The criticism by Serjeant at the Bar (echoed by Johannesburg mayor Amos Masondo) of the Mazibuko judgement constituting a case of ”judicial overreach” reflects a misunderstanding of the nature of the judicial enforcement of human rights, as well as the import of the judgement.
When judges are called on to adjudicate whether government infringes a right, they are fulfilling a judicial duty to uphold the Bill of Rights, as mandated by the Constitution.
In this case of Mazibuko & Others v City of Johannesburg & Others, the judge had to adjudicate whether the City of Johannesburg had infringed the applicants’ constitutionally guaranteed right of access to water, through forcibly installing prepayment meters and limiting their free basic water (FBW) allocation to a one-size-fits-all amount of six kilolitres per property per month.
In a judgement remarkable for its sensitive understanding of both the law and the plight of poor people, the judge found the city to have violated the applicants’ water rights, and ordered the city to provide 50 litres of FBW per person per day (roughly double the current allocation in a household of eight people) and the choice of conventional credit meters (as provided to other Johannesburg residents) to each of the applicants and to all other similarly placed residents of Phiri.
While seemingly a victory mainly for the residents of Phiri, there are several features of the judgement we should all welcome rather than fear.
In finding that the city’s FBW allocation was insufficient to meet the needs of multidwelling households in Phiri, the judge emphasised an equitable water-management approach. Relying on the evidence of international expert Dr Peter Gleick, who considers 50 litres per person per day to be the minimum amount of water required to sustain a healthy and dignified existence, the judge found that the city could, within its available resources, meet this basic need.
Although not canvassed by the judge, this could be done through a steeper cross-subsidisation of water tariffs that penalises hedonistic water consumption, thereby also contributing to water conservation. Ensuring that poor people can access sufficient water to meet basic needs benefits everyone because the resultant reduction in cholera, diarrhoea and other water-related illnesses means less strain on the national health system and the fiscus.
Turning to the issue of the introduction of prepayment water meters in Phiri, three aspects of the judgement should be universally appreciated:
- The judge chastised the city for failing to adequately consult with Phiri residents prior to the roll-out of prepayment meters. Finding the city’s roll-out to have been ”intimidatory and presumptive”, the judge recognised that, rather than adequately consulting with residents prior to the roll-out of prepayment meters, the city in fact forced residents into unacceptable choices between a prepayment meter, a yard standpipe or, in some instances, no water at all. By holding the city answerable to the legal requirements for community consultation prior to effecting fundamental changes in their water supply system, the judge reinforced the critical principle of the accountability of public officials to law and society.
- The judge’s finding — that prepayment water meters, as a method of credit-control, had been unfairly applied only to Soweto and not to other bad creditors (including government institutions and businesses, which receive water on credit through conventional meters despite being acknowledged by the city to be the worst debtors) — strengthens the principle of administrative fairness. The implication for all of us is that the city cannot unfairly target any one residential area or class of consumers for the roll-out of punitive credit-control mechanisms.
- Finally, finding the prepayment meter’s automatic disconnection to be unlawful and unconstitutional (when the FBW allocation is exhausted, a prepayment meter automatically disconnects unless additional water credit is purchased from vendors), the judge underscored the importance of procedural protections against unfair disconnection in the context of the supply of water. By upholding these legal principles, all of us are protected against water supply systems that disconnect without adequate notice. Hopefully no one else will suffer the horrific fate of two of the yard-tenants of Vusimuzi Paki (one of the Mazibuko applicants), whose prepayment meter’s water supply disconnected during attempts to put out a shack fire, causing them to die in the uncontrolled blaze.
Lindiwe Mazibuko, the first applicant in the Mazibuko case, died on May 21 2008 following a lengthy illness, less than a month after judgement was handed down. She had fought long and hard with other Phiri residents to realise her right to water. Although very weak at the time of the ruling, she was ecstatic when the judgement was made.
Dr Jackie Dugard is a senior researcher and acting director of the Centre for Applied Legal Studies at the University of the Witwatersrand. She is part of the applicants’ legal team in the Mazibuko matter