposive construction of rights in order to decide borderline cases on the issue of justification under section 36, rather than by defining rights narrowly to avoid requiring the state to justify its practices. This approach is an incident to the “culture of justification” that the Bill of Rights ushered in, in which the legitimacy of state action is to be established by the cogency of its reasons rather than the strength of its oppressive apparatus. 37. The generous and purposive approach to defining the content of a right when it is alleged that the right has been affirmatively limited by state action is in contrast to the sceptical approach of the Court to the question of whether there is a “minimum core” of each right that must be made available to all in society immediately. A minimum core analysis is not necessary to conclude that the rights of a person with access to an existing water supply has had their rights limited by a purposeful disconnection or limitation, even if others in society do not have a constitutionally enforceable claim to access to a minimum amount of water immediately. Complete disconnection 38. Where a water supply is completely cut off, there can be little debate that access to sufficient water has been limited. Whatever “sufficient” means, it is certainly an amount greater than nothing. Limitation devices 39. In apparent recognition that the rights of the poor are seriously compromised by disconnections of services, and in compliance with the Water Services Act’s requirement that basic water supplies not be limited due to indigence, many municipalities now install “trickler” devices on the supply to households with arrears. Trickler devices limit water to 6kl in a 24 hour period of constant flow. Other devices simply shut off water after 6kl is provided. To decide whether the right to have access to sufficient water has been limited by these devices, triggering a duty of the government to justify their use under section 36, it is necessary to give some content to word “sufficient” in section 27. Sufficient water in the context of differing needs 40. If “sufficient” water is a specific amount that is the same for every household regardless of size or context, then the state would be insulated from constitutional scrutiny as long as it did not limit water past that amount. The Constitutional Court rejected a static definition of “adequate housing” in Grootboom. There are powerful reasons for rejecting any universally defined quantity of water as “sufficient” for every household as well. 41. It is appropriate to define a “sufficient” amount of water in section 27 as that amount needed to enjoy other related rights, including the right to life, the right to enjoy an environment that is not harmful to health or welfare and the right to sufficient food. 42. A limitation of water to a specific fixed amount per day will undoubtedly inhibit access to a sufficient amount of water for a number of people. a. A restriction device may endanger life by inhibiting the ability to respond to emergencies such as fires or health problems requiring greater consumption of water. b. Restriction devices compromise health in many circumstances by slowing water flow to a degree compromising the ability to flush toilets or bathe properly. c. Larger households may need more water to meet basic needs, as may poor households who rely on growing food to meet their nutritional needs. d. The unavailability or affordability of water-saving technology or residing in a hot or dry climate may increase water needs. No one amount of water is likely to be sufficient for the needs of every household and therefore any blanket restriction of access to water to a specific amount per day will likely limit access to sufficient water to a substantial number of people. Average estimates of the amount of water needed to meet health needs 43. Although any restriction of water to a specific level is likely to limit access to sufficient water, limitations to 25lcd (or less for larger households) are particularly burdensome to capacities of the poor to live a healthy life with sufficient food. The World Health Organization estimates that access to 25 lcd is the minimum to maintain life, but that enjoyment of a healthy life requires much more. The same study estimates that 50 lcd is needed to reach a “low” level of concern over health impacts and that 100 lcd is the minimum needed for “all basic personal and food hygiene”, including laundry and bathing but not including water to grow food. Bartram, J and G. Howard. 2003. “Domestic Water Quantity, Service Level and Health.” WHO/SDE/WSH/03.02. Geneva: World Health Organization. 44. Estimates of water use in South African urban areas are in general agreement with the WHO estimates. a. Johannesburg Water estimates that “[a]n acceptable monthly household consumption for a working class region similar to Soweto with similar socio-economic conditions is 20kl [83 lcd].” Johannesburg Water. Nov. 2002. “Operation Gcin’Amanzi: Representing the Planned Intervention Projects by Johannesburg Water in the ‘Deemed Consumption’ Areas of Supply.”