Current developments rights, regulation and resistance: The Phiri water campaign

South African Journal on Human Rights

Volumn 24, Issue 3, 2008, Pages 593-611

  Dugard, Jackie ^a  

^a UNIVERSITY OF THE WITWATERSRAND   (South Africa)

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EID: 78649435075     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2008.11864972     Document Type: Article

References (92)

1. I am part of the applicants' legal team in the Phiri water rights case - Mazibuko v City of Johannesburg - and a water rights activist more generally. I do not claim any academic detachment in respect of the Mazibuko litigation process (or the judgment, which I do not analyse in this article). Rather, I have focused on providing a semi-insider, but conceptually-informed, account of the socio-political and legal conditions that gave rise to the litigation, as well as drawing some tentative conclusions from the Mazibuko campaign about the uptake of rights-based litigation by socialist/leftist movements more generally. Thanks go to two anonymous reviewers for their useful comments on the relationship between law and society. I dedicate this work to Lindiwe Mazibuko, the lead applicant in the Mazibuko case, who had fought long and hard with other residents of Phiri to realise the right to water but died less than a month after the High Court victory. Although very weak on 30 April 2008 when the judgment was handed down, Lindiwe was ecstatic that her legal struggle against prepayment meters had been vindicated.
2. P Bond & J Dugard 'The Case of Johannesburg Water: What Really Happened at the Prepayment "Parish Pump"' (2008) 12 Law, Democracy and Development 1.
3. DWAF 'Strategic Framework for Water Services: Water is Life, sanitation is dignity' (2003): http:www.dwaf.gov.za/Documents/Policies/Strategic%20Framework%20approved.pdf.
4. Mazibuko v City of Johannesburg (Mazibuko) 2008 (4) ALL SA 471 (W).
5. Section 27(1)(b) of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution). 6 Technically, the prepayment water meters were installed by the City's water services provider, Johannesburg Water (Pty) Ltd. (Johannesburg Water), which, although corporatised, is publicly owned, with the City as the only shareholder. For the sake of convenience, I use the term 'City' broadly to encompass Johannesburg Water. Prepayment water meters are sometimes referred to as prepaid water meters or PPMs. In this article I use 'prepayment water meters' or 'prepayment meters'.
6. Mazibuko (note 4 above) para 183.4.
7. Mazibuko (note 4 above) paras 169 and 181.
8. Mazibuko (note 4 above) para 183.
9. Two other water cases, both related to the administrative disconnection of water services, deserve mention: Manqele v Durban Transitional Metropolitan Council 2002 (60 SA 409 D & CLD) (in which the judge ruled against the applicant whose water supply had been disconnected for nonpayment) and Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W) (in which the judge ordered the interim re-connection of water to the applicants).
10. Mazibuko: founding affidavit of Lindiwe Mazibuko and replying affidavit of Jennifer Makoatsane, http://web.wits.ac.za/Academic/Centres/CALS/BasicServices/PhiriWaterRights.htm.
11. Until February 2007, the applicants' attorney of record was the Freedom of Expression Institute (FXI), with whom CALS worked closely, providing the necessary social and legal research. In February 2007 FXI withdrew as attorney of record, and CALS took over this role too.
12. The Coalition Against Water Privatisation is a coalition of community-based organisations and social movements, which is located within a broader coalition of social movements, the Anti- Privatisation Forum (APF). Both CAWP and the APF are socialist in orientation.
13. Mazibuko (note 4 above) paras 154-5.
14. Mazibuko (note 4 above) para 160.
15. Section 62(1) of the Water Services Act 108 of 1997.
16. DWAF 'Water is Life' (May 2008) 1 Water Regulation Bulletin 9, http://www.dwaf.gov.za/Masibambane/WfGDbulletin/WfGDbulletin2IssueMay08.pdf.
17. Along with the City of Johannesburg and Johannesburg Water (Pty) Ltd., DWAF appealed against the High Court decision. The Supreme Court of Appeal heard the matter, 23 to 25 February 2009.
18. F Zemans 'Legal Mobilization: The Neglected Role of the Law in the Political System' (1983) 77 American Political Science Review 690, 700.
19. For an overview of the left's historical antagonism towards law and rights.
20. D Moellendorf 'Marxism and the Law' in C Roederer & D Moellendorf (eds) Jurisprudence (2004) 138-157.
21. Although the Mazibuko campaign has been organised by CAWP, the APF continues to play a significant role in the legal mobilisation.
22. S Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (1974) 84.
23. M McCann Rights At Work: Pay Equity Reforms and the Politics of Legal Mobilisation (1994) 4.
24. For an in-depth analysis of the international right to water.
