Mazibuko and Others v City of Johannesburg and Others

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 08 October 2009
• Docket Number: CCT 39/09
• Hearing Date: 02 September 2009
• Counsel: W Trengove SC (with N Fourie) for the applicants. G Marcus SC (with A Stein) for the first and second respondents. PM Mtshaulana SC (with K Pillay) for the third respondent. R Moultrie (with MS Baloyi) for the amicus curiae.
• Court: Constitutional Court

O'Regan J:

Introduction

[1] This application for leave to appeal against a judgment of the Supreme Court of Appeal raises, for the first time in this court, the J

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A proper interpretation of s 27(1)(b) of the Constitution, which provides that everyone has the right to have access to sufficient water. Cultures in all parts of the world acknowledge the importance of water. Water is life. Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow their food. Without it, we will die. It is not B surprising then that our Constitution entrenches the right of access to water.

[2] Although rain falls everywhere, access to water has long been grossly unequal. This inequality is evident in South Africa. While piped water is C plentifully available to mines, industries, some large farms and wealthy families, millions of people, especially women, spend hours laboriously collecting their daily supply of water from streams, pools and distant taps. In 1994 it was estimated that 12 million people (approximately a quarter of the population) did not have adequate access to water. By the D end of 2006 this number had shrunk to 8 million, with 3,3 million of that number having no access to a basic water supply at all. Yet, despite the significant improvement in the first 15 years of democratic government, deep inequality remains and for many the task of obtaining sufficient water for their families remains a tiring daily burden. The achievement of equality, one of the founding values of our Constitution, will not be E accomplished while water is abundantly available to the wealthy, but not to the poor.

[3] At the same time, ours is a largely arid country, often assailed by drought. Redeeming the constitutional promise of access to sufficient F water for all will require careful management of a scarce resource. The need to preserve water is a responsibility that affects all spheres of government. A major piece of legislation adopted only three years after democracy was achieved in 1994, the Water Services Act (the Act, or the Water Services Act), [1] highlights the connection between the rights of people to have access to a basic water supply and government's duty to G manage water services sustainably.

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Parties A

[4] The applicants are five residents of Phiri in Soweto. They are poor people living in separate households. The first applicant, Mrs Lindiwe Mazibuko, who has sadly passed away since the litigation commenced, [2] lived in a brick house on her mother's property. There were two informal B dwellings in the backyard of her mother's home, for which the tenants paid low rentals. Altogether 20 people lived on the stand. The second applicant is Mrs Grace Munyai, who shares a home with her husband, two children and two grandchildren. The third applicant is Mrs Jennifer Makoatsane who shares her home with her mother, brother and six other family members. The fourth applicant is Mrs Sophia Malekutu, a C pensioner, who shares a home with her nephew and niece. They do not have any tenants. The fifth applicant is Mr Vusimuzi Paki who lives with his brother on a stand which also has three informal dwellings, the occupants of which pay a low rental to him. Altogether eleven people live on the stand.

[5] The first and second respondents are the City of Johannesburg (the D City) and Johannesburg Water (Pty) Ltd (Johannesburg Water), a company wholly owned by the City, which provides water services to the residents of the city. The third respondent is the national Minister for Water Affairs and Forestry (the Minister). The Centre on Housing Rights and Evictions has been admitted as amicus curiae. E

Issues

[6] The case concerns two major issues: the first is whether the City's policy in relation to the supply of free basic water, and particularly, its F decision to supply 6 kilolitres of free water per month to every accountholder in the city (the Free Basic Water Policy) is in conflict with s 27 of the Constitution or s 11 of the Water Services Act. The second major issue is whether the installation of prepaid water meters by the first and second respondents in Phiri was lawful. Each of the issues entails several subissues, all of which are considered in this judgment. G

[7] The case needs to be understood in the context of the challenges facing Johannesburg as a City. The City is, in terms of population, the second fastest growing city in the country and according to Census 2001 (the last census) is home to approximately 3,2 million people living H in about a million households. Half of these households are very poor, with an income of less than R1600 per month. Just under a fifth of the households are located in informal settlements. A similar proportion has no access to basic sanitary services, and a tenth of all the households have no access to a tap providing clean water within 200 metres of their home. It can be seen that there is much to be done to '(i)mprove the quality of I life of all citizens', an important goal set by the Preamble to our Constitution.

