Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC) ; 2010 (4) SA 1 (CC) (8 October 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2009
>>
[2009] ZACC 28
|

|

Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC) ; 2010 (4) SA 1 (CC) (8 October 2009)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 39/09
[2009] ZACC 28
In
the matter between
LINDIWE
MAZIBUKO
First
Applicant
GRACE
MUNYAI
Second
Applicant
JENNIFER
MAKOATSANE
Third
Applicant
SOPHIA
MALEKUTU
Fourth
Applicant
VUSIMUZI
PAKI
Fifth
Applicant
and
CITY
OF JOHANNESBURG
First
Respondent
JOHANNESBURG
WATER (PTY) LTD
Second
Respondent
MINISTER
FOR WATER AFFAIRS AND FORESTRY
Third
Respondent
with
CENTRE
ON HOUSING RIGHTS AND EVICTIONS
Amicus
Curiae
Heard
on : 2 September 2009
Decided
on : 8 October 2009
JUDGMENT
O’REGAN
J:
Introduction
This application for
leave to appeal against a judgment of the Supreme Court of Appeal
raises, for the first time in this Court,
the proper interpretation
of section 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 our food.
Without it, we will die.
It is not surprising then that our
Constitution entrenches the right of access to water.
Although rain falls
everywhere, access to water has long been grossly unequal. This
inequality is evident in South Africa.
While piped water is
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 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 fifteen 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 accomplished while water is
abundantly available to
the wealthy, but not to the poor.
At the same time, ours is
a largely arid country, often assailed by drought. Redeeming the
constitutional promise of access
to sufficient 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 manage

water services sustainably.
Parties
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 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 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.
The first and second
respondents are the City of Johannesburg (the 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 an amicus curiae.
Issues
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 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 section 27 of the Constitution or section 11 of the
Water Services Act. The second
major issue is whether the
installation of pre-paid water meters by the first and second
respondents in Phiri was lawful.
Each of the issues entails
several sub-issues, all of which are considered in this judgment.
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 in about
a million households. Half of these households are very poor with
an income of less than R1
600 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 life of all citizens”,
an important
goal set by the preamble of our Constitution.
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 pre-paid
meters in Phiri. It ends with a brief
consideration of the role of litigation in securing social and
economic rights in our
constitutional democracy.
Summary
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 section 27 of the
Constitution or with the national legislation
regulating water
services. The installation of pre-paid 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
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
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.
Water piping was
initially laid in Soweto in the 1940s and 1950s. Steel piping was
used without attention to corrosion protection.
By the 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
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 consumed by residents and how much lost through
leakage.
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% of all water pumped into Soweto
was unaccounted for. The water
losses in Soweto far exceeded the losses in other areas where water
was provided on a deemed
consumption basis, such as Ivory Park,
Alexandra and Orange Farm.
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 reduce
water demand and to improve the rate of payment. Phiri was
selected as the area where the project
would first be implemented.
Key to the project was
the abandonment of the previous system of deemed consumption flat
rate charges. Today, the City has
three levels 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 which has a
restricted water flow so that
only 6 kilolitres of water are
available monthly. The third level of service, 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 pre-paid meter.
4
The first applicant, Mrs Mazibuko, says that she was not offered a
choice between Service Level 2 and a pre-paid meter. This
is a
matter to which I return later.
5
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 1 771 households
in the area had opted for either
Service Level 2 or a pre-paid meter. Indeed the vast majority
selected the latter.
It is clear from the
applicants’ case that the implementation of Operation Gcin’amanzi
in Phiri was not without its problems.
The first applicant, Mrs
Mazibuko was visited by a community facilitator on 17 March 2004
and informed that the pipes were
to be replaced because they were
old and rusty. Upon her enquiry, she was told that a pre-paid
meter would be installed.
She refused to have a pre-paid meter
installed and was apparently not informed of the option of a yard
tap. The water supply
was cut off from the end of March. It was
only reconnected in October when she applied for a pre-paid meter
to be installed.
The City states that it
cut off the water supply of only those residents who refused either
a pre-paid meter or a yard tap.
The monthly progress reports on
the implementation of Operation Gcin’amanzi show that only a
handful of residents refused
either a pre-paid meter or a yard tap.
In June 2004, for example, there were only 35 outright refusals
out of the many hundreds
of residents who had the new system
installed. Those who did refuse both levels of service were given
seven days’ notice
before their water was cut off.
Moreover, in May and June
2006, a customer satisfaction survey was conducted in Phiri to
research attitudes in the community
to several matters, including
satisfaction with the implementation of the Gcin’amanzi project.
The results of this survey
showed a customer satisfaction rating of
8,11 out of 10 which was considered “excellent”.
Key constitutional and
statutory provisions
Section 27 of the
Constitution provides 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.
(3)
No
one may be refused emergency medical treatment.
”
Parliament has enacted
the Water Services Act to regulate the right of access to water and
the state’s obligations in that
regard. Section 3 provides that:
“
(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.”
A
“water services authority” is defined in the Act as any
municipality
6
which would, of course, include the City. A “water services
provider” is defined to mean any person who provides water

services to consumers.
7
Given that Johannesburg Water is contracted to the City to provide
water to residents of the City, it is a “water services
provider”
within the meaning of the Act. A “water services institution”
is defined to include both a water services
authority and a water
services provider so both the City and Johannesburg Water are water
services institutions within the
meaning of the Act.
One
further definition in section 1 of the Water Services Act is
relevant. It is the definition of “basic water supply”
which
provides that:
“‘
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.”
To
paraphrase, a basic water supply is the prescribed minimum amount of
water necessary for the supply of a sufficient quality
of water to
support life and personal hygiene.
Section
9 of the Water Services Act provides that the Minister may from
time to time prescribe “compulsory national standards”

relating, amongst others, to the provision of water services and
the “effective and sustainable use of water resources for
water
services”. The Minister has published a set of regulations
relating to compulsory national standards and measures
to conserve
water.
8
Regulation 3 provides that:
“
The
minimum standard for basic water supply services is–
(a) the provision of
appropriate education in respect of effective water use; and
(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.”
It
is clear that this regulation defines the content of a “basic
water supply” as contemplated in the Act. I shall refer
to this
regulation as “regulation 3(b)” throughout this judgment.
In addition, the City has
enacted Water Services By-laws to regulate its provision of water
services to the residents of the
City.
9
I return to these below.
10
Having set out the relevant key constitutional and legislative
provisions, I turn now to describe the history of the case
now
before us.
Proceedings in the
High Court
The application was
launched in what is now called the South Gauteng High Court in
Johannesburg, in July 2006, nearly eighteen
months after the
completion of Operation Gcin’amanzi in Phiri. As stated above,
the applicants identified two key issues:
whether the City’s
policy of supplying 6 kilolitres of water free to every household
in the City was in compliance with section
27 of the Constitution;
and whether the installation of pre-paid meters was lawful.
The matter was heard in
December 2007. In April 2008, the High Court handed down judgment
in favour of the applicants.
11
Tsoka J held that–
the
introduction of pre-paid meters constituted administrative action
within the meaning of section 33 of the Constitution;
12
the City’s Water
Services By-laws did not provide for the installation of pre-paid
meters and that their installation was
accordingly unlawful;
13
because pre-paid meters
halt the water supply to a resident once the free basic water
supply has been exhausted, until the resident
purchases credit,
they give rise to the unlawful and unreasonable discontinuation of
the supply of water;
14
the pre-paid meter system
was discriminatory in that residents of Soweto were not given the
option of credit meters that are
provided by the City to residents
in other areas (particularly areas inhabited by white residents);
15
the procedure followed by
the City to install pre-paid meters was unlawful and unfair;
16
regulation
3(b) of the National Water Standards Regulations
17
established a minimum content in relation to water services; he
therefore rejected the applicants’ argument that regulation
3(b)
was inconsistent with the Constitution;
18
the City’s Free Basic
Water policy, coupled with its policy on indigent residents, was
irrational and unreasonable;
19
and
the City should furnish
the applicants and all similarly placed residents of Phiri with a
free basic water supply of 50 litres
per person per day.
20
As a result, the High
Court made the following order:
21
1. The
decision of the City of Johannesburg alternatively Johannesburg
Water (Pty) Ltd to limit free basic water supply to
25 litres per
person per day or 6 kilolitres per household per month is reviewed
and set aside.
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.
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.
4. The prepayment water
system used in Phiri Township is declared unconstitutional and
unlawful.
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–
5.1 free
basic water supply of 50 litres per person per day; and
5.2 the
option of a metered supply installed at the cost of the City of
Johannesburg.
6. The
respondents are jointly and severally ordered to pay the costs of
the application, which costs include costs of three
counsel.
Proceedings in the
Supreme Court of Appeal
The respondents appealed
to the Supreme Court of Appeal.
22
That Court unanimously held that because the City’s policy had
been formulated on the misconception that it was not obliged
to
provide the minimum set in regulation 3(b) free of charge to those
who could not afford to pay, it was influenced by a material
error
of law and should be set aside.
23
The Court determined that the quantity of water required for
dignified human existence in compliance with section 27 of the

Constitution was 42 litres per person per day.
24
It referred the formulation of the water policy back to the City
to be revised in the light of this determination.
25
The Supreme Court of Appeal also concluded that the City had no
authority in law to install pre-paid meters
26
and that the cut-off in water supply that occurs when the free
basic water limit has been exhausted constituted an unlawful

discontinuation of the water supply.
27
The Supreme Court of
Appeal declared the installation of the pre-paid meters to be
unlawful but suspended that order for two years to give the City an
opportunity to rectify the situation by amending its By-laws.
28
The Court did not consider the arguments made by the applicants
concerning the unlawfulness of the manner in which the pre-paid

meters had been installed.
The Supreme Court of
Appeal thus made the following order:
“
The
appeal is upheld and the order by the court below is replaced with
the following order:
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.
It is declared:
That 42 litres water per
Phiri resident per day would constitute sufficient water in terms
of s 27(1) of the Constitution.
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.
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.
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.
It is declared that the
prepayment water meters used in Phiri Township in respect of water
service level 3 consumers are unlawful.
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 insofar as it may be possible to do so.”
29
The
applicants now seek leave to appeal to this Court in part against
the order made by the Supreme Court of Appeal. In a nutshell,
they
seek the reinstatement of the High Court order. They do not seek
to appeal against the order declaring the use of pre-paid
water
meters unlawful (paragraph 5 of the order), but they do seek to
appeal against the suspension of the order of invalidity
for two
years (paragraph 6). They assert that the Supreme Court of Appeal
erred in not considering the arguments relating
to the manner in
which the pre-paid meters were installed in Phiri and ask this
Court to consider those arguments and grant
appropriate relief.
In regard to the Free
Basic Water policy, the applicants argue that the Supreme Court of
Appeal erred in determining that the
sufficient amount of water
required by section 27 is 42 litres per person per day, rather than
50 litres per person. They
also assert that the Supreme Court of
Appeal should have made an order declaring that the City was
obliged to provide this
amount of water free of charge to all the
residents of Phiri who cannot afford to pay for their own water.
The City and Johannesburg
Water did not oppose the application for leave to appeal but, in
the event that the Court granted
it, they applied conditionally for
leave to cross appeal. They seek to appeal against the order of
the Supreme Court of Appeal
that reviewed and set aside the City’s
Free Basic Water policy as unlawful and the declaration that 42
litres of water per
person per day would constitute “sufficient
water” within the meaning of section 27(1) of the Constitution.
They also
seek leave to appeal against paragraphs 3 and 4 of the
order to the extent that they were based on paragraphs 1 and 2(a)
of
the order. The City and Johannesburg Water also ask leave to
appeal conditionally against the order that declared the pre-paid