25. H Gleick 'The Human Right to Water' (1999) 1 Water Policy 487.
26. In relation to obligations towards rural women, article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination against Women compels states parties to 'ensure the right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply...'.
27. Article 24(2)(c) of the Convention on the Rights of the Child obliges states parties to 'combat disease and malnutrition...through...the provision of adequate nutritious foods and clean drinking-water...'.
28. Article 14(2)(c) of the African Charter on the Rights and Welfare of the Child provides that states parties must ensure 'the provision of adequate nutrition and safe drinking water' to children.
29. Committee on Economic, Social and Cultural Rights (CESCR). 2002. General Comment No. 15 on the right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) para 1.
30. Realisation of the Right to Drinking Water and Sanitation: Report of the Special Rapporteur, El Hadji Guissé, UN Doc E/CN.4/Sub.2.2005/25 para 2, http://www.worldwatercouncil.org/fileadmin/wwc/Programs/Right_to_Water/Pdf_doct/Guidelines_EN.pdf.
31. Report of the United Nations High Commissioner for Human Rights on the Scope and Content of the Relevant Human Rights Obligations related to Equitable Access to Safe Drinking Water and Sanitation under International Human Rights Instruments, UN Doc A/HRC/6/3 (16 August 2007), http://docs.watsan.net/Downloaded_Files/PDF/UNHCHR-2007-Report.pdf.
32. D Barrett & V Jaichand 'The Right to Water, Privatised Water and Access to Justice: Tackling United Kingdom Water Companies' Practices in Developing Countries' (2007) 23 SAJHR 543, 545.
33. However, in June 2008 the United Nations Research Institute for Social Development (UNRISD) produced a report, based on 15 years experience of water and sanitation privatisation across the world, stressing that policies promoting Private Sector Participation in developing countries' water supply are economically flawed because they pit foreign capital's profit motive against domestic social development, public health, environmental concerns and poverty reduction: http://www.irc.nl/page/37668.
34. CESCR (note 28 above) para 2.
35. CESCR (note 28 above) para 27.
36. CESCR (note 28 above) para 11.
37. However, in recent years South African companies have begun to export prepayment meter technology to other African countries, including Ghana.
38. DG of Water Services [1999] Env LR 114 (QB 20 February 1998).
39. Kothari 'Report of the Special Rapporteur on the right to adequate housing: Mission to South Africa' (29 February 2008) para 103, http://www.unhcr.org/refworld/type,MISSION,47d55d3f2,0.html.
40. Section 27(1)(b) of the Constitution. As with all other socio-economic rights - apart from the right to basic education, as well as those socio-economic rights pertaining specifically to children (the right to basic education and children's rights are not qualified by the 'progressive realisation' or 'within available resources' criteria) - the state must take 'reasonable legislative and other measures, within its available resources, to achieve the progressive realisation' of the right of access to sufficient water (s 27(2)).
41. (1) SA 46 (CC) para 20.
42. While, according to s 9(3) of the Constitution the state may not discriminate unfairly, s 9(2) clarifies that positive discrimination or affirmative action, based on the objective of righting historical wrongs and advancing equality, is sanctioned and, is not unfair discrimination.
43. DWAF 'Water Supply and Sanitation Policy White Paper' (1994), http://www.dwaf.gov.za/Documents/Policies/WSSP.pdf.
44. 'White Paper on a National Water Policy for South Africa' (1997), http://www.dwaf.gov.za/Documents/Policies/nwpwp.pdf,
45. 'Draft White Paper on Water Services (2002), http://www.dwaf.gov.za/docs/Other/WaterServices/draft%20water%20services%20white%20paper%206.1.pdf.
46. President Thabo Mbeki first publicly-committed the government to free basic services (both water and electricity) at the Congress of South African Trade Unions (Cosatu) congress in September 2000.
47. T Mosdell 'Free Basic Services: The Evolution and Impact of Free Basic Water Policy in South Africa' in U Pillay, R Tomlinson & J Du Toit (eds) Democracy and Delivery: Urban Policy in South Africa (2006) 283.
48. The commercialisation of previously unlimited free water to poor rural communities in Ngwelezane (KwaZulu-Natal) resulted in the disconnection, in August 2000, of thousands of people from their previously free water supply. The first confirmed case of cholera came a few days later on 19 August.
49. P Bond & J Dugard 'Water, Human Rights and Social Conflict: South African Experiences' (2008) 1 Law, Social Justice and Global Development 1,5-6, http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2008_1/bond_dugard.
