Category Archives: water

Structural Oppression, the Future of Democracy and the Water Crisis in the Makana Municipality

Structural Oppression, the Future of Democracy and the Water Crisis in the Makana Municipality

By Professor Pedro Alexis Tabensky, Department of Philosophy, Rhodes University

I recently attended a meeting of the Unemployed Peoples’ Movement (UPM) in Grahamstown, Eastern Cape, which was convened with the aim of exploring the causes of the severe water crisis currently affecting thousands of residents in the poorer areas of Makana Greater Municipality. Many of those affected have been without water for over ten months. The Makana Municipality has done little to address the crisis and it is not treating it as severe humanitarian emergency. The meeting was well attended by affected residents, but it had to be cut short because a group of men who identified themselves as ANC Youth League members deliberately sabotaged the meeting with loudly and unremittingly voiced insults, accusations and threats. Things were looking like they could turn violent and the security of those in attendance could not be guaranteed. The police were called on several occasions by the organizers, but when they arrived they were turned away by one of the saboteurs before they could enter the venue where the meeting was being held.

The UPM is an independent grassroots movements aimed at empowering the poor. One would expect that the ANC would openheartedly support such initiatives, especially given that movements such as the UPM have no electoral ambitions. But clearly those who disrupted the event perceived it as a potential threat to the ANC. Many unsubstantiated threats were made, including incoherent allegations aimed at one of the speakers, hydrologist and Director of the Institute for Water Research at Rhodes University, Professor Denis Hughes, and the Chairperson of UPM, Mr Ayanda Kota. Both were accused of being DA sponsored members of the AWB. It is revealing that such incoherent and unsubstantiated accusations were levelled, as it suggests that the saboteurs find it difficult to imagine that members of a social movement could be motivated by a genuine concern for justice rather than for obtaining favours from one political organization or another. And this in turn strongly suggests that the saboteurs themselves are not motivated by justice. Revealingly, I was accused—presumably because I was one of the few middle class white faces present—of personally sponsoring Mr Kota to the tune of fifteen million rand, something I could not possibly afford to do. In any case, the saboteurs made no effort at all to substantiate these wild allegations and it is clear, from the purely disruptive style of their interventions, that they had little interest in the facts or in genuine justice.

The saboteurs had no interest, for instance, in providing evidence in support of local government against claims that it was doing far too little to address the desperate water situation. They could have done this in question time, but decided instead to sabotage the event from the moment it started, strongly suggesting that they were merely interested in blindly defending the perceived interests of the ANC, even if morally dubious. ‘This is the ANC government’ one of the saboteurs claimed ‘so the ANC will have the last say’. In other words, ‘We are in power and we do what we like’. A corollary to this claim is, ‘Don’t you mess with us’.

Local municipal officials, Mr Dabulo Njilo (Director of Technical and Infrastructural Services), Mr Mongezi Mabece (Assistant Director for Water Services), and Ms Ntombi Baart (Municipal Manager), were invited by the UPM to discuss the water crises at the meeting, but they replied that they would not attend because proper procedures had not been followed. It may be the case that they were not—according to Mr Xola Mali of UPM, experience has taught them that going through intricate official ‘accountability structures’ always leads to nothing—but the situation is so dire and the local government’s response has been so minimal that one cannot be blamed for suspecting that local officials have little interest in the plight of their constituency. Or, equally disturbingly, they are not fully aware of the scale of the problem, of what it means for thousands of human beings to live without water.

In conversation with UPM members, I was informed that this sort of sabotage, perpetrated by those stating their allegiance to the ruling party, has happened regularly during meetings convened by them. And, sadly for our democracy, this sort of oppressive behaviour in the name of the ANC seems to be part of a general trend of violence exerted against social movements.

What happened in Grahamstown is an example of what has become an all too disturbing trend across the country, affecting informal groups of concerned residents, and more established movements such as UPM, Abahlali baseMjondolo, and the Landless People’s Movement as recently reported, among others, by Professor Jane Duncan of Rhodes University and Mr Niren Tolsi of the Mail & Guardian. But, given the environment of intimidation and, except for and handful of exceptions, the lack of interest by the media in systematically reporting violations against the poor, these incidents tend not to be widely discussed in public space. And, yet, the health of our young democracy depends on there being clarity regarding what sorts of undemocratic political pressures are being exerted on a large percentage of the generally voiceless electorate.