meters used in Phiri to be unlawful (paragraph 5 of the order).
The City and Johannesburg Water also seek leave to appeal
against
the costs order made by the Supreme Court of Appeal (which was
embodied in an amended order after the judgment had
been handed
down). That order required the r
espondents
jointly and severally to pay the costs of the application,
including the costs of three counsel.
The City and Johannesburg
Water also seek leave to tender new evidence on appeal. This
evidence relates to changes in their
water policy since the papers
in this case were finalised. The applicants strenuously oppose
this application.
The Minister belatedly
also sought leave to appeal against orders 2(a), 2(b) and 4. Her
application was lodged 42 days late,
and she seeks condonation for
the late filing of the application for leave to appeal.
I turn now to identify
and consider the preliminary issues in this matter.
Preliminary issues
There are four
preliminary issues to be considered before I turn to the main
issues in the case. Does the case raise a constitutional
matter?
Is it in the interests of justice to grant leave to appeal? Should
the new evidence tendered by the first and second
respondents be
admitted? Should the Minister be granted condonation for late
filing of the leave to cross-appeal?
Does the case raise a
constitutional matter? There can be no doubt that it does. The
case concerns, amongst other things,
the proper interpretation of
section 27(1)(b) of the Constitution, section 27(2) of the
Constitution and the proper interpretation
of the Water Services
Act and some of the regulations promulgated under it, particularly
the National Water Standards Regulations.
Is it in the interests
of justice to grant leave to appeal? This is the first time that
section 27(1)(b) has been considered
by this Court. The case is
clearly important. All the parties seek leave to appeal or
conditional leave to appeal against
the judgment of the Supreme
Court of Appeal at least in part. The novelty and complexity of
the issues make it plain that
the interests of justice test is met.
Accordingly the applicants’ application for leave to appeal
should be granted, as should
the first and second respondents’
conditional application for leave to appeal.
Should the new evidence
tendered by the first and second respondents be admitted? And if
it should be admitted, on what basis?
The applicants are correct
when they assert (in opposing the admission of the evidence) that
the appeal is concerned with
the lawfulness and reasonableness of
the City’s policy at the time the litigation was instituted. The
evidence tendered
now cannot on ordinary appellate principles be
admitted for the purpose of answering that question.
There are only two
qualifications to this conclusion both of which flow from the fact
that this case concerns the state’s
obligations in respect of a
social right. The first qualification arises from the character of
the obligation imposed upon
government by section 27 which is to
take measures “to achieve the progressive realisation” of the
right.
30
This formulation of the positive obligation applies to most of the
social and economic rights entrenched in our Constitution
and is
consistent with the principles of international law.
31
The concept of progressive realisation recognises that policies
formulated by the state will need to be reviewed and revised
to
ensure that the realisation of social and economic rights is
progressively achieved. In this case, the evidence tendered
by the
City and Johannesburg Water shows that the City’s water policy,
and in particular its policy of providing services
to indigent
households within the city, has been under constant review and has
now been revised. It seems to me that the evidence
may be admitted
for the purpose of showing that the City accepts an obligation to
continue to revise its policy consistently
with the obligation to
ensure progressive realisation of rights, and that it has done so.
The second qualification
is that in many cases concerning social and economic rights,
evidence of this sort might be of assistance
in determining the
appropriate relief to be granted. That is not the case here, but
it may often be so in disputes concerned
with social and economic
rights. Given the conclusion to which I have come, however, it is
not necessary to consider the application
to tender further
evidence on appeal.
Should the Minister be
granted condonation for late filing of the application for leave to
cross-appeal? The main explanation
for the delay is the fact that
the national general elections were held about a month after the
Supreme Court of Appeal handed
down its judgment. The Minister
notes that after the elections had been held and the new Cabinet
appointed, it took some time
for her as the new Minister to decide
how to proceed in the matter. This explanation bears weight in my
view. Moreover, I
do not think any party has been materially
prejudiced by the delayed application for leave to appeal, and I
would therefore
grant condonation. The third respondent’s
application for condonation of the late filing of her application
for leave to
cross-appeal should also therefore be granted.
I turn now to discuss the
two major issues raised. I shall deal first with the issues
relating to the Free Basic Water policy
and then with those
relating to the installation of pre-paid water meters.
The Free Basic Water
policy
The applicants raised
four arguments as to why the City’s Free Basic Water policy
should be declared invalid:
(a) The applicants
contend that the Court should determine a quantified amount of
water as “sufficient water” within the
meaning of section 27 of
the Constitution and that this amount is 50 litres per person per
day. This contention requires the
Court to consider the proper
relationship between section 27(1)(b) and 27(2).
(b)
The applicants contend (and the High Court and the Supreme Court of
Appeal held) that the standard set in regulation 3(b)
of the
National Water Standards Regulations
32
is a minimum standard and that the Court is free to determine a
higher amount. The first and second respondents argue, to
the
contrary, that unless the applicants seek to have regulation 3(b)
set aside as unconstitutional, they may not ask the Court
to set an
amount different to that determined in the regulation.
(c)
The applicants contend that the allocation of 6 kilolitres of free
water per stand per month by the City is unreasonable
within the
meaning of section 27 of the Constitution and/or section 11 of the
Water Services Act. The applicants point to
the following
considerations as evidence of unreasonableness: that the amount was
based on a misconception; it is insufficient;
it is inflexible; it
allocates 6 kilolitres per month to both rich and poor; and it
allocates per stand rather than per person.
(d)
The applicants contend that the City’s indigent registration
policy (which amongst other things now allows an additional
4
kilolitres per month to indigent households) is unreasonable
because it is demeaning or, in effect, under-inclusive.
The respondents contend
that the applicants may not challenge the City’s Free Basic Water
policy without first making application
for an exemption in terms
of section 118 of the Water Services By-laws.
33
I shall deal with each of these issues separately.
The role of courts in
determining the content of social and economic rights: the proper
interpretation of section 27(1)(b) and
27(2) of the Constitution
It will be helpful to
start by considering the relationship between section 27(1)(b) and
section 27(2) of the Constitution.
In section 27(1), the
Constitution creates a right of access to sufficient water. As
with all rights, to understand the nature
of the right, we need to
understand the nature of the obligations imposed by it.
34
What obligations does it impose and upon whom? This case does not
raise the obligations of private individuals or organisations.

Johannesburg Water is wholly owned and controlled by the City of
Johannesburg and is therefore, for the purposes of this case,
an
organ of state. It does raise the question of what obligations the
right of access to sufficient water imposes upon the
state.
Traditionally,
constitutional rights (especially civil and political rights) are
understood as imposing an obligation upon the
state to refrain from
interfering with the exercise of the right by citizens (the
so-called negative obligation or the duty
to respect). As this
Court has held, most notably perhaps in
Jaftha v Schoeman
,
35
social and economic rights are no different. The state bears a
duty to refrain from interfering with social and economic rights

just as it does with civil and political rights.
The primary question in
this case, though, is the extent of the state’s positive
obligation under section 27(1)(b) and section
27(2). This issue
has been addressed by this Court in at least two previous
decisions:
Grootboom
36
and
Treatment Action Campaign No 2.
37
In
Grootboom,
the Court had to consider whether section
26 (the right to housing)
38
entitles citizens to approach a court to claim a house from the
state. Such an interpretation of section 26 would imply a directly

enforceable obligation upon the state to provide every citizen with
a house immediately.
This Court concluded that
section 26 does not impose such an obligation. Instead, the Court
held that the scope of the positive
obligation imposed upon the
state by section 26 is carefully delineated by section 26(2).
39
Section 26(2) provides explicitly that the state must take
reasonable legislative and other measures progressively to realise

the right of access to adequate housing within available resources.
In
Treatment Action Campaign No 2
,
40
this Court repeated this in the context of section 27(1)(a),
the right of access to health care services:
“
We
therefore conclude that section 27(1) of the Constitution does not
give rise to a self-standing and independent positive
right
enforceable irrespective of the considerations mentioned in section
27(2). Sections 27(1) and 27(2) must be read together
as defining
the scope of the positive rights that everyone has and the
corresponding obligations on the State to ‘respect,
protect,
promote and fulfil’ such rights.”
41
Applying
this approach to section 27(1)(b), the right of access to
sufficient water, coupled with section 27(2), it is clear
that the
right does not require the state upon demand to provide every
person with sufficient water without more; rather it
requires the
state to take reasonable legislative and other measures
progressively to realise the achievement of the right
of access to
sufficient water, within available resources.
The applicants argued
that the Court should determine the content of the right in section
27(1)(b) by quantifying the amount
of water sufficient for
dignified life, and urged that the appropriate amount is 50 litres
per person per day. They further
contended that the Court should
hold that this is the content of the section 27(1)(b) right which
the Court should declare
and that the Court should then determine
whether the state acted reasonably in seeking to achieve the
progressive realisation
of this right.
This argument is similar
to that advanced in earlier cases in this Court asserting that
every social and economic right has
a minimum core, a basic content
which must be provided by the state. In international law, the
concept of “minimum core”
originates in General Comment 3
(1990) of the United Nations Committee on Economic, Social and
Cultural Rights where the Committee
stated that–
“
[it]
is of the view that a minimum core obligation to ensure the
satisfaction of, at the very least, minimum essential levels
of
each of the rights is incumbent upon every State party. Thus, for
example, a State party in which any significant number
of
individuals is deprived of essential foodstuffs, of essential
primary health care, of basic shelter and housing, or of the
most
basic forms of education, is prima facie, failing to discharge its
obligations under the Covenant.”
42
In
Grootboom
, this Court rejected the argument that the social
and economic rights in our Constitution contain a minimum core
which the
state is obliged to furnish, the content of which should
be determined by the courts. The Court reasoned as follows:
“
It
is not possible to determine the minimum threshold for the
progressive realisation of the right of access to adequate housing

without first identifying the needs and opportunities for the
enjoyment of such a right. These will vary according to factors

such as income, unemployment, availability of land and poverty.
The differences between city and rural communities will also

determine the needs and opportunities for the enjoyment of this
right. Variations ultimately depend on the economic and social

history and circumstances of a country. All this illustrates the
complexity of the task of determining a minimum core obligation
for
the progressive realisation of the right of access to adequate
housing without having the requisite information on the
needs and
the opportunities for the enjoyment of this right.”
43
In
Treatment Action
Campaign No 2
, as well, this Court refused to accept that
section 27 of the Constitution had a minimum core content. It
reasoned:
“
Although
Yacoob J indicated that evidence in a particular case may show that
there is a minimum core of a particular service
that should be
taken into account in determining whether measures adopted by the
State are reasonable, the socio-economic rights
of the Constitution
should not be construed as entitling everyone to demand that the
minimum core be provided to them
. Minimum core was thus treated
as possibly being relevant to reasonableness under section 26(2),
and not as a self-standing
right conferred on everyone under
section 26(1)
.”
(My emphasis) (Footnotes omitted.)
44
A
little further on the Court added:
“
Courts
are ill-suited to adjudicate upon issues where Court orders could
have multiple social and economic consequences for
the community.
The Constitution contemplates rather a restrained and focused role
for the Courts, namely, to require the State
to take measures to
meet its constitutional obligations and to subject the
reasonableness of these measures to evaluation.
Such
determinations of reasonableness may in fact have budgetary
implications, but are not in themselves directed at rearranging

budgets. In this way, the judicial, legislative and executive
functions achieve appropriate constitutional balance.”
45
The applicants’
argument that this Court should determine a quantity of water which
would constitute the content of the section
27(1)(b) right is, in
effect, an argument similar to a minimum core argument though it is
more extensive because it goes beyond
the minimum.
46
The applicants’ argument is that the proposed amount (50 litres
per person per day) is what is necessary for dignified human
life;
they expressly reject the notion that it is the minimum core
protection required by the right. Their argument is thus
that the
Court should adopt a quantified standard determining the content of
the right not merely its minimum content. The
argument must fail
for the same reasons that the minimum core argument failed in
Grootboom
and
Treatment Action Campaign No 2.
Those reasons are
essentially twofold. The first reason arises from the text of the
Constitution and the second from an understanding
of the proper
role of courts in our constitutional democracy. As appears from
the reasoning in both
Grootboom
and
Treatment Action
Campaign No 2
, section 27(1) and (2) of the Constitution must
be read together to delineate the scope of the positive obligation
to provide
access to sufficient water imposed upon the state. That
obligation requires the state to take reasonable legislative and
other
measures progressively to achieve the right of access to
sufficient water within available resources. It does not confer a

right to claim “sufficient water” from the state immediately.
As counsel for the
Minister argued this understanding of the scope of the positive
obligation borne by the state in terms of
section 27 is affirmed by
the duty of progressive realisation. The fact that the state must
take steps progressively to realise
the right implicitly recognises
that the right of access to sufficient water cannot be achieved
immediately. That the Constitution
should recognise this is not
surprising.
At the time the
Constitution was adopted, millions of South Africans did not have
access to the basic necessities of life, including
water. The
purpose of the constitutional entrenchment of social and economic
rights was thus to ensure that the state continue
to take
reasonable legislative and other measures progressively to achieve
the realisation of the rights to the basic necessities
of life. It
was not expected, nor could it have been, that the state would be
able to furnish citizens immediately with all
the basic necessities
of life. Social and economic rights empower citizens to demand of
the state that it acts reasonably
and progressively to ensure that
all enjoy the basic necessities of life. In so doing, the social
and economic rights enable
citizens to hold government to account
for the manner in which it seeks to pursue the achievement of
social and economic rights.
Moreover, what the right
requires will vary over time and context. Fixing a quantified
content might, in a rigid and counter-productive
manner, prevent an
analysis of context. The concept of reasonableness places context
at the centre of the enquiry and permits
an assessment of context
to determine whether a government programme is indeed reasonable.
Secondly, ordinarily it
is institutionally inappropriate for a court to determine precisely
what the achievement of any particular
social and economic right
entails and what steps government should take to ensure the
progressive realisation of the right.
This is a matter, in the
first place, for the legislature and executive, the institutions of
government best placed to investigate
social conditions in the
light of available budgets and to determine what targets are
achievable in relation to social and
economic rights. Indeed, it
is desirable as a matter of democratic accountability that they
should do so for it is their programmes
and promises that are
subjected to democratic popular choice.
Just as
Grootboom
illustrated that what would be required of the state to achieve
the right of access to adequate housing varies depending on

context,
47
this case illustrates that the obligation in relation to the right
of access to sufficient water will vary depending upon
circumstance. As emerges from research by the World Health
Organisation in 2003 to which two of the experts, Mr McLeod and
Mr
Palmer, referred, what constitutes sufficient water depends on the
manner in which water is supplied and the purposes for
which it is
used. Water can be supplied in a variety of ways, including
through reservoirs, boreholes, water trucks, neighbourhood
taps and
by piping it into houses. Even where the manner in which and the
purpose for which it is supplied are clear – as
in this case
where we know that in Phiri piped water is generally provided to
brick houses with water-borne sanitation –
the expert evidence on
the record provides numerous different answers to the question of
what constitutes “sufficient water”.
Courts are ill-placed to
make these assessments for both institutional and democratic
reasons.
In
Grootboom
and
Treatment Action Campaign No 2
,
the focus of the
Court’s reasoning was whether the challenged government policies
were reasonable. In both cases the Court
identified deficiencies
which rendered the policies unreasonable. In determining an
appropriate remedy in each case, the Court
took care not to draft
policies of its own and impose them on government. So, in
Grootboom
, the Court did not order that each applicant be
provided with a house, but required government to revise its
housing programme
to include “reasonable measures . . . to
provide relief for people who have no access to land, no roof over
their heads,
and who are living in intolerable conditions or crisis
situations.”
48
In
Treatment Action Campaign No 2
,
the Court did order
the government to make Nevirapine available at clinics subject to
certain conditions. But it did so because
government itself had
decided to make Nevirapine available, though on a restricted basis,
and the Court found that there was
no reasonable ground for that
restricted basis. Moreover Nevirapine was, at least for a period,
being made freely available
to government by its manufacturer. In
a sense, then, all the Court did was to render the existing
government policy available
to all. However, the Court made it
expressly clear that government might revise and amend its policies
if it needed to do
so. Thus, the Court expressly provided that its
order did not “preclude government from adapting its policy in a
manner
consistent with the Constitution if equally appropriate or
better methods become available to it for the prevention of
mother-to-child
transmission of HIV.”
49
The
orders made in these two cases illustrate the Court’s
institutional respect for the policy-making function of the two

