South African Partner to Appeal Right-to-Water Ruling

In a case with global importance for the human right to water, a South African appellate court issued a ruling on March 25, 2009, upholding — in part — an earlier judgement ordering the city of Johannesburg and its local water authority to change how they provide water to residents of Phiri, a low-income community in Soweto.

The appellate court, however, declined to affirm the trial court's constitutional finding as to the illegality of the water authority's practice of forcibly installing prepaid meters in Phiri households. Community groups plan to appeal this and other elements of the appellate decision.

Brought by a consortium of groups led by UUSC partner Coalition Against Water Privatisation (CAWP), the case challenged Johannesburg Water's policy of providing low-income neighborhoods only 6 kiloliters per household per month, which breaks down to less than 25 liters, or 6.6 U.S. gallons, of water per person per day. (This amount of water is less than the 7 to 8 gallons expended in a 5-minute shower; most toilets use between 1.5 to 3 gallons per flush.)

CAWP also challenged the water authority's practice of forcibly installing prepaid water meters only in low-income areas. These meters automatically shut off water once certain limits are reached, entirely sidestepping South Africa's constitutional requirements that affected individuals be afforded the opportunity to seek redress. No such devices were installed in affluent neighborhoods.

In a landmark ruling issued on April 30, 2008, the trial court — the High Court of South Africa — found the installation of the meters illegal under the nation's constitution. It also ordered the city and water authority to increase the free basic water allotment to 50 liters per person per day. But the city and water authority appealed the decision, leading to the Supreme Court of Appeal's (SCA) ruling.

The SCA agreed with the lower court in finding the forced installation of prepaid meters in low-income neighborhoods impermissible, but it did not go so far as to find the meters unconstitutional, as the trial court had. The appeals court also agreed that the daily allotment of 25 liters per person is insufficient to cover the basic needs of Phiri residents. Unlike the trial court, however, the SCA indicated that 42 liters would meet that standard and ordered the water authority to change its policy accordingly. CAWP and the Centre for Applied Legal Studies (CALS) plan to appeal these portions of the ruling.

Jackie Dugard of CALS, attorney of record for the groups pressing the suit, applauded parts of the appellate court's ruling. However, she noted, "We are concerned that, having made these findings, the relief granted by the Court is neither appropriate nor effective." Specifically, Dugard was troubled by the SCA's daily allotment figure of 42 liters, pointing out that it falls short of the internationally accepted standard of 50 liters "necessary to guarantee basic human needs and dignity."

In addition to the appellate court's decision not to outlaw the prepaid meters on constitutional grounds, Dugard also expressed concern about the SCA's failure to address the city's obligation under the constitution to provide more than the absolute minimum allotment of water, where it has the resources to do so. (An undisputed finding of the trial proceedings established that the practice of limiting water supplies to low-income neighborhoods was not based on a lack of resources on the part of the city and water authority.)

Finally, the SCA's order requires that, in order to receive the increased allotment of 42 liters, Phiri residents must work through local bureaucracies that manage the provision of benefits to low-income people. As in many other societies throughout the world, Johannesburg's system is rife with red tape and other complications that place additional burdens on low-income persons seeking help.

UUSC will continue to support the activities of our partners in South Africa, who, as noted above, are presently taking steps to file an appeal to the nation's highest court.