The Push for Water and

Justice in South Africa

June 2008 www.foodandwaterwatch.org

T he poorest people of Johannesburg, South Africa saw some measure of hope with
a judicial reaffirmation of the country’s constitutional right to water in April 2008.
However, their fight is not over because the powers arrayed against them have ap-
pealed the decision.
High Court Judge Moroa Tsoka ruled that the city water
utility’s policy of forced installation of prepaid water meters
without providing an alternative water supply was unlawful
and unconstitutional. What’s more, the meters were placed
only in poor, black areas to require people there to pay for
water before they used it. In essence, the meters were a
method of controlling water on credit. They were not of-
fered the choice of a full credit, metered water supply.

“This was done despite the acknowledgment by the city that

the worst debtors were business and government institu-
tions,” said Jackie Dugard, Ph.D., senior researcher and
acting director of the Centre for Applied Legal Studies at
the University of the Witwatersrand. She also serves on the
legal team representing the Phiri* residents who sued the
city and the water utility over the meters. “In other words,
the targeting of one, previously disadvantaged group, for
such punitive credit-control amounted to unfair discrimina- was good for them’. This is subtle discrimination solely on
tion, which is prohibited by section 9 of the Constitution.”1 the basis of colour. Discrimination based on colour is im-
permissible in the terms of the Constitution. It is outlawed.
According to the decision: “The Constitution guarantees It is unlawful.”
equality. It is therefore inexplicable why some residents of
the City are entitled to water on credit…yet the people of However, positive as the ruling is, the residents of Johan-
Phiri…are denied water on credit. In spite of the fact they nesburg and all of South Africa can’t rest just yet. The City
are poor, they are expected to pay [for] water before usage. of Johannesburg, Johannesburg Water (Pty) Ltd. and the
Their counterparts, who are affluent and mainly in rich and national Department of Water Affairs and Forestry have
white areas, irrespective of how much water they use, are appealed the ruling.
entitled to water on credit. The differentiation…contravenes
the right to equality.”
Background
“To argue…that the applicants will not be able to afford
water on credit and therefore it is ‘good’ for applicants to go In 2001, South Africa’s government began a policy that
on prepayment meters is patronizing. That patronization guaranteed every household six kiloliters of free water
sustained apartheid: its foundational basis was discrimina- monthly, based on a calculation of 25 liters (6.6 gallons) per
tion based on colour and decisions taken on behalf of the person per day for a household of eight, said Dale McKin-
majority of the people of the country as ‘big brother felt it ley, who works with the Coalition Against Water Privatiza-
tion, an organization that assisted the Phiri residents in
their lawsuit. Part of the problem is semantics running up
*
Phiri is a section of Johannesburg’s Soweto township.
 The Push for Water and Justice in South Africa
against reality. A households is actually property, so on a
multi-dwelling property such as in Phiri, full of backyard
shacks with tenants, everyone on the property has to share
the 6 kiloliter allocation.2
The free water allotment went along with policymakers’ in-
tention of pricing water in South Africa more progressively,
McKinley explained. The free allocation of water is the first
price block, and consumption after that is charged on a ris-
ing basis. The higher-end pricing blocks are supposed to
subsidize free water while also discouraging overuse. But
the reality is that the 25 liters a day of free water is just not
enough for a person. It forces poor families into the second
or third pricing block, which leaves them with higher water
bills than before the free water policy began. Some house-
To argue…that the applicants
will not be able to afford
water on credit and therefore
it is ‘good’ for applicants to
go on prepayment meters is
patronizing...This is subtle
discrimination solely on the basis
of colour.
2
holds stopped consuming water beyond the free amount,
which presents obvious public health and safety issues.
Others used more water without paying. That put them into
arrears on their water bills.3
The city and the utility responded in 2003 with a program
cleverly cloaked as Operation Conserve Water.
The utility approached the poor, largely black families liv-
ing in the Soweto township and promised to write off their
debt if they agreed to the installation of pre-paid meters
that shut off after dispersing the free 6,000 liters each
month. The catch was that the water would flow again only
if the family paid more money. Essentially, they were de-
nied water on credit. Again, many people responded by just
going without water until the beginning of the following
month.
Meanwhile, people in the wealthier, mostly white areas of
Johannesburg don’t have such meters. They obtain water
on credit and can use as much as they like beyond the free
allotment, and they don’t have to pay until the end of the
month or bill cycle. Moreover, there are many procedural
protections prior to disconnection for failure to pay water
bills, including months of warning letters. This means that
hardly anyone in the wealthier suburbs is ever disconnect-
ed, despite many not paying their bills.4
Over a period of 6 to 8 months in 2003, hundreds of people
in Soweto physically resisted installation of the meters,
with many more people expressing sympathy. The Coalition
Against Water Privatization was formed that year out of
the resistance. However, the civil disobedience couldn’t be
sustained because of police repression. People were spend-
ing weeks in jail and being released only after paying, or
more likely having someone pay, outrageous bail amounts.
“It was clearly a political strategy to deal with resistance,”
McKinley said.5 But citizen opposition likely did work. The
water utility’s goal was to install 300,000 such meters, but
so far has completed only 109,000.6
By early 2004, the anti-privatization forces began to look at
legal strategies. After some unsuccessful early moves, they
decided to bring a case challenging the constitutionality of
pre-paid water meters and calling for an increase in the free
basic water allowance. Five people from Phiri came forward
to initiate what in the United States would be a class-action
lawsuit. They were representing the masses of poor people
in Phiri and other parts of Soweto who had been stripped of
their right to water.
Johannesburg Water tried to pre-empt their efforts by of-
fering to increase the free allotment if poor residents agreed
to sign onto the indigent register. Problem is, people who
signed had to accept a pre-paid water meter. There are
500,000 indigent households in Johannesburg, but it has
 Food & Water Watch