other arms of government. The Court did not seek to draft policy
or to determine its content. Instead, having found that
the policy
adopted by government did not meet the required constitutional
standard of reasonableness, the Court, in
Grootboom
,
required government to revise its policy to provide for those most
in need and, in
Treatment Action Campaign No 2
, to remove
anomalous restrictions.
The Constitution
envisages that legislative and other measures will be the primary
instrument for the achievement of social
and economic rights. Thus
it places a positive obligation upon the state to respond to the
basic social and economic needs
of the people by adopting
reasonable legislative and other measures. By adopting such
measures, the rights set out in the
Constitution acquire content,
and that content is subject to the constitutional standard of
reasonableness.
Thus the positive
obligations imposed upon government by the social and economic
rights in our Constitution will be enforced
by courts in at least
the following ways. If government takes no steps to realise the
rights, the courts will require government
to take steps. If
government’s adopted measures are unreasonable, the courts will
similarly require that they be reviewed
so as to meet the
constitutional standard of reasonableness. From
Grootboom,
it
is clear that a measure will be unreasonable if it makes no
provision for those most desperately in need. If government adopts

a policy with unreasonable limitations or exclusions, as in
Treatment Action Campaign No
2, the Court may order that
those are removed. Finally, the obligation of progressive
realisation imposes a duty upon government
continually to review
its policies to ensure that the achievement of the right is
progressively realised.
These considerations
were overlooked by the High Court and the Supreme Court of Appeal
which, without first considering the
content of the obligation
imposed upon the state by section 27(1)(b) and 27(2), found it
appropriate to quantify the content
of the right, despite the
jurisprudence of
Grootboom
and
Treatment Action Campaign
No 2.
In my view, they erred in this approach and the
applicants’ argument that the Court should set 50 litres per
person per day
as the content of the section 27(1)(b) right must
fail.
The relevance of
regulation 3(b) of the National Water Standards Regulations
As mentioned above,
50
section 9 of the Water Services Act empowers the Minister to
prescribe compulsory national standards for the provision of water

services. “Basic water supply” is defined in section 1 of the
Act as “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.” In regulation 3(b) of the
National Water Standards Regulations,
51
the Minister determined the minimum standard for basic water supply
services as 25 litres per person per day or 6 kilolitres
per
household per month. It is this minimum standard for basic water
supply that is the basis of the policy adopted by the
City and
Johannesburg Water.
National government
should set the targets it wishes to achieve in respect of social
and economic rights clearly. That is consistent
with the founding
values of our Constitution: government should be accountable,
responsive and open.
52
The minimum standard set by the Minister informs citizens of what
government is seeking to achieve. In so doing, it enables
citizens
to monitor government’s performance and to hold it accountable
politically if the standard is not achieved. This
also empowers
citizens to hold government accountable through legal challenge if
the standard set is unreasonable.
A reasonableness
challenge requires government to explain the choices it has made.
To do so, it must provide the information
it has considered and the
process it has followed to determine its policy. This case
provides an excellent example of government
doing just that.
Although the applicants complained about the volume of material
lodged by the City and Johannesburg Water
in particular, which
covered all aspects of the formulation of the City’s water
policy, the disclosure of such information
points to the
substantial importance of litigation concerning social and economic
rights. If the process followed by government
is flawed or the
information gathered is obviously inadequate or incomplete,
appropriate relief may be sought. In this way,
the social and
economic rights entrenched in our Constitution may contribute to
the deepening of democracy. They enable citizens
to hold
government accountable not only through the ballot box but also, in
a different way, through litigation.
Thus,
if the applicants contend that the amount determined in regulation
3(b) is unreasonable, they are entitled to challenge
the regulation
directly. The applicants did at the outset challenge the
regulation, but when the High Court (on the basis
of a concession
by the Minister) held that the regulation constituted a
minimum
standard for basic water supply, they did not persist with their
challenge.
Having abandoned the
challenge, the question arises whether the applicants are
nevertheless entitled to challenge the City’s
Free Basic Water
policy that is self-evidently based on the minimum water standards
set by the Minister. The answer to this
raises the difficult
question of the principle of constitutional subsidiarity.
53
This Court has repeatedly held that where legislation has been
enacted to give effect to a right, a litigant should rely on
that
legislation in order to give effect to the right or alternatively
challenge the legislation as being inconsistent with
the
Constitution.
54
Does the subsidiarity
principle apply here? It may not. The constitutional obligation
imposed upon government by section 27(2)
is to take reasonable
legislative and other measures to achieve the right. If national
government legislates for a national
minimum, do other steps taken
by other levels of government escape scrutiny as long as they
comply with the national minimum,
despite the fact that other
spheres of government share the obligation to take reasonable
steps? What national government
has done is legislated a minimum.
Does that mean that a municipality that has, for example, easily
within its resources supplied
that minimum to all, automatically
acted reasonably? I am not sure that it does. However, given the
conclusion I reach below,
that the City’s policy is in any event
not unreasonable, it is not necessary to decide this question now.
It can stand over
for another day.
Neither the High Court
nor the Supreme Court of Appeal considered the principle of
subsidiarity fully. They held that because
regulation 3(b) is a
minimum and does not seek to cover the field entirely, a challenge
to the reasonableness of the City’s
conduct was competent.
There can be no doubt
that if the High Court and the Supreme Court of Appeal are correct
and that a challenge to reasonableness
still lies, it will in most
circumstances be difficult for an applicant who does not challenge
the minimum standard set by
the legislature or the executive for
the achievement of social and economic rights to establish that a
policy based on that
prescribed standard is unreasonable. In most
circumstances it will be reasonable for municipalities and
provinces to strive
first to achieve the prescribed (and, in the
absence of a challenge, presumptively reasonable) minimum standard,
before being
required to go beyond that minimum standard for those
to whom the minimum is already being supplied. This is consistent
with
this Court’s jurisprudence in
Grootboom
where the
Court held that a government policy may not ignore the needs of the
most vulnerable.
55
I now turn to the
question of whether the City’s policy is unreasonable.
The reasonableness of
the City’s Free Basic Water policy
It will be useful here to
set out the City’s policy at the time of the High Court hearing
in December 2007. I have chosen
the policy at that date because
that is the date upon which its lawfulness and reasonableness was
determined by the High Court.
It is clear that the policy
(particularly in relation to additional benefits afforded to poor
households) has been evolving
over several years and is no longer
the same. It will be helpful to start by setting out section 3 of
the City’s Water Services
By-laws, 2003:
“
(1) The
Council may provide the various levels of service set out in
subsection (2) to consumers at the fees set out
in the
schedule of fees, determined by the Council.
(2) The
levels of service shall comprise–
(a) Service Level 1,
which must satisfy the
minimum standard for basic water supply and sanitation services
as required in terms of the Act
and its applicable regulations,
and must consist of–
(i) a water supply
from communal water points; and
(ii) a ventilated
improved pit latrine located on each site;
and
(b) Service Level 2,
which must consist of–
(i) an unmetered
water connection to each stand with an individual yard
standpipe;
(ii) a water borne
connection connected to either a municipal sewer or a shallow
communal sewer system; and
(iii) a pour flush
toilet which must not be directly connected to the water
installation;
which service must be
provided to consumer at the fees set out in the schedule of fees
determined by the Council, provided
that–
(aa) the average
water consumption per stand through the unmetered water
connection for the zone or group of consumers
in the zone
does not exceed 6kl over any 30 day period;
(bb) the water
standpipe is not connected to any other terminal water
fittings on the premises;
(cc) in the case of
a communal sewer having been installed, a collective
agreement has been signed by the group
of consumers accepting
responsibility for the maintenance and repair of the communal
sewer; and
(dd) the Council
may adopt any measures necessary to restrict the water flow
to Service Level 2 consumers to 6kl
per month.
(c) Service Level 3,
which must consist of–
(i) a metered full
pressure water connection to each stand; and
(ii) a conventional
water borne drainage installation connected to the Council’s
sewer.
(3)
If a consumer receiving Service Level 2 contravenes subparagraph
(aa) or (bb) to subsection (2)(b)–
(a) the Council may
install a prepayment meter in the service pipe on the premises;
and
(b) the fees for water
services must be applied in accordance with section 6.
(4) The
level of service to be provided to a community may be established
in accordance with the policy of the Council and
subject to the
conditions determined by the Council.”
From
this it can be seen that the City has three different levels of
water provision: Service Level 1 provides for communal
taps;
Service Level 2 for yard standpipes; and Service Level 3 for
metered connection services. At Service Level 1, consumers
do not
pay for water at all. At Service Level 2, consumers pay a fixed
fee. At Service Level 3, where consumers are metered
for their
usage, they pay according to their usage. The City strives, by
regulating the water flow, to ensure that yard standpipes
provided
under Service Level 2 do not deliver more than 6 kilolitres of
water per month. Every consumer in the City, whether
rich or poor,
who has a metered connection services gets the first 6 kilolitres
of water free per month and must pay for water
used in excess of
that amount.
There are two types of
meters: credit meters and pre-paid meters. Pre-paid meters are
only available in some areas, most notably
Soweto, including Phiri,
and consumers in those areas do not have a choice of a credit meter
(although they do have a choice
of yard standpipes). Similarly, as
I shall describe in greater detail later, credit-meter consumers do
not have the choice
to install pre-paid meters. The tariff is
determined according to a rising block tariff structure so that the
more water used,
the higher the per kilolitre tariff. The tariff
structure also provides for credit meter users to be charged more
than pre-paid
meter users. The effect of the tariff structure is
that heavy users of water cross-subsidise those who use less water.
In addition to the 6
kilolitres monthly provided free of charge, accountholders whose
households have a combined household income
of less than twice the
highest national government social grant plus R1 (R1 881)
56
are entitled to register on the City’s indigent register. To be
registered, accountholders must accept the installation
of pre-paid
electricity and water meters in their homes (where available). The
effect of registration is that all arrears
owed to the City are
written off. From July 2007, those on the register were also
entitled to an additional 4 free kilolitres
of water monthly
(making a total of 10 free kilolitres). However, at the time the
answering affidavits were lodged in January
2007 only 118 000
households had registered as indigent households, despite at least
500 000 households apparently being eligible
in the light of the
income figures captured in Census 2001. All households with
pre-paid meters were eligible for a single
allocation annually of 4
kilolitres of water for emergency use.
The applicants argue that
the policy is unreasonable. They identify the following
considerations as supporting this submission:
the fact that 6
kilolitres per month is allocated to both rich and poor; the fact
that the amount is allocated per stand rather
than per person; the
fact that the 6 kilolitre free water policy was based on a
misconception in that the City did not consider
that it was bound
to provide any free water to citizens; that the 6 kilolitre amount
is insufficient for large households and
finally that the 6
kilolitre amount is inflexible.
Rich and Poor
The first question is
whether it is unreasonable for the City to provide the 6 kilolitres
of free water to rich and poor alike.
The City asserts that the
fact that the benefit is afforded to all is reasonable for two
reasons. First, it asserts that
the rising block tariff structure
means that wealthier consumers, who tend to use more water, are
charged more for their heavier
water usage. The effect of this is
that the original 6 kilolitres that is provided free is
counterweighed by the extent to
which heavy water users
cross-subsidise the free allocation. Secondly, the City points to
the difficulty of establishing a
method to target those households
who are deserving of free water. This is a matter to which I
return in a moment.
57
In my view, these reasons are persuasive and rebut the charge of
unreasonableness on this ground.
Per household versus
per person allowance
Secondly, the applicants
argue that the policy is unreasonable because it is formulated as 6
kilolitres per household (or accountholder)
rather than as a per
person allowance. Again the City presents cogent evidence that it
is difficult to establish how many
people are living on one stand
at any given time; and that it is therefore unable to base the
policy on a per person allocation.
This evidence seems
indisputable. The continual movement of people within the city
means that it would be an enormous administrative
burden, if
possible at all, for the City to determine the number of people on
any given stand sufficiently regularly to supply
a per person daily
allowance. The applicants’ argument on this basis too must fail.
Policy based on a
misconception
The third argument, which
the Supreme Court of Appeal upheld, is that the policy is
unreasonable because the City considered
that it was not under an
obligation to provide a specified amount of free basic water. What
is clear from the discussion above
is that the City is not under a
constitutional obligation to provide any
particular
amount
of free water to citizens per month. It is under a duty to take
reasonable measures progressively to realise the achievement
of the
right. This the City accepts. The City is bound as a water
service provider by the provisions of the National Water
Standards
Regulations
58
and the Tariff Regulations,
59
both promulgated in terms of the Water Services Act but it cannot
be said it has acted inconsistently with these regulations.
It
cannot be said therefore that the policy of the City was based on a
misconception as to its constitutional obligations,
and I am unable
to endorse the reasoning of the Supreme Court of Appeal in this
regard. The applicants’ argument on this
score must also fail.
Insufficient for large
households
The fourth argument is
that the 6 kilolitres per month per household is not sufficient in
that it does not provide 50 litres
per person per day across the
board. There is a welter of evidence on the record indicating that
household sizes in Johannesburg
vary markedly. According to the
2001 Census there are one million households in the City. Of those
households, 51% have a
household income lower than R1 600 per
month. What is clear is that in general the number of people per
household is dropping,
and the number of households is increasing
sharply. The 2001 Census showed a decline in household density
from 3,8 people
per household in 1996 to 3,2 in 2001.
60
The same period saw a 38,3% increase in the number of households.
In addition, in 2001 only 20% of households had more than
four
people in them and only 2,5% of households more than nine.
The picture is further
complicated, however, by the fact that there is often more than one
household relying on one water connection.
This is especially so
in townships where there is still an acute housing shortage, a
legacy of apartheid urbanisation policy.
Stand-holders permit
tenants to erect homes in their backyards, normally against payment
of rental. So, for example, the
2001 Census data showed there to
be 2,1 houses per stand in Phiri with an average 8,8 people per
stand. In some cases, there
are far more people per stand. As we
have seen, Mrs Mazibuko’s household at the time of the launch of
the proceedings, for
example, comprised three separate households
with a total of 20 residents. Two of those households paid Mrs
Mazibuko low monthly
rentals. On the other hand, there were only
three residents on the stand of Mrs Malekutu, the fourth applicant.
What emerges
from the record, thus, is that although the average
household size is quite low, the variation in the number of
occupants per
water connection is significant. There are many
water connections where there is only one resident, but there are
some with
as many as 20.
Where the household size
is average, that is 3,2 people,
61
the free basic water allowance will provide approximately 60 litres
per person per day, considerably in excess of the amount
the
applicants urge us to establish as the sufficient amount of water
as contemplated by section 27 of the Constitution. The
difficulty
is that many households are larger than the average, particularly
where there is more than one family or house on
a stand as is the
case in Phiri and many other poor areas. Yet, to raise the free
basic water allowance for all so that it
would be sufficient to
cover those stands with many residents would be expensive and
inequitable, for it would disproportionately
benefit stands with
fewer residents.
Establishing a fixed
amount per stand will inevitably result in unevenness because those
stands with more inhabitants will have
less water per person than
those stands with fewer people. This is an unavoidable result of
establishing a universal allocation.
Yet it seems clear on the
City’s evidence that to establish a universal per person
allowance would administratively be extremely
burdensome and
costly, if possible at all. The free basic water allowance
established is generous in relation to the average
household size
in Johannesburg. Indeed, in relation to 80% of households (with
four occupants or fewer), the allowance is
adequate even on the
applicants’ case. In the light of this evidence, coupled with
the fact that the amount provided by
the City was based on the
prescribed national standard for basic water supply, it cannot be
said that the amount established
by the City was unreasonable.
Inflexibility of the
policy
The final argument raised
by the applicants is that the quantity selected by the City was
inflexible in that it did not, at
least originally, provide for any
individualised variation to avoid the hardship that larger
households or households with
special needs might face in the light
of the fixed free basic water allocation.
The City’s Free Basic
Water policy was introduced in 2001. At the time it was one of
only two municipalities in South Africa
to have this kind of policy
(the other being eThekwini Municipality). In 2002, the City
introduced a Special Cases policy
which provided relief to poor
households in respect of refuse and sanitation charges, but such
households had to apply for
the relief, and the Special Cases
policy did not provide a larger free water allocation. Mr Seedat,
the Director of the Central
Strategy Unit within the Office of the
Executive Mayor of the City, describes the administrative
difficulties that arose with
the Special Cases policy and points to
the fact that by 2004 only 30 000 of an estimated 150 000
eligible households had
applied to be registered under it.
In response to the
difficulties with the policy, it was revised in October 2005 and
renamed the Indigent Persons policy. This
revision was seen as a
short-term interim measure until a revised social package policy
could be devised. In terms of the
Indigent Persons policy, all
arrear debt was written off, but registered households had to
accept pre-paid electricity and
water meters. At the time the
answering affidavits were lodged, 118 000 households had registered
under the policy.
Initially, indigent
households were not afforded a further free water allocation under
the new policy although the extension
of the free water allocation
to 10 kilolitres per month for registered indigent households
was under discussion. On 6 December
2006, five months after
the applicants launched their challenge, the City Mayoral Committee
adopted interim measures to take
effect from March 2007. In terms
of the measures, registered indigent households would receive an
additional 4 kilolitres
of free water per month. The
applicants acknowledge that those registered as indigent households
received the additional 4 kilolitre
allocation from July 2007.
The Constitution requires
that the state adopt reasonable measures progressively to realise
the right of access to sufficient
water. Although the free water
policy did not contain any provision for flexibility when it was
introduced in 2001, the record
makes plain that the City was
continually reconsidering its policy and investigating ways to
ensure that the poorest inhabitants
of the City gained access not
only to water, but also to other services, such as electricity,
sanitation and refuse removal.
The extremely informative and
candid answering affidavits lodged by the City make it plain that
for the City the task was
a challenging one, both administratively
and financially.
If the City had not
continued to review and refine its Free Basic Water policy after it
was introduced in 2001, and had taken
no steps to ensure that the
poorest households were able to obtain an additional allocation, it
may well have been concluded
that the policy was inflexible and
therefore unreasonable. This would have been so, in particular,
given the evidence that
poorer households are also often larger
than average and thus most prejudiced by the 6 kilolitre cap.
However, the City
has not set its policy in stone. Instead, it has
engaged in considerable research and continually refined its
policies in
the light of the findings of its research.
It may well be, as the
applicants urge, that the City’s comprehensive and persistent
engagement has been spurred by the litigation
in this case. If
that is so, it is not something to deplore. If one of the key
goals of the entrenchment of social and economic
rights is to
ensure that government is responsive and accountable to citizens
through both the ballot box and litigation, then
that goal will be
served when a government respondent takes steps in response to
litigation to ensure that the measures it
adopts are reasonable,
within the meaning of the Constitution. The litigation will in
that event have attained at least some
of what it sought to
achieve.
What is clear from the
conduct of the City is that it has progressively sought to increase
access to water for larger households
who are prejudiced by the 6
kilolitre limit. It has continued to review its policy regularly
and undertaken sophisticated
research to seek to ensure that it
meets the needs of the poor within the city. It cannot therefore
be said that the policy
adopted by the City was inflexible, and the
applicants’ argument on this score too must fail.
Indigent registration
policy
The applicants also
challenge the reasonableness of the City’s indigent registration
policy on two main grounds: the first
is that it is demeaning for
citizens to have to register as indigents; and the second is that
because only approximately one fifth
of the households who are
eligible to register are registered, the policy is unreasonable
because it is under-inclusive.
Mr Seedat described how
the City has grappled with the question as to whether the provision
of services should be on a universally
available basis or on a
means-tested basis. His affidavit neatly captures the advantages
and disadvantages of both systems:
“
There
are therefore two broad approaches to administering the current
social package. One approach – a so-called universalist
approach
– gives benefits to all households regardless of income. This
approach is easy (and therefore cheaper) to administer,
but it has
the disadvantage of not being targeted only at poor households.
Wealthy households that do not really need subsidies
also benefit.
The second approach – a so-called means testing approach –
evaluates whether applicants do or don’t have
the means to pay
for a service. This approach targets the benefit effectively
towards poor households, but it also has some
disadvantages. One
disadvantage is that it asks poor households to present themselves
to the City as poor. This is often
regarded as undignified, and it
results in a situation where many potential beneficiaries prefer
not to come forward. Another
disadvantage is that means testing is
extremely onerous administratively. The system is expensive to
run. It is time consuming.
It is open to fraud. And it also
requires that the City has the ability to check whether the
applicants’ statement of income
is correct or not, and keep this
information continuously updated. The City must constantly make
difficult decisions between
systems which while more suitable, are
prohibitively expensive to run and those that, while imperfect, are
more cost-effective.”
This
affidavit illustrates the dilemma faced by the City: a universalist
approach is administratively simple and therefore cheap
but it
provides benefits to those who do not need them (something the
applicants complain about); the alternative is a means-testing

