Photo: Bill Corcoran/IRIN

Florance Ntombi holds the stand-alone pipe she disconnected from her house. The pipe was installed after she refused the prepaid water system

JOHANNESBURG, 14 December 2007 (IRIN) - South Africa's High Court is poised to rule whether Johannesburg's decision to introduce a multimillion-dollar prepaid water system in the country's largest township, Soweto, southwest of the city, is in violation of the residents' right to free water.

The court has been asked to order the city to provide at least 50 litres of free water per person per day, double what many Soweto residents currently receive, and allow the option to keep using the old system still operated elsewhere in the city, in which unlimited water is available for a flat fee.

Five residents of Phiri, one of Soweto's poorest townships, brought the class-action suit. After the three-day hearing in early December, during which the legal representatives of the residents, the city of Johannesburg and the national department of water affairs and forestry argued the merits of their case, Justice Tsoka retired to consider the residents' application.

A ruling is not expected until early next year, but some people are not prepared to wait that long. Soweto resident Florence Ntombi, 79, disconnected her new prepaid meter, uprooted the standpipe in her yard and has reconnected her home to the old delivery system, which allows her to get water at the old rate.

I destroyed the meter and have started to take water; it is my right

"We were not told of the advantages and disadvantages of the prepaid system, and water is a basic right so I refuse to use the system. I destroyed the meter and have started to take water; it is my right," she said.

A longstanding water war

Johannesburg Water, the utility owned by the City of Johannesburg Metropolitan Municipality, started installing pre-paid water meters in Phiri in 2003, and the argument over whether this was constitutional or not has been festering since then.

The right to water was enshrined in South Africa’s new constitution, adopted in 1994, which states: “Everyone has the right to have access to sufficient food and water.”

Soweto residents used to receive unlimited water for a flat fee of R149 (about US$2.30) but payment levels were always low due to the long-standing practice of boycotting services payment, which Soweto residents used as method of opposition to the apartheid government in the 1980s.

Consequently, maintenance of the water reticulation system was extremely poor. According to Johannesburg city's website, the existing water delivery system wasted several billion litres of water a month; the new system, with more than 78,000 meters installed to date, has thus far saved 52,000 million litres of water.

The city plans to install 169,989 meters by the end of February 2009, and officials maintain that the new system will bring down water bills by at least R100 ($14.60) a month per household.

"Operation Gcin'amanzi, which means 'save water' ... involves replacing leaking pipes and broken taps to ensure a reliable and affordable service to every household in the area. The project also involves the installation of prepaid meters in every household, to enable consumers to plan and budget their water usage," says a press release on the city's website.

"With the new prepaid water meters, consumers are assured of receiving their 6,000 litres of free water. The household is then charged for any additional water used."

Although most Soweto residents officially agreed to have the meters installed, civil society groups like the Anti-Privatisation Forum have argued that it is a form of water privatisation, and that people were coerced into accepting it because the alternative option - a standpipe providing 6,000 litres a month for free - was even less attractive.

The right to water

During submissions to the High Court, Wim Trengove, the advocate for the five Phiri residents, explained that the township's residents were not only some of the poorest and least educated in the city, but had also borne the brunt of HIV/AIDS.

Restrictions imposed on access to water has far-reaching implications on HIV/AIDS prevention and care. Water is essential for the preparation of food to minimise the risk of infection, to which HIV/AIDS patients are more vulnerable and for the enhanced hygienic standards required by caregivers. Additional drinking water is also necessary for taking medicines.

Trengove said the prepaid system was discriminatory on the basis of race because of the geographic approach taken by the city: low-income township citizens were burdened with the new system while the predominately white citizens in high-income areas were not.

"The application of a geography standard [Soweto residents are the only Johannesburg residents forced to take on the new prepaid water system], although seemingly neutral, may in fact be racially discriminatory [because the vast majority of Soweto residents are black]... It accordingly amounts to indirect discrimination on the basis of race and colour," he told the court.

Maria Tshabalala, 71, a grandmother living in Nkwashu, Soweto, who supports a family of nine members on her pension of R870 (about $130) per month, had the new prepaid water system installed in her home last year. She said she did not want to have the prepaid water installed, but eventually agreed because she was told it was the best option available.

"I am frustrated now because when the free water runs out after three weeks I have to cut down on buying food. Water is life, and we will not survive without it, so I must do without something else," she told IRIN.

In 2002 the UN Committee on Economic, Social and Cultural Rights stated: "The human right to water entitles everyone to sufficient, affordable, physically accessible, safe and acceptable water for personal and domestic uses. The provision of water must be adequate for human dignity, life and health," and is a precondition for the realisation of all human rights.

"This is significant in that it means that households can no longer be disconnected from water supplies. The authority enforcing disconnection of water supply is in violation of international human rights law."

The UN suggests that in most cases 50 litres of water a day is insufficient, and during his submissions Trengove said international research showed that across the globe in areas comparable to South Africa between 150 and 400 litres a day per person was the norm.

Photo: Bill Corcoran/IRIN

Two elderly residents of Nkwashu, Soweto standing beside a prepaid water metre that has been installed in their home

Although 25 litres of water a day per person - based on the calculation of eight people per household - was initially the city's recommendation for how
much free water to provide, it has since revised this from 6,000 litres to 10,000 per month.

The Centre on Housing Rights and Evictions (CHORE), a Geneva based non-governmental organisation (NGO) that campaigns for the protection of housing rights, has also joined the High Court proceedings as a 'friend of the court', which allows an independent party to introduce, with the permission of the court, useful information relating to the case before it.

Richard Moultrie of South Africa's Legal Resources Centre, an independent, non-profit public interest law clinic representing the NGO in the case, said international law was clear on the issue: "While 25 litres of water a day may be enough water provision in terms of drinking internationally, it is viewed as insufficient when you add in food preparation and general hygiene like hands and clothes washing and modern sewage systems," he told IRIN

"Ironically, the water problems being experienced in Phiri are partially due to the waterborne sewage system introduced instead of the pit latrines, as with this system a single flush uses between 10 and 12 litres of water."

Regardless of Justice Tsoka's decision, the chances are that the war over free water will continue because under South African law there is a further avenue of appeal to the Constitutional Court.

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