What I have said above could be thought of as evidence that the ANC leadership is coordinating things from the top, but I don’t know that it is. And there probably would be little reason for them to do this given that there are structural conditions in place that will encourage grassroots oppression to mushroom spontaneously across the country, without the need for centralized coordination. But the fact that the relevant structures are not decisively being undermined from the top should be seen as a grave failing on the part of the ruling party, and should shed doubt on their commitment to the ideals they claim dearly to uphold.

Briefly, here is a list of key structural features that are encouraging widespread grassroots oppression: first, a culture of patronage where ultra-loyalists tend to obtain favours from local government. Second, poverty, unemployment and low skill levels make it the case that for some ultra-loyalist grassroots activism in favour of the ruling party is pretty much their only viable career path. Finally, there is a deep culture of blind quasi-fanatical allegiance to the ANC, making it seem in the eyes of ultra-loyalists as if any movement outside of ANC structures deserves to be crushed. This quasi-fanatical loyalty is fuelled by a deep lack of tolerance for dissenting voices among the ANC elite, as evidenced most recently by a statement by SACP Deputy General Secretary, Mr Jeremy Cronin, where he attacks voices of dissent coming from grassroots independent social movements on the grounds that they unwittingly aid those who are opposed to social transformation.

For genuine democracy to prosper in our country, these abject structural pressures, and no doubt others as well, need vigorously to be exposed and opposed.

The Death of Reason and the Water Crisis in the Makana Greater Municipality

The Death of Reason and the Water Crisis in the Makana Greater Municipality

Xola Mali (Media and Communications Officer, UPM)

Issued: Monday 29th November 2010

The Unemployed Peoples’ Movement (UPM) convened a public debate on Wednesday 24 November, 2010 at Noluthando Hall at 17:00. The meeting was about the current water crisis in Makana Local Municipality in the Eastern Cape. Many communities in the area have been without water for many months. The reason for convening the meeting was to get some clarity regarding the causes of the crisis and the municipality’s response to the crisis. For this purpose, UPM invited the following officials from Makana Municipality to participate in the event: Mr Dabulo Njilo (Director of Technical and Infrastructural Services), Mr Mongezi Mabece (Assistant Director for Water Services), and Ms Ntombi Baart (Municipal Manager). In addition, UPM also invited a water activist from the Vukani community, Ms Liziwe Gqotolo, and Professor Denis Hughes, a Hydrologist and Director of the Institute for Water Research at Rhodes University. UPM also invited affected community members from Alicedale, also part of the Makana Greater Municipality. The event was widely publicized and it was well attended.

All invited panelist came, except officials from the Municipality, who declined the opportunity to engage the community and enlighten them about their pressing water problems. Their emails explained their decisions not to attend on the grounds that proper procedures were not being followed, suggesting that officials are not truly aware of the tragic urgency of the situation, which clearly requires swift, immediate and decisive action. The Makana Municipality has not been able to explain why it is that there is frequently no water in a significant portion of the poorer areas of the Makana Greater Municipality, while most parts of the same Municipality are not affected by such shortages. It is understood that some parts of the Municipality have been recently affected by the lack of supply to the Waainek treatment works caused by the drying up of the local dams. However, it is not clear to many sections of the community why this has almost exclusively affected Grahamstown East, which is closest to the storage reservoir supplied by the Fish River scheme, and not supplied by the local system of dams.