approach which requires citizens to apply and to prove that they
are poor. This approach, while beneficial because it targets
those
most in need, may be under-inclusive because the application
procedure is cumbersome or because citizens are unaware
of it, or
because they are unwilling to identify themselves as poor. The
applicants attack both the universalist policy and
the
means-testing policy for the very reasons given by Mr Seedat.
Their attack on the universalist policy has been dealt with
above.
62
I now deal with the challenge to the means-testing policy.
Although a means-tested
policy requires citizens to apply for benefits and so disclose that
they are poor, to hold a means-tested
policy to be constitutionally
impermissible would deprive government of a key methodology for
ensuring that government services
target those most in need.
Indeed, nearly all social security benefits afforded by the
national government are based on means-testing.
If means-testing
were to be found to be unconstitutional, government would only be
permitted to afford social grants on a
universal basis. Such a
result would be costly and have the result that those who do not
need social benefits would receive
them. Means-testing may not be
a perfect methodology because it is under-inclusive, as Mr Seedat
acknowledged, and it may
be that those who apply for means-tested
benefits dislike doing so, but these considerations must yield to
the indisputably
laudable purpose served by means-testing: it seeks
to ensure that those most in need benefit from government services.
In
their affidavits, the applicants proposed no third way as an
alternative to the provision of universal benefits or means-tested

benefits. Nor did their counsel propose one in Court.
What is clear is that the
City recognises the dilemma posed by both a universalist policy and
a means-tested one. The dilemma
is not readily solved. The City
continues to review and revise its policy in the light of its
administrative experience and
information gained from research. In
so doing, it cannot be said that the policy as formulated at the
time this matter was
heard by the High Court was unreasonable. The
applicants’ argument in this regard must fail.
Exemption procedure
under section 118 of the City’s Water Services By-laws
In the light of the
conclusion to which I have come in relation to the challenge to the
City’s Free Basic Water policy, it
is not necessary to consider
whether the applicants had to lodge an application for an exemption
in terms of section 118 before
launching this litigation.
63
I turn now to the second
main issue in the case, the installation of the pre-paid water
meters.
Installation of
pre-paid water meters
The applicants argue that
the installation of the pre-paid water meters was unlawful on the
following grounds–
(a) the installation of
the pre-paid water meters by the first and second respondents was
not authorised by any law;
(b) pre-paid water meters
are unlawful because they result in unauthorised cut-offs in terms
of section 4(3) of the Water Services
Act or sections 9C and 11 of
the By-laws; and
(c) the manner in which
the pre-paid water meters were introduced was unlawful on one or
more of the following grounds–
(i) they were introduced
by unlawful threat;
(ii) they were introduced
by an unfair process (in this regard we will need to consider
whether the introduction of the meters
constituted administrative
action as contemplated by the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) and whether
the consultation provisions in the
Local Government: Municipal Systems Act 32 of 2000 (the Systems
Act) take precedence over
PAJA’s section 4 procedures);
(iii) their
introduction violated the duty to “respect” the right of access
to water in section 27(1) of the Constitution;
(iv) their
introduction violated the duty to take reasonable measures to
achieve the right of access to sufficient water
(in this regard, we
will need to consider whether the introduction constituted a
retrogressive measure, or whether it impacted
disproportionately on
the most desperate);
(v) their
introduction violated the right to equality in section 9(1) of the
Constitution (i.e. the introduction of water
meters results in
differentiation that does not have a rational connection to a
legitimate government purpose); and
(vi)  their
introduction violated the prohibition on unfair discrimination in
section 9(3) of the Constitution (here too
the question arises
whether the applicants should have relied on the Equality Act
64
and not directly on the Constitution).
Legal authority to
install pre-paid meters
The applicants argued
that there was no authority in law for the introduction of pre-paid
water meters in Phiri. In answer,
the respondents point to the
City’s Water Services By-laws. Section 3 of the By-laws is the
key provision which provides
for different levels of water
service.
65
It is clear, as we have
seen above, that section 3(2) establishes three different levels of
service provision. Each of the
three levels of service provides
for a package of water and sanitation services. The first level is
the most basic and consists
of a communal tap and communal
ventilated pit latrines; the second level is a yard standpipe and a
sewer connection or shallow
communal sewer system with a pour-flush
toilet; and the third level is a full metered water connection on
each stand and a
conventional water-borne sewerage system. Section
3(3) is the only provision that expressly mentions pre-paid meters
and does
so to provide that in certain circumstances they may be
extended to Service Level 2 customers.
The applicants (relying
on the reasoning of the Supreme Court of Appeal) contend that
because it is only section 3(3) that expressly
mentions pre-paid
meters, the only circumstances in which a pre-paid meter system may
be installed are those mentioned in that
section (i.e. where a
consumer receiving Service Level 2 services contravenes the
prescribed conditions). The respondents
argue to the contrary that
when section 3(2)(c)(i) refers to a “metered full pressure water
connection”, it refers to both
credit meters and pre-paid meters
and that pre-paid meters are therefore authorised by section
3(2)(c)(i).
The interpretation
proposed by the respondents is textually permissible and is, in my
view, fortified by four further considerations.
The first is that
section 3(3) creates a hybrid service level for Service Level 2
customers who default, by providing that
they may have pre-paid
meters installed but continue only to receive the level of
sanitation contemplated in section 3(2)(b)(ii)
and (iii). Section
3(3) therefore is not concerned with section 3(2)(c) at all, but
only with the conditions in section 3(2)(b).
If it were not for
section 3(3), the City might not be permitted to install pre-paid
meters for Service Level 2 customers
because Service Level 2 is
defined in a manner that does not include metering. Understanding
section 3(3) in this way makes
it plain that it does not have any
direct effect at all on the proper interpretation of section
3(2)(c)(i) or the question
whether that by-law authorises the
installation of pre-paid meters.
A second consideration is
that section 95(i) of the Systems Act expressly requires local
government to provide accessible pay
points for “settling
accounts or for making pre-payments for services”.
66
The statute thus clearly contemplates that all municipalities
shall have the authority to establish pre-paid systems for the

