Silumko Radebe shares the processes and organising tactics that led to the Phiri water case being heard in the Johannesburg High Court
The Johannesburg high court victory on the 30th April 2008 was historic globally because it was the first of its kind, especially in post apartheid South Africa . The Coalition Against Water Privatisation (CAWP), together with the Anti Privatisation Forum (APF) and its affiliate Phiri Concerned Residents (PCR), filed the high court case in July 2006 after three long street battles with Johannesburg Water, private security (Red Ants) and the Johannesburg Metropolitan Police Department. In 2003, many of the residents resisted the forceful installation of pre-paid meters but many where arrested and left with no choice but to seek other tactics of fighting the installation.
It is unfortunate that the first applicant Lindiwe Mazibuko, who was 40 years old, passed away at her home in Phiri after a lengthy illness related to cancer. Like many other brave working class people, she took it upon herself that the “war” declared by Johannesburg Water didn’t break the spirit of resistance in the community. When the judgement was handed down, Lindiwe, despite her own failing health, was ecstatic. She had fought long and hard, along with other residents of Phiri, to realise the human and constitutional right to water that had been denied to her and her family simply because they were poor. It is only fitting that Lindiwe was able to witness the victory before she passed on.
She is survived by her two young daughters, Khosi and Zodwa, as well her large extended family with whom she lived in Phiri. Like many other Phiri residents, they share their yard with extended families and it became a problem when the pre- paid meters were introduced without proper consultation. Some of the residents were employed on a temporary basis by Johannesburg Water to install the meters and it made the community view them as enemies. But through political clarity from the APF, the residents were made aware that the enemy was the state and not workers themselves. Attempts to engage many stakeholders did not bear any fruit for the residents and rolling mass action was met by brutal force from state institutions where force was used to install the pre-paid water meters. This made neighbours turn against each other, and some residents were forced to steal water from one another at night or during the day when the need arose.
It became clear that the residents had no other choice but to continue with mass action but when one resident (fined R25 000.00 or five years in prison) was charged with malicious damage to property for removing a pre-paid meter in his own yard that was unlawfully installed without consultation, many became scared and it was clear that resistance was crumbling. Many residents continued their resistance and another tactic had to be implemented in taking the struggle further by using the legal route. There were perceptions in the community and among comrades that the judiciary could not be trusted in solving the problems of the working class and that the courts would protect the property of the elite. Finally, after many engagements within the community, there was a consensus that a legal battle would ensue so that all the avenues could be explored in fighting the privatization of water. The case was finally heard for over three days in December 2007 before Johannesburg High Court Judge M.P. Tsoka and it took the judge four months to give his verdict. On passing his judgement, the progressive judge Tsoka declared that the City of Johannesburg’s forcible installation of pre-paid water meters in Phiri was both unlawful and unconstitutional. The Judge Ordered that the limitation of free basic water to the present 6 kilolitres per household per month be set aside and that the City of Johannesburg and Johannesburg Water must supply Phiri residents with 50 litres per person per day. Furthermore, the court declared that the choice given to residents of either a pre-paid meter or a standpipe for water provision in Phiri was also unlawful and directed the City to provide residents of Phiri the option of an ordinary credit metered water supply. The City of Johannesburg was also ordered to bear all the legal costs of the applicants since 2006.
This decision or judgment will go down as a first for poor communities and all those who have been struggling against unilateral and profit-driven neo- liberal basic service policies by our government. As the Center for Applied Legal Studies (CALS) stated soon after the judgment this is the first time, “in which the constitutional right to water has explicitly been raised”. Judge Tsoka, however, went beyond the legal points, recognising the racial, class, administrative and gender-based discrimination underlying the City of Johannesburg’s water policy. The Judge explicitly rejected the arguments for restricting the water usage of poor communities saying, “… to expect the applicants to restrict their water usage, to compromise their health, by limiting the number of toilet flushes in order to save water is to deny them the rights to health and to lead a dignified lifestyle.” The Judge labelled the so-called ‘consultation’ with the Phiri community as “more of a publicity stunt than consultation” and criticised the City’s “big brother approach”. The judgment went beyond mere issues and raised many questions around democracy and the right of the community to have a choice rather than to be submissive.
The victory was met by jubilation all over the world, including many labour movements in the country, and it left the City of Johannesburg Mayor Amos Masondo shell-shocked, as he is known to be driver of privatization. Mr. Masondo stated at numerous international conferences that Johannesburg is a world class city and that there is development taking place for the poor and ordinary working class people. This ruling meant that Johannesburg Water ’s operation Gcin’amanzi cannot continue and an entirely new system for water provision has to now replace it. However, once again to prove their arrogance and unwillingness to listen to the needs of the people, the City of Johannesburg and Johannesburg Water launched an appeal at the Supreme Court, counter- acting the high court ruling. Johannesburg Water has ignored the ruling and is going on a rampage of installing pre-paid meters in Soweto. It is therefore important for organisations like the Congress of South Africa Trade Union (COSATU) and the South Africa Municipal Workers Union (SAMWU) to assist different communities in applying political pressure on the City of Johannesburg, Johannesburg Water and the Department of Water & Forestry.
If the City had followed the law in implementing the water service initially by consulting with the community and listening to the voices of protest, they would not be faced with their current predicament – especially a R320-million loan for meters they can’t install. The City chose rather to deploy the Red Ants, private security companies and police in Phiri at the onset of Operation Gcina’manzi in August 2003 to protect their misshapen project. The fact that Phiri residents were gagged in their own homes as work proceeded against their wishes, facing arrest and detention, has compounded the City’s loss.
While the judgment has already been appealed by the respondents, and will most probably go all the way to the Constitutional Court, this does not detract from the political and social significance of the Higher Court victory. It is a case which does not only have applicability to South Africa but which, by its very character, enjoins the attention and direct interest of billions of poor people around the world who are suffering under neo-liberally inspired water policies. This is aided by governments that implement such policies and their corporate allies who seek to turn water into nothing less than another profit-making stock market option.
The greatest credit for this extraordinary legal victory must go to the residents of Phiri that resisted the installation of the pre-paid meters, and to all the other residents of poor communities, both in Johannesburg and across the country, who have been fighting for accessible, affordable and sufficient water provision/delivery. The Coalition Against Water Privatisation would like to extend its heartfelt thanks and congratulations to our advocate in the case, Wim Trengove, and to all the attorneys and paralegals at the Centre for Applied Legal Studies at Wits University and the Freedom of Expression Institute who pulled together the legal arguments that proved so persuasive. When government implementation is by managerial command which disregards the interests of the people it is meant to serve, the Bill of Rights can mean little more than the paper it is written on.
Thank you to the Coalition’s legal team for making the Constitution real again.