Unfortunately, the meeting was interrupted by people who identified themselves as members of the ANC Youth League and, as a consequence of the intimidation and constant harassment, the meeting had to be called off. Many of the local residents left disappointed because the meeting was in chaos. Just before the meeting was terminated, Prof. Hughes was accused of being a DA funded AWB member. Prof. Pedro Alexis Tabensky, who was at the meeting, was accused of personally funding the Chairperson of UPM, Mr Ayanda Kota, to the tune of 15 million Rand. Mr Kota was also accused of being an AWB member. Ms Gqotolo was accused of lying. Mr Jai Clifford-Holmes, Chairperson of Galela Amanzi — a politically independent student driven non-profit water organization — was told that the meeting was orchestrated and funded by the DA and Rhodes University in order to destabilize the township ahead of local elections next year. In addition to these most peculiar accusations, the police were called by members of UPM on several occasions when things threatened to turn violent, but a senior local member of the ANC Youth League, Mr Mabhuti Matyumza, was seen turning them away.

Every meeting that UPM has thus far convened has in one way or another been sabotaged, and one may quite legitimately wonder why this may be the case, especially seeing that the UPM is a grassroots social movement that has no party political ambition. Its fundamental aim is the upliftment of the poor. It tried on this occasion and on others to create a forum where genuine issues could be debated and those who disrupted the event could have asked questions in question time. Instead, they opted to sabotage the event, and one must ask why this is their chosen path of action. This is one example of many occurring across the country where initiatives by independent grassroots organizations are being sabotaged. This pattern suggests that in local government force is being privileged over reason.

Contact: Xola Mali (0722995253)

Motala Heights Will be a Community for All

There is an archive of entries on Motala Heights here.

Press Statement from Abahlali baseMotala Heights
30 October 2010

Motala Heights Will be a Community for All

When we joined Abahlali baseMjondolo and started our struggle in 2006 the municipality, led by the ward councillor Derek Dimba, were trying to destroy the jondols up on the hill. They were coming with guns and tear gas and evicting the people and destroying their homes. They were doing this illegally.

In the tin houses down in the valley the landlords, led by the gangster businessman Ricky Govender, were also evicting the poor people. They were coming with thugs and they were also evicting the people and destroying their homes. They were also doing this illegally but the polices were supporting them as they supported the municipality.

Derek Dimba was always in Ricky Govender’s house. The rich were united and we, the poor, were divided. Together they were trying to push all the poor people off this farm and to develop it for the rich. Govender was building the commercial housing developments for the rich himself.

Since 2006 we have had some ups and some downs in our struggle here in Motala. But we have faced a lot of threats and intimidation and united the poor in the jondols and in the tin houses against the power that the rich had over this community. We stopped the evictions in the jondols and in the tin houses. We electrified the jondols ourselves. We built a crèche. We organised all kinds of events and mutual aid. Through our participation in the larger struggle of Abahlali baseMjondolo we were also able to negotiate with the Municipality along with our comrades in the movement from other areas from the end of 2007 till the beginning of 2009. As a result of these negotiations we won an agreement from the municipality to provide more services to the poor in Motala and to build houses for the poor in Motala. This was a real victory. We went from a situation where all of the poor people were being driven out of Motala to a situation in which we brought the rich under some control and won an agreement that Motala would be a place for everyone and that we could all live here safely. That agreement is an agreement to put the social value of the land here before its commercial value and to put the right of an established community to remain together before the rights of the rich to use their money to make more money by evicting us and developing the land for commercial housing.

Land & Housing

The Department of Land Affairs came with Zamo from the Housing Department and showed us where development could be done. They said that this year is the second year of the planning period and that next year will be the third and last year.

But after a while no one in our office could get to Zamo but Kalinca [Kalinka Copello –a PhD student from Brazil] could. Why is it always like this? Mike Sutcliffe will meet with any student from England or America and try to charm them but he’ll never meet with us.

Zamo told us that Ricky Govender was working with Faizel Seedat of the housing department to do a private sector commercial development. Seedat and Govender call this ‘low cost housing’. But Govender will rush you R600 000 for a house. This is not low cost housing.

