More work for women: A rights -based analysis of women's access to basic services in South Africa

South African Journal on Human Rights

Volumn 25, Issue 3, 2009, Pages 546-572

  Dugard, Jackie ^a   Mohlakoana, Nthabiseng ^b  

^a UNIVERSITY OF THE WITWATERSRAND   (South Africa)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864983947     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2009.11865216     Document Type: Article

References (108)

1. World Bank 'South Africa Country Brief' (2005)
2. J May (ed) 'Poverty and Inequality in South Africa'. Report prepared for the Office of the Executive Deputy President and the Inter-Ministerial Committee for Poverty and Inequality, South Africa (1998) 6 .
3. Cited in K Kallmann 'The Right to Food - Addressing Women's Needs as Individuals, Wombs and Mothers' in B Goldblatt & K McLean (eds) Women and Social and Economic Rights in South Africa (2010) forthcoming.
4. M Leibbrandt, P Naidoo, L Poswell, M Welch & I Woolard Taking Power in the Economy, Gains and Directions: Economic Transformation Audit (2004) 94.
5. Shisana, T Rehle, L Simbayi, W Parker, K Zuma, A Bhana, C Connolly, S Jooste & V Pillay (eds) South African National HIV Prevalence, HIV Incidence, Behaviour & Communication Survey 2005 (2005) 44, 46.
6. A Potter & V Molose 'Access to Clean Water Crucial in Fight Against AIDS' Water Wheel November/December (2005) 18 .
7. May (note 2 above) 6.
8. In this article wherever it makes sense to do so, we use the terms electricity and energy interchangeably, while focusing on electricity services more directly. We do so because the article concentrates on women's access to water and electricity services rather than to the resources of water and energy more generally. However, we do touch on water and energy resources per se, to the extent that they form the basis of basic service systems. Our focus on the public service aspect rather than the good itself means that we are discussing a rather strange set of socio-economic rights - completely public (whether privatised or not) but located or accessed via the home: a private realm with deeply gendered power relationships. We do not deal with water and electricity services to business, agriculture or industry, that is, we are covering basic domestic services.
9. E Cecelski 'Enabling Equitable Access to Rural Electrification: Current Thinking on Energy, Poverty and Gender' Energy, Poverty and Gender (2003) 27.
10. Ibid 27.
11. World Energy Outlook (WEO) 'Energy for Cooking in Developing Countries' Focus on Key Topics: International Energy Agency (2006) 424 .
12. T Winther 'Empowering Women Through Electrification: Experiences from Rural Zanzibar' (2008) 11(1) Energia News 8 .
13. S Fredman 'Engendering Socio-Economic Rights' (2009) 25 SAJHR 410, 413.
14. L Chenwi & K McLean '"A Woman's Home Is Her Castle?" - Poor Women and Housing Inadequacy in South Africa' (2009) 25 SAJHR 517, 534.
15. We do not suggest that other services such as refuse and sanitation are not critical for the upliftment of local communities. Indeed, sanitation is more important in terms of basic health care and dignity concerns (particularly for women) than electricity services. It also has a strong gender dimension in that, particularly in rural areas, inadequate sanitation facilities mean that women often face indignity and security risks when they have to defecate in the open or have to share limited facilities with men. However, we have not dealt with sanitation specifically (outside of waterborne sanitation services) precisely because, for the majority of South Africans, sanitation is not a service per se, but rather a facility such as a bucket or an un-serviced pit latrine or nothing at all. Clearly, in order to satisfy the kind of approach pursued in this special issue, sanitation should be physically accessible and safe for all people including women, financially affordable, gender segregated and make provision for menstrual waste.
16. For example, access to water directly impacts the rights to life, dignity and health, and it is directly related to the right to housing. It should be noted that, as pointed out by Chenwi & McLean (note 14 above), access to housing is strongly bound in gendered relations, with title ownership most commonly being held by men, making women dependent on men for housing (and by extension for basic services).
17. Constitution s 7(2).
18. With the exception of ss 28(1)(c) - children's rights to basic nutrition, shelter, basic health care and social services; 29(1)(a) - everyone's right to basic education; and 35(2)(e) - detainees' rights to exercise, adequate accommodation, shelter etc, which are unqualified. 19 Constitution s 27(2).
19. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 44.
20. Ibid paras 44-5.
21. Water Services Act s 1 defines 'basic water supply' as meaning 'the prescribed minimum standard of water supply services (which includes sanitation services) necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene'.
22. Regulations Relating to Compulsory National Standards and Measures to Conserve Water made under ss 9(1) & 73(1)(j) of the Water Services Act 108 of 1997, GN R509 of 8 June 2001.
