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[2009] ZASCA 20
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City of Johannesburg and Others v Mazibuko and Others (489/08) [2009] ZASCA 20; 2009 (3) SA 592 (SCA) ; 2009 (8) BCLR 791 (SCA) ; [2009] 3 All SA 202 (SCA) (25 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 489/08
THE CITY OF
JOHANNESBURG
....................................................
First
Appellant
JOHANNESBURG
WATER (PTY) LTD
.....................................
Second
Appellant
THE MINISTER OF
WATER AFFAIRS & FORESTRY
...........
Third
Appellant
and
LINDIWE
MAZIBUKO
...................................................................
First
Respondent
GRACE
MUNYAI
........................................................................
Second
Respondent
JENNIFER
MAKOATSANE
.........................................................
Third
Respondent
SOPHIA
MALEKUTU
.................................................................
Fourth
Respondent
VUSIMUZI
PAKI
.............................................................................
Fifth
Respondent
THE CENTRE ON
HOUSING RIGHTS AND EVICTIONS
..........
Amicus
Curiae
Neutral
citation:
City
of Johannesburg v L Mazibuko
(489/08)
[2009] ZASCA 20
(25 March 2009)
Coram:
STREICHER,
MTHIYANE, JAFTA, MAYA JJA & HURT AJA
Heard:
23,
24 & 25 FEBRUARY 2009
Delivered:
25
MARCH
2009
Summary:
Section
27 of Constitution – sufficient water is the quantity of water
required for dignified human existence – the
Water Services Act 108
of 1997
does not deprive anyone of the right of access to sufficient
water in terms of
s 27(1)
– a person who cannot afford to pay
for water has no access to water being charged for – local
authority obliged to supply
free water to residents who cannot afford
to pay for the water if reasonable to expect it to do so –
prepayment water meters
used by appellants not authorised by bylaws
and unlawful.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from: Johannesburg High
Court (Tsoka J sitting as court of first instance)
The appeal is upheld and the
order by the court below is replaced with the following order:
‘
1 The decision of the first
respondent and/or the second respondent to limit the free basic water
supply to the residents of Phiri
to 25 litres per person per day or 6
kl per household per month is reviewed and set aside.
2 It is declared:
(a) That 42 litres water per
Phiri resident per day would constitute sufficient water in terms of
s 27(1) of the Constitution.
(b) That the first respondent is,
to the extent that it is in terms of s 27(1) of the Constitution
reasonable to do so, having
regard to its available resources and
other relevant considerations, obliged to provide 42 litres free
water to each Phiri resident
who cannot afford to pay for such water.
3 The first and second
respondents are ordered to reconsider and reformulate their free
water policy in the light of the preceding
paragraphs of this order.
4 Pending the reformulation of
their free water policy the first and second respondents are ordered
to provide each account holder
in Phiri who is registered with the
first respondent as an indigent with 42 litres of free water per
day per member of his
or her household.
5 It is declared that the
prepayment water meters used in Phiri Township in respect of water
service level 3 consumers are unlawful.
6 The order in paragraph 5 is
suspended for a period of two years in order to enable the first
respondent to legalise the use of
prepayment meters in so far as it
may be possible to do so.’
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
STREICHER JA (MTHIYANE, JAFTA,
MAYA JJA and HURT AJA
concurring)
[1] Do the City of Johannesburg
(‘the City’), the first appellant, and Johannesburg Water (Pty)
Limited (‘Johannesburg Water’),
the second appellant, a company
in which the City is the sole shareholder, have a constitutional duty
to provide free water to
the residents of Phiri (a township in
Soweto, Johannesburg), who cannot afford to pay for such water? This
question is one of two
main issues to be decided in this case. The
other one is whether the City and Johannesburg Water (unless the
context indicates
otherwise, henceforth jointly referred to as the
City) could restrict access to water by the Phiri residents by way of
prepayment
water meters.
[2] Upon application by the five
respondents, all of whom are resident in Phiri, the Johannesburg High
Court (per Tsoka J) made
an order in terms of which it:
(a) Reviewed and set aside the
decision of the City alternatively Johannesburg Water to limit free
basic water supply to 25 litres
per person per day or 6 kilolitres
per household per month.
(b) Declared the prepayment water
system used in Phiri Township, the ‘forced installation’ of the
system and the choice given
by the City alternatively Johannesburg
Water to the respondents and other residents of Phiri of either a
prepayment water supply
or a water supply through standpipes,
unconstitutional and unlawful.
(c) Ordered the City
alternatively Johannesburg Water to provide each applicant ‘and
other similarly placed residents of Phiri
Township’ with a free
basic water supply of 50 liters per person per day and the option of
a metered supply installed at the
cost of the City.
With the leave of the court a quo
the City and Johannesburg Water together with the third appellant,
the Minister of Water Affairs
and Forestry, now appeal to this court.
[3] The City is a municipality in
the Province of Gauteng. In terms of the Constitution one of the
objects of local government is
to ensure the provision of services to
communities in a sustainable manner (s 152(1)(b)). Like the
other objects of local
government a municipality must strive, within
its financial and administrative capacity, to achieve that object
(s 152(2)).
It has executive authority in respect of, and has
the right to administer, among others, water and sanitation services
(s 156(1))
and may make bylaws for the effective administration
of these services (s 156(2)).
[4] The residents of Phiri are
very poor, but, for years, until 2004, they, like residents in the
rest of Soweto, Alexandra and
other townships within the area of
jurisdiction of the City, had access to an unlimited supply of water
which was not metered and
for which they were charged on the basis of
a deemed consumption of 20kl per month. In 2004 the deemed
consumption was discontinued
by the City and prepayment meters were
installed dispensing 6kl water per stand per month free. Additional
water had to be pre-paid
for. The respondents contended that 6kl
water per stand per month was insufficient water for the residents of
Phiri and that in
terms of s 27 of the Constitution, they had a
right of access to sufficient water, which they contended would be 50
litres
water per person per day. That quantity of water, so they
contended, had to be provided free to each resident in Phiri who
could
not afford to pay for such water.
[5] Section 27 of the
Constitution provides that everyone has the right to have access to
sufficient water. The section reads as
follows:
‘
(1) Everyone has
the right to have access to –
(a) health care
services, including reproductive health care;
(b) sufficient food
and water; and
(c) social security,
including, if they are unable to support themselves and their
dependents, appropriate social assistance.
(2) The state must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of each of these
rights.’
[6] Giving effect to its
obligation in terms of s 27(2) the state enacted the
Water
Services Act 108 of 1997
.
