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June 2008 www.foodandwaterwatch.org
he poorest people of Johannesburg, South Africa saw some measure of hope with a judicial reaffirmation of the country’s constitutional right to water in April 2008. However, their fight is not over because the powers arrayed against them have appealed the decision.
High Court Judge Moroa Tsoka ruled that the city water utility’s policy of forced installation of prepaid water meters without providing an alternative water supply was unlawful and unconstitutional. What’s more, the meters were placed only in poor, black areas to require people there to pay for water before they used it. In essence, the meters were a method of controlling water on credit. They were not offered the choice of a full credit, metered water supply. “This was done despite the acknowledgment by the city that the worst debtors were business and government institutions,” said Jackie Dugard, Ph.D., senior researcher and acting director of the Centre for Applied Legal Studies at the University of the Witwatersrand. She also serves on the legal team representing the Phiri* residents who sued the city and the water utility over the meters. “In other words, the targeting of one, previously disadvantaged group, for such punitive credit-control amounted to unfair discrimination, which is prohibited by section 9 of the Constitution.”1 According to the decision: “The Constitution guarantees equality. It is therefore inexplicable why some residents of the City are entitled to water on credit…yet the people of Phiri…are denied water on credit. In spite of the fact they are poor, they are expected to pay [for] water before usage. Their counterparts, who are affluent and mainly in rich and white areas, irrespective of how much water they use, are entitled to water on credit. The differentiation…contravenes the right to equality.” “To argue…that the applicants will not be able to afford water on credit and therefore it is ‘good’ for applicants to go on prepayment meters is patronizing. That patronization sustained apartheid: its foundational basis was discrimination based on colour and decisions taken on behalf of the majority of the people of the country as ‘big brother felt it
was good for them’. This is subtle discrimination solely on the basis of colour. Discrimination based on colour is impermissible in the terms of the Constitution. It is outlawed. It is unlawful.” However, positive as the ruling is, the residents of Johannesburg and all of South Africa can’t rest just yet. The City of Johannesburg, Johannesburg Water (Pty) Ltd. and the national Department of Water Affairs and Forestry have appealed the ruling.
In 2001, South Africa’s government began a policy that guaranteed every household six kiloliters of free water monthly, based on a calculation of 25 liters (6.6 gallons) per person per day for a household of eight, said Dale McKinley, who works with the Coalition Against Water Privatization, an organization that assisted the Phiri residents in their lawsuit. Part of the problem is semantics running up
Phiri is a section of Johannesburg’s Soweto township.
The Push for Water and Justice in South Africa
holds stopped consuming water beyond the free amount, which presents obvious public health and safety issues. Others used more water without paying. That put them into arrears on their water bills.3 The city and the utility responded in 2003 with a program cleverly cloaked as Operation Conserve Water. The utility approached the poor, largely black families living in the Soweto township and promised to write off their debt if they agreed to the installation of pre-paid meters that shut off after dispersing the free 6,000 liters each month. The catch was that the water would flow again only if the family paid more money. Essentially, they were denied water on credit. Again, many people responded by just going without water until the beginning of the following month. Meanwhile, people in the wealthier, mostly white areas of Johannesburg don’t have such meters. They obtain water on credit and can use as much as they like beyond the free allotment, and they don’t have to pay until the end of the month or bill cycle. Moreover, there are many procedural protections prior to disconnection for failure to pay water bills, including months of warning letters. This means that hardly anyone in the wealthier suburbs is ever disconnected, despite many not paying their bills.4 Over a period of 6 to 8 months in 2003, hundreds of people in Soweto physically resisted installation of the meters, with many more people expressing sympathy. The Coalition Against Water Privatization was formed that year out of the resistance. However, the civil disobedience couldn’t be sustained because of police repression. People were spending weeks in jail and being released only after paying, or more likely having someone pay, outrageous bail amounts. “It was clearly a political strategy to deal with resistance,” McKinley said.5 But citizen opposition likely did work. The water utility’s goal was to install 300,000 such meters, but so far has completed only 109,000.6 By early 2004, the anti-privatization forces began to look at legal strategies. After some unsuccessful early moves, they decided to bring a case challenging the constitutionality of pre-paid water meters and calling for an increase in the free basic water allowance. Five people from Phiri came forward to initiate what in the United States would be a class-action lawsuit. They were representing the masses of poor people in Phiri and other parts of Soweto who had been stripped of their right to water. Johannesburg Water tried to pre-empt their efforts by offering to increase the free allotment if poor residents agreed to sign onto the indigent register. Problem is, people who signed had to accept a pre-paid water meter. There are 500,000 indigent households in Johannesburg, but it has
against reality. A households is actually property, so on a multi-dwelling property such as in Phiri, full of backyard shacks with tenants, everyone on the property has to share the 6 kiloliter allocation.2 The free water allotment went along with policymakers’ intention of pricing water in South Africa more progressively, McKinley explained. The free allocation of water is the first price block, and consumption after that is charged on a rising basis. The higher-end pricing blocks are supposed to subsidize free water while also discouraging overuse. But the reality is that the 25 liters a day of free water is just not enough for a person. It forces poor families into the second or third pricing block, which leaves them with higher water bills than before the free water policy began. Some house-
To argue…that the applicants will not be able to afford water on credit and therefore it is ‘good’ for applicants to go on prepayment meters is patronizing...This is subtle discrimination solely on the basis of colour.