50. DWAF 'Free Basic Water Implementation Strategy (Version 2)' (2002), http://www.dwaf.gov.za/Documents/FBW/FBWImplementStrategyAug2002.pdf.
51. Ibid 9. Poor households in Phiri have waterborne sanitation, usually in the form of outside toilets.
52. The first water campaign was mounted by civil society and social movement groupings such as the South African Municipal Workers Union, Rural Development Services Network, APF and the Soweto Electricity Crisis Committee. It is probable that this campaign, which focused on social protest and popular resistance, was behind the government's apparent U-turn on privatising water services and at least partially responsible for DWAF's adoption in 2001 of a national FBW policy. See for example Bond & Dugard (note 44 above).
53. Section 151(3) of the Constitution.
54. D McKinley 'The Struggle Against Water Privatisation in South Africa' in Transnational Institute (TNI) (ed) Reclaiming Public Water: Achievements, Struggles and Visions from Around the World (2005) 181+182, http://www.tni.org/detail_page.phtml?page=books_publicwater.
55. L Smith 'Neither Public Nor Private: Unpacking the Johannesburg Water Corporatisation Model' United Nations Research Institute for Social Development Social Policy and Development Programme Paper Number 27 (June 2006) 5, http://www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/79F48A7BDD5CA384C12571D100257095?OpenDocument.
56. McKinley (note 49 above) 182.
57. For an expansion on the issue of commercialised water delivery in South Africa see Bond & Dugard (note 44 above).
58. K Bakker 'The "Commons" versus the "Commodity": After-globalization, Anti-privatization and the Human Right to Water in the Gobal South' (2007) 39 Antipode 430.
59. Smith (note 50 above) 11.
60. Under corporatisation, all direct costs incurred in water delivery (indirect costs such as environmental and health-related costs are not incorporated into the model) are ring-fenced under the corporation and insulated from political interference - this involves transforming water services into a business with a corporate, rather than public services, culture (see Smith, note 51 above).
61. At the time of corporatising water delivery in Johannesburg, a Contract Management Unit (CMU) was established to oversee equity issues. However, as pointed out by Laila Smith, the CMU (which was later collapsed and resurrected within the City's Infrastructure and Services Department without any resultant improvements in effectiveness) was never able to enforce social regulation, playing much more of a contract facilitator than an oversight role vis-à-vis Johannesburg Water (Pty) Ltd. Smith (note 50 above, 11).
62. D Hemson 'Water for All: From Firm Promises to "New Realism"' in D Hemson, K Kulindwa, H Lein & A Mascarenhas (ed) Poverty and Water: Explorations of the Reciprocal Relationship (2008) 13+30.
63. R Tomlinson 'Ten Years in the Making: A History of the Evolution of Metropolitan Government in Johannesburg' 1999 (10) Urban Forum 1.
64. Starting in 1996, residents of the rich (white) areas of Johannesburg, including Sandton, embarked on a rates boycott in protest against the City's post-apartheid policy of cross-subsidising poor areas through higher rates levied in richer areas.
65. Hypothetically, higher tariffs at the top end of water consumption can be used as a form of pressure to conserve water. However, Johannesburg's water tariff structure is not sufficiently convex to either deter hedonistic water consumption or ensure sufficient volumes of affordable water for low-income households. Johannesburg's tariff structure appears to be focused more on limiting low-income household water consumption to the first, zero-rated FBW, block (through a disproportionately high price for the second block) and maximising revenue from luxury water consumption (through relatively high, but non-deterrent tariffs at the top end), than effecting water conservation. Indeed, the head of Johannesburg Water's management company between 2001 and 2005, Jean Pierre Mas, has indicated that it would be foolish for Johannesburg Water to reduce the company's income stream 'by trying to promote water conservation' among affluent households who pay their water bills (Smith (note 51 above) 29).
66. Regardless of Jean Pierre Mas's sentiments, it is obviously important to build water conservation criteria into tariff structures. However, to ensure social, as well as environmental, justice the water conservation objective should be focused on luxury users who, in any event, consume the vast majority of domestic water on a per capita basis. This can be achieved in a way that also makes overall financial sense, through a convex curve with a high degree of cross-subsidy between low- and high-income users across per capita consumption bands. For an explanation of the ways in which water tariff structures can be manipulated to reflect social justice at the lower end of per capita consumption, environmental justice at the top end of per capita consumption, and still be cost-effective.