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A [8] This judgment first sets out the background to this case, then the key constitutional and statutory provisions. It proceeds by outlining the history of the litigation in the High Court and the Supreme Court of Appeal and then deals with the preliminary issues. It considers two main issues: the City's Free Basic Water Policy and the lawfulness of the installation of prepaid meters in Phiri. It ends with a brief consideration B of the role of litigation in securing social and economic rights in our constitutional democracy.

Summary

C [9] After careful consideration of the issues, this judgment finds that the City's Free Basic Water Policy falls within the bounds of reasonableness and therefore is not in conflict with either s 27 of the Constitution or with the national legislation regulating water services. The installation of prepaid meters in Phiri is found to be lawful. Accordingly, the orders made by the Supreme Court of Appeal and the High Court are set aside.

Background D

[10] Apartheid urban planning did not permit black people to live in the same urban areas as white people. Soweto was developed in accordance with this appalling racist policy. It is home to approximately a million E people. Phiri, where the applicants live, is one of the oldest areas in Soweto. Most of the houses in Phiri are brick, yet generally the people who live in Phiri are poor.

[11] Water piping was initially laid in Soweto in the 1940s and 1950s. Steel piping was used without attention to corrosion protection. By the F 1980s many of these pipes had corroded, with resulting water leakages. During this time, households in Phiri had piped water and were charged for water usage on a flat rate basis of R68,40 per month. This amount was calculated on the basis of a deemed monthly consumption of 20 kilolitres of water per household. The deemed consumption system G was used as the basis for water charges in all the residential areas in the city that had been set aside under apartheid for black African people. [3] The actual monthly consumption per household in Soweto was far higher than 20 kilolitres, at 67 kilolitres per month. It is not possible to tell, according to the respondents, how much of the excess was H consumed by residents and how much lost through leakage.

[12] Johannesburg Water estimated that between one-quarter and one- third of all water it purchased was distributed to Soweto, while only one percent of revenue was generated from Soweto. One of the reasons for the shortfall in revenue was the fact that many residents did not pay the deemed consumption charges. Johannesburg Water estimated that 75% I of all water pumped into Soweto was unaccounted for. The water losses in Soweto far exceeded the losses in other areas where water was

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provided on a deemed consumption basis, such as Ivory Park, Alexandra A and Orange Farm.

[13] Johannesburg Water thus decided it was necessary to develop a plan to change the pattern of water usage in Soweto. That plan came to be known as Operation Gcin'amanzi (to save water). Its goals were to reduce unaccounted-for water, to rehabilitate the water network, to B reduce water demand and to improve the rate of payment. Phiri was selected as the area where the project would first be implemented.

[14] Key to the project was the abandonment of the previous system of deemed consumption flat rate charges. Today, the City has three levels C of water provision. The lowest level of service, Service Level 1, provides a tap within 200 metres of each dwelling. As noted above, there are still 100 000 households in the City without even this level of water provision. The second level of service, Service Level 2, is the provision of a tap in the yard of a household that has a restricted water flow so that only 6 kilolitres of water are available monthly. The third level of service, D Service Level 3, is a metered connection. Under Operation Gcin'amanzi, residents were required to select between the second level of service provision and a prepaid meter. [4] The first applicant, Mrs Mazibuko, said that she was not offered a choice between Service Level 2 and a prepaid meter. This is a matter to which I return later. [5] E

[15] The project was approved by the City in May 2003 and implemented in Phiri from February 2004. Twenty community facilitators were appointed by Johannesburg Water to conduct house visits. The task was to explain the project and its implications carefully to each household. By the end of the implementation process in Phiri in February 2005, all but eight of the 1771 households in the area had opted for F either Service Level 2 or a prepaid meter. Indeed the vast majority selected the latter.

[16] It is clear from the...