Food & Water Watch
We thought we might get some of what we were asking for,” McKinley said. “But we got the correct interpretation of the constitutional right to water.
registered only about 80,000 of them. So, this was just another part of the plan to identify poor people and then force them to accept pre-paid water meters and, ultimately, further restrict water consumption.7
Corporate Water Privatization in South Africa
South Africa’s ruling ANC party has drastically changed its tune with regard to water since it came to power in 1994. Going back four decades, the ANC had supported the creation of the Freedom Charter, which “recognised water as a public good whose commodification would inherently discriminate against the majority poor,” wrote McKinley in his essay “Water is Life: The Anti-Privatisation Forum & the struggle against water privatisation.”9 After apartheid ended, this mandate for everyone having the right to water was written into the Bill of Rights in South Africa’s constitution. But the ANC changed course after coming to power, wrote McKinley. “It gave water bureaucrats the authority to provide water only if there was a full cost recovery of operating, maintenance and replacement costs.” The government “went even further and located the policies of water and other basic needs within a neo-liberal macro-economic policy framework that ensured water (and all basic needs/services) would be turned into market commodities, to be bought and sold on the basis of private ownership and the profit motive.” The ANC followed the neo-liberal economic advice of the World Bank, the International Monetary Fund and various western governments. In line with that, it “drastically decreased grants and subsidies to local municipalities and city councils and supported the development of financial instruments for privatised delivery. This effectively forced local government, with Johannesburg at the forefront, to turn towards commercialisation and privatisation of basic services as a means of generating the revenue no longer provided by the national state.” Johannesburg, like other local governments, privatized public water utilities by contracting with multinational water corporations to service and manage water delivery. A new corporate water utility, Johannesburg Water Company, was established. The city government maintained formal public ownership, but it outsourced the management and operations to French multinational Suez Lyonnaise des Eaux, which was done through the Johannesburg Water Management Company. “Almost as if on cue, JOWCO increased water tariffs, necessarily hitting poor communities in and around Johannesburg the hardest. The first price hike instituted was an astronomical 55%. The price increases were only further catalysed by the need to ‘recover’ additional huge costs associated with the corruption-riddled, World Bank-funded Lesotho Highlands Water Project, designed mainly to provide new sources of water for the Johannesburg Metropolitan area. Similar privatisation programmes in both urban and peri-urban areas across South Africa soon followed...As a result, water has ceased to be a public good that is accessible and affordable to all South Africans. Instead, water has become a market commodity to be bought and sold on a for-profit basis.” According to Richard Mokolo, leader of the Crisis Water Committee formed to resist water privatization effort in the Orange Farm township: “Privatisation is a new kind of apartheid. Privatisation separates the rich from the poor.”10 Fortunately, when the Suez contract was up for renewal in 2006, the City of Johannesburg bowed to massive public pressure and ended the partnership. But now Johannesburg Water runs what is really an internal private company, which has floated loans to finance the pre-paid water meters under Operation Conserve Water.
The Push for Water and Justice in South Africa
That doesn’t surprise McKinley or anyone else involved in the movement: “We will still continue to resist further implementation of pre-paid water meters. We will continue to mobilize people.” That applies even after a victory in the Constitutional Court. “Just because a court orders something, we have to make sure Joburg Water implements the court order,” he said. “We want to expand this beyond Johannesburg.”
1 Dugard Ph.D., Jackie. Personal interview. Senior Researcher and Acting Director, Centre for Applied Legal Studies at the University of the Witwatersrand. She also serves on the legal team representing Phiri residents who sued over the pre-paid water meters. May 31, 2008. 2 McKinley, Dale. Personal interview. Coalition Against Water Privatization, May 28, 2008. 3 4 5 6
Fortunately, the people of Phiri didn’t go for it, but instead pressed their case in court. After the arguments were heard in December 2007, a decision came the following April. “We thought we might get some of what we were asking for,” McKinley said. “But we got the correct interpretation of the constitutional right to water.” Not only were the water meters struck down, but Judge Tsoka increased the free daily water allocation from 25 to 50 liters per person. However, in late May 2008, the city and Johannesburg Water PTY turned to the Supreme Court of Appeal to overturn the decision, and it is possible that the Phiri residents would lose on at least some of the grounds because this court historically is conservative. But not all would be lost. The residents would then appeal to the highest judicial venue in South Africa – the Constitutional Court. The residents likely would prevail there because the case clearly involves the undermining of a constitutional right.8 On the upside, the city and Johannesburg Water can’t claim an inability to offer more water. That’s because the utility already indicated, publicly and prior to Judge Tsoka’s ruling, that it had enough water to increase the free basic allotment. On the downside, both the pre-paid water meters that have already been rolled out and the existing free water allocation will remain until the conclusion of the appeals process.
Ibid. Op cit., Dugard interview. OpCit, McKinley interview. Op cit. Dugard interview. Op Cit. McKinley interview. Ibid.
9 McKinley, Dale T. “Water is Life The Anti-Privatisation Forum & the Struggle Against Water Privatisation.” Available at: www.waterjustice.org/uploads/attachments/pdf59.doc 10 Bond, Patrick. “Africa Files: The battle over water in South Africa,” 2003. Available at: www.africafiles.org/article.asp?ID=4564
About Food & Water Watch
Food & Water Watch is a nonprofit consumer organization that works to ensure clean water and safe food in the United States and around the world. We challenge the corporate control and abuse of our food and water resources by empowering people to take action and by transforming the public consciousness about what we eat and drink. Food & Water Watch 1616 P St. NW, Suite 300 Washington, DC 20036 tel: (202) 683-2500 fax: (202) 683-2501 firstname.lastname@example.org www.foodandwaterwatch.org Copyright © June 2008 by Food & Water Watch. All rights reserved.
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