. b. Francis Wilson and Mamphela Ramphele’s 1989 study concluded that black townships in the Eastern Cape consumed an average of 80 lcd while white households in nearby areas consumed between 200-300 lcd. Wilson, Francis and Mamphela Ramphele. 1989. Uprooting Poverty: The South African Challenge. Cape Town: David Philips. c. Recent research by the South African Municipal Workers Union concluded that the amount of water needed to meet environmental health concerns is 63 to 120 lcd, an estimate that does “not include water used for subsistence gardening or the operation of small businesses - practices which are often essential for the survival of the poor”. Congress of South African Trade Unions and the South African Municipal Workers’ Union. 2003. Joint Submission by Cosatu & Samwu on the Draft White Paper on Water Services,Presented to Department of Water Affairs & Forestry.Congress of South African Trade Unions and the South African Municipal Workers’ Union 2003. 45. It is important to note that none of the above estimates of the amount of water necessary to enjoy a healthy environment includes an amount necessary to grow food, respond to emergencies or cater to the special needs of the sick. While general estimates can be generated that represent average needs, any limitation of water to a household to a specific amount will likely limit use to below a “sufficient” amount for life, health and dignity for many. 46. Based on the above analysis, it is my opinion that trickle valves and other devices that absolutely limit water to 25 lcd limit access to sufficient water to a large number of people. As such, it is my firm opinion that use of such devices must be justified under the terms of section 36. Section 36 Justifications for Water Limitations 47. Section 36 of the Constitution states that “rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.” 48. Section 36 involves a process of “weighing up of competing values, and ultimately an assessment based on proportionality which calls for the balancing of different interests”. National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC); 1998 (1) BCLR 1517 (CC), para 33. Under the section, “[t]he level of justification required to warrant a limitation upon a right depends on the extent of the limitation. The more invasive the infringement, the more powerful the justification must be”. S v. Manamela 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC), para 69. “The nature of the right” 49. Access to sufficient water is “indispensable for leading a life in human dignity” and “is a prerequisite for the realization of other human rights.” CESCR, General Comment No. 15, para 1. a. Without sufficient water, life itself may be compromised. The right to “sufficient food”, found in the same clause as the right to sufficient water (section 27(1)(b)), may be denied to those without sufficient income to purchase food and who cannot grow their own food because of lack of access to sufficient water. b. A person cannot enjoy their section 24 right to an environment that is not harmful to their health and well-being without access to sufficient water. c. More broadly, the Constitutional Court has remarked that “[t]here can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied” to those deprived of any social and economic right. The realisation of socio-economic rights is “key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.” Grootboom, para 23. The government’s interest and means 50. The remaining factors in the Section 36 proportionality analysis regard the weight of and means used to promote the government’s interests. 51. Given the paramount importance of the right to have access to sufficient water, any deliberate limitation of the right must be subject to the most exacting scrutiny. See CESCR General Comment No. 15, para 19 (“If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.”). Interest in cost recovery 52. The government undoubtedly has an important interest in recovering the costs of service provision. Without a means to recover the costs of service delivery from those who are able to pay, the government will be unable to progressively realize greater access to services for all. 53. The government’s cost recovery means must meet constitutional requirements, particularly the Section 9 right to equality and corresponding duty to redress service inequalities. User fees and other charges may be a constitutional means for ensuring cost recovery where they do not inhibit any segment of society from accessing an essential service. But user fees that disproportionately burden the poor and those disadvantaged by the previous regime may violate the right to equality. See City Council of Pretoria v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) para 32 (holding that policies will be presumed to be unfair discrimination in violation of Section 9 where “its impact was clearly one which differentiated in substance between black residents and white residents”). The Constitutional Court has recognized the continued existence of great disparities in service quality between black and white areas, and held that “equality will not be achieved if the consequences of those inequalities and disparities caused by discriminatory laws and practices in the past are not recognised and dealt with.” City Council of Pretoria v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) para 46; see also Hawkins v. Town of Shaw, 437 F.2d 1286, 1292-93 (5th Cir. 1971) (holding racially planned municipalities in U.S. to be under an obligation to “remove the disparities that bear so heavily on the black citizens”). 