In a class action suit that recalls the Treatment Action Campaign’s battle to access free antiretrovirals, the residents of Phiri in Soweto have instituted legal proceedings against the City of Johannesburg. They are challenging the installation of prepaid meters in March 2004 and the decision of the city on the amount of water allocated free to the city’s poor residents.
The Johannesburg High Court is being asked to order the city to provide a free basic water supply of 50 litres per person per day — up from the present 25 litres a day — and the option of the conventional metered water supply the city offers to Johannesburg’s richer suburbs. The applicants, with thousands of residents of Phiri, have been forced to accept standpipes (outside yard taps) or water prepayment meters as the ‘only optionsâ€.
This week the court heard that prepaid meters (PPM) dispense free water until they reach the monthly six kilolitre limit. After that the residents have to buy more water credit as the meters discontinue supply. The case was brought before the court by five applicants: Lindiwe Mazibuko, Grace Munyai, Jennifer Makoatsane, Sophia Malekutu and Vusimuzi Paki. They are represented by Wim Trengove SC. The respondents are the City of Johannnesburg, Johannesburg Water and the national department of water affairs and forestry.
In submissions before the court Trengove said Phiri is one of the poorest suburbs in the city; its residents live in abject poverty, are largely uneducated and have borne the brunt of HIV/Aids. Trengove argued that the prepayment system is discriminatory because it does not give the residents of Phiri, like other suburbs, the right to choose. The ‘differentiation†is based on geography. ‘The application of a geography standard, although seemingly neutral, may in fact be racially discriminatory.†He contends that the decision to implement the prepaid meters in low-income areas differentiates between black and white residents. ‘It accordingly amounts to indirect discrimination on the basis of race and colour.â€
The applicants also argue that the system is procedurally unfair and arbitrary. It is ‘particularly unlawful where the consumer has not voluntarily chosen to use a prepaid water meter rather than a credit meterâ€, Trengove said. Mazibuko’s water was disconnected between the months of March and October 2004 and she had to rely on a reservoir nearby. When the gates to the reservoir were locked she was forced to use a wheelbarrow to fetch water 3km away. Now, with a PPM on her property, the water usually runs out on day 12 or 15. Mazibuko said she has 20 people on her property.
‘Sometimes we have to ask for water from our neighbours. Or we use dirty water in our cisterns,†she said. ‘When they cut off supplies I have to carry water using a wheelbarrow, a very strenuous exercise.â€
The prepaid meter saga is tinged with tragedy. Prepayment meters provide none of the usual protections against administrative errors and household emergencies, like fires, which conventional credit meters in the rest of Johannesburg provide. One of the applicants, Paki, has 11 people on his property. On March 11 2005 a fire broke out in one of the shacks. The tap water could extinguish only about 60% of the fire as a result of insufficient water and pressure. Two young children died in the blaze.
Reports by a United Nations committee suggest that less than 50 litres a day is not sufficient, Trengove said. Indeed research suggests that other comparable poor areas in the world use between 150 and 400 litres a day.
The department of water affairs and forestry’s decision to provide 25 litres of free water a day is based on the fact that 7% of households in the country (seven million people) have more than four people on a single stand. The city has since acknowledged that the eight-person household on which it based its calculations is inadequate. This figure has been increased to 13. This translates to 10 kilolitres a month, which is yet to be implemented, the city argued.
While acknowledging that residents should have access to sufficient water, Gilbert Marcus SC, counsel for the city, argued that the issue of sufficiency needs to be considered in the context of all aspects of the city’s water policy. He said the free water allocated is going to increase from six kilolitres to 10 kilolitres per stand. He pointed out that water provided to PPM, up to 51 kilolitres, is charged at a lower tariff than that supplied to households not using PPMs.
The city said the installation of meters was necessary to curb expenses and conserve its resources, which it is constitutionally required to do. It said the water policy is evolving progressively at a rate that is sustainable for the state — as evidenced by the increased free supply and the fact that the city is catering to ‘special needsâ€, such as the care of HIV/Aids patients and fire fighting, a routine occurrence in the township.
When Johannesburg Water was created there was a serious crisis, said Marcus. ‘Johannesburg Water did not receive any financial return whatsoever on approximately 41% of the water that it purchased in bulk from Rand Water.â€
He described the situation as ‘simply unsustainableâ€. A task team found that about 75% of all water pumped into Soweto could not be accounted for because of leakages and a chaotic piping system.
A further problem was that apartheid townships, including Soweto, are charged for water on the basis of so-called deemed consumption — a flat rate — which was not paid because of the rates boycotts in the 1980s. The city has written off R1,3-billion in arrears.
In a press statement the city noted that the installation of PPMs has resulted in a significantly reduced figure of unaccounted for water usage in the past six years and will ensure that credit debt does not become insurmountable to indigents.
Judgement was reserved.