Section 4
of the Act provides that water
services must be provided in terms of conditions set by the water
services provider which must accord
with conditions for the provision
of water services contained in bylaws made by the water services
authority having jurisdiction
in the area in question. The City is a
water services authority and Johannesburg Water is a water services
provider as defined
in the Act.
[7] In the preamble to the Act
‘the rights of access to basic water supply and basic sanitation
necessary to ensure sufficient
water and an environment not harmful
to health or well-being’ are recognised.
Section 3
provides as
follows:
‘
(1) Everyone has
a right of access to basic water supply and basic sanitation.
(2) Every water
services institution must take reasonable measures to realise these
rights.
(3) Every water
services authority must, in its water services development plan,
provide for measures to realise these rights.
(4) The rights
mentioned in this section are subject to the limitations contained in
this Act.’
[8] ‘“Basic water supply”
means the prescribed minimum standard of water supply 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’
(s 1).
It follows that in
terms of
s 3(1)
everyone has a right of access to ‘the
prescribed minimum standard of water supply services necessary for
the reliable supply
of a sufficient quantity of water to households .
. . to support life and personal hygiene.’
[9] As envisaged in
s 3
read
with the definition of ‘basic water supply’ water services
regulations providing for the minimum standard of water supply

services were promulgated.
Regulation 3
provides:
‘
3 The minimum
standard for basic water supply services is –
(a) . . .
(b) a minimum
quantity of potable water of 25 litres per person per day or 6
kilolitres per household per month –
(i) at a minimum
flow rate of not less than 10 litres per minute;
(ii) within 200
metres of a household; and
(iii) with an
effectiveness such that no consumer is without a supply for more than
seven full days in any year.’
[10]
Section 3
of the Act read
with
regulation 3(b)
therefore provides that everyone has a right of
access to a minimum quantity of water of 25 litres per person per day
or 6 kilolitres
per household per month. The appellants submitted
that as a result of this legislation the respondents could no longer
base their
claim on a right of access to sufficient water in terms of
s 27 of the Constitution but had to base their claim on the
provisions
of the Act. They submitted that where national legislation
had been enacted to give effect to a constitutional right, it was
impermissible
for a litigant to rely directly on the constitutional
right concerned. In this regard they relied on
MEC
for Education, KwaZulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at para 40 where Langa CJ said:
‘
This court has
held in the context of both administrative and labour law that a
litigant cannot circumvent legislation enacted to
give effect to a
constitutional right by attempting to rely directly on the
constitutional right. To do so would be to “fail
to recognise the
important task conferred upon the legislature by the Constitution to
respect, protect, promote and fulfil the
rights in the Bill of
Rights”. The same principle applies to the Equality Act. Absent a
direct challenge to the Act, courts must
assume that the Equality Act
is consistent with the Constitution and claims must be decided within
its margins.’
[11] The respondents conceded
that this rule, (‘the direct reliance rule’), is well
established. But, they submitted that the
rule does not operate
whenever legislation gives effect to a constitutional right. It
operates only if and when, on a proper interpretation
of the
legislation read with the constitutional right to which it gives
effect, the legislation is intended to be exhaustive of
the right,
that is, if parliament intended to cover the field. In support of
this submission they relied on Chaskalson CJ’s reasoning
in
Minister of Health and
Another v New Clicks South Africa (Pty) Ltd
2006 (2) SA 311
(CC) in which he held that a review of administrative
action can no longer be brought directly under s 33 (1) of the
Constitution
and has to be brought under the
Promotion of
Administrative Justice Act 3 of 2000
. Chaskalson CJ said:
‘
PAJA is the
national legislation that was passed to give effect to the rights
contained in
s 33.
It was clearly intended to be, and in
substance is, a codification of these rights. It was required to
cover the field and purports
to do so.
A litigant cannot
avoid the provisions of PAJA by going behind it, and seeking to rely
on s 33(1) of the Constitution or the
common law. That would
defeat the purpose of the Constitution in requiring the rights
contained in s 33 to be given effect
to by means of national
legislation.’
1
[12] However, there is a
substantial difference between, on the one hand, the constitutional
provisions and legislation that gave
rise to the application of the
direct reliance rule and, on the other hand, s 27 of the
Constitution and the
Water Services Act.
(i
) Section 9(4) of the
Constitution provides that no person may unfairly discriminate
against anyone on one or more of the grounds
mentioned and then adds
that national legislation must be enacted to prevent or prohibit
unfair discrimination. The Equality Act
was thereupon enacted to give
effect to s 9. That is the background to the Constitutional
Court’s decision in
Pillay
referred to above.
(ii) Section 33(1) of the
Constitution provides that everyone has the right to administrative
action that is lawful, reasonable
and procedurally fair and
subsection (3) requires national legislation to be enacted to give
effect to that right. PAJA was thereupon
enacted to give effect to
that right. It is on that basis that Chaskalson CJ applied the direct
reliance rule in
New
Clicks
.
(iii) Section 23(5) of the
Constitution provides that every trade union, employers’
organisation and employer has the right to
engage in collective
bargaining and that national legislation may be enacted to regulate
collective bargaining. Regulations in
terms of the Defence Act 44 of
1957, which in terms of the Constitution qualify as national
legislation, were promulgated to regulate
collective bargaining. This
led O’Regan J in giving the judgment of the Constitutional Court in
South African National
Defence Union v Minister of Defence and Others
2007 (5) SA 400
(CC) to say in para 52 that ‘a litigant who seeks
to assert his or her right to engage in collective bargaining under
s 23(5)
should in the first place base his or her case on any
legislation enacted to regulate the right, not on s 23(5).
[13] In all these cases the
direct reliance rule was applied in circumstances where the
Constitution provided that legislation could
be or had to be enacted
to give effect to the right in terms of the Constitution and where
that had been done. In the present case
the Constitution does not
provide that legislation could or had to be enacted to give effect to
the right of access to sufficient
water. It provides that legislative
and other measures must be taken to achieve the progressive
realisation of each of the rights
mentioned in s 27(1). It was
in my view realised that there were people who had access to
sufficient water and others who
did not have such access and could
not immediately be given such access. It is for the latter category
of people that the Constitution
requires the state to take reasonable
legislative and other measures, within its available resources, to
achieve the progressive
realisation of the right of access to
sufficient water. Section 27(2) was therefore not intended to cover
the field and to deprive
anyone of its right to rely on the
provisions of s 27(1). On the contrary it simply recognises that
it may, in certain circumstances,
not be possible for the state to
give immediate effect to the provisions of s 27(1) and requires
the state to take reasonable
legislative and other measures to
encourage the progressive realisation of the right of access to
sufficient water.
