On the 30th of April 2008, Judge M.P. Tsoka of the Johannesburg High Court handed down his judgement on the application by five residents of Phiri in Soweto, together with the Coalition Against Water Privatisation, to have prepaid water meters declared illegal. In an historic turnaround on five years of struggle to halt the implementation of the meters, he ruled that they are unconstitutional because they fail to fulfil the government’s obligations to just administrative action when disconnecting supply. Insofar as Johannesburg Water is only installing the meters where residents are almost exclusively black, and has done so without consultation with the affected communities, he also found that the meters reinforce apartheid’s racist discrimination.
Prepaids are the new symbols of social engineering of the poor in South Africa. Initially a sales model for the use of telephones and cell phones, the concept was introduced to poor households for the roll-out of electricity services before encroaching on water supply as a means to curb the accumulation of debt.
The prepaid water meters were introduced into black townships around Johannesburg with a pilot project in Phiri in August 2003. Residents responded angrily, forcibly removing the meters in night-time operations. The City then called on the strong arm of private security companies and police to enforce a 50m cordon around Johannesburg Water construction sites. Residents found themselves gagged in their own homes as work proceeded against their wishes. Amongst those arrested for resisting the implementation of the meters was Matthews Ndlovu, who languished in prison until the $2,000 fine for his release was raised.
As the prepaids moved to other Phiri extensions, the water company used more subtle coercion to avoid the conflict experienced in the initial phase. Arrears on water bills were written-off on acceptance of the new meter. And, any refusal to accept the meter resulted in the disconnection of the water supply, a punishment that 6 households endured for eight months before the water company conceded to the provision of restricted standpipes. The testimony of one of the applicants to the High Court, Vusimuzi Paki, was more tragic. A fire engulfed the shack on his property where Malefo Tamane and her two children were staying. He attempted to extinguish the fire with water from the tap but the pressure was too low and he had to resort to using rainwater from a nearby ditch. The children, aged two and nine, died in the blaze.
In response to the applicants’ evidence, the City of Johannesburg moved to install fire hydrants in Phiri before the High Court heard the case. As proof that they could offer indigent households some relief, the City indicated in June 2007 that they would be increasing the allocation of free water available to them to 10kl a month. The existing 6kl allocation to all households, amounting to an estimated 25 litres per person per day, typically ran out within two weeks.
Judge Tsoka was not impressed with the City’s concession. Taking into account the evidence from an eminent water expert on individual minimum needs, and the fact that the City of Johannesburg had an audited surplus of over $174,000 in 2006, he ordered that the municipality should increase the free basic water amount to 50 litres per person per day. An average Canadian consumes more than 300 litres per person per day.
The court’s ruling shocked the City. Having already invested $52 million in the operation only to be told the meters are unacceptable, Joburg City has egg on its face for not listening to the dissenting residents all along. The mayor, who consistently refuses to receive memorandums of demands from marchers, announced at a media briefing in mid-June that the municipality intends to appeal the ruling. He maintains that the court’s applicants represent only a few disgruntled individuals. The City’s legal team could not find sufficient evidence to support this claim. Not one single resident of Phiri could be found to sign an affidavit in support of the government’s case. Of the nine statements for the state’s response to the application, seven were from Johannesburg Water employees and the other two were from local government councillors. Apropos of Zimbabwean president Robert Mugabe, there was little else the mayor could do but personally attack Judge Tsoka: “Judges are not above the law,” he said, “We cannot have a situation where a judge wants to take over the role of government.
It is an unusual situation for activists to now be pronouncing the law and for the government to be scorning it. The “water case” has torn away the social democratic veneer of service delivery by the City of Johannesburg and exposed the regime of cost recovery underpinning policy in South Africa. While they prepare their appeal, the coalition of organisations that was born of the 2003 water war in Phiri is planning to take its campaign to decommodify water forward. The Coalition Against Water Privatisation is sharing its experience of victory with rural communities in the Eastern Cape where one municipality’s negligence has killed over eighty babies since October last year. With crisis-levels of poverty, social democratic rights and a government with conservative economic policies, the renewed faith in legal action will definitely be keeping South African jurists busy.