provision of services. Given that one of the primary
constitutional objects of municipalities is to ensure the provision
of services to communities in a sustainable manner
67
and that section 95 of the Systems Act requires local government to
provide for pay points for pre-payments, the installation
of
pre-payment meters to obtain payment against the provision of water
services seems implicitly conferred by the Systems Act.
What is more, section
8(2) of the Systems Act stipulates that a “municipality has the
right to do anything reasonably necessary
for, or incidental to,
the effective performance of its functions and the exercise of its
powers”. This provision echoes
the language of section 156(5) of
the Constitution which likewise provides that municipalities have
the right to exercise any
power reasonably necessary for, or
incidental to, the effective performance of their functions.
68
Given that the power to install pre-paid meters is one which is
reasonably incidental to providing services to citizens in
a
sustainable manner that permits cost recovery, it is a power that
is reasonably incidental to the effective performance of
the
functions of a municipality. To the extent that the text of
section 3 of the City’s Water Services By-laws can be read
in a
manner that results in the City having that power, that
interpretation seems constitutionally appropriate in ensuring
that
the City has the powers that are reasonably necessary for, or
incidental to, the performance of its functions.
Thirdly, the installation
of pre-paid meters is (so the record makes plain) an expensive and
technically complex exercise.
It seems improbable that the By-laws
are premised on their use only in the relatively narrow
circumstances of section 3(3).
The fourth consideration that
bolsters this approach is also textual. “Meter” is defined in
the By-laws as “a water
meter” and a “pre-payment meter” is
in turn defined as a “meter that can be programmed to limit the
flow of water into
a water installation to the amount which has
been previously purchased”. These definitions make plain that
when section
3(2)(c)(i) refers to “meter” that, purely
definitionally, includes a pre-payment meter.
The Supreme Court of
Appeal adopted a different interpretation. In endorsing the
applicants’ interpretation of section 3(2),
the Supreme Court of
Appeal relied upon two considerations. The first was section 7 of
the City’s Water Services By-laws
which requires consumers who
apply for water services to pay a deposit calculated on the basis
of the estimate of the cost
of two months’ water services. This,
the Supreme Court of Appeal reasoned, indicates that the By-laws do
not contemplate
pre-paid meters at all because it would not be
necessary for pre-paid meter users to pay a deposit, and indeed,
the City does
not require deposits when pre-paid meters are
installed.
69
I accept that the By-laws could have been drafted more clearly to
provide that deposits are not required from consumers who
receive a
pre-paid service. It does not follow from the fact that they were
not so drafted that the City may not install pre-paid
meters at
all.
Secondly, the Supreme
Court of Appeal pointed to the anomaly arising out of the
provisions of section 4(3) of the Water Services
Act,
70
a matter I turn to in the next section of this judgment. Although
I accept that the By-laws could be more clearly drafted,
the
anomalies identified by the Supreme Court of Appeal are not
sufficient to outweigh the considerations I have mentioned
in
reaching the conclusion I have on the proper interpretation of the
By-laws. For these reasons, therefore, the interpretation
of
section 3(2)(c)(i) of the City’s Water Services By-laws proposed
by the respondents is to be preferred to that proposed
by the
applicants and adopted by the Supreme Court of Appeal.
Do pre-paid meters
result in unauthorised discontinuation of water supply?
The applicants argued
that pre-paid meters result in the unauthorised discontinuation of
water supply. They rely on section
4 of the Water Services Act for
this contention. Section 4(1) provides that water service
providers must set the conditions
for the provision of water
services and section 4(2)(c)(iv) requires those conditions to
provide for the limitation or discontinuation
of water services.
See Section 21(1)(f) of the Water Services Act contains a similar
requirement.
71
Section 4(3) then provides:
“
Procedures
for the limitation or discontinuation of water services must–
(a) be fair and
equitable;
(b) provide for
reasonable notice of intention to limit or discontinue water
services and for an opportunity to make
representations, unless–
(i) other consumers
would be prejudiced;
(ii) there is an
emergency situation; or
(iii) the consumer
has interfered with a limited or discontinued service; and
(c) 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.”
The
City has adopted Water Services By-laws as required by section 4
and section 21 of the Water Services Act. Section 11 of
the City’s
Water Services By-laws deals with the conditions for the limitation
or discontinuation of water services.
72
Section 11(1)(b) provides that water services may be limited or
discontinued if the agreement for the provision of services
has
been terminated. The By-laws are quite clearly directed at the
circumstances in which an accountholder with a credit meter
has
failed to pay amounts owing. Section 9C provides for final notice
to be given to the customer and an opportunity to make

representations, followed by the discontinuation of the water
supply.
73
If the customer can establish that he or she is indigent, the
customer will continue to be provided with a basic water supply
(6
kilolitres per month) but any water beyond that amount will have to
be paid for by the customer.
74
The By-laws dealing with limitation and discontinuation of water
supply do not deal with this situation. They provide for
the
permanent discontinuation or limitation of the water supply to
customers with credit meters. They are not concerned with
the
suspension of water supply when a customer needs to purchase more
credit to maintain the water supply through a pre paid
meter.
The applicants argue that
the By-laws do not provide for the protections contemplated in
section 4(3) of the Water Services
Act in circumstances where a
water supply is interrupted since a pre-paid meter suspends the
provision of water to a customer
until that customer purchases
additional credit. It is clear that the By-laws do not expressly
do so. The applicants argue
that the consequence is that the
installation of the meters is invalid. I am not sure that this is
correct. It may be that
if the applicants are correct that the
By-laws do not provide protections required by section 4(3) in
relation to the suspension
of services when credit runs out on a
pre-paid meter, this might found a challenge to the By-laws for
failing to provide for
the protections contemplated in section
4(3). Even if their argument is correct, it is not obvious that
the result would be
that the installation of pre-paid meters itself
is unlawful, particularly given the conclusion above that the City
has the
power to introduce a pre-paid meter system.
Be that as it may, the
first question is whether, when section 4(3) speaks of “the
limitation or discontinuation of water
services”, it refers to
the suspension of water services that occurs when the free basic
water allowance runs out and a customer
does not top up the
pre-paid meter by purchasing credit.
The respondents argue
that the suspension of water supply under a pre-paid credit meter
system is not a discontinuation of a
water supply within the
meaning of section 4(3) of the Water Services Act. To determine
what is meant by “discontinuation”
in section 4(3), we need
first to consider what the word itself means, and then consider
that meaning in the light of the purpose
of section 4(3).
The ordinary meaning of
“discontinuation” is that something is made to cease to exist.
75
The water supply does not cease to exist when a pre-paid meter
temporarily stops the supply of water. It is suspended until

either the customer purchases further credit or the new month
commences with a new monthly basic water supply whereupon the
water
supply recommences. It is better understood as a temporary
suspension in supply, not a discontinuation.
The purpose of section
4(3) of the Water Services Act is to ensure that where a water
service is limited or discontinued, that
it will be done in a fair
and equitable manner, that reasonable notice and an opportunity to
be heard will be provided for,
and finally that the discontinuation
will not result in an indigent person being denied access to basic
water services. The
national minimum for basic water services is
prescribed as contemplated in the Act by regulation 3(b) of the
National Water
Standards Regulations, discussed above. That amount
is 6 kilolitres per household per month. In Johannesburg, under
the City’s
Free Basic Water policy, the suspension of water
services under a pre-paid system never results in indigent
customers being
denied access to basic water services which are
supplied each month regardless of whether a customer topped up the
water service
during the previous month or not.
Could section 4(3) mean
that every time a water supply, provided through a pre-paid meter
is about to be suspended because the
credit purchased for the water
supply is at its end, reasonable notice and an opportunity to be
heard must be provided to the
relevant customer by the
municipality? This would, in my view, have a result that borders
on the absurd. It would require
the municipality to give advance
notice and an opportunity to be heard, possibly several times a
month or more to every person
who has a pre-paid meter installed.
For there is no reason why the reasonable notice should only apply
when the suspension
of the service arises because the basic water
supply has been exhausted. On the applicants’ argument it would
arise every
time the pre-paid water allowance has been consumed and
it is time to purchase a further allocation.
A right to be heard is
provided for when a person’s rights are materially affected. A
customer in Johannesburg who has a
pre-paid water meter understands
that the water meter will provide a certain quantity of water which
may be exhausted; and
that, at the latest then, the customer should
purchase new credit to recommence the water supply or wait for the
beginning
of a new month. To require the City to provide notice
and an opportunity to be heard each time a pre-paid allowance is
about
to expire, as the applicants contend, would be
administratively unsustainable and in most cases serve no useful
purpose. It
is an interpretation of section 4(3) that could not
have been intended.
Accordingly, I conclude,
in the light of the purpose of section 4(3) coupled with the
ordinary meaning of “discontinuation”,
that section 4(3)
regulates the circumstances where a water service provider intends
to implement a permanent discontinuation
or limitation of the water
service. It does not apply to a discontinuation or limitation that
may be undone by the purchase
of pre-payment vouchers or the
renewal of the basic water supply at the end of every month.
Section 4(3) is thus not directed
at the suspension in water
services that occurs when either the monthly basic water supply has
been exhausted or when the water
purchased on credit has been used
up.
Was the introduction
of pre-paid meters unlawful on other grounds?
(a) Unlawful threat?
When the City abolished
the “deemed consumption” system of water service, it offered
residents of Phiri a choice of either
Service Level 2 (a yard
standpipe with a restricted flow) or Service Level 3 with a
pre-paid meter. Residents who did not
accept either of these
service levels were to be left without any water supply at all.
The applicants argue that the City
therefore required residents to
choose between Service Level 2 or 3 at the same time as unlawfully
threatening to terminate
their water supply.
Any resident of the City
who wishes the City to provide them with a water service is limited
to the options the City offers.
As long as those options are
lawful, it cannot be said that by limiting the options, the City is
forcing the resident to make
a choice against the background of an
unlawful threat. If the options are unlawful, then the resident
may challenge them.
If they are lawful, the resident cannot
complain that they are forced to accept them. The applicants
accept that the “deemed
consumption” system of water supply was
unsustainable and needed to be abolished and replaced by a better
system. Their
complaint lies in the options offered. If those
options are lawful, that complaint has no force. But the options
the City
provided to the residents of Phiri were lawful. The
argument going to unlawful threat cannot therefore be sustained.
(b) Unfair process?
The applicants argue that
the City’s decision to introduce pre-paid water meters was a
decision within the meaning of administrative
action as defined in
PAJA. Section 4(1) of PAJA stipulates that all administrative
decisions which affect the public must
be preceded by public
participation.
76
Moreover, the applicants point to section 4(2)(e) of the Systems
Act, which places a duty on the Council to consult the local

community about the “level, quality, range and impact of
municipal services” and the “available options” for the

delivery of services.
77
The applicants argue that because the City did not hold a public
enquiry or a notice and comment procedure before implementing
the
decision to introduce pre-paid meters, it failed to comply with
PAJA.
The response of the
respondents is fourfold: first they contend that, because in their
replying affidavits the applicants expressly
foreswore reliance on
PAJA, they are not entitled to rely on PAJA in these proceedings.
Secondly, the respondents point out
that, if the applicants are
permitted to rely on PAJA, the application was brought well outside
the 180 day time limit for
such challenges. The application was
launched in July 2006, nearly 18 months after Operation Gcin’amanzi
in Phiri was completed
and more than three years after the decision
to approve Operation Gcin’amanzi was taken by the City in May
2003. Thirdly,
they argue that the decision to introduce pre-paid
meters did not constitute administrative action but properly
construed was
a policy decision taken by the municipality within
its executive powers. And finally, they argue that if the decision
did
constitute administrative action, the City in any event acted
fairly.
As described above,
78
Operation Gcin’amanzi was initiated and designed during 2002 by
Johannesburg Water, the water services provider contracted
by the
City to provide water services to citizens. The project was
developed in response to the problems faced with water
provision in
areas that had formerly been provided with water on a “deemed
consumption” basis, and particularly in Soweto,
which was
responsible for the greatest volumes of unaccounted for water. Mr
Still noted that Soweto was responsible for “unacceptably
high
water losses” and had a “runaway water supply problem”. An
outline of the proposed project was tabled and considered
at
meetings of the Johannesburg City Mayoral Committee in September
and November 2002. In due course, Operation Gcin’amanzi
was
incorporated in Johannesburg Water’s Business Plan for 2003 to
2005 and approved by the Johannesburg City Council at
a meeting
held on 28 and 29 May 2003. Johannesburg Water then implemented
Operation Gcin’amanzi.
Did the decision by the
Johannesburg City Council to approve the implementation of
Operation Gcin’amanzi constitute administrative
action within the
meaning of PAJA? The decision to implement Operation Gcin’amanzi
was authorised by a resolution of the
City Council after receiving
a full proposal from Johannesburg Water. As this Court has held in
a series of earlier judgments
,
79
in our constitutional order local government is recognised as
the third sphere of government, and the Council is a deliberative

body which exercises both legislative and executive functions.
Where a decision is taken by a municipal council in pursuance
of
its legislative and executive functions, therefore, that decision
will not ordinarily be administrative in character. This
principle
is recognised in paragraphs (
cc
) and (
dd
) of the
definition of “administrative action” contained in section 1 of
PAJA which expressly excludes the executive or
legislative powers
or functions of a municipal council.
80
When
the Johannesburg City Council adopted the Business Plan of
Johannesburg Water which includes operation Gcin’amanzi, it
was
exercising executive powers to determine how services should be
implemented in the City. The applicants’ argument that
that
decision constituted administrative action cannot therefore be
sustained. It is not necessary in the light of this conclusion
to
consider the other arguments raised by the respondents to counter
that contention.
Although the applicants’
primary attack is directed at the decision to implement Operation
Gcin’amanzi, they also suggested
at times that the manner in
which the project was implemented was procedurally unfair. In
particular, they complain that when
Mrs Mazibuko was approached by
the community worker regarding the implementation of the project it
was not made clear to her
that she had a choice between a pre-paid
meter service under Service Level 3 and a standpipe under Service
Level 2. In response,
the City has lodged evidence outlining in
great detail the manner in which the new system was to be
implemented.
Mr Rabe, then the project
manager of Operation Gcin’amanzi, describes the process in some
detail. His evidence is supported
by the evidence of several ward
councillors and by that of Mr Still, then executive director of
Johannesburg Water, and Mr
Singh, the current project manager of
the Prepayment Business Unit of Johannesburg Water. Mr Rabe states
that from July 2002,
consultation processes were held through
formal structures representing the community, particularly ward
committees and meetings
held by ward councillors. Meetings and
workshops were held with all 43 ward committees in Greater Soweto
as well as public
meetings. In Phiri itself, there were public
meetings hosted by the ward councillor, Mr Kunene, who lodged an
affidavit.
At one stage, public meetings were called twice monthly
in Phiri to explain the project to community members. In addition

to public meetings, the project employed 20 community workers from
September 2003 to conduct house visits and explain the project
to
individual householders.
This evidence establishes
that the process followed in the implementation of the project was
thorough and comprehensive. It
reflects compliance with section 4
of the Systems Act. In reaching this conclusion, I accept that it
may be that when Mrs
Mazibuko was visited by the community worker
to inform her of the project, she was not informed of the choice
she had between
a pre-paid meter and a standpipe. If that is
correct, she was not fully or properly informed. Even if this is
accepted, it
does not mean that the implementation of the project
as a whole was unfair and that the project should for this reason
be set
aside. The relief that would flow would be directed at Mrs
Mazibuko alone. We know that Mrs Mazibuko has, since the launch of