Govender has built a show house that is priced at R595 000 and he says that he has a paper that states that the municipality has given him money to develop the area. A comrade working in a steel company told us that Govender recently bought enough steel to build 1 600 houses. We’ve heard that Ricky Govender is building low cost houses for the government in Phoenix and Verulam. Here in Motala he is telling the poorest people to make a list of all their income including child support grants and any businesses that they have. This is creating the impression that Govender is providing the houses that we have fought for. We took a copy of Govender’s form to Zamo and Zamo was shocked. We can’t risk our housing budget getting into Govender’s hands. Money is a devil to anyone. It cannot go to Govender or to any other individual person. That money is for the community.

Govender’s vehicles and bulldozers were all repossessed in December by the sheriffs. It is widely known that he is owing money everywhere. Govender continues to dump illegally in the community and Dimba is not fazed about this. Even the Highway Mail has written about this. This has been going on for years. But Dimba is not fazed. Govender remains above the law in Dimba’s eyes. The poor are below the law and the rich are above the law. It seems that the law is only for the people in the middle.

Zamo has left the Housing Department and Nompilo has gone on maternity leave. We’ve heard nothing from the Department since Kalinka spoke to Zamo on the 8th of April and Nompilo told us on the 15th of April that the land assessment had gone to land affairs. Therefore we want clarity. The Municipality must come straight to the point and discuss everything openly with us like Zamo did. We are very angry.

Our demands to the Housing Department are that:

1. We want an urgent meeting to give us clarity on the status of the plans for our housing development and, also, clarity on what Ricky Govender is doing in Motala, on what land and with what money. We need to know what is his relationship with the Municipality.

2. We want regular meetings during the whole planning period of the development in Motala.

Some of our members are saying that instead of struggling all the time for the government to build us houses like they promised we should just demand that they just give the poor the land and then we can do our own mud houses. Some of us are old, we were born from here and we’ve never seen anything from the government. If they just give us the land and the paper to say that it is ours then we can see for ourselves. We are not hungry for their money. We are hungry for the land.

We read in the Daily Sun about that man that every day when we goes to look for work he also looks for bricks. Every day he comes home with three or four bricks and he is building his house solely three or four bricks at a time. If the government can’t build for the people it must let the poor people build for themselves. It’s like how they try to stop illegal electricity and water connections while they are failing to provide legal electricity and water connections.


We stopped all evictions in the jondols in 2006 and there have been no more evictions since then. We stopped all evictions in the tin houses for a few years using various strategies including rent strikes, legal strategies and mobilisation. Most evictions are illegal and so legal strategies usually work very well. After a number of defeats Govender stopped intimidating people. He’s very quiet these days although he has recently been coming with people who we do not know and filming in certain plots in Motala. We don’t know why. But now the land lords are starting to get their confidence back. Ten families are threatened with eviction in lot 6 and a number of families in lot 35. Govender is threatening five families in Lot 46. They have not received eviction letters yet. It is just at the verbal abuse stage now. Govender is also trying to evict two families from Lot 13. He has been trying to evict these families for years but he has always failed. We have successfully defended these families.

We have been to the deeds office to check who really owns the land from which people are being evicted. It costs R150 to get each file. This is another way of excluding the poor. But from what we have found it seems clear that Govender and other people arriving and claiming to be landlords are just stealing land. According to the deeds office lot 36 is owned by the National Housing Board. And lots 18 and 51 are owned by the Municipality. All these lots were set for public housing in 1986. We demand that all the land owned by the Municipality must go to the poor and not to private housing or other commercial developments.

In every eviction case the papers from our side are also served on the eThekwini Municipality but they have done nothing. Whenever government can’t do anything for us we have to see what we can do for ourselves.

Since we started our movement we have only been unable to defend two families from eviction in the tin houses. We do not accept that people should be left homeless when there is a lot of empty land in Motala, some of it owned by the Municipality and some of it owned by the National Housing Board. Therefore we have identified and allocated land for these families so that they can build their own homes and stop being tenants of the rich. If government is not gonna take any steps to protect the poor who are made homeless then we have no choice but to take the law into our own hands. We will continue to do this. We demand that no one is made homeless in Motala. If government cannot afford to build us RDP houses now then they should just give us the land right now.


