Constitutional Water Rights Judgment Gets It Wrong

By Jackie Dugard · 21 Oct 2009

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Picture credit: Damozeljane
Picture credit: Damozeljane

On 08 October 2009, the Constitutional Court handed down its first water rights judgment. The case – Mazibuko & Others v City of Johannesburg & Others – was brought by five impoverished residents in Phiri, Soweto, on behalf of themselves, all similarly-situated residents and everyone in the public interest. The applicants challenged the City’s free basic water policy for being insufficient to meet the basic needs of large, poor, multi-dwelling households. They also challenged the lawfulness of prepayment water meters, which had been installed against their will and result in automatic cut-off of the water supply following the exhaustion of the free basic water supply unless additional water credit is purchased.

Unfortunately, instead of taking the opportunity to develop the jurisprudence on the nature of the state’s obligations in relation to the right of access to sufficient water, the judgment dismissed the applicants’ argument that the free basic water supply of 6 kilolitres per household per month was insufficient to meet their basic needs including waterborne sanitation. It also rejected their claim that the installation of prepayment water meters in Phiri occurred without legal authorization and requisite consultation, was coercive (the installation was premised on the threat of water disconnection or the provision of a yard tap) and discriminatory (although the worst debtors are government institutions and businesses, prepayment water meters are only installed in poor, black, suburbs), and deprives them of procedural protections found in conventional credit supply systems (reasonable notice of impending disconnection and opportunity to make representation prior to disconnection).

The High Court judgment of Moroa Tsoka was grounded in a sensitive consideration of the circumstances of the residents of Phiri, and the impact of the free basic water policy and prepayment water meters on their right of access to water. Such a contextual analysis is conspicuously absent from the Constitutional Court decision, which appears to uncritically accept the City’s case and its legal interpretations. Specifically, there are six broad problems with the judgment.

First - despite noting that the City’s obligation to progressively realize the right of access to sufficient water within available resources is always context dependent – having failed to consider the specific circumstances of the applicants, the Court also failed to grapple with the question of what would constitute water sufficiency in such circumstances. In this regard it ignored the extensive expert and international law evidence that supported a finding (accepted by both the High Court and Supreme Court of Appeal) that between 40 and 50 litres per person per day is the minimum amount of water required to lead a healthy and dignified existence.

Furthermore, the Court declined to interrogate the City’s obligations in the context of its ample resources. Rather, the Court deferred uncritically to the City’s free basic water policy, praising it for having ‘been under constant review’, but not subjecting such revision to any test to determine whether such revisions met the required standard of reasonableness in the prevailing circumstances. Similarly, in relation to the national regulations requiring municipalities to provide at least 6 kilolitres per household per month, the Court found that it will be reasonable for municipalities to ‘strive first to achieve the prescribed minimum standards’, before being required to go beyond that minimum standard.

Worryingly, the emphasis on the obligation only to ‘strive’ to achieve even this directly legislated amount, suggests that the Court would not necessarily adjudicate in favour of a household without any water services, especially if the household was located in a cash-strapped municipality. This approach also misunderstands the obligation to progressively realize the right of access to water. The progressive realization standard recognizes that people in urban areas will usually have more advanced water connections than those in rural and peri-urban areas, and that there are good healthcare and dignity-related reasons to ensure that they have sufficient access, as determined by reference to their circumstances. Such access should, however, not be at the expense of water services to rural areas and informal settlements. Rather it should be seen holistically as a means of ensuring optimal health and development to all residents, determined by their needs and the state’s means. Limiting the water supply to impoverished township households with waterborne sanitation is a regressive measure, which is not only unreasonable but impermissible where there are available resources to remedy the situation.

Second, the Court wholly accepted the City’s assertions that there was extensive consultation prior to the decision to install prepayment water meters in Phiri. Yet, on the record and at the hearing, the applicants stressed that there was not a shred of evidence that there was any consultation prior to the decision being taken. Rather, the decision to install prepayment meters was taken unilaterally by the City and Johannesburg Water in 2001. Thereafter the City embarked on a public relations exercise to ‘sell’ a fait accompli to the residents of Phiri. This was accompanied by the threat to disconnect their water supply or to install yard taps should they not accept prepayment water meters.

Third, in stark contrast to both lower courts, the Constitutional Court found prepayment water meters to be lawful. In a highly deferential analysis, the Court found the City’s interpretation to be ‘textually permissible’, ruling that prepayment meters are provided for in the by-laws and do not discontinue the water supply (which would trigger procedural protections unavailable in prepayment meters) but rather constitute a temporary suspension. Had the Court pursued a purposive or even a formal legal analysis, it is likely that, like the previous courts, it would have come to the conclusion that there is no basis in law for prepayment meters (apart from as a punitive measure for contravening the conditions of service of a yard tap) and that they effect an unlawful discontinuation of the water supply.

Fourth, in relation to the City’s indigency policy, the Court did not engage with the problem of the chronic under-representation of the most vulnerable and needy on the City’s indigent register, which the City proposes will be the basis for future free basic water allocation. Here the Court disregarded its own reasoning in Grootboom:  ‘it may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right’.

Fifth, by failing to consider the dire circumstances and the practical impact of prepayment water meters on living conditions, and instead accepting the City’s pronouncements on how preferable prepayment meters are, the Court missed a vital opportunity to develop its equality jurisprudence. As appreciated by the High Court, the rollout of prepayment meters exclusively in poor black residential areas, despite the evidence that the worst debtors are government institutions and businesses, amounts to unconstitutional and unfair discrimination on the basis of both race and class.

Finally, the Court ignored the solid logic of the High Court, when it found that if – as the City suggests – the residents of Phiri are satisfied with prepayment water meters, there can be no problem with an order in which they are offered the choice of a conventional meter. If everyone is happy with a prepayment meter, no-one will choose a conventional meter. If the Court truly believed the City’s assertions of satisfaction, what better way to promote equality and participatory democracy than to offer the residents of Phiri the choice of a conventional meter, such as is offered in all the richer suburbs.

Dugard works at the Centre for Applied Legal Studies (CALS), University of the Witwatersrand and was part of the applicants’ legal team in the Mazibuko case.

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