this litigation, passed away. Nevertheless, should those residents
who now live in what was Mrs Mazibuko’s home wish to
change their
manner of water service provision to a yard standpipe, on the
ground that that option was not disclosed to Mrs
Mazibuko in 2005,
that request would no doubt be considered by the City. For the
rest, however, the applicants’ arguments
in this regard must
fail. Having reached this conclusion it is not necessary to deal
with the other arguments raised by the
City and Johannesburg Water,
particularly the question whether the applicants may rely on PAJA
in circumstances where they
foreswore reliance on PAJA in their
replying affidavits.
81
(c) A violation of the
duty to respect the right of access to sufficient water?
The applicants argue that
because residents of Phiri were previously provided with water
services on the basis of a deemed consumption
tariff, the
implementation of Operation Gcin’amanzi, with the installation of
pre-paid meters, constituted a deprivation
of their existing right
of access to sufficient water. This result they said was in breach
of the City’s negative obligation
not to impair the right of
access to sufficient water. The applicants accept, however, that
the system of deemed consumption
invoicing was unsustainable and
that it had to be changed.
Under the system of
deemed consumption invoicing, no free basic water allowance was
provided to residents. Residents had to
pay a flat rate of R68,40
per month for their water supply. The question, therefore, is
whether the introduction of a system
whereby residents are now
furnished with 6 kilolitres of free water monthly, followed by a
subsidised tariff for water provision,
constitutes an infringement
of the negative right against interference with the right of access
to sufficient water. In my
view, it does not. The new system for
the first time provided a free water allowance to all residents.
In so doing, it cannot
be said that it interfered with the right of
access to sufficient water.
Nor could the applicants
successfully argue that, because in the past many if not most
residents in deemed consumption areas
did not in fact pay for their
water, the introduction of a system that requires everyone to pay
is unfair. The fact that residents
did not pay for water in the
past in breach of their obligations cannot mean that a new system
that provides them with free
water for the first time is an
infringement of their right of access to sufficient water.
(d) An unreasonable
measure in conflict with section 27(2) or section 11(1) of the
Water Services Act?
The applicants argue that
the shift from the deemed consumption system of water supply to the
new water provision policy constituted
an unreasonable measure, in
particular because it was retrogressive, thereby conflicting with
the constitutional obligation
to progressively improve access to
social and economic rights. In order to determine whether this
argument is correct, it
is necessary to compare what the deemed
consumption system provided to citizens and what is furnished under
the new system.
As indicated above, the
deemed consumption system was based on the assumption that
consumers used 20 kilolitres of water per
household per month.
Consumers were charged a flat rate of R68,40 for this amount. In
fact, as mentioned above, on average
far more water was used, the
average for Soweto being 67 kilolitres per household per month.
Much of the excess water was
not used by consumers but wasted
through water leakages given the poor state of repair of the piping
and connections in the
deemed consumption areas. We also know that
most consumers did not pay their water bills. The rate of payment
of municipal
bills was less than 10%. The high rate of non-payment
however cannot be relevant to determining whether the supply of
water
under the new system is retrogressive or not. The systems
must be compared on the assumption that people paid the charges

levied for water.
Ms Eales, the programme
manager for water in the City’s infrastructure department
provides the 2006/2007 tariff for combined
water and sanitation.
According to this tariff, consumers under the pre-paid system (not
registered as indigents) will pay
R95,80 per month for water and
sanitation if they use 20 kilolitres of water. Consumers still
charged on the deemed consumption
tariff will be charged a flat
rate of R131,25 for water and sanitation, more than 25 percent more
than pre-paid meter customers.
Pre-paid meter consumers on the
Indigent Register will be charged R75,70 for water and sanitation
if they use 20 kilolitres
of water.
The tariff for pre-paid
meters at low levels of usage is well below cost. It costs
Johannesburg Water R6,42 excluding VAT to
provide a kilolitre of
water to consumers. To provide 20 kilolitres of water per month
thus costs the City R128,40 but only
R95,80 (or R75,70 to indigent
consumers) is charged to pre-paid users for both water and
sanitation. It should be added that
sanitation costs the City R2,50
per kilolitre, excluding VAT. The low tariffs charged to pre-paid
meter users under the new
system are cross-subsidised by the
tariffs charged to heavier water users, and credit meter users are
charged a higher tariff
across the board.
It cannot be concluded
from this comparison that the move from the deemed consumption
system to the pre-paid metered system
with a free allocation of
6 kilolitres per month constituted a retrogressive step.
The applicants also argue
that the policy is unreasonable because it impacts most harshly on
the poorest residents of the City.
It is not clear from the record
that this is so, but assuming that it is, it is clear that it can
best be addressed by a policy
which targets the poor and ensures
that their needs are met. Simply increasing the allocation of free
water across the board
would benefit wealthier households as well
as smaller households at significant cost without necessarily
meeting the needs
of the poor. The City has thus chosen to
establish an indigent registration policy to alleviate the plight
of the poorest
which, as I have concluded, passes constitutional
muster.
82
This policy has been undergoing continual revision and
refinement.
83
In the circumstances, it cannot be said that the policy is
unreasonable because it fails to provide for the needs of the poor.
Finally the applicants
argue that the policy is unreasonable because it fails to provide
for emergencies. The applicants point
in particular to the risk of
household fires. Mr Paki, the fifth applicant, recounts the tragic
events that occurred on his
stand in March 2005 when two children
were burnt to death in a shack fire. At the time, the water was
connected but the flow
was not strong enough to put out the fire.
The applicants point to the risk of a household fire breaking out
while the water
supply has been suspended until further pre-payment
credits are purchased. Undoubtedly this is a matter of deep
concern.
The City states that ordinary household water pressure is
not sufficient to be used to douse serious household fires. It
states
that the risk of fire is being addressed by the installation
of fire hydrants throughout Soweto with sufficient pressure to

combat house fires. The City also notes that in December 2006, as
part of its ongoing revision of the indigents’registration

policy, it established a 4 kilolitre per household annual emergency
allocation which a household may obtain upon application.
The City
has thus taken reasonable steps to combat the risks of emergencies,
steps which it continues to review and revise.
The policy cannot
be said to be unreasonable on this ground.
(e) An irrational
measure in conflict with section 9(1) of the Constitution?
The applicants then
contend that the introduction of pre-paid meters is inconsistent
with section 9(1) of the Constitution because
the differentiation
it draws between categories of people is not rationally connected
to a legitimate government purpose.
84
It should be noted that the system of pre-paid meters at the time
of the launch of this litigation had been introduced only
in
Soweto, one of the four deemed consumption areas of the City.
Deemed consumption areas are townships established by the
former
apartheid government for black residents. The City chose not to
introduce the system in Alexandra, Ivory Park or Orange
Farm, other
deemed consumption areas, because the unaccounted for water problem
was most acute in Soweto.
It
is clear that the reason the City chose to introduce Operation
Gcin’amanzi in Soweto was because it was there that the
problem
of unaccounted for water was at its most acute. According to Mr
Still, the former executive director of Johannesburg
Water, between
one third and one quarter of all water purchased by Johannesburg
Water, some 110 million kilolitres, was distributed
in Soweto.
Despite this only one percent of Johannesburg Water’s revenue was
generated from Soweto. Unsurprisingly, both
the City and
Johannesburg Water considered this to be unsustainable.
It cannot be said,
therefore, that the introduction of pre-paid meters into Phiri, and
Soweto more broadly, was irrational.
(f) Unfair
discrimination?
The applicants argue that
because pre-paid meters were introduced in Soweto, but not into
white suburbs, the system discriminates
unfairly between poor,
black South Africans and wealthy, white South Africans. A further
complaint here relevant is that the
new system did not afford
residents of Phiri the choice to opt for credit meters. It is not
necessary, in the light of the
conclusion to which I have come, to
consider whether this is a claim that should first have been made
under the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
.
85
As mentioned above, it is
clear that the system of pre-paid water meters was introduced
initially only into Soweto, because
Soweto was the area where an
enormous quantity of water was being distributed, but for which
costs were not being recovered.
The system was not introduced into
other deemed consumption areas with poor black residents, such as
Alexandra, Orange Farm
or Ivory Park. It was also not introduced
into white suburbs. From this, it is not clear that the applicants
have established
that the policy impacted more adversely on black
and poor customers given that other deemed consumption areas where
poor black
customers reside were not targeted.
Even if it was
discriminatory in impact, however, if it can be shown that the
purpose for which the policy was introduced was
not unfair for the
purposes of
section 9(3)
, then it will not be in conflict with the
Constitution. To determine whether the discrimination was unfair
it is necessary
to look at the group affected, the purpose of the
law and the interests affected.
86
In this case, the group affected are people living in Soweto who
have been the target of severe unfair discrimination in the
past.
The purpose of the law was to eradicate severe water losses in the
area of Soweto, a legitimate government purpose.
The third issue
is the extent to which the new policy was harmful in effect.
The City conceded that,
given the deep inequality that exists in South Africa as a result
of apartheid policies, any differential
treatment of townships or
suburbs may have a differential, and arguably adverse impact on the
ground of race, and thus constitute
indirect discrimination on that
ground.
87
On the other hand, given the deep inequality that exists, the City
noted, different treatment might often be necessary or
desirable.
These contentions have merit. Courts need to be cautious when
approaching the question of different treatment
in these
circumstances not to find legitimate government action to
constitute unfair discrimination. These concerns can readily
be
dealt with in the test for unfairness set by this Court in
Harksen
.
88
I turn now to the third
consideration in the
Harksen
test for unfairness, the extent
of the harm. It is not clear that the new water policy is harmful
at all, in the sense that
it is disadvantageous to those consumers
who use it. I have set out above
89
a comparison between the new policy and the previous flat rate
policy in deemed consumption areas and indicated that the new

policy is not less favourable than the former policy. A similar
comparison may also be drawn between the water service under

Operation Gcin’amanzi and the service offered to credit-meter
customers. Credit-meter customers are charged higher tariffs
than
pre-paid meter customers. So, pre-paid customers (who receive 6
kilolitres of free water) pay R95,80 per month for water
and
sanitation if they use 20 kilolitres of water while credit-meter
customers pay R131,25 for the same amount.
Secondly, if credit-meter
customers fail to pay their water account, there are a range of
severe consequences that are not visited
upon pre-paid meter users.
For example, interest may be charged on arrear amounts and the
consumer may have his or her name
listed with a credit bureau as a
defaulter.
90
For indigent consumers, these are worrying measures which are
avoided in a pre-payment system. From this analysis, therefore,
it
is not clear at all that a pre-paid meter system is harmful in the
sense that the service it provides is less beneficial
than a
credit-meter service.
If we now consider the
three matters relevant to the determination of fairness, we can see
that although the group that is affected
by the installation of
pre-paid water meters is a vulnerable group, the purpose for which
the meters are installed is a laudable,
indeed necessary,
government objective, clearly tailored to its purpose. Moreover,
the difference between the pre-paid meter
system and a credit meter
system is not disadvantageous to the residents of Phiri. In the
circumstances, it cannot be said
that the introduction of a
pre-paid water meter system in Phiri was unfairly discriminatory.
Finally, the applicants
complain that residents of Soweto were not provided with the option
of a credit meter system. This,
they assert, is evidence of the
discriminatory character of the system. But it should be noted
that the Implementation Policy
for Prepayment Metering for Deemed
Consumption Areas tabled before to the Johannesburg City Council in
March 2005 makes it
clear that credit-meter customers are not to be
afforded a choice to move to pre-paid meters, even if they want to
benefit
from their reduced tariffs, unless certain stringent
conditions are met. The City therefore affords effectively little
choice
to credit-meter users to switch to pre-paid meters just as
it affords no choice to pre-paid consumers to switch to credit
meters.
Part of the reason for this must be the cost of
installation of either system which is substantial.
Underlying
the preceding consideration of the unfair discrimination argument
is the fact that government has the authority to
decide how to
provide essential services, as long as the mechanism it selects is
lawful, reasonable and not unfairly discriminatory.
The
prohibition on unfair discrimination does not mean that government,
in deciding how to provide essential services, must
always opt for
a uniform system if local circumstances vary. The conception of
equality in our Constitution recognises that,
at times,
differential treatment will not be unfair. Indeed, correcting the
deep inequality which characterises our society,
as a consequence
of apartheid policies, will often require differential treatment.
I conclude that the
applicants have not established that the pre-paid meter system is
unfairly discriminatory.
In the circumstances, I
conclude that the applicants have not established that the
introduction of pre-paid meters through Operation
Gcin’amanzi was
unlawful. Accordingly, the orders made by the Supreme Court of
Appeal and the High Court must be set aside.
Litigating social and
economic rights
The outcome of the case
is that the applicants have not persuaded this Court to specify
what quantity of water is “sufficient
water” within the meaning
of section 27 of the Constitution. Nor have they persuaded the
Court that the City’s policy
is unreasonable. The applicants
submitted during argument that if this were to be the result,
litigation in respect of the
positive obligations imposed by social
and economic rights would be futile. It is necessary to consider
this submission.
The purpose of litigation
concerning the positive obligations imposed by social and economic
rights should be to hold the democratic
arms of government to
account through litigation. In so doing, litigation of this sort
fosters a form of participative democracy
that holds government
accountable and requires it to account between elections over
specific aspects of government policy.
When challenged as to its
policies relating to social and economic rights, the government
agency must explain why the policy
is reasonable. Government must
disclose what it has done to formulate the policy: its
investigation and research, the alternatives
considered, and the
reasons why the option underlying the policy was selected. The
Constitution does not require government
to be held to an
impossible standard of perfection. Nor does it require courts to
take over the tasks that in a democracy
should properly be reserved
for the democratic arms of government. Simply put, through the
institution of the courts, government
can be called upon to account
to citizens for its decisions. This understanding of social and
economic rights litigation accords
with the founding values of our
Constitution and, in particular, the principles that government
should be responsive, accountable
and open.
91
Not only must government
show that the policy it has selected is reasonable, it must show
that the policy is being reconsidered
consistent with the
obligation to “progressively realise” social and economic
rights in mind. A policy that is set in
stone and never revisited
is unlikely to be a policy that will result in the progressive
realisation of rights consistently
with the obligations imposed by
the social and economic rights in our Constitution.
This case illustrates how
litigation concerning social and economic rights can exact a
detailed accounting from government and,
in doing so, impact
beneficially on the policy-making process. The applicants, in
argument, rued the fact that the City had
continually amended its
policies during the course of the litigation. In fact, that
consequence of the litigation (if such
it was) was beneficial.
Having to explain why the Free Basic Water policy was reasonable
shone a bright, cold light on the
policy that undoubtedly revealed
flaws. The continual revision of the policy in the ensuing years
has improved the policy
in a manner entirely consistent with an
obligation of progressive realisation.
Secondly, the applicants
took issue with the sheer quantity of information placed before the
courts by the City and Johannesburg
Water in particular. It is
true that the volume of material was substantial, but none of it
was irrelevant.
92
Reading it made plain that this was a government agency that has
approached the challenges it faces with an impressive seriousness

