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CALS: Phiri Water Rights Case in the Constitutional Court on 2 and 3 September 2009

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Press Release from the Centre for Applied Legal Studies
Johannesburg, 26 August 2009

Phiri Water Rights Case in the Constitutional Court on 2 and 3 September 2009

The Mazibuko appeal against the SCA judgment of 30 April 2009 will be heard in the Constitutional Court, where the applicants will argue that prepayment water meters in Phiri should be declared unlawful, and that the City’s Free Basic Water policy is insufficient to meet the basic needs of poor Phiri households.

Between 2 and 3 September 2009 the Constitutional Court will hear an appeal challenging the constitutionality and lawfulness of prepayment water meters (PPMs) and the sufficiency of the City of Johannesburg’s free basic water (FBW) allocation to poor residents in Phiri, Soweto. The Court is being asked to order the City to provide Phiri residents with a FBW supply of 50 litres per person per day, and the option of a conventional metered water supply that exists throughout Johannesburg’s richer suburbs.

The application is brought by Phiri residents who are all unemployed and living in conditions of poverty on behalf of themselves and everyone in the public interest. The five year legal battle has been supported by the Coalition Against Water Privatisation (CAWP) and the Anti-Privatisation Forum (APF). The applicants are represented by the Centre for Applied Legal Studies (CALS), which is a human rights research, advocacy and public interest litigation centre at the University of the Witwatersrand. The respondents are the City of Johannnesburg, Johannesburg Water (a publicly-owned water corporation) and the national Department of Water Affairs and Forestry (DWAF, now called the Department of Water and Environmental Affairs).

Since March 2004, the applicants, along with thousands of residents of Phiri, have been forced to accept standpipes (outside yard taps) or PPMs as the ‘only’ options besides complete disconnection of their previous water supply. All of the residents had previously received an unlimited amount of water for which a flat-rate was levied. With the imposition of the PPMs, the residents’ water supply is automatically disconnected when they do not have sufficient money to purchase water credit. PPMs provide none of the usual procedural protections against administrative errors and household emergencies, which are offered by conventional credit meters in the rest of Johannesburg. These protections – the purchase of water on credit with reasonable notice of being in arrears and of possible disconnections, along with an opportunity to make representations prior to disconnection – are in place in conventional water supplies precisely to avoid the Phiri situation, where people are forced to go without water because of circumstances beyond their control, including abject vulnerability and poverty.

Since the advent of PPMs – and because the FBW allocation is insufficient to meet the basic needs of multi-dwelling poor households – Phiri residents are often without water for up to two weeks each month because they cannot afford to purchase additional water credit once the inadequate FBW supply is exhausted. The applicants are asking for 50 litres of FBW per person per day, which is based on the calculation of Dr Peter Gleick, a world expert on water rights and sufficiency. Dr Gleick’s expert opinion, relied on by the United Nations’ Committee on Economic, Social and Cultural Rights, is that in conditions such as Phiri, the minimum amount of water to ensure a healthy and dignified basic standard of living is 50 litres per person per day (lpppd), broken down as follows:

* Minimum for drinking: 5 lpppd
* Basic sanitation: 20 lpppd
* Basic bathing: 15 lpppd
* Basic food preparation:10 lpppd

TOTAL 50 lpppd

According to Jackie Dugard, senior researcher at CALS, “the applicants and their support organisations believe this case to be of critical importance in securing the constitutionally-guaranteed right of access to sufficient water (section 27(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996), and socio-economic rights more generally, to poor people”.

The applicants’ counsel are Wim Trengove SC, and Nadine Fourie.

Background to the Constitutional Court appeal

* Case launched in the Johannesburg High Court, 6 July 2006

* Johannesburg High Court hearing, 3 – 5 December 2007

* High Court judgment, 30 April 2008
o PPMs unlawful and unconstitutional; City ordered to provide all similarly-positioned residents of Phiri with 50 lpppd

* Supreme Court of Appeal hearing, 23 – 25 February 2009

* Supreme Court of Appeal judgment, 25 March 2009
o PPMs unlawful (City given two years to rectify); FBW policy unreasonable (City ordered to rectify FBW policy and in interim to provide all Phiri residents on indigency register with 42 lpppd

See http://web.wits.ac.za/Academic/Centres/CALS/BasicServices/Litigation.htm for more on the Mazibuko case.

