South Africa: Phiri Water Case

Application Filed For Leave To Appeal To Constitutional Court

On Friday 17th April, the legal team in the years-long Phiri water case filed an application for leave to appeal to the Constitutional Court. The application is to appeal the judgment handed down on 25th March 2009, by the Supreme Court of Appeal (SCA) in Bloemfontein. The SCA judgment was the result of an appeal by the City of Johannesburg/ Johannesburg Water (the ‘City’) and the Department of Water Affairs and Forestry (DWAF) of the previous ruling of the Johannesburg High Court in April 2008, which declared that prepaid water meters were both illegal and unconstitutional and ordered the City to provide residents with 50 litres of free water per day.

The SCA’s judgment determined that 42 litres of water per person/per day constitutes ‘sufficient’ water in terms of the Constitution, and made the provision of this amount conditional on the ‘City’s’ own assessment of what constitutes ‘reasonableness’ and ‘through available resources’. The determination further allows the ‘City’ to set the timing, character and extent of changes to its existing ‘free water policy’ and only to provide . the increased free basic amount to those who are registered as indigents with the ‘City’.

Not only does the SCA determination of the amount of ‘free basic water’ fall short of what is universally accepted and recognised as the minimum amount of water needed for basic human needs and dignity, it allows the ‘City’ to unilaterally determine and manage who enjoys their constitutional right to water and when. Crucially, it effectively legalises the treatment of the poor majority as second class citizens.

The SCA’s judgment further determination that pre-paid water meters are unlawful is based on a legal technicality – i.e., the absence of the necessary ‘City’ by-laws. As such the SCA judgment gives the ‘City’ two years to pass the necessary by-laws so that the pre-paid meters can then be ‘legalised’. Not only does this allow the ‘City’ to continue to forcibly install pre-paid meters in poor communities, it wholly ignores the crucial constitutional issues around discrimination and representation/ administrative justice that were properly addressed in the High Court ruling.

In short, the SCA judgment which we are now seeking leave to appeal, ensures that the provision of water remains commodified wherein the full enjoyment of the right to water is determined by ones’ class status and geographical location.

The Coalition, Phiri residents and millions of poor in South Africa will now await the Constitutional Court’s decision as to whether to grant the appeal. We fully expect that it will do so. Ever since this legal case began so many years ago, we have said that the fundamental rights involved are basic human and constitutional rights – the Constitutional Court has always been its ultimate destination.

WATER IS A RIGHT, NOT A PRIVILEGE!

For further comment and/or information please contact:

For CAWP- Virginia Setshedi @ 078 473-3086 or Dale McKinley @ 072 429-4086

For the Legal Team: Jackie Dugard at Centre for Applied Legal Studies @ 084 240 6187