of purpose and commitment to improving the lives of the residents
of the City in a sustainable fashion. Unsurprisingly, given
the
scale and complexity of the challenge, the policy was not perfect.
But that is not the constitutional standard. Indeed
the City chose
Phiri as a pilot project for Operation Gcin’amanzi so as to learn
from it before rolling it out to other areas.
That it has done.
It is true that
litigation of this sort is expensive and requires great expertise.
South Africa is fortunate to have a range
of non-governmental
organisations working in the legal arena seeking improvement in the
lives of poor South Africans. Long
may that be so. These
organisations have developed an expertise in litigating in the
interests of the poor to the great benefit
of our society. The
approach to costs in constitutional matters means that litigation
launched in a serious attempt to further
constitutional rights,
even if unsuccessful, will not result in an adverse costs order.
93
The challenges posed by social and economic rights litigation are
significant, but given the benefits that it can offer, it
should be
pursued.
Concluding remarks
In summary, this case
arose out of the implementation of Operation Gcin’amanzi as a
pilot project in Phiri in Soweto by the
City of Johannesburg and
its water service company, Johannesburg Water. The project was
introduced because of the acute water
losses experienced in Soweto
coupled with the fact that the City was not recovering payment for
water in the area. These problems
had three basic causes: the
pipes laid during the apartheid era had corroded; the City’s
deemed consumption tariff system
was inaccurate in that far more
water was in fact used than the deemed amount stipulated; and
finally a culture of non-payment
had arisen originally as part of
the resistance to apartheid local government. All the parties
before us, including the applicants,
accepted that the old system
of water supply in Soweto was unsustainable and had to be changed.
Operation
Gcin’amanzi involved relaying water pipes to improve water supply
and reduce water losses and the introduction of
a free basic water
allowance (6 kilolitres per household per month based on the
nationally prescribed basic water supply standard)
as well as
pre-paid meters for use of water in excess of the free basic water
allowance. There was extensive consultation
with communities about
what the project would entail and how it would be implemented. The
initial implementation caused unhappiness
amongst some residents.
By the time the litigation was launched 18 months after the Phiri
pilot had been initiated the vast
majority of residents had
accepted pre-paid water meters and, according to a survey by the
City, were satisfied with the new
system. Moreover, the amount of
unaccounted for water in Soweto had been successfully curtailed.
The City has provided a
detailed account of the project and its genesis. It has also made
plain that its Free Basic Water policy
has been under constant
review since it was adopted. In particular, the City has sought to
ensure that those with the lowest
incomes are provided, not only
with an additional free water allowance, but also with relief in
relation to the charges levied
for other services provided by the
City such as electricity, refuse removal and sanitation services.
The City accepts that
it is under an obligation to take measures
progressively to achieve the right of access to sufficient water
and its conduct
so far indicates that it will take further steps to
meet this obligation.
I have thus concluded
that neither the Free Basic Water policy nor the introduction of
pre-paid water meters in Phiri as a result
of Operation Gcin’amanzi
constitute a breach of section 27 of the Constitution.
Accordingly, the respondents’ appeals
succeed and the order made
by the Supreme Court of Appeal should be set aside, as should the
High Court order.
Costs
Neither the first nor
second respondents seek costs in this Court if they are successful.
Nor apparently does the third respondent.
In the circumstances,
the proper order to be made is no order as to costs. In reaching
this conclusion, I note that the respondents
did make a
contribution to the costs of the preparation of the appeal record
in this Court. That was a fitting gesture. In
the light of the
fact that the cross-appeal has ultimately succeeded, the costs
orders made by the High Court and Supreme Court
of Appeal should
also be set aside and replaced with no order as to costs.
Order
The following order is
made:
1. In respect of the
applications for leave to appeal:
(a) the application for
leave to appeal by the applicants is granted;
(b) the conditional
application for leave to cross-appeal by the first and second
respondents is granted;
(c) the application for
condonation by the third respondent for the late filing of the
application for leave to cross-appeal
is granted; and
(d) the application for
leave to cross-appeal by the third respondent is granted.
2. In respect of the
appeals:
(a) the applicants’
appeal is dismissed;
(b) the first, second and
third respondents’ cross-appeals are upheld;
(c) the
order made by the Supreme Court of Appeal is set aside; and
(d) the order made by the
High Court is set aside;
3. There
is no order as to costs.
Moseneke DCJ, Cameron J,
Mokgoro J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Van der
Westhuizen J concur in the judgment
of O’Regan J.
For
the Applicants:
For
the First and Second Respondents:
For
the Third Respondent:
For
the Amicus Curiae:
Advocate
W Trengove SC and Advocate N Fourie instructed by the Centre for
Applied Legal Studies / Wits Law Clinic and the Freedom
of
Expression Institute Law Clinic.
Advocate
G Marcus SC and Advocate A Stein instructed by Bowman Gilfillian
Attorneys.
Advocate
PM Mtshaulana SC and Advocate K Pillay instructed by the State
Attorney.
Advocate
R Moultrie and Advocate MS Baloyi instructed by the Legal Resources
Centre.
1
108 of 1997. The Preamble to the Act states, amongst other things,
that the Act is adopted:
“
RECOGNISING
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;
ACKNOWLEDGING that there
is a duty on all spheres of Government to ensure that water supply
services and sanitation services
are provided in a manner which is
efficient, equitable and sustainable;
ACKNOWLEDGING that all
spheres of Government must strive to provide water supply services
and sanitation services sufficient
for subsistence and sustainable
economic activity;
.
. . .
CONFIRMING
the National Government’s role as custodian of the nation’s
water resources”.
2
There was no formal substitution of Mrs Mazibuko as a party in these
proceedings, but nothing turns on this.
3
This deemed consumption system was not limited to Johannesburg.
Compare
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998
(2) SA 363
(CC);
1998 (3) BCLR 257
(CC) where a “flat rate” was
charged to township residents.
4
The question of whether pre-paid meters fall within Service Level 3
is discussed below at [106]–[114].
5
See [132] below.
6
See definition in section 1 of the Water Services Act.
7
Id.
8
Regulations relating to compulsory national standards and measures
to conserve water,
Government Gazette,
Gazette
No
22355, Notice R509 of 2001 (8 June 2001) published in terms of
section 9
of the
Water Services Act 108 of 1997
. Hereafter
“National Water Standards Regulations”.
9
City of Johannesburg Metropolitan Municipality Water Services
By-laws
Provincial Extraordinary Gazette
(Gauteng), Gazette
No 179, Notice 835 of 2004 (21 May 2004) published in terms of
section 13(a)
of the
Local Government: Municipal Systems Act 32 of
2000
.
10
At [78] below.
11
Mazibuko and Others v City of Johannesburg and Others (Centre on
Housing Rights and Evictions as amicus curiae)
[2008] ZAGPHC 128
;
[2008] 4 All SA
471
(W).
12
Id at paras 63-70.
13
Id at para 82.
14
Id at paras 92-3.
15
Id at paras 94 and 155.
16
Id at para 119.
17
See [23] above.
18
Mazibuko
(High Court) above n 11 at para 54.
19
Id at para 150.
20
Id at para 183.5.1.
21
Id at para 183.
22
City of Johannesburg and Others v Mazibuko and Others (Centre on
Housing Rights and Evictions as amicus curiae)
2009 (3) SA 592
(SCA);
2009 (8) BCLR 791
(SCA).
23
Id at para 38.
24
Id at para 24.
25
Id at para 43.
26
Id at para 58.
27
Id at paras 55-7.
28
Id at paras 58-60.
29
Id at para 62. The original order of the Supreme Court of Appeal
made no costs award. That order was subsequently amended.
30
Section 27(2) of the Constitution, cited above at [19].
31
Article 2(1) of the International Covenant on Economic, Social and
Cultural Rights GA Res 2200A (XXI), 21 UN GAOR Supp. (No 16),
1966,
U.N. Doc A/6316 is a source of the conception of the progressive
realisation of economic, social and cultural rights.
It provides
that:
“
Each
State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,

especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full

realisation of the rights recognised in the present Covenant by all
appropriate means, including particularly the adoption
of
legislative measures.”
See
also General Comment 3, “General Comment 3: The nature of States
Parties’ obligations (art 2(1))” Fifth Session, 1990,
U.N. Doc
E/1991/23 at para 9 where the concept of “progressive realisation”
is helpfully explained as follows:
“
The
concept of progressive realisation constitutes a recognition of the
fact that full realisation of all economic, social and
cultural
rights will generally not be able to be achieved in a short period
of time. . . . Nevertheless, the fact that the
realisation over
time, or in other words progressively, is foreseen under the
Covenant should not be misinterpreted as depriving
the obligation
of all meaningful content. It is on the one hand a necessary
flexibility device, reflecting the realities of
the real world and
the difficulties involved for any country in ensuring full
realisation of economic, social and cultural
rights. On the other
hand, the phrase must be read in the light of the overall
objective, indeed the raison d’être, of
the Covenant which is to
establish clear obligations for States Parties in respect of the
full realisation of the rights in
question. It thus imposes an
obligation to move as expeditiously and effectively as possible
towards that goal. Moreover,
any deliberately retrogressive
measures in that regard would require the most careful
consideration and would need to be fully
justified by reference to
the totality of the rights provided for in the Covenant and in the
context of the full use of the
maximum available resources.”
32
See [23] above for the text of regulation 3(b).
33
The text of section 118 is set out at n 62 below.
34
See H Shue
Basic Rights
(Princeton University Press, 1996)
who argues that to every basic right three duties attach: the duty
to avoid deprivation; the
duty to protect from deprivation; and the
duty to aid the deprived. This typology corresponds with the notion
of the negative
duty to protect rights (the duty to avoid
deprivation), the positive duty to fulfil rights (the duty to aid
the deprived), as
well as the intermediate duty to prevent others
from interfering with rights. The question whether any particular
right in our
Constitution contains all three correlative duties as
described by Shue is a matter in the first place of constitutional
interpretation.
See also the helpful discussion in S Fredman
Human
Rights Transformed: Positive rights and positive duties
(Oxford
University Press, 2008) at 69.
35
Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at paras
31-4. See also
Minister of Health and Others v Treatment Action
Campaign and Others
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002
(10) BCLR 1033
(CC) (henceforth referred to as
Treatment Action
Campaign, No 2
) at para 46;
Government of the Republic of
South Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 34 and
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 78.
36
Grootboom
above n 35.
37
Cited above n 35.
38
Section 26 of the Constitution states that:
“
(1) Everyone
has the right to have access to adequate housing.
(2) The
state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive
realisation of
this right.
(3) No
one may be evicted from their home or have their home demolished,
without an order of court made after considering
all the relevant
circumstances. No legislation may permit arbitrary evictions.”
39
Grootboom
cited above n 35 at para 38.
40
Cited above n 35.
41
Id at para 39.
42
General Comment 3 cited above n 31 at para 10.
43
Grootboom
cited above n 35 at para 32.
44
Treatment Action Campaign No 2
cited above n 35 at para 34.
45
Id at para 38.
46
The Court has declined to adopt a minimum core approach to
socio-economic rights, despite the urging of some academic
commentators.
See, for example, D Bilchitz
Poverty and
Fundamental Rights: the justification and enforcement of social and
economic rights
(Oxford University Press, 2007).
47
Cited above n 35 at para 37 where the Court reasoned as follows:
“
The
State’s obligation to provide access to adequate housing depends
on context, and may differ from province to province,
from city to
city, from rural to urban areas and from person to person. Some
may need access to land and no more; some may
need access to land
and building materials; some may need access to finance; some may
need access to services such as water,
sewage, electricity and
roads. What might be appropriate in a rural area where people live
together in communities engaging
in subsistence farming may not be
appropriate in an urban area where people are looking for
employment and a place to live.”
48
Grootboom
cited above n 35 at para 99.
49
Treatment Action Campaign No 2
cited above n 35 at para 135.
50
At [23] above.
51
See full text of regulation 3(b) at [23] above.
52
Section 1 of the Constitution provides that:
“
The
Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a)
Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b) Non-racialism
and non-sexism.
(c) Supremacy
of the constitution and the rule of law.
(d) Universal
adult suffrage, a national common voters roll, regular elections
and a multi-party system of democratic
government, to ensure
accountability, responsiveness and openness.”
53
For academic commentary on the principle, see AJ van der Walt
“Normative pluralism and anarchy: reflections on the 2007 term”