[14] The
Water Services Act
together
with the regulations promulgated in terms thereof, provide
that 6kl water per household per month or 25 litres per person per
day,
is the minimum quantity of water that would constitute a
sufficient quantity of water for households to support life and
personal
hygiene. In terms of
s 3
and subject to the limitations
contained in the Act (s 3(4)) everyone has a right of access to
that quantity of water (s 3(1)),
every water services
institution must take reasonable measures to realise these rights
(s 3(2)) and every water services authority
must, in its water
services development plan, provide for measures to realise these
rights (s 3(3)). These provisions were
not intended to detract
from the right of everyone of access to sufficient water in terms of
s 27(1) of the Constitution.
They were intended, as required by
s 27(2), to achieve a progressive realisation of those rights.
As a result of these provisions
it cannot be contended by a water
services institution that a lesser quantity of water would constitute
sufficient water to support
life and personal hygiene. The quantity
stipulated is the minimum that may constitute sufficient water.
However, circumstances
differ, some people, like the residents of
Phiri, may have waterborne sanitation while others have pit latrines
which makes a dramatic
difference to the water required. By
stipulating the minimum that would constitute sufficient water the
legislature has not stipulated
that that quantity would in all
circumstances constitute sufficient water.
[15] It follows that the
Water
Services Act does
not deprive anyone of the right of access to
sufficient water in terms of
s 27(1).
This interpretation gives
rise to three questions, namely: (i) What would constitute sufficient
water in terms of
s 27(1)
; (ii) Does the City have to provide
residents of Phiri with access to that quantity of water; and (iii)
Does the City have to provide
such access or access to a lesser
quantity of water free. I shall deal with each of these questions in
turn.
What would constitute
sufficient water in terms of
s 27(1)?
[16] In interpreting the right to
sufficient water a purposive approach should be followed. In
determining the purpose of the right
one should have regard to the
history and background to the adoption of the Constitution and the
other provisions of the Constitution,
in particular the other rights
with which it is associated in the Bill of Rights.
2
On this approach the following passage in
Soobramoney
is apposite:
3
‘
There is a high
level of unemployment, inadequate social security, and many do not
have access to clean water or to adequate health
services. These
conditions already existed when the Constitution was adopted and a
commitment to address them, and to transform
our society into one in
which there will be human dignity, freedom and equality, lies at the
heart of our new constitutional order.
For as long as these
conditions continue to exist that aspiration will have a hollow
ring.’
[17] A commitment to address a
lack of access to clean water and to transform our society into one
in which there will be human
dignity and equality, lying at the heart
of our Constitution, it follows that a right of access to sufficient
water cannot be anything
less than a right of access to that quantity
of water that is required for dignified human existence. Support for
this conclusion
is to be found in the 2002 General Comment 15 of the
United Nations Committee on Economic, Social and Cultural Rights on
the International
Covenant on Economic, Social and Cultural Rights,
in which it is stated: ‘The human right to water is indispensable
for leading
a life in human dignity. It is a prerequisite for the
realization of other human rights.’
4
And ‘The right to water clearly falls within the category of
guarantees essential for securing an adequate standard of living,

particularly since it is one of the most fundamental conditions for
survival. . . . The right should also be seen in conjunction
with
other rights enshrined in the International Bill of Human Rights,
foremost amongst them the right to life and human dignity.’
5
For this reason ‘the elements of the right to water must be
adequate
for human dignity, life and health’.
6
[18] The quantity of water that
is required for dignified human existence would depend on the
circumstances of the individual concerned.
As stated above the
Water
Services Act, read
with the regulations promulgated in terms thereof,
prescribes a basic minimum supply of water of 6kl per household per
month or
25 litres per person per day. Being a basic minimum supply
of water and bearing in mind that many people who are in desperate
need
of adequate access to water, do not have waterborne sanitation;
the basic minimum supply of water in terms of the Act must have
been
determined by reference to the needs of households or individuals who
can manage without waterborne sanitation. That is so
because
according to the evidence a flush toilet dispenses approximately 10
litres of water per flush and nobody has suggested,
or could on the
evidence suggest, that 6kl per household per month or 25 litres per
person per day constituted sufficient water
for leading a life in
human dignity where use had to be made of flush toilets, as is the
case in Phiri.
[19] Confirmation of the
aforegoing is to be found in the White Paper issued by the Department
of Water Affairs and Forestry in
November 1994 entitled ‘Water
Supply and Sanitation Policy’. In respect of water supply it is
said: ‘Basic water supply is
defined as 25 litres per person per
day. This is considered to be the minimum required for direct
consumption, for the preparation
of food and for personal hygiene. It
is not considered to be adequate for a full, healthy and productive
life which is why it is
considered as a minimum.’
[20] In September 2003 the
Department issued a Strategic Framework for Water Services entitled
‘Water is Life, Sanitation is Dignity’.
According to the
Framework, basic levels of service would be ‘reviewed in future to
consider increasing the basic level from
25 to 50 litres per person’.
[21] As to what quantity of water
would constitute sufficient water for the residents of Phiri the
respondents relied on and the
court below accepted the evidence of P
H Gleick the author of an article entitled ‘Basic water
requirements for human activities:
Meeting basic needs’ published
in Water International, 21 (1996) 83-92. According to the article the
water requirements of a
resident of Phiri per day are a minimum of
(i) three litres by way of fluid replacement under average temperate
climate conditions
and 5 litres in tropical and subtropical
conditions; (ii) 5 to 15 litres for adequate bathing; (iii) 10 litres
for food preparation,
including dishwashing; and (iv) 20 litres for
waterborne sanitation. On this basis he recommended in the article
that a minimum
of 50 litres per person per day be provided taking the
upper limit for drinking water and bathing. No reason for taking the
upper
limit in respect of bathing is advanced. In an affidavit filed
in support of the respondents’ claim Gleick stated that 50 litres

per person, made up in the same way, should be viewed as a minimum
basic need. The 15 litres per day for bathing he justified on
the
basis that Phiri residents cannot rely on rivers for bathing.
However, the statement in the article that 5 to 15 litres would
be
adequate for bathing is not qualified in this manner. In the result,
reducing the 50 litres minimum by 2 litres in respect of
drinking
water Gleick’s evidence, at best for the respondents, is to the
effect that a Phiri resident, who is not living in
tropical or
subtropical conditions, requires a minimum of 48 litres per day.