54. A utility that charges the same or higher rates for services in disadvantaged areas than in areas with superior infrastructure and service levels because of Apartheid planning priorities may be unconstitutionally overcharging customers under the standard articulated in Walker. The South African Constitution’s concept of substantive equality “requires that government take differing and unequal circumstances into account to ensure a full equality.” Daria Roithmayr, ‘Access, Adequacy and Equality: The Constitutionality of School Fee Financing in Public Education’ (2003) 19 SAJHR 382, 409. 55. By extension, if the base rates being used to calculate arrears are unconstitutional because they violate the duty to redress inequalities in service provision, then tabulated arrears on the accounts of people living in black areas may also be unconstitutional. An equality-based challenge to arrears may be particularly strong where households are being charged for arrears, and often interest, dating back to before 1994. Charging disadvantaged households for services under an unjust regime may limit rights to access basic services that is not “reasonable and justifiable in an open and democratic society” (Section 36). Complete cut offs 56. Where arrears are justly tabulated and rates are equitably constructed, the factors in section 36 weigh heavily against the constitutionality of completely cutting off a household’s source of potable water as a means to encourage payment of bills. a. The “extent of the limitation” in such a case is very severe and life-threatening. b. The importance of the limitation - encouraging cost recovery - may be held not proportional to the amount of harm being inflicted. Cf. S v Makwanyane 1995 (3) SA 391 (CC) (holding that the state does not have a right to take the life of citizens). c. Finally, and perhaps most importantly, there are “less restrictive means to achieve the purpose”. Debt collection can be achieved from those with means to pay through a just and appropriate administrative or judicial procedure that allows the individual opportunity to make effective representations and places an appropriate burden on the state to prove its case before it harms the interests of its citizens. Indeed, if all the sections of the Johannesburg Bylaws permitting limitation of services as a means of credit control were deleted, the City would still have the authority to refer debt collection matters to an attorney or credit agency pursuant to Section 9(C)(9). Limitation devices 57. These same factors weigh against the constitutionality of any limitation device that prevents households from accessing sufficient water. As described above, any device that absolutely limits consumption of water will threaten the lives and certainly the welfare of many people. There are less restrictive means of achieving the state’s cost recovery goals than threatening people with negative health impacts for failing to pay. The UK’s ban on all water limitations 58. Prohibiting the limitation of water services is not without precedent. The United Kingdom (UK) Water Services Act of 1999 prohibited all disconnection or limitation of water services to private dwelling houses, children’s and residential care homes, prisons, educational institutions, hospitals and nursing homes, and premises occupied by emergency services. According to the UK Department for Environment, Food & Rural Affairs, 1999, “Water Industry Act 1999: Delivering the Government’s Objectives”, this abolition was motivated by the principle that “No person should have to face the prospect of cutting down on essential water use for washing, cooking and cleaning because they cannot afford their bill”. Collateral and collective service deprivations 59. Cutting one service, such as electricity, for non-payment of a collateral service, such as water, is another extreme means of debt collection that may violate constitutional proportionality norms. Lack of law of general application 60. The first requirement of section 36 is that “rights in the Bill of Rights may be limited only in terms of law of general application”. I am not aware of any specific and clear legal authorisation for collateral or collective service deprivations within national law. 61. It is a traditional principle of constitutional construction that statutes limiting basic rights of the citizenry should be strictly and narrowly construed. See S v. Bhulwana 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) para 388. Accordingly, any vague or unclear authorisation of disconnections that limit the rights to water or to adequate housing is likely to be interpreted by a court as not authorizing deprivation of services other than those for which there has been specific non-payment. 