South Africa’s Constitutional Court makes final decision in access to water case

Access to an adequate amount of clean water is an integral part of maintaining good health. Unfortunately for the residents of Phiri, Soweto — a low-income community in Johannesburg developed and relegated to black Africans during Apartheid — a ruling made by the South Africa Constitutional Court in a high-profile right-to-water case may limit access to this valuable resource.

The case pitted five impoverished residents of Phiri (the “applicants”) against the City of Johannesburg, Johannesburg Water, and the national Minister for Water Affairs and Forestry (the “respondents”) in a dispute about water provision policies and the installation of a pre-payment water meter system in Phiri. Before consideration by the Constitutional Court, this case had been decided in favor of the Phiri residents by two lower courts. Then on October 8, 2009, the Constitutional Court overturned these earlier decisions and ruled in favor of the respondents — the City, Johannesburg Water, and the Minister. If the poor want water, they will have to pay.

The applicants, all of whom are poor residents of Phiri, brought this case against the City, Johannesburg Water, and the Minister to challenge the adequacy of Johannesburg’s Free Basic Water policy, which allows only 6000 free liters of water per household monthly, or 25 liters per person per day for a household of 8. Households vary in size, but informal settlements sometimes adjoin these houses and share the household’s water stand. (This was the experience of the first applicant, Mrs Lindiwe Mazibuko, who shared a water stand with 19 other “household” members, thus limiting severely each person’s monthly water supply.) They also disputed the legality of installing a pre-paid water meter system in Phiri as part of a water sustainability program known as Operation Gcina’manzi (“to save water”).

Operation Gcina’manzi was implemented as a means to regulate water distribution more closely, decrease non-payment for water in Soweto, and raise money to repair corroded pipelines. After residents use up the monthly allowance of free water, they are required to purchase water from meters that automatically shut off if the consumer cannot afford to pay. The applicants contended that the provision of only 6 free kiloliters of water per month under this system violates section 27 of the Constitution, which provides that “everyone has the right to have access to sufficient water” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

The first ruling in favor of the Phiri residents came from the South Gauteng High Court in April 2008. The High Court deemed the meters to be “unlawful” and “unfair,” given that the City’s water services by-laws did not provide for the installation of pre-payment meters and that the Free Basic Water policy did not meet reasonable standards. It ruled that the City should provide at least 50 liters of free water daily to residents of Phiri. The World Health Organization recommends a minimum of 20 liters of water per person per day for basic survival, and 50 to 100 liters per day per person to meet most health needs.

Upon the respondents’ appeal, the case went to the Supreme Court of Appeal, which also ruled in favor of the applicants but which varied the terms of the ruling. The Supreme Court deemed the pre-paid meters unlawful because they automatically shut off the water supply when the free limit has been reached. However, the Supreme Court suspended that ruling for two years to give the City time to amend its by-laws, denying the residents immediate relief. The Court declared that 25 liters per person per day, or 6 kiloliters monthly per household, was not adequate but then named a necessary amount lower than what the High Court ruled sufficient. The Supreme Court found that “42 litres water per Phiri resident per day would constitute sufficient water in terms of s 27(1) of the Constitution.”

Upset by these terms, the Phiri residents asked for an appeal of the Supreme Court ruling in order to reinstate the High Court order. Although the applicants agreed with the Supreme Court that the pre-paid meters were unlawful, they disagreed that the Court should suspend the order for two years to allow the City to rectify its by-laws. The applicants also disagreed with the Supreme Court’s minimum water quota per person per day. Instead of 42 liters, the applicants deemed 50 liters per Phiri resident per day to be the minimum need, as the High Court had ruled. The respondents sought permission to cross appeal, and the case went to the Constitutional Court.

In a highly controversial shift of legal opinion, the Constitutional Court found the actions of the City and its water service programs to be constitutionally sound. The Court recognized that the City is, in fact, working toward the “progressive realisation” of the achievement of access to sufficient water, but that it will take time for everyone to have adequate access. Also, the Court found that quantifying a sufficient amount of water is not an appropriate matter for a court to handle. The exact quantity should be decided on by the government, the Court argued, which has already developed a protocol accounting for 6 kiloliters per month. The Court also deemed that the City was authorized to install pre-paid meters based on the City’s by-laws and national legislation.

The case is the first instance in which the court has had to make a judgment on access to and sufficiency of water. It creates a deep rift between impoverished residents of South Africa and the state that governs them. It also undermines the ability of poor residents to advocate effectively for a basic human need in a country whose young Constitution is a model for the developing world. Human rights advocates say as much, while others express careful acceptance of the final terms. The damaging outcome of the case, as well as its twists and turns along the way, indicate that South Africa’s two post-Apartheid priorities — the rights of its people and the rule of law — cannot be reconciled just yet.

To read the press release from the Centre for Applied Legal Studies: CALS Press Release on Judgment

To read the entire judgment: Constitutional Court Judgment