We are still struggling for services. We tried to get the municipality to bring a grader to make the road to the jondols as this had been promised to us but then we were referred to Derek Dimba and so of course nothing happened. Everything that is supposed to be for the poor fails when it touches Dimba. If the Municipality is serious about working with all the people they need to work directly with the poor people and not with the councillors that are just here to oppress the poor. The councillors represent the rich and not the poor and therefore we must be allowed to represent ourselves. This is basic logic and yet it is often taken as a crime for the poor to organise ourselves and to speak for ourselves in this country.

Two years ago Bongo Dlamini and Shamita Naidoo made a statement to the Water Department about the need for more stand pipes in the tin houses. This was agreed to in the negotiations with the Municipality and PPT. But Bongo is late one year now and the Water Department only came now, on Wednesday last week. At first they just asked if there was a tap for the tin houses and we said yes but one stand pipe for all the tin houses without their own taps is not enough. We were very clear on this point and they have now agreed to put in new stand pipes in all the places where there is no water. We also negotiated with Zamo and PPT that they would build toilets in three places in the tin section. This was the first promise that was made to us in the negotiations but it has not been kept. We want them to bring those containers with toilets and showers.

The people with taps inside their tin houses are paying R200 and upwards for water. This is unaffordable for many families. From August billing is coming with a sewerage tariff but they don’t have a sewerage system. They are using the pit system.

There is a man called Steven (Duma) who has got an office in Pinetown which is called “Deprived Community Services and Helping Hands”. He helps the deprived communities to get water connections in their houses. He charges a fee of R1000 and then R60 per month. But now the Municipality is saying that his water connections are illegal. They won’t provide water connections but when someone else does they say it is illegal. Steven connections were like heaven to some of the tenants in the tin houses. Someone that is willing and able to do the work that the government is failing to do should be given the right to do that work.

Those that can’t afford water through Steven are still going through their neighbours. Often there is one legal meter for twenty families.

When it comes to electricity Operation Khanyisa is operating very well in the jondols. We are gonna steal electricity until they put the electricity inside. If they disconnect again we’ll just reconnect. They can’t stop us. Some people in the tin houses have prepaids but the bills are still coming too high. When electricity is unaffordable we have to go back to chopping wood. People have to wake up very early in the morning to chop wood.

We are also having a problem with the postal service. The tenants in the tin houses don’t get their post. The letters for those of us that are tenants of Govender go to Govender at his supermarket or warehouse. Either we don’t get the post or when we do get it it has been opened. We want our own cluster boxes with keys.

The Clinic

The clinic not only provides services to residents of Motala Heights but they also service nearby communities and the Westmead Industrial Area. However, the clinic here in Motala Heights is open only on Mondays and Fridays. Mondays from 9 till 3 and Fridays from 9 till 1. The nurses often arrive after 10am and take their own time for lunch while we are waiting outside. They have done away with providing services on Wednesdays.

They are supposed to give porridges and milk for the poor kids, pensioners and the sick, but they are not giving it. In Reservoir Hills the clinic even gives hampers for the very sick but not here.

Condoms are supposed to be supplied for free but people are afraid to go and ask the nurses for condoms because they ask people a thousand questions. That’s why we have had to organise condom distribution ourselves.

The blood pressure machine is not working and even our people with the killer virus are not getting their HIV medication. In fact they are not even getting porridge. Often the clinic just refers us to the hospital and then when we go to the hospital they refer us to the clinic. Sometimes the clinic refers us to Marianhill Hospital which is a semi-private hospital but you have to pay R150 to spend the night there and R360 for a scan and poor people just can’t afford this. We prefer to go to Khan’s Hospital because it is a government hospital.

One of the nurses is very helpful and she said that we have rights as people and that we must complain. But the other nurse is very rude to the poor people. She even refused to treat one very sick man who is living in an old truck because she said that he smelt. It is the job of nurses to treat everyone who needs treatment. This man is dying. He is in very critical condition. The hospice and the hospitals won’t help. The clinic chased him away because he was smelling. He spends all day just sitting in the bus shelter. Before the owner of the truck said that he could stay there, and put a plastic over the broken windscreen for him, he was living in the Post Box but it caved in under the rain. What kind of country are we where people must live like this? Where people must die like this?