62. In Hartzenberg & Others v Nelson Mandela Metropolitan (Despatch Administrative Unit), 2003 JOL 10625 (SE), the High Court held that neither the Standard Electricity Supply By-law for the Province of the Cape of Good Hope nor the Municipal Systems Act (2000) authorises the discontinuance of prepaid electricity for arrears on water accounts. Lack of reasonableness 63. Where there are legal authorisations for collateral or collective service deprivations, these rules may violate Section 36 of the Constitution’s requirement that limitation of basic rights be “reasonable and justifiable in an open and democratic society”. Government action that is disproportionately punitive or is arbitrary is not reasonable. 64. The U.N. Committee on Economic, Social and Cultural Rights has stated that the right to water may be violated by action “limiting access to, or destroying, water services and infrastructure as a punitive measure”. A punitive measure is one designed to subject an individual to “retributive or disciplinary suffering”. Oxford English Dictionary. Disconnection of one service for non-payment of another service is punitive under this definition. 65. In the United States, courts have held that local ordinances allowing collateral service deprivations grant an “unlawful discretion and arbitrary power upon the officers of the city which it is not within the power of the city to grant”. Garner v. City of Aurora, 149 Neb. 295, 298 (1948). The Supreme Court of Nebraska held in Garner (at 302) that a city could not authorise water cut offs for failure to pay refuse charges. The Court explained: The authorities [interpreting statutory grants of authority to municipalities] are uniform to the effect that a public service corporation cannot refuse to furnish its public service because the patron is in arrears with it on account of some collateral or independent transaction, not strictly connected with the particular physical service. For instance, electric companies frequently sell electric stoves, refrigerators, and the like. Such a company cannot cut off electric service because the patron is in default in the payment of a bill of that description. 66. It is my opinion that collateral and collective service deprivations violate section 27 read with section 36 of the Constitution because the limitation of rights to have access to basic services is disproportionate to any legitimate justification for a disconnection. Hearing Rights 67. Any disconnection or limitation of water without a sufficient opportunity of the affected citizen to be heard at a meaningful time and in a meaningful manner may be unconstitutional. Constitutional rights to fair and reasonable procedures 68. Section 33 of the Constitution states: “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.” 69. Section 36 requires that any limitation of rights be “reasonable”, considering all relevant factors including the extent of the limitation. Procedures used to limit a right would be relevant in assessing the nature and extent of the limitation of the right. Statutory rights to fair, reasonable and equitable procedures 70. The Promotion of Administrative Justice Act, No. 3 of 2000, gives effect to the rights in Section 33 of the Constitution. Section 3(1) of the Act requires that “Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.” Section 3(2) provides that a fair administrative procedure “depends on the circumstances of the case”, and must give a person: a. adequate notice of the nature and purpose of the proposed administrative action; b. a reasonable opportunity to make representations; c. a clear statement of the administrative action; d. adequate notice of any right of review or internal appeal, where applicable; and e. adequate notice of the right to request reasons in terms of section 5. 71. Section 4(3) of the Water Services Act 108 of 1997 requires that procedures for the limitation or discontinuance of water service must “be fair and equitable”; “provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations,” and “not result in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water service authority, that he or she is unable to pay for basic services”. Proportionality 72. What is clear from the constitutional and statutory provisions is that fair and reasonable procedures ultimately must be determined on a case by case basis through a proportionality analysis. More protective procedures must be put in place to guarantee against unjustified and arbitrary deprivations where the highest order interests of the individual are at stake. 73. Under the proportionality analysis applied in U.S. law to determine due process questions, highly protective procedures, including a full evidentiary hearing before an impartial adjudicator (not a service delivery employee) with access to representation, is required before the state acts to deprive a citizen of a public benefit providing “the very means by which to live”. Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (requiring full hearing before termination of welfare grants that provide “the means to obtain essential food, clothing, housing, and medical care”). The most protective procedures are required when the state seeks to deprive a citizen of liberty by imprisoning an individual. 74. Depriving citizens of access to water threatens access to an essential resource and therefore demands highly protective procedures to guard against erroneous, unjustified or life-threatening deprivations. Adequate service of notice 75. Constitutional requirements of fair notice are frequently heightened depending on the nature of the interest being affected by government action. a. In the most serious cases, such as criminal cases where the life and liberty of the citizen may be at stake, constitutional standards often require actual notice, including requirements that the notice be in the citizen’s own language and that the citizen acknowledge that she understands it. This is the most protective standard of notice. b. A less protective standard of actual notice requires proof only that the citizen received the notice, not that she understood it. Actual notice in this form may be proved by in-person delivery or by a signature on a certified mail receipt. c. Constructive notice based on proof only that notice was sent to a known address is still less protective. d. The least protective notice requirements assume notice from a duty of the citizen to be aware of a particular fact. This standard is rarely used when the state has a duty to notify before subjecting a citizen to a deprivation, but is sometimes used in delict cases where, for example, a land owner may be deemed to be on constructive notice of dangers on her land. 76. The Johannesburg Bylaws provide one of the least protective forms of notice prior to a limitation of water service. a. Section 9.C(1) requires only that “a final demand notice may be sent and may be hand delivered or posted, per mail, to the most recent recorded address of the consumer.” b. The discretionary nature of the notice provision is amplified in section 9.C(2), which states: “Failure to deliver or send a final demand notice does not relieve a consumer of the obligation to pay any amount due and payable.” Presumably, and based on consumer reports, this norm is interpreted to allow service limitations even where no notice or bill has been received by households. Consumers are deemed to be on constructive notice of the amount of their bills and impending intentions to limit services. 77. In my opinion, the paramount importance of the right to water to life, health and the exercise of all other rights in the Constitution is unjustifiably compromised by water limitations based on constructive notice. Actual notice of the impending action should be required, including best efforts to present the notice in a citizen’s own language. Content of notice 78. The content of the notice of an action that affects rights must also be proportional to the interests affected. A notice may be deficient in this regard if it does not fully apprise the individual of all procedures available to dispute the grounds for the impending action. 79. In Residents of Bon Vista Mansions v. Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) it was held that a standard cut off notice that did not clearly and specifically apprise the consumer of the right to a hearing under the Water Services Act did not meet requirements of the Act read in light of a constitutional limitations analysis. The court explained: The right [to a hearing in the Water Services Act] is not likely to have real meaning unless the service provider informs consumers of its existence, which it could easily do. A genuine opportunity to make representations is particularly important in the light of the provision that water supply may not be disconnected if it results in a person being denied access to basic water services for non-payment, where that person proves, to the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services. 80. The court’s holding in Residents of Bon Vista Mansions is consistent with U.S. constitutional requirements. In Memphis Light v. Craft, 436 U.S. 1, 22 (1978), the U.S. Supreme Court held that a standard electricity cut-off notice including a statement of arrears and an information phone number was not sufficient to meet constitutional due process requirements. It held that a municipality must provide “notice reasonably calculated to apprise respondents of the availability of an administrative procedure to consider their complaint of erroneous billing”. Memphis Light v. Craft, at 18. 81. There is a complaint procedure provided for in Section 9.B of the Johannesburg Bylaws. A similar complaint procedure is required to be in place in every municipality by Section 95 of the Municipal Systems Act. The Johannesburg Revenue Department’s Consumer Information guide states that complaints may be submitted in person or in writing. This procedure is not required to be explained to consumers in the final demand notice described in section 9.C, which refers only to notice “of an opportunity to make representation in writing”. 