23. DWAF 'Free Basic Water Implementation Strategy' (2002) . The national benchmark of 6 kilolitres per household per month is equivalent to 25 litres per person per day in a household of eight people. The sufficiency of this amount is critiqued in part III(c) below.
24. The section on water rights draws on J Dugard 'Rights, Regulation and Resistance: The Phiri Water Case' (2008) 24 SAJHR 593-611.
25. For an in-depth analysis of the international right to water see, for example, H Gleick 'The Human Right to Water' (1999) 1 Water Policy 487-503.
26. In relation to obligations towards rural women, art 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. 30 CESCR General Comment 15 on the Right to Water (arts 11 & 12 of the ICESCR) (2002) para 3 .
29. Realisation of the Right to Drinking Water and Sanitation. Report of the Special Rapporteur, El Hadji Guissé, UN doc E/CN4/Sub.2.2005/25 para 2 http://www2.ohchr.org/english/issues/water/docs/SUb_Com_Guisse_guidelines.pdf>.
30. General Comment 15 (note 30 above).
31. 1995 (3) SA 391 (CC) para 35.
32. Section 39(1)(b) of the Constitution stipulates that, when interpreting the Bill of Rights, a court 'must consider international law'.
33. The section on electricity rights draws on an earlier chapter: J Dugard 'Power to the People? A Rights-based Analysis of Electricity Services in South Africa', in D MacDonald (ed) Electric Capitalism: Recolonising Africa on the Power Grid (2008) 264-87.
34. M Nefale & T Roux 'Promoting Access to Affordable Electricity: Comments on the Draft Electricity Distribution Industry Restructuring Bill' (2003) 4(4) Economic and Social Rights (ESR) Review 19, 20.
35. The role of housing rights as indivisible within the matrix of other rights is emphasised in the article on housing by Chenwi & McLean in this issue (note 14 above).
36. Grootboom (note 20 above) para 37.
37. The Grootboom judgment established that, regarding positive obligations, the right of access to housing requires the state to formulate and to execute housing programmes that are 'reasonable' (note 20 above para 41). The judgment explicitly steered away from any reference to individual rights to housing per se.
38. The African Charter on Human and Peoples' Rights (ACHPR) is silent on the subject of housing or electricity rights. The only article that could possibly be interpreted to contain an implied right to electricity is art 24, the right of everyone to 'a generally satisfactory environment favourable to their development'. However, the ACHPR has not thus far in its communications interpreted art 24 as implying a right to electricity.
39. General Comment 4 on the Right to Adequate Housing (art 11(1) of the Covenant) (1991) para 8(b) .
40. S Tully 'The Contribution of Human Rights to Universal Energy Access' (2006) 4 Northwestern Univ J of Int Human Rights 518, 524.
41. M Kothari 'Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living' (2002) United National Commission on Human Rights E/CN.4/2002/59 para 49 .
42. FBE & FBAE are discussed further below.
43. Constitution s 27(1)(b).
44. University of Cape Town, Energy Research Centre 'Options for Basic Electricity Support Tariff' (2002) 7.
45. Department of Minerals & Energy (DME) - Notes for speech by the Minister of Minerals and Energy, Ms Mlambo-Ngcuka at the SAIDA Exhibition, Waterkloof, Pretoria (11 May 2001) 2 .
46. Electricity Basic Services Tariff (EBSST) or FBE policy .
47. DME 'Free Basic Alternative Energy Policy: Household Energy Support Programme' (2006) 6 .
48. Very little actual privatisation of domestic water services, and no privatisation of domestic electricity services has occurred yet, although varying degrees of commercialisation is fairly common. This means that, almost without exception, services are provided by wholly state-owned entities. For example, Johannesburg Water (Pty) Ltd and City Power (Pty) Ltd are municipal entities wholly owned by the City of Johannesburg. But both operate as ring-fenced corporations as between each other and also vis-à-vis other service providers in other municipalities.
49. Although there has not been much actual privatisation of water and electricity services, it is worth noting in the context of possible future developments, that the Bill of Rights is not limited to state action. Section 8(2) of the Constitution provides that 'a provision of the Bill of Rights binds a natural or a juristic person (eg a company) if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'. The prohibition against unfair discrimination must be viewed as one such right in that s 9(4) of the Constitution stipulates 'No person may unfairly discriminate directly or indirectly against anyone' on any ground listed in subsection 2. Similarly, in relation to the right to just administrative action outlined below, over and above organs of the state, s 1(b) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) binds 'a natural or juristic person' 'when exercising a public power or performing a public function in terms of an empowering provision'. However, regarding the right to equality, it is unlikely that a private water or electricity company would be required to go as far as a state-owned company to take 'legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination', as enjoined by s 9(2) of the Constitution.
50. Mazibuko v City of Johannesburg 2008 (4) All SA 471 (W) para 159. Unfortunately, when Mazibuko was taken on appeal, neither the Supreme Court of Appeal nor the Constitutional Court dealt with this aspect of gender discrimination.