The Health Department did set up a Health Committee here but it is not functional. There is no communication. It is the usual story with these top down structures.

As a movement we supported the Public Sector Worker’s strike because everyone needs to be paid properly and because most public sector workers are supporting a lot of people who aren’t working. But some of our people couldn’t get their HIV medication during the strike and their health has really gone backwards. This is not right. Nurses and other public sector workers must understand that when you work for the public you work for the people and the people mustn’t be forced to pay the price for the legitimate struggle of nurses against the greed and arrogance of the government.

We really need help with looking after some of the HIV ladies and their children here.


Every year the government makes the budget but there is nothing for us. It looks like nobody knows us. We are like the animals to them. But we are living people.

The municipality must come to all the communities and allow us to have input in the budget. We have two demands about the budget:

1. They must bring the budget to us and show it to us so that we can see where the money is going.

2. From next year and onwards there must be a participatory and democratic budget planning meeting in each community each year. Government must stop pretending that the councillors represent everyone in the meetings where budgets are decided. The councillors represent the rich. They do not represent us. We represent ourselves. Therefore the money for Motala should be allocated by an open meeting in Motala.


Every year we have the same struggle to get the poor kids into schools. Last year the poor kids were even stoned by the rich kids in Wyebank. We fill in the fee exemption forms for all the kids but some of them are rejected. Others are not rejected but they are just ignored and nothing is done. While there is no feedback the fees are accumulating. The poor children are treated badly. Sometimes they are sent home for silly things like having their hair too long when there is no one at home to look after them. It’s not right for a child to be roaming around on their own.


Everything that touches Dimba fails.

Dimba says that there is no way in hell that he will come to Motala. He says that he feels threatened by us. But no one has ever got aggressive with him. All we did was to come to his meeting and ask him our questions through a loud hailer. If councillors think that questions are threatening that is their problem and not our problem.

When Shamita phoned him recently, on the speaker phone at the Minister’s Fellowship, he took off with her and put the phone down.

He won’t even give us the proof of residence.

Like in most areas where Abahlali baseMjondolo organises, Dimba, like most councillors, refuses to give us the proof of residence forms that you need to get a bank account, to make your cellphone legal and to get grants. This is one of many ways that the councillors try to control the poor from the top down. We have had now made our own arrangements to get proof of residence certified for people on a regular basis without having to go through Dimba. In Kennedy Road Abahlali baseMjondolo just started issuing proof of residence forms on its own. We are looking into this.

In 2007 the PR councillor, Mr. Narenjee from the IFP, said in the paper that he assisited in the provision of low cost houses in Motala. But where are these houses? When we ask him he runs away.

We have noticed that in fact councillors and officials don’t understand about land and housing. They don’t even understand about schools. We have to learn them. We are willing to keep learning them. But we as the poor shouldn’t have to be learning them all the time. They are paid to do their jobs. We are paid nothing to organise in our communities.


We meet on the roadside every Saturday. The government treats us like we haven’t got hands, like we haven’t got minds, like we are babies. But we stand together even though finance kills us all the way.

We get most of our solidarity through all our comrades in Abahlali baseMjondolo but here in Pinetown we are also getting support from the Minister’s Fellowship. We want to thank them for their living solidarity, a solidarity with dignity.

For more information and comment please contact:

Sipho Khanya: 073 588 9729 begin_of_the_skype_highlighting              073 588 9729      end_of_the_skype_highlighting
Louisa Motha: 078 176 0088
Shamita Naidoo: 074 315 7962
Krinesh Rajah: 082 463 6853

el Kilombo: Radio Interview with Ashraf Cassiem

Can’t Pay, Won’t Pay

The Western Cape Anti-Eviction Campaign

December 8, 2009

In post-apartheid South Africa, social movements are using direct action to fight privatization, displacement and police brutality. In an interview with KPFA’s “Against the Grain”, the Western Cape Anti-Eviction Campaign’s Ashraf Cassiem talks about their work opposing neoliberalism on the ground, helping poor people to self-organize to fight eviction, turn back on water and electricity for which they cannot afford to pay, and resist the commodification of basic resources. Listen to the interview