82. It is my opinion that the full range of procedures available to citizens, including opportunities for in-person representations under section 9.B should be explained in any notice of an intention to limit services. Without such notice, the right to make complaints becomes illusory. Scope of hearing 83. As noted above, Section 9.C of the Johannesburg Bylaws restricts the right to make representations before a water limitation to “representations in writing”. 84. Determining the specific attributes of a “fair” and “reasonable” procedure for representations from the affected individual normally turns on a balance between the individual interests affected and the interests of the state, including interests in efficient administrative action. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”). 85. An additional requirement in Section 4(3) of the Water Services Act provides that the procedures for limitation of water must be “equitable”. 86. A right only to submit written representations to thwart a cut off does not appear proportional to the weighty interest of the individual in continued receipt of a life sustaining resource. 87. In South Africa, there is no generally applicable basic income grant enabling all citizens to purchase access to essential services. Accordingly, deprivations of water may threaten the very means to survive in a similar way as does the deprivation of welfare benefits in the U.S. Even limitation to a “basic” level may, as explained above, threaten lives by limiting the ability to grow food or respond to emergencies such as sickness and fires that may require access to more than a basic level of water. 88. The restriction of representations to writing may also violate the norm in the Water Services Act that the procedures be “equitable”. Such restrictions are not equitable to those without the ability to accurately and cogently argue their case in writing and such people will likely be disproportionately represented among the poorest individuals in society. It is neither fair nor equitable to establish procedures relying on writing skills. Moratoriums on disconnections in the presence of disputes 89. An incident to the right to make representations before a service disconnection must be no right of the service deliverer to limit water in the context of a dispute. 90. In Memphis Light v. Craft, the Supreme Court described the general common law rule in the U.S.: “A company supplying electricity to the public has a right to cut off service to a customer for nonpayment of a just service bill and the company may adopt a rule to that effect. Annot., 112 A.L.R. 237 (1938). An exception to the general rule exists when the customer has a bona fide dispute concerning the correctness of the bill. Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 193 A. 613, 615 (1937); Annot., 112 A.L.R. 237, 241 (1938); see also 43 Am.Jur., Public Utilities and Services, Sec. 65; Annot., 28 A.L.R. 475 (1924). If the public utility discontinues service for nonpayment of a disputed amount it does so at its peril and if the public utility was wrong (e. g., customer overcharged), it is liable for damages. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 690, 28 A.L.R. 461 (1920)." Trigg v. Middle Tennessee Electric Membership Corp., 533 S.W.2d 730, 733 (Tenn.App.1975), cert. denied (Tenn.Sup.Ct. Mar. 15, 1976). 91. The Court in Memphis Light described the rule that a utility may be subject to damages for cutting service in the presence of a dispute as motivated by the principle that a “public utility should not be able to coerce a customer to pay a disputed claim.” Memphis Light v. Craft, at 10. 92. As described above, all municipalities are required by Section 95 of the Municipal Systems Act to have a complaint processing procedure in place to handle billing disputes, and Section 6 of the Promotion of Administrative Justice Act provides a possible means of obtaining judicial review of an adverse decision (e.g. because a rejection of a dispute was “materially influenced by an error of law”). Filing a dispute through these or other available procedures should halt any pending disconnection process until the dispute is resolved. A right to appeal 93. Section 9.C(7) of the Johannesburg Bylaws appear to allow disconnections in the presence of an appeal, stating that if initial written representations are unsuccessful, a notice must be given to the citizen “stipulating that no further representations may be made.” 94. This provision may be unreasonable, and therefore unconstitutional, in light of the Promotion of Administrative Justice Act, which grants rights to obtain judicial review of unlawful administrative action. Allowing disconnections in the face of a bona fide appeal may cause irreparable damage to the health and safety of individuals that is out of proportion to any interest of the state. Burdens of proof 95. A final attribute of the most protective form of procedure that may be constitutionally required in cases where the state seeks to invade fundamental rights and liberties is a burden on the state to prove the material elements of the grounds for its action. 