South African Court issues landmark ruling against pre-paid water meters in Johannesburg township, requires provision of 50 litres of water free per person per day

The High Court of South Africa has ruled that the City of Johannesburg’s forced prepayment water meters scheme in Phiri, a township in Soweto, is unconstitutional. This judgement, in which the Geneva-based Centre on Housing Rights and Evictions (COHRE) provided a third party submission (amicus curiae), also reaffirmed the principle of progressive realisation and increases the minimal amount of safe drinking water that the City is obligated to provide.

Bret Thiele, Coordinator of COHRE’s Litigation Programme, said, “This ruling marks a key turning point in the struggle of South Africa’s historically marginalised groups for their right to water. For the first time, a court has affirmed their right to sufficient water for their basic daily requirements.”

In Mazibuko v. City of Johannesburg, the Court ruled that the City of Johannesburg’s practice of forced installation of pre-paid water meters in Phiri, Soweto, is unconstitutional. The City was directed to provide residents of Phiri with the option of a normal metered water supply. The judgment held that Johannesburg’s water policy was discriminatory. While people in low-income historically black townships are required to pay for water in advance, those in wealthy historically white suburbs are entitled to water on credit, and to negotiate payment with the City when they delay payment of their bills.

Ashfaq Khalfan, Coordinator of COHRE’s Right to Water Programme, said, “This decision will be an immense boost to poor communities in South Africa and elsewhere. It is a warning shot against attempts to forcibly impose pre-paid water systems on the poor elsewhere in Africa and globally.”

The Court also ordered the City to provide residents of Phiri with 50 litres of free water per person per day. This is an increase from the current allocation whereby each household (on average containing 16 persons) is only provided with 200 litres per day. The court noted that 25 litres per person is insufficient, especially for people suffering from HIV/AIDS. The Court noted that the City had the available water and financial resources to provide 50 litres per person per day, including through funds provided by the national government for water provision that the City had chosen thus far not to use for the benefit of the poor.

The judgment not only incorporates both a heightened awareness of the social and economic context of poor communities in South Africa, but also incorporates the best of South African jurisprudence, international law and comparative jurisprudence. It creates a useful precedent for litigation globally.

The judgement has been appealed by the City of Johannesburg, and COHRE has now intervened before the Constitutional Court. The work to promote the right to water in Johannesburg and elsewhere in South Africa must continue, through the courts and through the mobilisation of residents in townships such as Soweto and broader civil society, in order to ensure that this success is entrenched and the desired real changes on the ground are realised.

COHRE wishes to recognise the important assistance provided in its intervention before the High Court by the New York University School of Law's International Human Rights Clinic and the Legal Resource Centre of South Africa.