[22] The appellants relied on an
affidavit by I H Palmer in respect of the water requirements of the
residents of Phiri. Palmer
is a civil engineer and managing director
of Palmer Development Group (Pty) Ltd a consultancy company offering
consultancy services
in respect of, among others, water supply and
sanitation. According to him 3 litres drinking water per person per
day is considered
reasonable for a Highveld climate, 7 litres per
person per day is consistently used in the literature as a minimum
for personal
washing but 14 litres per day is consistent with
research carried out for a low income water use category, 9.2 litres
per person
is required by a household of four in respect of cooking,
washing of dishes, washing of clothes and cleaning of the premises
and
15 litres (1.5 toilet flushes) in respect of toilet flushing ie,
taking the upper limit in respect of personal washing which is
almost
the same as the figure suggested by Gleick, a total of 41.2 litres
per person per day is required.
[23] The appellants objected to
the court a quo’s reliance on the evidence of Gleick on the basis,
amongst others, that in terms
of the
Plascon
Evans
rule, the matter
having been brought on application, it should be decided on the
appellants’ (respondents in the court below)
evidence in so far as
it differs from that of Gleick. The respondents on the other hand
submitted that Palmer’s evidence could
not be accepted because he
applied the wrong standard. According to the submission Palmer’s
standard was the quantity of water
required for the public benefit
and not the quantity of water required for dignified human existence.
I do not think that this
criticism of Palmer’s evidence is
justified. It is clear from his evidence that he realised that what
he had to determine was
the quantity of water required for dignified
human existence and that that was what he attempted to do. His
quantification is specifically
done under the heading ‘Quantifying
the amount of water needed for health (and human dignity).
[24] The only real difference
between the evidence of Gleick and Palmer is that Palmer is of the
opinion that 15 litres of water
would suffice for waterborne
sanitation whereas Gleick is of the opinion that 20 litres are
required. There is no basis upon which
the evidence of Gleick can on
the papers be preferred to that of Palmer. The same applies to the
minor differences in respect of
personal washing and cooking and
house cleaning. For these reasons I am of the view, on the evidence
presented, that 42 litres
water per person per day would constitute
sufficient water in terms of s 27(1) of the Constitution.
Does the City have to provide
Phiri residents with 42 litres of water per person per day?
[25] In terms of
s 11
of the
Water Services Act every
water services authority has a duty to all
consumers in its area of jurisdiction to progressively ensure
efficient, affordable,
economical and sustainable access to water
services
(s 11(1)).
This duty is subject to, amongst others, the
availability of resources; the need for an equitable allocation of
resources to all
consumers; the need to regulate access to water
services in an equitable way; the duty of consumers to pay reasonable
charges;
and the right to limit or discontinue the provision of water
services if there is a failure to comply with reasonable conditions

set for the provision of such services
(s 11(2)).
In ensuring
access to water services, a water services authority must take into
account factors such as the need for regional efficiency;
the need to
achieve benefit of scale; and the requirements of equity
(s 11(3)).
It may not unreasonably refuse or fail to give access to water
services to a consumer or potential consumer in its area of
jurisdiction
(s 11(4)).
[26] Although
s 27(1)
provides that everyone has the right to sufficient water everyone
does not have a claim for the immediate fulfilment of that right.
As
was said by Chaskalson CJ in
Soobramoney
v Minister of Health (KwaZulu-Natal)
[1997] ZACC 17
;
1998
(1) SA 765
(CC) para 11:
‘
What is apparent
from these provisions is that the obligations imposed on the state by
sections 26
and
27
in regard to access to housing, health care, food,
water and social security are dependent upon the resources available
for such
purposes, and that the corresponding rights themselves are
limited by reason of the lack of resources.  Given this lack of

resources and the significant demands on them that have already been
referred to, an unqualified obligation to meet these needs
would not
presently be capable of being fulfilled.’
[27] A local authority such as
the City is required only to act reasonably and to progressively
fulfil its obligation to ensure
that everyone has access to
sufficient water.
7
It is, however, not the City’s case that it is unable to provide
the residents of Phiri with sufficient water and that it is
not
obliged to provide them with access to sufficient water, be it 42
litres or a greater quantity. The City’s case is that it
does not
have to provide free water. Subject to the residents paying for such
water they are not restricted to a certain quantity
of water.
Does the City have to provide
such access or access to a lesser quantity of water free of charge?
[28] In terms of
s 27(1)
everyone has the right to have access to sufficient water ie every
Phiri resident has the right to have access to 42 litres per
day. But
many of the Phiri residents are poor and at least some of them cannot
afford to pay for the water they need. Not being
able to pay for the
water, they have no access to that water. Compare in this regard 2002
General Comment 15 of the United Nations
Committee on Economic,
Social and Cultural Rights on the International Covenant on Economic,
Social and Cultural Rights
8
in which it is said, under the heading ‘Accessibility’, that
water, and water facilities and services, must be affordable for
all
and must be accessible to all including the most vulnerable or
marginalized sections of the population, in law and in fact.
[29] The City did not contend
that a person who cannot afford to pay for water has access to that
water. It contended, as stated
above, that the respondents could not
rely on the Constitution but had to rely on the
Water Services Act.
In
terms thereof, so it submitted, the City was obliged to take
reasonable measures to secure access to basic water services as
prescribed
in the Water Regulations and not to provide such basic
services free. I have already rejected the submission that the
respondents
could not base their claim on s 27(1) of the
Constitution and I do not agree that, in terms of the Act, no water
is to be
provided free. Section 4(3)(c) of the Act expressly provides
that ‘procedures for the limitation or discontinuation of water
services must not result in a person being denied access to basic
water services for non-payment, where that person proves, to the

satisfaction of the relevant water services authority, that he or she
is unable to pay for basic services’. It is also not the
policy of
the Department of Water Affairs and Forestry or of the City not to
provide free water in any circumstances.
[30] A contention that the state
and the City are not obliged to provide water free to people who
cannot afford to pay for that
water in circumstances where it would
be reasonable to expect the state or the City to do so is in my view
untenable. Whether it
would be reasonable will of course depend on
its available resources and other relevant considerations. The state
and the City
realised that to be so. That much is clear from the free
water policy adopted by the state and the City to which I now turn.
[31] In February 2001 the
Minister of Water Affairs and Forestry announced that government had
resolved to ensure that poor households
were given a basic supply of
water free of charge. He went on to state that Cabinet had approved a
policy to provide 6kl of safe
water per household per month. In May
2001 the Chief Directorate: Water Services of the Department of Water
Affairs and Forestry
issued Version 1 of its ‘Free Basic Water’
Implementation Strategy Document in which it is said:
‘
Again it needs to
be recognised that local authorities should still have some
discretion over this amount. In some areas they may
choose to provide
a greater amount, while in other areas only a smaller amount may be
possible. For example, in some remote areas
with scattered
settlements, high water costs and water stressed areas it is often
not feasible to provide 6000 litres of water.