96. Under the Water Services Act, the burden of proving indigence to avoid a complete cut off is placed on the poor. Adding complexity to the process, the poor must prove their indigence “to the satisfaction of the relevant water services authority” rather than according to any objective criteria. 97. The requirement that the poorest people prove their indigence, which in Johannesburg must be done in writing, may be a highly ineffective and unfair method of ensuring that people’s right to access to sufficient water is not compromised by disconnection policies. As has been pointed out in the education context, “many families who might be eligible for exemptions do not apply because of the burden it imposes - ie the process is too time-consuming, the cost in dignity or in spending time to acquire information is too high”. Daria Roithmayr, ‘Access, Adequacy and Equality: The Constitutionality of School Fee Financing in Public Education’ (2003) 19 SAJHR 382, 400; see also id. at 401 (summarizing international research showing that “very few of those who are eligible to receive waivers for user fees actually end up receiving the waivers”). A better model of fair procedures 98. Based on the weighty interests of individuals in maintaining access to sufficient water to meet all of their needs, the most protective hearing possible should be provided prior to limitation of service. Minimum requirements for such a hearing should include: a. A stay of all limitations pending final resolution of any dispute (including pending all appeals); b. An impartial decision maker with authority to respond to all disputes raised. An impartial decision maker may, for example, be a government official, magistrate or a private arbitrator not responsible to the service provider; c. A right to knowledgeable publicly subsidized representation, such as a lawyer or consumer group representative; d. A right to appeal any decision to a court of law or administrative tribunal with authority to demand changes in the service providers policies and practices; e. A right to a written decision that can form the basis for any appeal; f. A right to submit oral and/or written disputes and be heard in person. 99. An alternative to providing the full scope of hearing rights required is to prohibit all residential service limitations for non-payment. This may, indeed, be the most cost-effective method of ensuring the fair treatment of citizens, as was determined by the UK Parliament in 1999. Such a policy would not remove the ability of service providers to collect just and affordable debts through existing debt collection processes where people have the means to pay. 100. It should be noted that current practices of courts in South Africa approving of orders selling off people’s houses and essential goods for non-payment of unaffordable essential service bills is constitutionally suspect. Analyzing the adequacy of consumer protections in bankruptcy and other laws to protect against deprivation of basic goods and services for non-payment of unaffordable debt is beyond the scope of this opinion. Disconnections by Prepaid Metres Right to a hearing 101. Use of prepaid metres with automatic shut-off valves completely removes the protections of a hearing before a cut-off and radically alters the relationship between the citizen and state. As described in a recent report on the installation of prepaid water meters with automatic shut off valves in Orange Farm, South Africa, the “system fundamentally changes the social relationship households have traditionally had with water providers. With the prepaid water technology, water utilities distance themselves from dealing with normal customer relations.” Maj Fiil, “NOTHING’S MAHALA: The forced implementation of prepaid water meters in Stretford Ext. 4, Orange Farm, Johannesburg - South Africa” (2004). 102. There is no exemption to the hearing rights in the Water Services Act for limitation of water services through a pre-paid metre with an automatic shut-off valve. Section 156(3) of the Constitution makes clear that a bylaw that conflicts with national or provincial legislation is invalid. Thus, the authorization of use of prepaid technology in Johannesburg’s Bylaws may be held to conflict with national law and therefore be invalid. Even if the Water Services Act were amended to allow cut-offs by prepaid metres without hearings, that amendment would face stringent scrutiny under the fair administrative procedures rights in Section 33 of the Constitution and under the Promotion of Administrative Procedures Act. 103. There is precedent in the U.K. for banning the use of automatic shut-off valves because they limit water without a hearing. Prior to the ban on all water cut-offs in the U.K. in 1999, the U.K. Water Services Act of 1991 established an intricate series of procedures and hearing rights designed to protect the poor from being disconnected from water service based on an inability to afford a bill. Some private water suppliers responded by installing pre-paid metres with automatic shut-off valves in households with large arrears. In R. v