Mike Muller’s article in last week’s Mail & Guardian (”A ‘Phiric’ victory for the poor”, July 17) reflects a confused understanding of the Mazibuko water rights case and an alarming ignorance of the political reality of grassroots struggles.
It also misses several critical points:
- The Supreme Court of Appeal (SCA) did not overturn most of the high court’s judgment. In fact, the SCA found in favour of the residents of Phiri on both critical challenges, namely that the city’s free basic water policy was unreasonable for breaching the water rights enshrined in section 27 of the Constitution and should be set aside and that the installation of prepaid water meters was unlawful.
- In pointing out that Phiri residents have appealed to the Constitutional Court, Muller fails to mention that the city and the minister have cross-appealed the judgment of the SCA, so all parties are in effect appealing the SCA judgment of March 25 2009.
- Although Muller is correct in pointing to the City of Johannesburg’s Siyasizana Expanded Social Package as problematically complex and administratively burdensome, it is factually incorrect to assert that Siyasizana is an outcome of the litigation. As is clear from the Mazibuko record, the city had intended to restrict free basic water allocations through a system of means testing well before the case was launched. In fact, to the detriment of the programme, it appears that Siyasizana has been developed with almost no reference to the issues raised in the Mazibuko case.
Indeed, the applicants have all along highlighted the problems of pursuing such a means-tested approach for allocating free basic water, pointing to the chronic under-representation of low-income households in such registration-based endeavours. Yet the city has persisted with the launch of Siyasizana, notwithstanding little or no public consultation and despite much evidence that the policy is doomed to exclude vast numbers of the most vulnerable people.
- Muller is wrong to imply that the Supreme Court found nothing wrong with prepaid water meters. And he is incorrect to state that the Supreme Court of Appeal ”overturned” the high court’s ”order to remove the meters”. The Supreme Court found both the introduction and the automatic disconnection of water supply brought about by the prepayment meters to be unlawful. And the high court did not order the removal of prepayment water meters. Rather, it ordered the city to provide similarly positioned residents of Phiri with the option of the kind of conventional credit meter found in Jo’burg’s richer suburbs.
- Muller is also incorrect to suggest that nothing has been gained by the litigation. Even before the final resolution before the Constitutional Court, the city has been made to recognise that its one-size-fits-all free basic water policy of six kilolitres a household a month does not reflect the socioeconomic reality of many poor, multi-dwelling households that require additional water to meet the needs of many poor people living on one property. Although both the high court (which ordered the city to provide 50 litres of free water a Phiri resident a day) and the Supreme Court of Appeal (which ordered the City to provide 42 litres of free water to every indigent Phiri resident a day) judgments have been suspended pending the Constitutional Court appeal, the Mazibuko litigation has already secured an increase in the city’s free basic water allocation to those on the indigent register, from six to 10 kilolitres a household a month.
Moreover, the case has established important principles regarding the city’s unilateral and inequitable imposition of pernicious
prepayment water meters (which automatically disconnect water supply on exhaustion of the free basic water allocation unless the household has money to buy additional water credit). As found by the high court (and not dealt with by the Supreme Court), the roll-out of prepayment water meters only to poor, predominantly black areas — despite the evidence that the city’s worst debtors are government institutions and businesses — amounted to impermissible unfair discrimination.
The high court also underscored the importance of public participation in local government service delivery and berated the city for its failure to consult the residents of Phiri before the imposition of prepayment water meters. As recognised by the high court, public participation is a cornerstone of our constitutional order and constitutes a critical aspect of holding public officials to account.
- Muller’s stance appears to be one of redistributing resources between the ”poor” and the ”very poor” rather than a much more fundamental redistribution between well-off industries, farmers and affluent water users and the poor. The latter approach is much more in line with the transformative ethos of the Constitution.
- It is patronising and ill-informed of Muller to suggest that the needs of Phiri’s residents are best met ”through political action”. Muller does not specify what kind of political action he has in mind. Nevertheless, the reality is that, in attempting to oppose prepayment water meters in the past six years, the residents of Phiri have tried most forms of political action, including petitions, political meetings and marches. Litigation was a last resort in the face of the total intransigence of the institutional political realm. And litigation did not suspend all other forms of political action, which are ongoing.
But, as poor communities such as those in Phiri have discovered, the institutional political realm, particularly at the local government level, has shown itself to be overwhelmingly unaccountable and non-participatory. There is growing evidence across South Africa that, in what has been described by some commentators as ‘lawfareâ€, courts are increasingly being used as domains of struggle where theoretically other forms of political engagement should have been better placed. Increasingly the choice is between the courts (if the actors can secure the necessary resources and institutional support) and public violence. When faced with this choice, the majority of people in Phiri chose the courts. For some reason, this irks Muller.
Jackie Dugard is a senior researcher at Wits University’s Centre for Applied Legal Studies and part of the applicants’ legal team in the Phiri water rights case (Mazibuko and others versus City of Johannesburg and others)