Phiri Water Case: Constitutional Court Fails the Poor & the Constitution


Thursday 8th October 2009




This morning, the Constitutional Court of South Africa handed down judgment in the five year long Phiri water rights case. The judgment was given in respect of an appeal by the Phiri applicants, of the previous judgment in this case handed down on 25th March 2009, by the Supreme Court of Appeal (SCA) in Bloemfontein. In turn, the SCA judgment was the result of an appeal by the City of Johannesburg/ Johannesburg Water (the ‘City’) and the Department of Water Affairs and Forestry (DWAF) of the previous ruling of the (then) Johannesburg High Court in April 2008.

The summary judgment of the Constitutional Court is as follows: “The City’s Free Basic Water policy falls within the bounds of reasonableness and therefore is not in conflict with either section 27 of the Constitution or with the national legislation regulating water services. The installation of pre-paid meters in Phiri is found to be lawful. Accordingly, the orders made by the Supreme Court of Appeal and the High Court are set aside.”.

The applicants, the Coalition, Phiri residents and no doubt millions of poor people across South Africa are extremely disappointed by what is a shocking judgment. The court’s ruling, written by Justice Kate O’Regan (now retired from the Court) and supported by all other 8 judges sitting in the case, is a classic example of a lazy legalism as well as wholly biased and contradictory reasoning.

It is impossible to deal with all the arguments/positions taken by the Constitutional Court in its 90 page judgment but a few, brief responses are absolutely necessary.