Director General of Water Services, [1999] Env. L.R. 114 (Q.B.D. 1998), the Queen’s Bench Division held that automatic shut-off valves in prepayment units violated the procedural requirements contained in the 1991 UK Water Services Act because they offered no notice or opportunity for a hearing before service was limited. Proportionality 104. Automatic shut-off valves limit the right to water. The U.N. Committee on Economic, Social and Cultural Rights has stated that the international right to water requires a supply for each person that is “sufficient and continuous” for such personal uses as drinking, sanitation, washing of clothes, food preparation and hygiene (General Comment No. 15, para 12(a)). Prepaid meters that automatically cut water prevent access to a continuous supply of water. Even if the meter is fitted with a device cutting water to the basic level when credits expire, the limitation will deprive many of access to sufficient water to meet all of their needs. 105. Automatic shut-off valves are particularly harmful to health and safety because they provide no room for consideration of special needs and emergency circumstances, as normal meters permit. A meter that cuts off water to a poor family that lacks the time or money to access more water immediately may be devastating in poor communities with increased fire risk due to use of unsafe fuels. Families with health problems that prevent them from travelling to a location where credits can be purchased or that require access to increased amounts of water may also be particularly burdened. Some AIDS medications, for example, require the consumption of large amounts of water each day to prevent debilitating kidney stones. For these and other reasons, the Constitutional requirement that water not be limited without a protective hearing should be applied to limitation through automatic shut-off valves, in effect banning the use of such valves. 106. Literature from government departments state the main purpose of installing prepaid peters is to “enable consumers to take ownership of their water usage and to budget effectively”. Johannesburg Water, “Rapid Progress With New Water Project For Soweto”, www.johannesburgwater.co.za/.... Presumably the benefits of prepaid meters are that a consumer can see the amount of water left on a credit, not that they limit all use of water between top ups of the account. Prepaid meters that allow individuals to monitor their water usage and pay on an incremental basis are available without automatic cut-off valves, which is now the case in the U.K. Thus there is a clear and simple “less restrictive means” to harness any positive benefits from a prepaid metre without limiting the right to water - the shut off valve can be removed. Equality 107. Finally, the compulsory installation of prepaid metres raises serious equality concerns. 108. Prepaid metres are an objectively inferior form of service because (1) they shut off automatically, requiring extra effort and travel for tokens to keep a continuous supply and (2) because they require payment up front, giving the utility use of the consumers money before a service has been rendered, the opposite of the usual relationship where the utility extends serviced prior to payment. 109. The installation of prepayment metres is not being implemented throughout South Africa. Only predominantly black areas are being targeted for this inferior service. Accordingly, this differential treatment must be presumed to be unfair and therefore unconstitutional under Section 9. 110. The enquiry into whether the presumption of unfair discrimination has been rebutted involves an examination of the impact of the discrimination on the respondent. City Council of Pretoria v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) para 37. While prepaid metres that do not automatically shut off may have positive impacts, the impact of an automatic shut off valve is entirely negative. In extreme cases the shut off can be catastrophic - inhibiting a family from accessing needed water in an emergency because of an inability to afford, or travel to place that sells, a water token. CONCLUSION: ENJOINING WATER LIMITATIONS 111. This opinion has identified a large number of serious constitutional problems with the current practice of cutting or limiting residential water services in South Africa. The continuation of disconnections and limitations of water services in the presence of these problems opens municipalities and service providers to legal liability, including damages due to all those who have been subject to illegal or unconstitutional disconnections. 112. Municipal service providers should be put on notice of the potential for liability and should immediately cease limitation practices pending policy reviews that address the constitutional issues raised in this opinion. If a request for a moratorium on service disconnections is rejected, I advise approaching a court for a preliminary injunction halting all disconnections pending litigation over the constitutionality of disconnections policies.

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