(2008) 1
Constitutional Court Review
77; Karl Klare “Legal
subsidiarity and constitutional rights: a reply to AJ van der Walt”
(2008) 1
Constitutional Court Review
129. See also, in a
somewhat different context,
L du Plessis
“Subsidiarity: what's in the name for constitutional
interpretation and adjudication?”
(2006) 17
Stellenbosch
Law Review
207.
54
See
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at paras 22-6 (in the context of the
Promotion of Administrative Justice Act 3
of 2000 which gives effect
to the constitutional right to administrative justice in section 33
of the Constitution);
MEC for Education, KwaZulu Natal and Others
v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) at para 40 (in the context of section 9 of the Constitution and
the
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000
, the Equality Act) and
South African National
Defence Union v Minister of Defence and Others
[2007] ZACC 10
;
2007 (5) SA 400
(CC);
2007 (8) BCLR 863
(CC) at para 52 (in the
context of labour legislation and the labour rights protected in
section 23 of the Constitution).
55
Cited above n 35 at paras 44 and 63-6. Yacoob J, for a unanimous
court, reasoned as follows at para 44:
“
To
be reasonable, measures cannot leave out of account the degree and
extent of the denial of the right they endeavour to realise.
Those
whose needs are the most urgent and whose ability to enjoy all
rights therefore is most in peril, must not be ignored
by the
measures aimed at achieving realisation of the right.”
56
The amount of a social grant ordinarily increases annually. As of
April 2009, social grants for pensioners amounted to R1 010
per
month. From April to November 2008, social grants for pensioners
amounted to R940 per month from which the calculation of
R1 881 on
the record appears to have been made.
57
See [98]-[102] below.
58
Cited above n 8.
59
Norms and standards in respect of tariffs for
water services,
Government Gazette,
Gazette
No
22472, Notice R652 of 2001 (20 July 2001) published in terms of
section 10
of the
Water Services Act 108 of 1997
.
60
There is a discrepancy in the evidence provided by the City as to
the average household size. According to one deponent, Mr
Seedat,
it is 3,2 and according to another, Ms Brits, 2,9. Nothing material
turns on this, but in applicants’ favour, I have
opted for the
larger figure.
61
See above n 60.
62
At [83] above.
63
Section 118(1)
of the By-laws provides for an exemption procedure in
the following terms:
“
The
Council may by resolution exempt any person from complying with a
provision of these By-laws, subject to any conditions
it may
impose, if it is of the opinion that the application or operation
of that provision would be unreasonable in the circumstances,

provided that the Council may not grant an exemption from any
section of this section that may result in–
(a)
the wastage or excessive consumption
of water;
(b) the
evasion or avoidance of water restrictions;
(c)
significant
negative effects on public health, safety or the environment;
(d)
non-payment
for services;
(e)
the
installation of pipes and fittings which are not approved in
terms of these By-laws; or
(f)
non-compliance
with the Act or any regulations made in terms thereof.”
64
Cited above n 54.
65
Section 3 of the Water Services By-laws is set out in full above at
[78].
66
Section 95(i) of the Systems Act provides:
“
In
relation to the levying of rates and other taxes by a municipality
and the charging of fees for municipal services, a municipality

must, within its financial and administrative capacity–
. . . .
(i) Provide accessible
pay points and other mechanisms for settling accounts or for
making pre-payments for services.”
67
See section 152(1)(b) of the Constitution. Section 152(1) provides:
“
The
objects of local government are–
(a) to
provide democratic and accountable government for local
communities;
(b) to
ensure the provision of services to communities in a sustainable
manner;
(c) to
promote social and economic development;
(d) to
promote a safe and healthy environment; and
(e) to
encourage the involvement of communities and community
organisations in the matters of local government.”
68
Section 156(5) provides:
“
A
municipality has the right to exercise any power concerning a
matter reasonably necessary for, or incidental to, the effective

performance of its functions.”
69
See
Mazibuko
(Supreme Court of Appeal)
cited above n
22 at para 53.
70
Id at paras 54-6.
Section 4(3)
of the
Water Services Act deals
with
the discontinuation of water supply.
71
Section 21(1)(f)
of the
Water Services Act provides
as follows:
“
Every
water services authority must make by-laws which contain conditions
for the provision of water services, and which must
provide for at
least–
.
. . .
(f) the circumstances
under which water services may be limited or discontinued and
the procedure for such limitation
or discontinuation”.
72
Section 11
of the City’s Water Services By-laws provides as
follows:
“
(1) Subject
to the provisions of
sections 9
,
9A
,
9B
,
9C
,
9D
and
10
, the
Council may limit or discontinue water services provided in terms
of these By-laws–
(a) at
the written request of a consumer;
(b) if
the agreement for the provision of services has been terminated
in terms of
section 10
and the Council has not received an
application for subsequent services to the premises, within a
period of ninety days
of such termination;
(c) if
the building on the premises to which services were provided has
been demolished;
(d) if
the consumer has unlawfully interfered with the water
installation or service in any way;
(e) in
an emergency;
(f) if
there has been material abuse of the water services by the
consumer or an occupier of the premises; or
(g) if
the use of the water services is creating significant
environmental damage or water pollution.
(2) The
Council will, where a water service has been in terms of
subsection (1) discontinued, only be obliged to restore it
when
the prescribed fees for the discontinuation and reconnection of
the water service and any applicable deposit have been
paid.”
73
Section 9C
provides:
“
(1) If
a consumer fails to pay the amount due and payable on or before
the final date for payment, the unpaid amount is
in arrears and a
final demand notice may be sent and may be hand delivered or
posted, per mail, to the most recent recorded
address of the
consumer.
(2) Failure
to deliver or send a final demand notice does not relieve a
consumer from paying such arrears.
(3) The
final demand notice must contain the following–
(a) the
amount in arrears and any interest payable, and the date by
which such arrears and interest must be paid;
(b) that
the consumer may conclude an agreement with the Council for
payment of the arrears amount in instalments within
14 days of
the date of final demand notice;
(c) that
if no such agreement is entered into within the stated period
that the water services will be discontinued
or limited and
that legal action may be instituted against any consumer for
the recovery of any amounts 30 days or
more in arrear, without
further notice;
(d) that
the consumer’s name may be made public, and may be listed
with a credit bureau or any other equivalent body
as a
defaulter;
(e) that
the account may be handed over to a debt collector or attorney
for collection;
(f) proof
of registration as an indigent consumer in terms of the
Council’s indigent policy must be handed in to the
Council on
or before the date for payment contemplated in paragraph (a);
and
(g) that
an indigent consumer is only entitled to basic water services
and that an indigent consumer will be liable
for payment in
respect of water services used in excess of the quantity of
basic services.
(h) an
opportunity for the consumer to make representation in writing,
on or before the date of payment contemplated
in paragraph (a).
(4) Interest
may be levied on all arrears at a rate prescribed by the Council
from time to time.
(5) The
amount due and payable by a consumer constitutes a consolidated
debt, and any payment made by a consumer of an amount
less than
the total amount due will be allocated in reduction of the
consolidated debt in the order determined by the Council.
(6) The
Council may, after the expiry of the period allowed for payment
in terms of the final demand notice, hand deliver
or send, per
mail, to the last recorded addr ess of the consumer–
(a) a
discontinuation notice informing such consumer that the
provision of water services will be, or has been discontinued

on the date stated on the discontinuation notice;.
(b) a
discontinuation notice must contain information advising the
consumer of steps which can be taken to have the
service
re-connected.
(7) If
representations made by a consumer are unsuccessful either wholly
or in part, a final demand notice complying with
the provisions
of subsections (3)(a) to (g) must be given to the consumer in the
manner provided for in subsection (1),
stipulating that no
further representations may be made.
(8)
Subject to the provisions of the Act, and subject to the
provisions of the Promotion of Administrative Justice Act,
2000
(Act No 3 of 2000), having been observed, save that the Council’s
reasons for its decision to act must be supplied
within seven
days after a request therefore; the Council may discontinue water
services to a consumer if–
(a) full
payment was not received within the period stated in the final
demand notices referred to in subsections (3)
and (7);
(b) no
agreement was entered into for the payment of arrears in
instalments;
(c) no
proof of registration as an indigent was furnished within the
period provided for in the final demand notice
contemplated in
subsections (3) and (7);
(d) no
payment was received in accordance with an agreement for
payment of arrears;
(e) no
representations as contemplated in paragraph (h) of subsection
(3) were made within the period provided for in
the final
demand notice, contemplated in subsection (3); and
(f) the
representations referred to in subsection (7) have not been
wholly acceded to by the Council.
(9)
Where an account rendered to a consumer remains outstanding for
more than 60 days–
(a) the
defaulting consumer’s name may be made public, and may be
listed with a credit bureau or any other equivalent
body as a
defaulter; and
(b) may
be handed over to a debt collector or an attorney for
collection.
(10) A
consumer will be liable for any administration fees, costs
incurred in taking action for the recovery of arrears
and any
penalties, including the payment of a higher deposit.
(11) Where
a body corporate is responsible for the payment of any arrears
amount to the Council in respect of a sectional
title development
the liability of the body corporate shall be extended to the
members thereof, jointly in proportion to
the participation quota
of each sectional title unit.
(12) No
action taken in terms of this section due to non-payment will be
suspended or withdrawn, unless the arrears, any
interest thereon,
administration fee, additional charges, costs incurred in taking
legal action and any penalty, including
the payment of a higher
deposit, which are payable, are paid in full.
(13) Subject
to the provisions of the Act, an agreement for payment of the
arrears amount in instalments, entered into after
the water
services were discontinued, will not result in the water services
being restored until the arrears, any interest
thereon,
administration fees, costs incurred in taking legal action and
any penalty, including payment of a higher deposit,
are paid in
full.”
74
Section 9C(3)(g).
75
The Concise Oxford Dictionary of Current English
(Clarendon
Press, Oxford 1990) defines “discontinue” as “cease to or
cause to cease to exist”.
76
Section 4(1) of PAJA provides:
“
In
cases where an administrative action materially and adversely
affects the rights of the public, an administrator, in order
to
give effect to the right to procedurally fair administrative
action, must decide whether–
(
a
) to
hold a public inquiry in terms of subsection (2);
(
b
) to
follow a notice and comment procedure in terms of subsection
(3);
(
c
) to
follow the procedures in both subsections (2) and (3);
(
d
) where
the administrator is empowered by any empowering provision to
follow a procedure which is fair but different,
to follow that
procedure; or
(
e
) to
follow another appropriate procedure which gives effect to
section 3.”
77
Section 4(2)(
e
)
of Systems Act provides:
“
The
council of a municipality, within the municipality’s financial
and administrative capacity and having regard to practical

considerations, has the duty to–. . .
(
e
) consult
the local community about—
(i) the
level, quality, range and impact of municipal services provided
by the municipality, either directly or through
another service
provider; and
(ii) the
available options for service delivery”.
78
See [13]-[16] above.
79
See
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 26 where the
following was said:
“
Under
the interim Constitution (and the 1996 Constitution) a local
government is no longer a public body exercising delegated
powers.
Its council is a deliberative legislative assembly with legislative
and executive powers recognised in the Constitution
itself.”
The
Court continued at para 38 as follows:
“
The
constitutional status of local government is thus materially
different to what it was when Parliament was supreme, when
not only
the powers but the very existence of local government depended
entirely on superior legislatures.”
See
also, for example,
City of Cape Town and Another v Robertson and
Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC);
2005 (3) BCLR 199
(CC) at para 58.
80
Section 1 of PAJA defines “administrative action” as follows:
“
.
. . any decision taken, or any failure to take a decision, by–
(
a
) an
organ of state, when–
(i) exercising
a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising
a public power or performing a public function in terms of any
legislation; or
(
b
) a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function
in
terms of an empowering provision,
which
adversely affects the rights of any person and which has a
direct, external legal effect, but does not include–
(
aa
) the
executive powers or functions of the National Executive,
including the powers or functions referred to in sections
79(1)
and (4), 84(2)(
a
), (
b
), (
c
), (
d
),
(
f
), (
g
), (
h
), (
i
) and
(k
),
85(2)(
b
), (
c
), (
d
) and (
e
), 91(2),
(3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the
Constitution;
(
bb
) the
executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections

121(1) and (2), 125(2)(
d
), (
e
) and (
f
),
126, 127(2), 132(2), 133(3)(
b
), 137, 138, 139 and 145(1)
of the Constitution;
(
cc
) the
executive powers or functions of a municipal council;
(
dd
) the
legislative functions of Parliament, a provincial legislature
or a municipal council;
(
ee
) the
judicial functions of a judicial officer of a court referred to
in section 166 of the Constitution or of a Special
Tribunal
established under section 2 of the Special Investigating Units
and Special Tribunals Act, 1996 (Act No. 74
of 1996), and the
judicial functions of a traditional leader under customary law
or any other law;
(
ff
) a
decision to institute or continue a prosecution;
(
gg
) a
decision relating to any aspect regarding the nomination,
selection, or appointment of a judicial official or any
other
person, by the Judicial Service Commission in terms of any law;
(
hh
) any
decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
;
or
(
ii
) any
decision taken, or failure to take a decision, in terms of
section 4(1)”.
81
See discussion of the principle of constitutional subsidiarity,
above n 53.
82
See [91] above.
83
Above at [92]-[97].
84
See
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 25 where
the Court reasoned:
“
In
regard to mere differentiation the constitutional State is expected
to act in a rational manner. It should not regulate
in an
arbitrary manner or manifest ‘naked preferences’ that serve no
legitimate governmental purpose, for that would be
inconsistent
with the rule of law and the fundamental premises of the
constitutional State. The purpose of this aspect of
equality is,
therefore, to ensure that the State is bound to function in a
rational manner.” (Footnote omitted.)
85
See the discussion of the principle of constitutional subsidiarity,
above n 53.
86
See
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA
300
(CC);
1997 (11) BCLR 1489
(CC) at para 54. See also
City
Council of Pretoria v Walker
above n 3 at para 38.
87
See
City Council of Pretoria v Walker
cited above n 3 where
these issues also arose.
88
See
Harksen
cited above n 86.
89
Above at [138]-[142].
90
Section 9C(3)(a)
and (d) of the City’s Water Service By-laws.
91
See section 1 of the Constitution above n 52.
92
Save for duplication of the United Nations Development Programme
Report 2006 which was submitted both by the City and Johannesburg

Water, on the one hand, and by the Minister for Water Affairs and
Forestry on the other.
93
For some of the cases in which public interest groups have played an
important role see
Biowatch Trust v Registrar Genetic Resources
and Others
[2009] ZACC 14
; Case No CCT 80/08, 3 June 2009, as
yet unreported. Available at
http://www.saflii.org/za/cases/ZACC/2009/14.html, accessed on
6
October