. . . In some areas
where poor households have waterborne sanitation the total amount of
water seen as a “basic supply” may
need to be adjusted upwards
(if financially feasible) to take into account water used for
flushing.’
[32] Shortly after the
promulgation of the water regulations on 28 June 2001 the City
approved Johannesburg Water’s business
plan in terms of which it
was recommended that each household be provided with 6kl free water
per month. The provision of 6kl free
water per month may have been
brought about by the regulations read with
s 4(3)(c)
of the
Water Services Act which
provide, as stated above, that procedures
for the limitation or discontinuation of water services must not
result in a person being
denied access to basic water services for
non-payment, where that person proves, to the satisfaction of the
relevant water services
authority, that he or she is unable to pay
for basic water services. Initially the decision to provide 6kl free
water per month
was only implemented in areas other than deemed
consumption areas such as Soweto. Later, when prepayment water meters
had been
installed in Phiri the first 6kl per month per stand was
also provided free but for all water required in excess of 6kl
prepayment
had to be made.
[33] The City from time to time
revised its free water policy. In mid-2005 it appointed consultants
to undertake, amongst others,
the development of a clear set of
policy recommendations for how to restructure the City’s social
package designed to assist
the poor, the assessment of past
experience of the City in implementing successive versions of the
social package and the evaluation
of a variety of options for
targeting the social package so that it optimally benefits poor
households. The work culminated in
two documents one of which is
titled ‘A Social Package Policy Base Document’ dated 8 June 2006
(‘the Base Document’). The
Base Document recommends that 10kl
free water per month per consumer unit be provided to properties
valued at less than a certain
amount and that no free water be
provided to other properties. It adds:
‘
6kl of water per
month is the standard for free basic water per month. The amount of
6kl is based on the RDP standard of 25l per
day, and a household size
of 8 people. This amount is adequate for households with no
reticulation . . ..
Evidence suggests
that the average consumer unit size in the poorer areas of
Johannesburg is 7 to 8 people . . .. A consumer unit
of 7 people
using 50l of water per day will use 10.5kl of water per month.
It is recommended
that the free basic water allocation to poor households be increased
to 10kl a month. This will go a long way
to ensuring that larger
households in Johannesburg have access to adequate water.’
[34] The recommendations
contained in the Base Document have not been adopted by the City. At
the time when the answering affidavits
were deposed to, namely
January 2007, it was envisaged that a new social package policy would
be implemented effective July 2008
but that has not happened. The
Mayoral Committee of the City however decided, as an interim measure:
(i) That the free basic water
allocation to targeted poor households be increased from 6kl to 10kl
so as to ensure that up to 13
people on a stand would receive at
least 25 litres of water per day.
(ii) That the City’s existing
Register of Indigents be used as a basis for targeting poor
households ie that 10kl of free water
be provided to accountholders
on the Register of Indigents.
(Section 23
of the Credit Control and
Debt Collection By-Laws of the City makes provision for registration
upon application of a person as
an indigent person. As at January
2007 there were 118 549 accountholders registered on the
register.)
(iii) That an additional 4kl free
water per annum be allowed to every accountholder with a prepayment
meter to cover any emergency
requiring additional water.
(iv) That representations be
considered for additional water in the case of people whose
circumstances warrant an additional allocation
of water.
[35] At the time it was envisaged
that the interim measures would be introduced as from March 2007.
That did not happen but according
to the appellants they were fully
introduced by the time that the application for leave to appeal was
heard. The respondents dispute
that a representation mechanism has
been established but in the light of the conclusion to which I have
arrived there is no need
to deal with this dispute.
[36] The City maintains that it
has no constitutional obligation to provide more than 25 litres free
water per person per day and
concedes that what it is trying to
achieve by way of the interim measures is to get 25 litres per day to
everyone who cannot afford
to pay for water. That is with the
exception of special cases such as where a person is suffering from
AIDS, where a greater quantity
of water may be provided. The City
concedes that the method adopted to target those that cannot afford
to pay for water is not
perfect but contends that it is a practical
approach and that the cost of a more targeted solution would be
prohibitive.
[37] Apart from submitting that
the respondents had no right of access to more water than the basic
water supply in terms of the
Water Services Act read
with the water
regulations ie 6 kl per household or 25 litres per person, the City,
quite correctly, submitted that its obligation
extended only to its
capacity within its available resources and that all that could be
expected of it was to take reasonable steps
within its available
resources, aimed at a progressive fulfilment of everyone’s right to
have access to sufficient water. It
submitted that it did not have
the resources to provide sufficient free water to those who cannot
afford to pay for water. In this
regard the City relied on the fact
that the City as well as Johannesburg Water had emerged from periods
of acute financial crises,
the fact that the City operates under
budgetary constraints and that it is not allowed to spend more than
is brought in on its
operating budget and the fact that there are
many other demands on its resources. The other demands on the City’s
resources include
primary health care services, emergency services,
public transportation, delivery of other essential services such as
waste collection
and electricity, development and maintenance of
roads, storm water and other infrastructure, safety, security and
housing. The
City is required to balance different delivery and
development expenditure priorities and in doing so budgeted to spend
R17,8 billion
of its projected operating revenue of R17,9 billion in
the 2006/2007 financial year. The largest portion of the City’s
capital
budget, namely R726m (or 34% of the budget), is directed to
Johannesburg Water infrastructure projects. In addition the City
directs
R570m to fund its Social Package which includes free water.
The City contends that it is unreasonable in these circumstances to

require the provision of more free water to those who cannot afford
to pay for such water, more so in the light of the fact that
there
are some 105 000 households in informal settlements within the
City who do not have access to even basic water services
and also the
fact that, under the City’s so-called ‘stepped’ or ‘rising
block’ tariff, water usage by lower income and
lower volume users
is heavily subsidised by higher income and high volume users.
[38] However, the free water
policy of the City was adopted on the basis that it was in terms of
the
Water Services Act obliged
to provide the residents within its
area of jurisdiction access to 6kl water per household per month or
25 litres per person per
day, that this obligation did not entail
that the provision had to be free to those who could not afford to
pay and that the obligation
superseded the constitutional duty that
it may have had before the Act was enacted. For the reasons stated
the policy was materially
influenced by an error of law and falls to
be set aside on that basis.