51. Pretoria City Council v Walker 1998 (2) SA 363.
52. Ibid para 46.
53. The connotation of the right to equality of electricity services is therefore almost the same as that of the implied right to electricity. The difference is that the right to equality is an explicit right, and one that the courts seem readily willing to accept.
54. The RDP was an essentially redistributive economic manifesto, which was replaced by the more austere (and not very accurately named) Growth, Employment and Redistribution (GEAR) programme in 1997.
55. African National Congress The Reconstruction and Development Programme (RDP) (1994) para 2.6.1.
56. Ibid para 2.6.6.
57. Ibid para 2.6.7.
58. Ibid para 2.7.3.
59. Ibid para 2.7.7.
60. A Dobbins & M Borchers 'Improving Energy Welfare in Urban, Unelectrified Informal Households' (2008) Research Report prepared under SANERI project no. EU-0607-103, 33.
61. G Khumalo, L Ntlokonkulu & T Rapoo 'Alternative Service Delivery Arrangements at Municipal Level in South Africa: Assessing the Impact of Electricity Service Delivery and Customer Satisfaction in Johannesburg' (2003) 8 .
62. Municipal Systems Act s 4(2)(f).
63. Ibid s 74(2)(a).
64. Ibid s 74(2)(c)).
65. In terms of s 11(b) of the Electricity Act, electricity supply could not be discontinued without written notice of the intention to do so.
66. S Greenberg 'The Rise and Fall of Water Privatization in Rural South Africa: A Critical Evaluation of the ANC's First Term of Office. 1994-1999' in D McDonald & G Ruiters (eds) The Age of Commodity: Water Privatization in South Africa (2005) 216.
67. Statistics South Africa Time Use Survey: How South African Men and Women Spend Their Time (2001) 18
68. C Potgieter, R Pillay & S Rama 'Women, Development and Transport in Rural Eastern Cape, South Africa' (2006) 20. The study was conducted to explore gender-based dimensions of rural women's travel activities, experiences and needs, with a view to providing gender-informed interventions into SANRAL's policy and planning.
69. Potter & Molose (note 6 above) 19.
70. DME Module 10: Electricity Supply Options and Technologies (2001) .
71. When the SHS were first introduced through the DME's off-grid concessions programme to provide rural households with an alternative to grid electricity, it cost up to R70 per month as a fee-forservice to the service provider per household with a compulsory installation fee of R120. In 2006, municipalities in the Maphumulo and Tugela Ferry areas in KwaZulu-Natal paid R40 towards the fee-for-service for households depending on when their systems were installed as part of the FBAE subsidy, W Annecke & N Mohlakoana 'Socio-economic Characteristics and Impact Assessment of the KwaZulu Energy Services Programme of Solar Home Systems Installation' (2006).
72. A Loftus '"Free Water" as a Commodity: The Paradoxes of Durban's Water Service Transformations' in McDonald & Ruiters (note 69 above) 194.
73. Coalition Against Water Privatisation 'Nothing for Mahala: The Forced Installation of Prepaid Water Meters in Stretford, Extension 4, Orange Farm, Johannesburg, South Africa' Research Report No 16 (2004) 22 .
74. Orange Farm Water Crisis Committee 'Destroy the Meter/Enjoy Free Water'. Research Report, Orange Farm Water Crisis Committee, Anti-Privatisation Forum and the Coalition Against Water Privatisation (2004) 27 .
75. Coalition Against Water Privatisation (note 77 above) 24.
76. Coalition Against Water Privatisation 'The Struggle Against Silent Disconnections: Prepaid Meters and the Struggle for Life in Phiri, Soweto' Research Report, Coalition Against Water Privatisation, Johannesburg (2004) .
77. Ms Mazibuko had severe diabetes, which was exacerbated by inadequate intake of water. In May 2008, just after the Johannesburg High Court judgment was handed down, she died. She was 41 years old. Lindiwe Mazibuko's founding affidavit is available at .
78. Confirmatory affidavit of Jennifer Makoatsane, Mazibuko, available at .
79. Confirmatory affidavit of Vusimuzi Paki, Mazibuko, available at .
80. Annecke & Mohlakoana (note 75 above) 38.
81. Specifically, ss 4(2)(f), 74(2)(a) & 74(2)(c).
82. Constitution schedule 4B.
83. DWAF is in the process of attempting to establish a national water regulatory function.
84. P Bond 'The Battle over Water in South Africa' Africa Files (2004) 2
85. From a redistributive point of view, the ideal tariff structure would have a sufficient free basic amount followed by a convex curve of slowly rising price blocks, which get progressively steeper, so serving to penalise 'luxury consumption' (Bond ibid).
