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Economics column: Legal Challenge to Water Policy Launched 2006-08-16
Dale T. McKinley

*Political commentator, community activist and independent researcher. This article originally appeared in Africa News Dimension


“Water Is Life!” This is the message from graffiti artists on the walls near the local offices of Johannesburg Water in the heart of the poor community of Phiri, Soweto. It is a message that is about to be subjected to intense scrutiny due to the launching of a ground-breaking legal challenge being brought by several Phiri residents.

According to a statement issued last week, an application was filed in the Johannesburg High Court “asking the Court to declare that the decisions of Johannesburg Water to limit free basic water supply to 6 kilolitres per household per month and to unilaterally install prepayment meters are unconstitutional and unlawful. The Court is being asked to order Johannesburg Water (Pty) Ltd. to provide a free basic water supply of 50 litres per person per day, and the option of a credit-metered supply installed at the cost of the City of Johannesburg, to the residents of Phiri, Soweto”.

The application, which is the first of its kind in South Africa, is being brought by five unemployed residents of Phiri “on behalf of themselves, their households and all residents of Phiri who are in a similar position, as well as everyone in the public interest”. It is being launched under the auspices of the Coalition Against Water Privatisation (a collection of community organizations and progressive NGOs struggling against the negative effects of current water policies on the poor), with support from the Centre for Applied Legal Studies at the University of the Witwatersrand and the Freedom of Expression Institute.   

One of the applicants is 35 year-old Jennifer Makoatsane who has lived in Phiri all her life. 

Jennifer lives in a four-roomed house with 8 other family members. No one in the household is employed and the only source of regular income is her mother's R870 per month pension grant. 

Jennifer says that in past years they were able to survive on the 20 000 litres per month of water provided by the municipality for an affordable flat rate.  Since August 2003, however, she says that life has become more difficult for her household as her late father signed for a prepaid water meter (which dispenses the 6000 free litres of water before cutting off)  to be installed in their yard.  "The 6 000 litres is not enough for our needs.  In our household of 9 we run out after two weeks.”  

"This has affected us so much … we must use less water because we cannot afford to pay, and we use the same water for different things. Jennifer says that it has also caused conflict within the household over spending priorities.  “It is difficult to think about buying water.  You think twice if you have R5, whether to buy a loaf of bread or save it to buy water”.  She asks why those who consume the most water ("the rich in their suburbs with their swimming pools and many bathrooms and toilets") are not being asked to reduce their consumption through the use of prepaid water meters.  She calls the introduction of prepaid meters "nothing more than profit-making". 

The prepayment water meters have clearly had a negative social and cultural impact. Jennifer relates how residents now, "think twice before conducting rituals because many of our cultural practices need large amounts of water … funerals and weddings are becoming really difficult for us as we cannot afford to buy the large amounts of water that are needed.  She says that past practices of communal sharing of water have been replaced by an exploitative neighbourhood water ‘market’ and, in some cases, neighbours steal water from each other – “there is no more the spirit of ubuntu,  the prepaids have brought war to our community”.

It is against the backdrop of such lived experiences in poor communities like Phiri, and the outright hostility shown by water service entities like Johannesburg Water - alongside national and local government - to community opposition to the prepayment meters, that the court case is being pursued. The extensive and considered arguments contained in the application appear likely to ultimately test the constitutional provision that “everyone has the right to have access to sufficient water”.

In the application, Dr Peter Gleick, a world expert on water rights, argues that the amount of free basic water supplied to the residents of Phiri is insufficient to meet basic needs, “not least because it is based on an amount per household per month rather than per person per day”. Gleick says that an amount of 50 litres per person per day is the minimum “starting point to provide people in the applicants’ position with access to sufficient water”. In another section of the application, Professor Desmond Martin (President of the HIV Clinicians Society), attests to the need for more water on a daily basis for people living with HIV/AIDS than for non-HIV infected individuals, in order to ensure their health, standard of living and dignity.

While the High Court hearing is still months away, and the outcome far from clear, people like Jennifer Makoatsane are proud that it has already brought national and international attention to their struggles. “At least people will be able to stand up to fight for their rights, because water is a human right ... we will continue resisting what we know is wrong."



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