67. K Tissington, M Dettmann, M Langford, J Dugard & S Conteh 'Water Services Fault Lines: An Assessment of South Africa's Water and Sanitation Provision across 15 Municipalities' CALS, Centre on Housing Rights and Evictions (COHRE) and Norwegian Centre for Human Rights (NCHR) (2008), 44-46, http://web.wits.ac.za/NR/rdonlyres/14D413A0-9CA8-40A7-9428-4B7545548C05/0/WaterServicesReport_web_Nov08.pdf.
68. It should also be noted that the only water conservation education undertaken by the City of Johannesburg comprises banners and pamphlets in poor areas, yet it is rich consumers who use most domestic water on a per capita basis. Finally, because low-income households are often large and multi-dwelling - with many people on the same property sharing one water connection - water tariffs and specifically FBW arrangements need to reflect this reality through a per capita per day allocation rather than a per household per month allocation.
69. This means to conserve water in isiZulu. Affected households were not fooled by the water conservation smokescreen as they were aware that there was no such drive to force households in rich areas to conserve water - they knew that OGA was essentially about credit control.
70. Undated OGA Report, included in the Minutes of Meeting of the Operations and Procurement Committee of Johannesburg Water (Pty) Ltd. (27 November 2002) 1 (the undated report was one of the annexures provided in the City's Record of the Decision in Mazibuko, found at B2 439-82 of the court files) (this document is part of the Mazibuko High Court record and is available at CALS).
71. Ibid 3.
72. Ibid.
73. Mazibuko application: First and Second Respondents' Heads of Argument (16 November 2007) para 17.8.
74. Most Phiri properties have backyard shacks, where separate households live. The City's FBW policy does not cater for backyard shack residents, meaning that the main household's FBW allocation must be shared with all people on the property.
75. APF & CAWP 'Lessons from The War Against Prepaid Water Meters: The Struggle Against Silent Disconnections Continues' (2006), http://apf.org.za/IMG/pdf/Final_PPM_Research_Report_-_102006-2.pdf.
76. APF & CAWP 'Lessons from The War Against Prepaid Water Meters: The Struggle Against Silent Disconnections Continues' (2006) 21.
77. APF and CAWP (note 67 above) 4.
78. P Naidoo 'Struggles Around the Commodification of Daily Life in South Africa' (2007) 34 Review of African Political Economy 57+64.
79. D McKinley 'Water Struggles from Johannesburg and Beyond' (June 2008), http://www.anarkismo.net/newswire.php?story_id=9168.
80. M Tushnet 'An Essay on Rights' (1984) 62 Texas LR 1363.
81. S Scheingold 'Constitutional Rights and Social Change' in M McCann & G Houseman (eds) Judging the Constitution: Critical Essays on Judicial Lawmaking (1989) 73+76.
82. APF Press Statement (13 August 2003), http://apf.org.za/article.php3?id_article=29.
83. The role of lawyers in advocating the legal mobilisation course should not be ignored. Nevertheless, throughout the years, the Mazibuko legal team has attempted to ensure that legal mobilisation is driven by the clients and their support movements.
84. McKinley (note 72 above).
85. K Mabuza 'Jozi to Contest Ruling on Water' Sowetan (15 May 2008).
86. Anarkismo.net describes itself on the website as follows: 'We identify ourselves as anarchists and with the 'platformist', anarchist-communist or especifista tradition of anarchism. We broadly identify with the theoretical base of this tradition and the organisational practice it argues for, but not necessarily everything else it has done or said, so it is a starting point for our politics and not an end point'. In terms of its objectives, according to the website, 'Anarchism will be created by the class struggle between the vast majority of society (the working class) and the tiny minority that currently rule. A successful revolution will require that anarchist ideas become the leading ideas within the working class. This will not happen spontaneously. Our role is to make anarchist ideas the leading ideas or, as it is sometimes expressed, to become a 'leadership of ideas', http://www.anarkismo.net/about.
87. CAWP 'Attack on High Court judgment and Judge Tsoka is unwarranted, dangerous and betrays a complete ignorance of how democracy works: This is not Zimbabwe Mr Masondo, and you are not Robert Mugabe', http://www.anarkismo.net/newswire.php?story_id=8914&topic=indigenousstruggles&type=nonanarchistpress&language=en.
88. McKinley (note 72 above).
89. W Foster 'Water wars move to Cape' Mail & Guardian (12 May 2008), http://www.mg.co.za/article/2008-05-12-water-wars-move-to-cape.
90. M Letsoalo 'Masondo Next to be Axed?' Mail & Guardian (19 July 2008), http://www.mg.co.za/article/2008-07-19-masondo-next-to-be-axed.
91. McCann (note 23 above) 10.
92. McCann (note 23 above) 307.