We thought we might get some

of what we were asking for,”
McKinley said. “But we got the
correct interpretation of the
constitutional right to water.

registered only about 80,000 of them. So, this was just an-
other part of the plan to identify poor people and then force
them to accept pre-paid water meters and, ultimately, fur-
ther restrict water consumption.7

Corporate Water Privatization in South Africa

South Africa’s ruling ANC party has drastically changed its tune with regard to water since it came to power in 1994. Going back
four decades, the ANC had supported the creation of the Freedom Charter, which “recognised water as a public good whose com-
modification would inherently discriminate against the majority poor,” wrote McKinley in his essay “Water is Life: The Anti-Privati-
sation Forum & the struggle against water privatisation.”9

After apartheid ended, this mandate for everyone having the right to water was written into the Bill of Rights in South Africa’s
constitution.

But the ANC changed course after coming to power, wrote McKinley. “It gave water bureaucrats the authority to provide water
only if there was a full cost recovery of operating, maintenance and replacement costs.” The government “went even further and
located the policies of water and other basic needs within a neo-liberal macro-economic policy framework that ensured water
(and all basic needs/services) would be turned into market commodities, to be bought and sold on the basis of private ownership
and the profit motive.”

The ANC followed the neo-liberal economic advice of the World Bank, the International Monetary Fund and various western gov-
ernments. In line with that, it “drastically decreased grants and subsidies to local municipalities and city councils and supported
the development of financial instruments for privatised delivery. This effectively forced local government, with Johannesburg at
the forefront, to turn towards commercialisation and privatisation of basic services as a means of generating the revenue no lon-
ger provided by the national state.”

Johannesburg, like other local governments, privatized public water utilities by contracting with multinational water corporations
to service and manage water delivery.

