Business Day: Jo’burg to challenge Phiri water ruling

http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A945064

Posted to the web on: 23 February 2009
Jo’burg to challenge Phiri water ruling
Franny Rabkin

THE Supreme Court of Appeal will today begin a hearing on the constitutionality of the installation and use of prepaid water meters in Phiri, Soweto. At issue is the constitutional right of access to sufficient water.

At stake for the City of Johannesburg is “the foundation of its water policy”, which has cost the city billions to implement, and is aimed at ensuring everyone has access to some form of water supply.

At stake for the residents of Phiri is suffering from having water for only a limited time in a month.

The case is the first to deal with state obligations to provide access to sufficient water. When it was heard first in the Johannesburg High Court, Judge Moroa Tsoka asserted the “minimum core” concept (that in dealing with socioeconomic rights, government should be measured against a minimum standard of delivery), rejected previously by the Constitutional Court.

Some Phiri residents have been fighting the installation of prepaid meters since the City’s Gcin’amanzi programme was first implemented in 2001.

Prepaid meters stop dispensing water when the limit on free water is reached, and lets taps run again only if the user buys water credits and loads them into their meter.

Five Phiri residents say installation and continued use of prepaid meters is unconstitutional, and breaches rights of access to sufficient water, just administrative action and equality.

Before prepaid water meters were installed, Soweto residents had unlimited access to water at a flat rate. People in affluent suburbs had metered water with monthly bills.

The city said the flat rate was not sustainable as it made it impossible to account for “about 75% of all water pumped into Soweto”. So it introduced Operation Gcin’amanzi, giving all households 6kl of free water a month. The rest had to be paid for.

Last year, the Phiri residents won their case in the Johannesburg High Court. The city is now appealing to the Supreme Court of Appeal.

Tsoka ordered that Phiri residents be supplied with 50l of free basic water a person a day, up from the current 25l, and that they be given a choice of an ordinary credit water meter. The judge said it was inexplicable that some residents were entitled to water on credit, including the free monthly 6kl a household, while Phiri residents were denied water on credit.

But the City will argue before the Supreme Court of Appeal that Tsoka’s order “will have extremely far-reaching and grave consequences” for its water policy.

Gilbert Marcus and Anthony Stein, counsel for the city, set out in detail how the city developed its water policy, which the city says focused on achieving access for all, including those in informal settlements with no access to water.

The city says that the residents of Phiri are better off now than they were when paying the flat rate.

This is because they pay less now than under the previous flat rate; the cost of their water is cross-subsidised by wealthier users; and they now have access to free water, which they never had before.

The City also says that, since the introduction of the programme, it has increased the allocation of free water for “registered indigents” and people with HIV/AIDS and provides a certain amount for emergencies.

In this way, says the city, it has discharged its obligation to progressively realise the right of access to sufficient water.

But Wim Trengove and Nadine Fourie, counsel for the residents, say the residents are worse off now, making the introduction of the prepaid meters retrogressive. This is because they simply cannot afford to pay once they have used their free water. So the prepaid meters breach the obligation of the state not to move them down the water ladder, the residents say.

They also argue that because water is allocated per stand instead of per person, poor people end up with less free water than rich people. This is because their stands generally accommodate more people, and unemployment means people get all their water use from home.

But the City says that it would be impossible to provide water for individuals as the number of people in each stand is in constant flux.

The residents also say prepaid meters were forced on them, and they were not given the option of the credit meters that wealthier white suburbs have. This is discriminating against the Phiri residents, who are in the main poor and black.

Richard Moultrie and Sesi Baloyi, counsel for the friend of the court, the Centre on Housing Rights and Evictions, argue that the constitution should be interpreted in accordance with international law on the right to water.

They say that while SA has not accepted the minimum core concept into its jurisprudence, what constitutes a minimum core internationally is an important factor when considering whether or not government’s measures are reasonable.