If civic groups triumph in their legal campaign against Johannesburg’s water policy and the use of pre-paid water meters in the Soweto suburb of Phiri, it is likely to be a pyrrhic victory for them — that is, one with devastating costs for the victors.
The case began in 2006 when residents of Phiri took the City of Johannesburg and the minister of water affairs and forestry to court. They alleged that the city was infringing their rights by limiting their supply of free water to six kilolitres a household each month and installing pre-paid meters.
Last year high court Judge Moroa Tsoka found in favour of the residents but, in March this year, the Supreme Court of Appeal overturned most of that judgment. Now, with the support of Wits University’s Centre for Applied Legal Studies and groups such as the Anti-Privatisation Forum the residents have appealed to the Constitutional Court.
When the case is heard in the Constitutional Court in early September, it may mark a watershed for the post-1994 ”social rights” culture as poor communities realise that their needs are best met through political action rather than long-winded judicial interventions. This is because the case neatly coincides with the introduction by the City of Johannesburg of its Siyasizana expanded social package policy.
Siyasizana aims to ”give different levels of assistance to people with different levels of needs and therefore give more assistance to those who need it most”. Although undoubtedly well intentioned, it is hugely complex (the document describing how it works is 20 pages long) and relies on computer programs to determine who deserves how much assistance. But for the city it offers a way to end the present water subsidies.
The challenge to Johannesburg’s water policy was prompted by opposition to the installation of pre-paid water meters as part of the Gcina Manzi campaign to cut water wastage in Soweto suburbs, which were consuming twice as much as the average ”white” suburban household. It was opposed by local action groups who claimed that the new system did not provide enough water for large households and that pre-paid meters cut off supplies without warning.
The appeal court judges found nothing wrong with using pre-paid meters for households that could not pay a deposit for a proper house connection rather than a tap in the yard. They gave the municipality two years to go through a proper administrative process and overturned the lower court’s order to remove the meters.
The judges, however, ruled Johannesburg’s present policy, giving an eight-person household 42 litres a person a day, was adequate to meet the Constitution’s requirement for ”sufficient water”. The complainants had asked for 50 litres a day whereas national government currently defines 25 litres as the minimum.
Entering this terrain, the judges ignored Constitutional Court warnings about second-guessing technical policy decisions. Their decision ignored evidence that used washing-water can be recycled to flush toilets. Although the national government appears to be ducking the issue, this would provide obvious grounds for an appeal to preserve some equity between the ”rich poor” in places such as Johannesburg and the ”poor poor” in places such as Mthatha and Siyabuswa, who struggle to get even 25 litres a person.
But potentially the most pernicious effect of the judgment will be to enforce means testing before poor people can get free water. Johannesburg has promised free basic services to households on its indigent list. The judgment implied that free water need not be provided to households who are not registered as indigents. This is the significance of the launch of Siyasizana.
If the Constitutional Court supports increased free water through a general tariff system, as currently happens, it will encourage other municipalities to follow Johannesburg and provide free services only to those who pass through the eye of the welfare needle.
Yet experience of means testing on the scale needed to deal with South Africa’s widespread poverty is that it is an imperfect instrument, vulnerable to corruption and difficult to maintain, often excluding the poorest people.
If this happens, it will not be the first time that the poor have suffered through ill-considered legal action.
The Extension of Security of Tenure Act was also admirable in intent, but dismal in its performance. It led farmers to evict poor families and failed to provide protection for those affected.
Indeed, NGO research linked the Act with the eviction of nearly a million farm workers between 1994 and 2004. Up to mid-2005 more households had been evicted from farms than had benefited from land reform.
The Phiri case may thus confirm that the best route to achieve social goals is political, not through the courts — free basic water was the result of political pressure during the national and local government election campaigns of 1999 and 2001.
The free basic water policy has worked well, given the need to cherish water in our dry country. It has brought water to most of the poor, with minimal bureaucracy, and discouraged excess consumption in richer communities. Higher tariffs for profligate users have reduced average household water consumption, whereas big water users subsidise free water for poorer users.
This fair solution is now under threat, in the name of human rights. And millions of people who have had free access to the basic water supplies that they needed to sustain a minimum of dignity are likely to lose it, unless they subject themselves to the ongoing indignity of the means test, or resist it politically. A pyrrhic victory indeed.
Mike Muller is a visiting professor at Wits University’s Graduate School of Public and Development Management. He was director general of water affairs and forestry when the free basic water policy was introduced