For more information contact:

Jackie Dugard: 084 240 6187 / 011 717 8619 or jackie.dugard@wits.ac.za.

United Nations Committee on Economic, Social and Cultural Rights Comments on South Africa

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Concluding Observations of the United Nations Committee on Economic, Social and Cultural Rights

Excerpt on South Africa

South African Constitutional Court

Various Occupiers v. City of Johannesburg and others, CCT 24/07
South African Constitutional Court

Facts: The City of Johannesburg has carried out forced evictions in the inner city in the context of the Johannesburg Inner City Regeneration Strategy (ICRS), aimed at creating an ‘African World Class City’ and attracting investment. The strategy includes the clearance of an estimated 235 ‘bad buildings’, which are regarded as being at the centre of developmental ‘sinkholes’. The Johannesburg City Council has obtained urgent eviction orders under the pretence of being concerned for the health and safety of residents. However, evictions have been carried out in the middle of the night and without notice. While conditions in many of the buildings are appalling, the procedures used by the municipality are grossly unfair, including the use of Apartheid-era laws and regulations. In addition, people are not consulted or offered any viable alternatives. In the name of safety and health in the buildings, residents have been made homeless and left on the streets to fend for themselves. The strategy affects approximately 67 000 residents of ‘bad buildings’.

This specific case involved the municipality seeking to evict of some 272 men, women and children from two buildings in Berea, in the Johannesburg inner city. The municipality alleges that the properties are unhygienic and constitute a fire hazard. The municipality has refused to offer the occupiers alternative accommodation. The vast majority of the occupiers have incomes of less than R1000 per month, and many of them have experienced periods of homelessness in the past. Forced eviction would likely result in the residents becoming homeless or having to relocate to slum areas on the far periphery of the city, and thus cut off from livelihood opportunities in the city centre.

Decision(s): In March 2006, the High Court of South Africa, citing international human rights law, found for the residents and ordered the municipality not to evict. The judgment made it clear that the poor people resident in so-called “bad buildings” of the inner city of Johannesburg must be given access to a home in the inner city area if the city wants to evict them from accommodation it considers unsafe.

The municipality appealed this decision to the Supreme Court of Appeal and CALS cross-appealed – asking for a stronger implementation mechanism under court supervision. In August 2006, COHRE began drafting an amicus curiae brief and conducting research in support of the residents. The brief and legal research were incorporated in the “heads of argument” on behalf of the residents and submitted in early 2007.

In March 2007, the Supreme Court of Appeal ordered the residents to vacate the buildings concerned. However, it also ordered the City of Johannesburg to provide those residents who needed it with alternative shelter “where they may live secure against eviction.” While the Court held that the residents did not have a constitutional right to alternative housing in the inner city, it said that the personal circumstances of the residents of the particular buildings concerned would have to be taken into account in consultation with the residents before any relocation took place. The City of Johannesburg was ordered to file an affidavit demonstrating compliance with the Court’s order within four months of this decision.

On appeal to the Constitutional Court, the Court ordered the parties to attempt to negotiate a settlement. In November 2007, the parties reached an agreement that was endorsed by the Court. The agreement provides for the occupiers of both properties to be provided with affordable, safe accommodation in the inner city of Johannesburg where they may live “secure against eviction”, which was one of the key requests of the applicants. While the agreement provided a victory for the residents of the two buildings, several policy issues were referred back to the Court for consideration and decisions in 2008.

With respect to the remaining outstanding issues, on 19 February 2008, South Africa’s Constitutional Court ruled in favour of the occupants, noting that the SCA “should not have granted the order of ejectment … in the absence of meaningful engagement.” The Court further held that section 12(6) of the National Building Regulations and Standards Act is unconstitutional. The ruling is a landmark victory for the more than 67,000 low-income residents of Johannesburg facing eviction threats due to the City’s Inner City Regeneration Strategy.

The case is one of the first to hold that meaningful participation, or engagement, with rights-holders is constitutionally required. The Constitutional Court’s decision emphasized the need for the State always to engage meaningfully with the inner city poor and respond reasonably to their housing needs. Additionally, where it is clear that the proposed clearance of an unsafe building would lead to homelessness, the State (or City) should, within its available resources, provide somewhere safer and better for residents of bad buildings to live.