86. Usually Eskom applies first and municipalities follow Eskom's lead, eg if NERSA approves a 12 per cent domestic electricity tariff increase for Eskom, municipalities will request a similar increase across their various tariff structures.
87. In January 2008 it became apparent that Eskom electricity supply could not meet the rising demand for electricity from mainly mining and industrial ventures. The result was rolling blackouts and load shedding across the country. One of the responses was for Eskom to request much higher than normal tariff increases during 2008 (resulting in a total average increase of 27,5 per cent over the year). At the time of writing this article it was widely known that Eskom was about to ask for another big tariff increase for 2009 (estimated to be around 34 per cent). Particularly because of the typical flat-rate of electricity, such price hikes are disproportionately severe on poor households.
88. The data was downloaded from the South African Petroleum Industry Association (SAPIA), which has records of paraffin wholesale prices for each month dating back to the year 2001 .
89. Cited in G Truran 'Household Energy Poverty and Paraffin Consumption in South Africa' Boiling Point 56 (2009) 3 .
90. In Laila Smith's study of the Cape Town and Tygerberg administrations, 159,886 households had their water cut-off for reasons of non-payment between 1999 and 2001; most of these households were in poor areas where people struggle to pay their water bills (L Smith 'The Murky Waters of Second Wave Neoliberalism: Corporatization as a Service Delivery Model in Cape Town' in McDonald & Ruiters (note 69 above) 180).
91. Menahem Libhaber, the World Bank's senior water and sanitation engineer in Latin America argues that for water and sanitation tariffs to be acceptable, they should not exceed payment thresholds of three to four per cent of household income (cited in J Smith & M Green 'Water Service Delivery in Pietermaritzburg: A Community Perspective' (2005) 1 Water South Africa 440 ). Most surveys of low-income households in South Africa indicate that charges for water and sanitation services constitute over ten per cent of lowincome households' incomes. For example, Smith & Green's survey of low-income households in Pietermaritzburg shows that the average monthly bill for water and sanitation was R109.80 and the average household income was R932.17 per month, meaning that 11,78 per cent of household income needed to be spent on water bills in the average low-income household. For 23,9 per cent of households in the survey with an income mid-point of R300 a month (the range was between R0 and R600 per month), water-related charges comprise approximately 36,6 per cent of income (Smith & Green ibid 441).
92. In many African traditions, cultural practices revolve around communal and collective approaches to water, as a social good. These include communal celebrations and mourning, which require large amounts of water. We have outlined in part III(a) how Jennifer Makoatsane (third applicant in Mazibuko) struggled to make her household's FBW amount last in the month that her father died (note 82 above).
93. Coalition Against Water Privatisation (note 80 above) 23.
94. WHO 'Domestic Water Quantity, Service, Level and Health' (2003) .
95. P Gleick 'The Human Right to Water' (1999) 1 Water Policy 487.
96. Coalition Against Water Privatisation (note 80 above) 12.
97. M Hansen 'The Struggle for Water in Johannesburg: A Case Study of the Socio-Economic Impacts of a Corporalised Water and Sanitation Delivery Regime in Phiri and Stretford Extension 4' (2005) unpublished Masters Dissertation, University of Lunds, Sweden.
98. Founding affidavit of Lindiwe Mazibuko, Mazibuko, available at . It should be noted that, contrary to the findings of the High Court and the Supreme Court of Appeal, in its judgment of 8 October 2009 the Constitutional Court did not find the City's FBW policy to be unreasonable (Mazibuko v City of Johannesburg CCT 39/09 (as yet unreported)).
99. DWAF 2002 (note 24 above) paras 3.2 & 3.3.
100. See for example, G Standing 'Conditional Cash Transfers: Why Targeting and Conditionalities Could Fail' International Poverty Centre One Pager 47 (2007)
101. For a policy critique of the City of Johannesburg's proposals to remove the universal allocation of FBW and to restrict it to households on the indigency register, see 'CALS Comment on City of Johannesburg Proposed Tariffs, FBW and FBE' (25 April 2008)
102. However, in such situations where a man in the household is the account-holder, it remains open for him to register and thereby to ensure the household receives the FBW allocation.
103. B Goldblatt 'The Right to Social Security - Addressing Women's Poverty and Disadvantage' (2009) 25 SAJHR 442, 442.
104. Kallmann suggests that from an administrative simplicity perspective, as well as being more effective for women, cash transfers are more desirable forms of social grants than in-kind allocations (note 3 above).
105. DME (note 50 above).
106. C Thom & N Mohlakoana Use and Impact of Electricity in a Rural Village in the Northern Province. Proceedings of the 57th Convention of the Association of Municipal Electricity Undertakings (2001) 22-4.
107. DME (note 50 above).
108. Annecke& Mohlakoana (note 75 above).