[39] The court below held that
the City’s provision of 25 litres of free water per person per day
was unreasonable and ordered
the City alternatively Johannesburg
Water to provide each of the respondents and other similarly placed
residents of Phiri with
a free basic water supply of 50 litres per
person per day. However, the circumstances of the respondents are so
dissimilar that
it would be impossible to give effect to the order.
For example, the fourth respondent lives in a house with two others.
They are
getting 6kl water per month free ie approximately 60 litres
per person per day. Her complaint is against a prepayment meter that

had not functioned properly. The fifth respondent lives in a house
jointly owned by him and his brother together with nine tenants.
No
case is made out that they cannot afford to pay for water. His
complaint is that the water ran out when one of the shacks on
his
property caught fire.
[40] The respondents submitted
that it would be appropriate in these circumstances to replace the
order of the court below with
an order that the City provide the
quantity of water that is found to constitute sufficient water in
terms of s 27(1) free
of charge to every resident in Phiri.
According to them, the City’s case on the papers is not that it
cannot afford to do so
and having failed to take action against
non-payers the City had in fact, for many years provided an unlimited
quantity of water
free to the deemed consumption areas such as Phiri.
They submitted further that to now, except in special cases, provide
only 25
litres per person per day free is a retrogressive step.
[41] The City may of course be
able to divert funds budgeted for other expenses and so make funds
available to provide sufficient
water free to every citizen in Phiri.
But it contends that it would be unreasonable to expect it to do so.
More so because an order
that the City should provide 42 litres of
free water to the residents of Phiri who cannot afford to pay for
such water will in
effect oblige the City to provide that quantity of
water free to other residents in the City whose circumstances are
similar to
those of the Phiri residents.
[42] Having concluded that the
City’s free water policy falls to be reviewed and set aside a
revised free water policy which is
reasonable has to be adopted. In
formulating that policy regard should be had to the available
resources and many competing interests.
A reasonable balance will
have to be struck between those interests. In addition regard should
be had to logistical problems that
will have to be overcome in order
to target those in need of free water in a practical and cost
effective way. Without even knowing
what the costs implications to
the City would be if the City were to provide 42 litres free water to
all of its residents who cannot
afford to pay for such water and
without the expertise to deal with the logistical problems, it would
be irresponsible of a court
to usurp the function of the City and to
itself revise the City’s free water policy. The court is in no
position to do so whereas
the City should have the knowledge and
expertise required to do the exercise. As was said in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 45:
‘
The Court should
take care not to usurp the functions of administrative agencies. Its
task is to ensure that the decisions taken
by administrative agencies
fall within the bounds of reasonableness as required by the
Constitution.’
[43] For these reasons the matter
should be referred back to the City to formulate a revised water
policy in the light of the finding
that it is constitutionally
obliged to grant each Phiri resident who cannot afford to pay for
water access to 42 litres of water
per day free in so far as it can
reasonably be done having regard to its available resources and other
relevant considerations.
[44] The respondents submitted
that the constitutional rights of the residents of Phiri have been
violated and that, as a result,
those that cannot afford to pay for
water have been forced to live in squalor for years. Referring to
s 38 of the Constitution
which provides that a court may grant
appropriate relief in respect of an infringement of a right in the
Bill of Rights they submitted
that only effective relief would
constitute appropriate relief. In
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) at para 69 Ackermann J said:
‘
[A]n appropriate
remedy must mean an effective remedy, for without effective remedies
for breach, the values underlying and the
right entrenched in the
Constitution cannot properly be upheld or enhanced.
Particularly in a country where so few have the
means to enforce
their rights through the courts, it is essential that on those
occasions when the legal process does establish
that an infringement
of an entrenched right has occurred, it be effectively vindicated.
The courts have a particular responsibility
in this regard and are
obliged to “forge new tools” and shape innovative remedies, if
needs be, to achieve this goal.’
[45] Having regard to the fact
that the recommendations contained in the Social Package Base
Document dated 8 June 2006 are apparently
still under consideration
while there is a dispute about the extent to which the interim
measures adopted by the City in the light
of those recommendations
have been implemented, the respondents submitted that it would take a
long time for the City to adopt
a revised policy in the light of the
findings of this court. In the meantime the constitutional rights of
the residents of Phiri
will be violated and they will have to
continue living in squalor. To refer the matter back to the City
would in these circumstances
not constitute effective relief. When
asked to formulate an order having regard to the logistical problems
that will be encountered
in giving effect to an order that a certain
quantity of water had to be provided to all Phiri residents who
cannot afford to pay
for water, the respondents could do no better
than suggest that the City should be allowed to identify the people
who qualify for
free water by any reasonable means. That is to say,
at least in respect of the identification of people entitled to free
water,
they conceded that the matter had to be referred back to the
City for them to adopt an appropriate policy. However, they suggested

that an interim order should be made that sufficient water must be
provided free to all inhabitants of Phiri so as to serve as
an
incentive to the City to adopt a revised free water policy as soon as
possible.
[46] An interim order will indeed
be an effective order pending the implementation of a revised water
policy. There is however no
reason why, in the interim, free water
should be provided to inhabitants of Phiri who can afford to pay for
the water. The question
then is how to identify those than cannot do
so. At least as an interim measure there would not seem to be any
other practical
way than to do what the City has done and that is to
use the City’s Register of Indigents as a basis for targeting poor
households.
There are 118 549 accountholders registered as
indigents and provision is made in section 23(1) of the City’s
Credit Control
and Debt Collection By-laws for applications to be
registered as an indigent. An order that 42 litres of free water per
person
per day be provided to those households should not cause undue
hardship to the City because in terms of the interim measures adopted

by the City, 10kl of free water per month is already provided to
these households. As a result households registered on the register

of indigents and consisting of 8 or less people are being provided
with 42 litres free water per person per day. Such an order
would
nevertheless ensure that those in dire need of water would not have
to go without sufficient water pending the adoption and

implementation of a revised free water policy by the City. It would
put some pressure on the City to adopt and implement a revised
policy
as soon as possible.
Prepayment meters
[47] As stated above the City
provided an unlimited unmetered quantity of water to the residents of
Soweto including Phiri and charged
them on the basis of a deemed
consumption of 20kl per month. However, the infrastructure was in a
lamentable condition. The piping
system was chaotic and there were
fundamental technical problems in that it was incompatible with
pressure systems resulting in
fractures and innumerable leaks in
primary and secondary water reticulation. As a result of the deemed
consumption system coupled
with the chaotic water reticulation
infrastructure the actual ‘consumption’, including wastage and
leaks of water in Soweto,
was in the order of 67kl per household per
month. That was not the only problem faced by Johannesburg Water. The
payment rate of
municipal bills was less than 10%. Non-paying account
holders amassed substantial arrears on their accounts. The City
ascribes
the non-payment for water services to a culture of
non-payment which took root in the 1980’s under the apartheid
system. In the
result, as is stated by Karen Brits in the answering
affidavit filed by the City, those consumers were in effect receiving
unlimited
free water. This situation was considered by the City to be
unsustainable. However, the City does recognise that many of the
residents
are not able to pay for the water provided to them.