* In relation to testimony and evidence on almost every substantive matter raised in the case, the Constitutional Court takes the City of Johannesburg (CoJ) /Johannesburg Water (JW) at their word and defers to the twisted logic (read: propaganda) of their arguments. It is as if the thousands of pages of evidence and testimony provided by the Phiri applicants in countering the same from CoJ/JW is simply ignored and/or considered irrelevant. One example will have to suffice: Despite mountains of credible evidence to show that there was no serious ‘consultation’ with community residents by CoJ/JW in implementing Operation Gcin’amanzi (a matter the High Court judgment referred to as a ‘public relations exercise’) and that the pre-paid meters were forced onto residents the judgment parrots, almost verbatim, the CoJ/JW propaganda: “Twenty community facilitators were appointed by Johannesburg Water to conduct house visits. The task was to explain the project and its implications carefully to each household. By the end of the implementation process in Phiri in February 2005, all but eight of the 1 771 households in the area had opted for either Service Level 2 or a pre-paid meter. Indeed the vast majority selected the latter.” Clearly, the Constitutional Court has no respect for the honest and unfiltered views and experiences of poor residents.
* The reasoning of the judgment in relation to the constitutional obligations of the state (in this case, CoJ/JW) to provide “access to sufficient water” is completely contradictory. On the one hand the judgment says that the state does have the constitutional obligation to “progressively realise the right of access” but on the other it says that the determination of the content of that right (in the case of water, the state’s unilateral decision in 2001 to implement a universal free basic water – FBW -policy of 6 kilolitres per month, per household) cannot be seen as a “minimum core” and that the said right “cannot be achieved immediately”. What the judgment thus effectively says, but does not recognise itself, is that there is no foundational or time/spatial basis upon which to adjudge what constitutes ‘progressive realisation’. This is why, eight years after the implementation of the state’s FBW policy and with no change in that policy throughout those eight years, the court can find that this constitutes “progressive realisation” and that those who now seek to redefine what this means are guilty of seeking “immediate” remedy. In logical terms, it is a circular absurdity. One is left to seriously ponder then if the constitutional phrase – “progressive realisation” – has any practical meaning at all when it comes to the most basic of all socio-economic rights, other than to allow the state to do whatever it pleases, whenever it pleases and at whatever pace pleases it. Indeed, this seems to be exactly what the judgment is endorsing – even if, as it appears, it has no idea it is doing so – when it states that, “the City is not under a constitutional obligation to provide any particular amount of free water to citizens per month.”
* As if to compound the cyclical contradictions, the judgment further states that, what the “right of access to sufficient water … requires, will vary over time and context. Fixing a quantified content might, in a rigid and counter-productive manner, prevent an analysis of context. The concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government programme is indeed reasonable”. This is wholly ignored in the reasoning behind the judgment’s section on ‘progressive realisation’ of water rights. If the state can ‘fix a quantified content’ in relation to free basic water provision in 2001 and not change it for eight years (read: no progression), then why is this not seen as being “rigid and counterproductive” and ‘preventing an analysis of context’? If context is indeed at the “centre of the enquiry” of what constitutes “reasonableness” then surely it must be equally assessed/applied ‘over time’. Besides the fact that one part of a paragraph in the judgment wholly ignored the other, it is unfortunately for the poor (and for rational logic as well as historians), that the Constitutional Court clearly thinks context is frozen in time – and thus also, the concept of ‘reasonableness’.
* In a further case of biased illogic, the judgment rejects the applicants request for free basic water provision to be changed to a per-person allocation instead of the present per-household allocation (as this clearly discriminates against poor households in townships which are much larger than richer suburban households) because the City of Johannesburg presents “cogent evidence that it is difficult to establish how many people are living on one stand at any given time” (here it is worth noting that the judgment relies on statistical evidence on households from the eight-year old 2001 Census). But then the judgment goes on to say that the CoJ’s indigent, means-testing policy (which does not even cover one fifth of indigents in the City and is, by all accounts, an administrative nightmare) has an “indisputably laudable purpose … it seeks to ensure that those most in need benefit from government services”. So, according to the Constitutional Court, the City can’t implement a per-person allocation due to ‘fact’ that it will be too administratively burdensome (and because the City says so) but it endorses a means-testing approach instead which, of course, is not nearly as administratively burdensome (again, because the City says so) and has a ‘good purpose’ to boot.
* And lastly … the judgment dismisses the applicants argument that the automatic cutting off of water after the free basic amount is dispensed from pre-paid water meters, does not constitute “discontinuation” (and thus an illegal/unconstitutional act). It makes this finding using the following reasoning: “the ordinary meaning of “discontinuation” is that something is made to cease to exist. The water supply does not cease to exist when a pre-paid meter temporarily stops the supply of water. It is suspended until either the customer purchases further credit or the new month commences with a new monthly basic water supply whereupon the water supply recommences. It is better understood as a temporary suspension in supply, not a discontinuation.” Here then, we have the highest court in the land saying that those poor people with pre paid water meters must not think that their water supply has discontinued when their taps run dry because the meter has cut the supply … they must imagine that it is ‘temporarily suspended’ until such time as they can find the money to buy more water credit or until the next month arrives. Such ‘logic’, and even worse that it is wrapped up in legal dressing and has such crucial practical consequences, is nothing less than mind boggling and an insult both to the poor and to the constitutional imperatives of justice and equality.

The Constitutional Court notes at the beginning of its judgment that, “this is the first time” that the constitutional provision on the right of access to water “has been considered by this Court.” This makes the judgment doubly tragic. The Court had a historic opportunity to give meaningful, lived content to the right to water, to strike a constitutional blow for the poor in their struggle to fully enjoy the most basic of all human needs. It is to their, and our country’s, discredit that they have miserably failed.

Our disappointment should not be mistaken for resignation. As we have said from the very beginning of this case, irregardless of what transpires on the legal terrain, the struggle for accessible, affordable and adequate water will not stop. How can it, when there continues to be such glaring socio-economic inequality and injustice.

(The Coalition would like to extend a huge thank you to our legal team at the Centre for Applied Legal Studies – particularly Jackie Dugard – as well as our lawyers throughout the case, Wim Trengove and Nadine Fourie and to all who assisted with, and worked on, this case over the years. To the individual applicants, residents of Phiri and many other poor communities (both here and abroad) … the struggle continues!)

For further comment please contact:

Dale McKinley @ 072 429-4086