MEDIA ALERT FOR IMMEDIATE RELEASE
Centre for Applied Legal Studies
Johannesburg, 18 February 2009
PHIRI WATER RIGHTS CASE GOES TO THE SUPREME COURT OF APPEAL
Mazibuko case, which was won in the Johannesburg High Court, is on appeal in the SCA, 23-25 February 2009
The Supreme Court of Appeal (SCA) will, between 23 and 25 February 2009, hear an appeal against the Johannesburg High Court’s April 2008 decision banning prepayment water meters. The appellants – the City of Johannesburg, Johannesburg Water (Pty) Ltd. and the Department of Water Affairs and Forestry – are appealing the whole of the High Court decision.
The High Court decision (Mazibuko and Others v City of Johannesburg and Others 2008 (4) SA 471 (W)), handed down by Judge Moroa Tsoka on 30 April 2008, was a landmark judgment on socio-economic rights in which the Judge ruled that the City of Johannesburg’s practice of forcibly installing prepayment water meters in Phiri, Soweto is unconstitutional. It also set aside the City’s decision to limit its free basic water supply to 25 litres per person per day and ordered it to provide the residents of Phiri with free basic water in the amount of 50 litres per person per day. The City was further directed to give the residents of Phiri the option of an ordinary credit metered water supply.
In a ground-breaking judgment – the first in which the constitutional right to water has explicitly been raised – Judge MP Tsoka criticised the municipality for its discriminatory approach to the provision of water. The Judge found that: “the underlying basis for the introduction of prepayment meters seems to me to be credit control. If this is true, I am unable to understand why this credit control measure is only suitable in the historically poor black areas and not the historically rich white areas. Bad payers cannot be described in terms of colour or geographical area.”
The Judge also found that the consultation leading up to the adoption of prepayment meters was inadequate, stating that the process was “more of a publicity stunt than consultation”. He also criticised the City’s “big brother approach” to the residents of Phiri.
The Judge stated that “25 litres per person day is insufficient for the residents of Phiri”, whom he described as “poor, uneducated, elderly, sick, ravaged by HIV/AIDS and reliant on state pensions and grants.” The judge continued that “to expect the applicants to restrict their water usage, to compromise their health, by limiting the number of toilet flushes in order to save water is to deny them the rights to health and to lead a dignified lifestyle.” The Judge found that increasing the free basic water supply would not put significant strain on the City’s water and financial resources, especially if free basic water already supplied to rich households is redistributed to the poor.
Senior researcher at the Centre for Applied Legal Studies (CALS) and part of the respondents’ legal team, Jackie Dugard said:
It has been a long hard road for our clients and their support organisations such as the Anti-Privatisation Forum and the Coalition Against Water Privatisation. The High Court judgment was not only a victory for them, but for all poor South Africans. Judge Tsoka showed that socio-economic rights have teeth. His judgment shows a careful and sensitive understanding of the law, the City’s obligations, but above all our clients’ lives. We are confident the SCA will affirm our clients’ rights.
The respondents’ counsel are Wim Trengove, SC and Nadine Fourie.
For more information, contact: Jackie Dugard on 084 240 6187 or Dale McKinley of the Coalition Against Water Privatisation on 072 429 4086