[48] The problems with the deemed
consumption system and the water reticulation infrastructure led to
the appointment in mid-late
June 2001 of a project team within
Johannesburg Water to devise a strategy to reduce unaccounted for
water in the deemed consumption
areas. The project was called
Operation Gcin’manzi (‘OGA’). A report was prepared by the OGA
task team in terms of which
they recommended that prepayment water
meters be installed. The report added: ‘As prepayment represents
a
major paradigm shift from conventional metering
and enforces payment for services electronically, prepayment should
not
be enforced on customers until such time as majority acceptance
(critical mass) has been obtained, i.e.
installation
of a prepayment meter on any property should be by choice of the
customer per predefined area
.’
The report was adopted and it was decided that a pilot project should
first be undertaken in a prototype area. Phiri was selected
for the
pilot project. Construction of the ‘bulk infrastructure’ phase of
the project started on 11 August 2003 and the installation
of
prepayment meters in Phiri was completed in February 2005.
[49] The court below, referring
to
s 21
of the
Water Services Act (which
provides that every
water services authority such as the City must make bylaws which
contain conditions for the provision of water
services) and to the
bylaws made by the City, held that the bylaws did not authorise the
installation of prepayment meters in respect
of the water services
rendered to the respondents.
[50] In terms of bylaw 3 of the
City’s Water Services By-Laws the City may provide three levels of
service. Service level 1 must
consist of a water supply from communal
water points and a ventilated improved pit latrine located on each
site. Service level
2 must consist of an unmetered water connection
to each stand with an individual yard standpipe; a water borne
connection connected
to either a municipal sewer or a shallow
communal sewer system; and a pour flush toilet which must not be
directly connected to
the water installation. Service level 3 must
consist of a metered full pressure water connection to each stand and
a conventional
water borne drainage installation connected to the
City’s sewer. The level of service to be provided to a community
may be established
in accordance with the policy of the City and
subject to the conditions determined by the City. The provision of
service level
2 is subject to certain conditions and in terms of
bylaw 3(3) the City, in the event of a consumer receiving service
level 2 contravening
certain of those conditions, may install a
prepayment meter in the service pipe on the premises.
[51] The City submitted that, in
the case of Phiri, service level 3 is provided to consumers and that
the use of prepayment meters
is authorised because level 3 requires a
‘metered full pressure water connection’ without specifying the
nature of the meter
to be used.
[52] In my view ‘metered’ in
the specifications of a level 3 service was not intended to include
‘metered’ by way of a prepayment
meter. If that was the intention
one would have expected that to have been mentioned expressly in the
light of the specific authorization
to install prepayment meters in
respect of the level 2 service by way of a penalty for having
breached the conditions upon which
that service is being provided.
One would also have expected mention being made of the circumstances
under which prepayment meters
instead of a credit meters may be used.
More so in the light of the statement in the OGA report that
prepayment in respect of water
represents ‘
a
major paradigm shift from conventional metering
’.
[53] There are several other
indications that ‘metered’ was not intended to include metered by
way of a prepayment meter.
Section 7(1)
requires every consumer on
application for the provision of water services and before such water
services are provided to deposit
with the City a sum of money equal
to the estimated fees for two average months’ water services as
determined by the City. If
‘metered’ was intended to include
prepayment it is unlikely that the same deposit would have been
required from those applying
for the provision of prepaid water
services as from those applying for the provision of water services
on credit. Not surprisingly
we were informed at the hearing that no
deposit is required in respect of prepaid water services.
[54] In terms of
s 4
of the
Water Services Act water
services must be provided in terms of
conditions set by the water services provider and these conditions
must provide for the circumstances
under which water services may be
limited or discontinued and for procedures for limiting or
discontinuing water services. Furthermore,
procedures for the
limitation or discontinuation of water services must be fair and
equitable, provide for reasonable notice of
intention to limit or
discontinue the services and for an opportunity to make
representations. They may not result in a person
being denied access
to basic water services for non-payment, where that person proves to
the satisfaction of the relevant water
services authority that he or
she is unable to pay for basic services.
[55] The City submitted that the
cut-off of the water supply by a prepayment meter does not amount to
a discontinuation of water
services because the water services are
still available against payment. On that basis one can argue that
water services are not
discontinued to a consumer to whom water is
provided on credit when the water supply is cut-off due to
non-payment. The only difference
being that in the case of prepayment
meters the customer can himself restore the supply whereas in the
case of credit meters the
co-operation of the supplier is required.
In my view a cut-off of water services by a prepayment meter when the
credit runs out
clearly amounts to a discontinuation of the services
(see
R v Director
general of Water Services
[1999] Env. L.R. 114 (QB)).
[56] As stated above, in terms of
s 4
of the
Water Services Act water
services must be provided in
terms of conditions set by the water services provider which must
accord with conditions for the provision
of water services contained
in bylaws. The City’s Water Services By-Laws provide for the
circumstances under which water services
may be discontinued and for
procedures for doing so
(s 9.C).
Subsection 6 for example
provides for the sending of a discontinuation notice in the event of
non-payment which notice must contain
information advising the
consumer of steps which can be taken to have the service reconnected.
Subsection 7 requires a final demand
notice in the event of
representations having been unsuccessful. Subsection 8 states under
what circumstances water services to
a consumer may be discontinued.
These provisions provide for cut-offs for non-payment but do not
authorise the cut-off by a prepayment
meter. The City submitted that
the prepayment meters are designed to give a warning signal before
the credit is exhausted and that,
since the hearing of the case in
the court below, representations can be made to the City not to
discontinue the service when the
credit runs out. The respondents
dispute that a special cases representation procedure has been
implemented and contend that the
prepayment meters in Phiri, in any
event, give no warning that would allow sufficient time for
representations or for purchasing
further water credits so as to
avoid the cut-off. However that may be, if ‘metered’ in bylaw 3
was intended to apply also to
metered by way of prepayment meters,
the bylaws would have stipulated, as in the case of credit meters, as
to what warning had
to be given before the water services could be
discontinued and would have contained, as in the case of credit
meters, comprehensive
provisions as to the making of representations.
