The South African Phiri water case: Can rights-based legal struggles trump cost-recovery?

1. The South African Phiri water case: Can rights-based legal struggles trump cost-recovery? Social Movements in the Postcolonial Conference Nottingham University 24-25 June 2008 Jackie Dugard Centre for Applied Legal Studies (CALS) University of the Witwatersrand, Johannesburg

2. The right of access to waterin South Africa International law UDHR, 1948 Art 25: a standard of living adequate for the health and wellbeing … including food, clothing, housing... ICESCR, 1966 (SA has not ratified but see Makwanyane) Art 11: an adequate standard of living … including adequate food, clothing and housing, and to the continuous improvement of living conditions. Art 12: the highest attainable standard of physical and mental health ACharterHPR, 1981 silent, but maybe art 21 – freely dispose of … natural resources or art 24- generally satisfactory environment favourable to their development

3. Explicit references to water • CEDAW, 1979 • Art 14(2)(h): adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply… • CRC, 1989 • Art 24(2)(c): to combat disease and malnutrition … through the provision of adequate nutritious foods and clean drinking-water… • African Charter on the Rights and Welfare of the Child, 1990 • Art 14(2)(c): ”provision of adequate nutrition and safe drinking water”

4. UN Committee on Economic, Social & Cultural Rights • General Comment 15 on the right to adequate water (arts 11 and 12 of the Covenant) 2002 at para 3 (see also para 11 and 12) • “Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival… The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.” • General Comment 3 on the nature of states parties obligations (art 2(1) of the Covenant) 1990 • Para 10: minimum core (SA ConCourt rejected this argument in Grootboom and TAC) • Para 12: “even in times of severe resource constraints … the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost programmes”.

5. Constitution of the Republic of South Africa 108 of 1996 • Section 9 (Equality) • The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, ... ethnic or social origin, ... • Section 27 (Healthcare, food, water and social security) • (1) Everyone has the right to have access to – • (b) sufficient food and water. • (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. • Section 33 (Just administrative action) • (1) Everyone has the right to just administrative action that is lawful, reasonable and procedurally fair. • (3) National legislation must be enacted to give effect to these rights.

6. Other relevant SA legislation • Promotion of Administrative Justice Act (PAJA) 3 of 2002 • 3(2)(b) requirements for procedural fairness, including (i) adequate notice of proposed action, (ii) reasonable opportunity to make representations. • Water Services Act 108 of 1997 • 4(3): “Procedures for the limitation or discontinuation of water services must” (b) “provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make representations”.

7. Phiri water rights case • 6kl FBW per household per monthinsufficient for large, poor, urban households (s27(1)(b) Constitution) and is therefore unreasonable (also no rational basis). This allocation automatically discriminates against ’households’ of more than 8 persons (s9 Constitution – race/social origin). In any event, even on a property shared by 8 persons, 25litres per person per day is insufficient for health, dignity, culture etc. • Water PPMs are unlawful - do not allow adequate notice or the opportunity to make representation prior to the automatic disconnection (s4(3) Water Services Act). Also unfairly discriminates in that people in richer suburbs can buy water on credit and have substantial protections prior to disconnection (s9 Constitution – race/social origin).

8. Sufficiency of water • Peter Gleick. 1996. ”Basic Water Requirements for Human Activities: Meeting Basic Needs”, Water International 21 p 88 (General Comment 15, para 12(a) refers to this): • A minimum amount of water to ensure a basic standard of living is 50 litres per person per day (lpppd), broken down as follows: • Minimum for drinking: 5lpppd • Basic sanitation: 20lpppd • Basic bathing: 15lpppd • Basic food preparation: 10lpppd • Founding affidavit, Lindiwe Mazibuko (applicant in Phiri water rights case), para 114: • ”Assuming our household was to follow Johannesburg Water’s Menu 1 … each person in our household of 20 would only be able to flush the toilet less than once every two days; each person could only have a ’body wash’ every four days; 2 kettles of water, 1 sink full of dishes and half a clothes wash per day. After all the free basic water budgeted for that day was used, no water would be left for anything else, such as drinking, cooking, cleaning …”

9. Municipal cost-recovery • G1.2 White Paper on Local Government 1998 (references s230A Constitution) • “Borrowing powers are limited by the requirement that borrowings do not fund budget deficits. This means that the Constitution effectively prohibits deficit budgeting at the local sphere”. • Local Government Municipal Systems Act 32 of 2000 • Local Government Municipal Property Rates Act 6 of 2004 • Local Government Municipal Finance Management Act 176 of 2004 • National Credit Act 35 of 2005 • S80 – prohibition on reckless credit

10. Reckless credit • Constitutional provisions always trump other legislation unless it can be shown to be a limitation of the right that is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” (s36 Constitution). • Phiri residents had already been granted debt-write off in order to accept PPMs. • The worst debtors in Jhb are not the poor, but rather “government and institutional bodies whose payment record and responsiveness to credit control measures is poor” (Johannesburg Water Business Plan, 2003-2005, p.2). • “It is really difficult to conceive of the cost of unraveling some or all of [OGA] in terms of removal of meters, installation of alternative metering sources and this would seriously impact on Johannesburg Water’s finances and sustainability” Gerald Dumas, MD of JW, answering affidavit, Mazibuko.