A new corporate water utility, Johannesburg Water Company, was established. The city government maintained formal public
ownership, but it outsourced the management and operations to French multinational Suez Lyonnaise des Eaux, which was done
through the Johannesburg Water Management Company. “Almost as if on cue, JOWCO increased water tariffs, necessarily hitting
poor communities in and around Johannesburg the hardest. The first price hike instituted was an astronomical 55%. The price
increases were only further catalysed by the need to ‘recover’ additional huge costs associated with the corruption-riddled, World
Bank-funded Lesotho Highlands Water Project, designed mainly to provide new sources of water for the Johannesburg Metropoli-
tan area. Similar privatisation programmes in both urban and peri-urban areas across South Africa soon followed...As a result,
water has ceased to be a public good that is accessible and affordable to all South Africans. Instead, water has become a market
commodity to be bought and sold on a for-profit basis.”

According to Richard Mokolo, leader of the Crisis Water Committee formed to resist water privatization effort in the Orange Farm
township: “Privatisation is a new kind of apartheid. Privatisation separates the rich from the poor.”10

Fortunately, when the Suez contract was up for renewal in 2006, the City of Johannesburg bowed to massive public pressure and
ended the partnership. But now Johannesburg Water runs what is really an internal private company, which has floated loans to
finance the pre-paid water meters under Operation Conserve Water.

3
 The Push for Water and Justice in South Africa

That doesn’t surprise McKinley or anyone else involved

in the movement: “We will still continue to resist further
implementation of pre-paid water meters. We will continue
to mobilize people.”

That applies even after a victory in the Constitutional Court.

“Just because a court orders something, we have to make

sure Joburg Water implements the court order,” he said.
“We want to expand this beyond Johannesburg.”

Endnotes
1
Dugard Ph.D., Jackie. Personal interview. Senior Researcher and Acting
Director, Centre for Applied Legal Studies at the University of the Witwa-
tersrand. She also serves on the legal team representing Phiri residents
who sued over the pre-paid water meters. May 31, 2008.
2
McKinley, Dale. Personal interview. Coalition Against Water Privatiza-
tion, May 28, 2008.
Cautious Victory 3
Ibid.
Fortunately, the people of Phiri didn’t go for it, but instead 4
Op cit., Dugard interview.
pressed their case in court. After the arguments were heard
in December 2007, a decision came the following April.
5
OpCit, McKinley interview.
6
Op cit. Dugard interview.
“We thought we might get some of what we were asking 7
Op Cit. McKinley interview.
for,” McKinley said. “But we got the correct interpretation 8
Ibid.
of the constitutional right to water.”
9
McKinley, Dale T. “Water is Life The Anti-Privatisation Forum & the
Not only were the water meters struck down, but Judge Struggle Against Water Privatisation.” Available at:
www.waterjustice.org/uploads/attachments/pdf59.doc
Tsoka increased the free daily water allocation from 25 to
50 liters per person.
10
Bond, Patrick. “Africa Files: The battle over water in South Africa,”
2003. Available at: www.africafiles.org/article.asp?ID=4564

However, in late May 2008, the city and Johannesburg

Water PTY turned to the Supreme Court of Appeal to over-
turn the decision, and it is possible that the Phiri residents
About Food & Water Watch
Food & Water Watch is a nonprofit consumer organization
would lose on at least some of the grounds because this that works to ensure clean water and safe food in the United
court historically is conservative. But not all would be lost. States and around the world. We challenge the corporate
The residents would then appeal to the highest judicial ven- control and abuse of our food and water resources by em-
ue in South Africa – the Constitutional Court. The residents powering people to take action and by transforming the
likely would prevail there because the case clearly involves public consciousness about what we eat and drink.
the undermining of a constitutional right.8
Food & Water Watch
On the upside, the city and Johannesburg Water can’t claim 1616 P St. NW, Suite 300
Washington, DC 20036
an inability to offer more water. That’s because the utility
tel: (202) 683-2500
already indicated, publicly and prior to Judge Tsoka’s rul- fax: (202) 683-2501
ing, that it had enough water to increase the free basic allot- foodandwater@fwwatch.org
ment. www.foodandwaterwatch.org

On the downside, both the pre-paid water meters that have Copyright © June 2008 by Food & Water Watch.
already been rolled out and the existing free water alloca- All rights reserved.
tion will remain until the conclusion of the appeals process.