[57] The City contends that
bylaws 31, 8A and 31A(2) make it clear that prepayment meters may be
used. These bylaws do refer to
prepayment meters but the provisions
which refer to prepayment meters are necessitated by the fact that,
as stated above, the bylaws
do authorise the installation of
prepayment meters as a penalty for a breach of conditions imposed in
respect of level 2 services.
The City also submitted that the use of
prepayment meters is envisaged in the
Local Government: Municipal
Systems Act 32 of 2000
. In terms of
s 95(i)
thereof a
municipality must within its financial and administrative capacity
provide accessible pay points and other mechanisms
for settling
accounts or for making pre-payments. That the section envisages
prepayments is clear but that is a far cry from authorising

prepayment water meters. In addition the City referred to s 156(5)
of the Constitution which provides that a municipality
has the right
to exercise any power concerning a matter reasonably necessary for,
or incidental to, the effective performance of
its functions. It
submitted that the introduction of prepayment meters in the
circumstances prevailing in Phiri, falls within the
powers reasonably
necessary for, and incidental to, those powers expressly articulated
in the Constitution and national legislation.
That may be so but the
argument loses sight of the fact that the Council of the City in
terms of the bylaws decided what water
services would be provided to
consumers. The question therefore remains whether the bylaws
authorise the use of prepayment meters
in the case of level 3 water
services.
[58] For the reasons mentioned I
am of the view that the City’s Water Services By-Laws do not
authorise the installation of prepayment
water meters in respect of
its level 3 water services and that such installation was unlawful.
Once again the question arises as
to what the appropriate remedy
would be. The court below made the following order:
‘
183.2 The forced
installation of prepayment water meter system in Phiri Township by
the City of Johannesburg alternatively Johannesburg
Water (Pty) Ltd
without the choice of all available water supply options, is declared
unconstitutional and unlawful.
183.3 The choice
given by the City of Johannesburg alternatively Johannesburg Water
(Pty) Ltd to the applicants and other similarly
placed residents of
Phiri of either a prepayment water supply or supply through
standpipes is declared unconstitutional and unlawful.
183.4 The prepayment
water system used in Phiri Township is declared unconstitutional and
unlawful.
183.5 The City of
Johannesburg alternatively Johannesburg Water (Pty) Ltd is ordered to
provide each applicant and other similarly
placed residents of Phiri
Township with –
183.5.1 . . .
183.5.2 the option
of a metered supply installed at the cost of the City of
Johannesburg.’
If the prepayment water system
used in Phiri in respect of the level 3 service is unlawful as I have
found it to be, it follows
that the installation thereof and the
choice given to the residents of Phiri (that was a choice between a
level 3 and a level 2
water service) was unlawful. There was
therefore no need for the orders in paragraphs 183.2 and 183.3.
[59] Having been declared
unlawful, the City was obliged to remove the prepayment meters. I do
not think that was the appropriate
remedy in the circumstances.
According to the City the residents of Phiri are better off with
prepayment meters and many of them
prefer to have them; no other
mechanism allows a guaranteed monthly delivery of free water; the
introduction of prepayment meters
involved massive capital
expenditure (as of September 2007 a total of 82 591 had been
installed); and the implementation of
OGA has been effective,
resulting in a dramatic reduction in the level of unaccounted for
water, enabling the City to plan for
the extension of basic water
infrastructure to the estimated 105 000 households that do not
have access to basic water.
[60] In the circumstances an
order having the effect that the prepayment meters that have already
been installed should be removed
is inappropriate. The City, by
amending its bylaws, to at least some extent may alleviate the
problems caused by the unauthorized
installation of the prepayment
meters. By doing so it may be able to retain the prepayment meters at
least in respect of consumers
who prefer to have them and possibly
also in respect of those who cannot pay a deposit or who do not pay
their accounts. For these
reasons the appropriate order would in my
view be to suspend the order of unlawfulness for a period of two
years to enable the
City to take such steps as it may be advised to
take to legalise the use of prepayment water meters.
[61] The appellants do not ask
for a costs order against the respondents and have achieved a
sufficient measure of success in this
appeal not to be ordered to pay
any of the respondents’ costs.
[62] For these reasons the
following order is made:
The appeal is upheld and the
order by the court below is replaced with the following order:
‘
1 The decision of the first
respondent and/or the second respondent to limit the free basic water
supply to the residents of Phiri
to 25 litres per person per day or 6
kl per household per month is reviewed and set aside.
2 It is declared:
(a) That 42 litres water per
Phiri resident per day would constitute sufficient water in terms of
s 27(1) of the Constitution.
(b) That the first respondent is,
to the extent that it is in terms of s 27(1) of the Constitution
reasonable to do so, having
regard to its available resources and
other relevant considerations, obliged to provide 42 litres free
water to each Phiri
resident who cannot afford to pay for such water.
3 The first and second
respondents are ordered to reconsider and reformulate their free
water policy in the light of the preceding
paragraphs of this order.
4 Pending the reformulation of
their free water policy the first and second respondents are ordered
to provide each accountholder
in Phiri who is registered with the
first respondent as an indigent with 42 litres of free water per
day per member of his
or her household.
5 It is declared that the
prepayment water meters used in Phiri Township in respect of water
service level 3 consumers are unlawful.
6 The order in paragraph 5 is
suspended for a period of two years in order to enable the first
respondent to legalise the use of
prepayment meters in so far as it
may be possible to do so.’
___________________
P E STREICHER
JUDGE OF APPEAL
APPEARANCES:
For 1
st
appellant: G Marcus SC
A Stein
For 2
nd
appellant: K D Moroka SC
K Pillay
Instructed by:
Bowman Gilfillan Inc, Sandton,
Johannesburg (1
st
& 2
nd
)
McIntyre & Van der Post,
Bloemfontein
The Minister of Water Affairs &
Forestry, C/o The State Attorney, Johannesburg (3
rd
)
State Attorney, Bloemfontein
For respondent: W Trengove SC
N Fourie
Instructed by:
Cals Litigation Unit,
Braamfontein, Johannesburg
Webbers, Bloemfontein
Amicus curiae: R Moultrie
M S Baloyi
Amicus Curiae: Legal Resources
Centre, Johannesburg
Webbers, Bloemfontein
1
At paras 95-96.
2
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 15; and
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 9 and 10.
3
Soobramoney v Minister of Health (Kwazulu-Natal)
[1997] ZACC 17
;
1998 (1) SA
765
(CC) at para 8.
4
Para 1.
5
Para 3.
6
Para 11.
7
Minister of Health and Others v Treatment Action Campaign and
Others
(No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para 35.
8
At para 12(c).