JOHANNESBURG, 6 May 2008 (IRIN) - A landmark High Court ruling against a multimillion-dollar prepaid water scheme in South Africa's largest township, Soweto, has been heralded as a global precedent in the struggle for the basic human right to water. The City of Johannesburg is expected to appeal the judgement and residents realise that "the struggle will not end anytime soon".

"Water is life, sanitation is dignity - this case is about the fundamental right to have access to sufficient water and the right to human dignity," said Judge Moroa Tsoka in the Johannesburg High Court last week.

In a class-action suit, five residents of Phiri, one of Soweto's poorest townships, asked the court to order the city to provide at least 50 litres of free water per person per day, double what they currently receive but the basic minimum prescribed by the World Health Organisation.

They also asked that they be given the choice of an ordinary credit water meter instead of the prepaid system imposed by the city, on which the court ruled in their favour as well.

"The case is the first in which a South African court has come out in favour of the poor. It sets a global precedent; it shows the defects of prepaid water meters, which require people to pay in advance, which discriminates against the poor," Ashfaq Khalfan, Coordinator of the Right to Water Programme of the Centre on Housing Rights and Evictions (CHORE), told IRIN.

CHORE, a Geneva based non-governmental organisation (NGO) that campaigns for the protection of housing rights, had joined the High Court proceedings as a 'friend of the court', which allows an independent party to introduce useful information relating to the case, with the permission of the court.

The UN suggests that in most cases 50 litres of water a day is insufficient. During his submissions in December 2007, Wim Trengove, advocate for the Phiri residents, said international research showed that across the globe in areas comparable to South Africa between 150 and 400 litres a day per person was the norm.

"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," Khalfan said.

The judgment incorporates the best of South African jurisprudence, international law and comparative jurisprudence, a CHORE statement said. "It creates a useful precedent for litigation globally."

Unconstitutional and unlawful

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

The prepaid meters, deemed "unconstitutional and unlawful" by the court, automatically disconnect the water supply once a household has used up the 6,000 free litres given by the city. The connection remains severed unless the user can afford to "top-up".

"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," Judge Tsoka ruled.

Tsoka argued that it contravened the "right to equality" if some Johannesburg residents - those with regular meters - got access to credit, while those in other areas - such as the residents of Soweto with prepaid systems - were denied the same privilege.

"The underlying basis for the introduction of prepayment meters seems to me to be credit control. If this is true, I am unable to understand why this credit control measure is only suitable in the historically poor black areas and not the historically rich white areas. Bad payers cannot be described in terms of colour or geographical area," he maintained.

In his submissions to the High Court, Trengove argued that the township's residents were not only some of the poorest and least educated in the city, but also bore the brunt of HIV/AIDS. Restrictions imposed on access to water have far-reaching implications in HIV/AIDS prevention and care.

Water is essential for the preparation of food and minimising the risk of infection, to which HIV/AIDS patients are more vulnerable, and for the enhanced hygienic standards required by caregivers. Additional drinking water is also necessary for taking medicines.

Underlying problem not solved

Virgil James, spokesman for the City of Johannesburg, said: "the implication [of the ruling] is huge".

The prepaid system was part of a larger scheme called operation Gcin'amanzi, meaning 'save water', to improve and expand Soweto's aging waterworks. "The idea is to save water - there have been huge water problems over the years. It's about upgrading the whole system in Soweto," James told IRIN.

"The problem for the city had been the large amount water that was unaccounted for," he said. Estimates on the City of Johannesburg's website put water loss in the township alone at about seven billion litres a month. "The meters have already led to a significant reduction in unaccounted water loss, saving money."

James said the prepaid system had been put into operation because it "would allow residents to control their consumption" and thus benefit the poor, as water would cost them nothing if they used only the free allocation. With more than 78,000 meters installed to date, the new system had thus far saved 52 billion litres of water.

According to the City of Johannesburg website, households used 66,000 litres per month in 2003. This had dropped, by a staggering 81 percent per user, to 12,000 litres per month in 2007.

James said the prepaid meters "should not be seen as a punitive measure; residents in other areas also pay for use with conventional meters. If they don't pay, they also get cut off."

He remarked that "There is a culture of non-payment throughout the whole city. Water in Soweto had never been metered before in the first place, so conventional water meters would not work there - people would just not pay for consumption."

Soweto residents used to receive unlimited water for a flat fee of R149 (about US$20) but payment levels were always low due to the long-standing practice of boycotting services payments, which was used as a method of opposition to the apartheid government in the 1980s.

Free water was not sustainable, James argued, because the city was also under pressure to collect money to be able to provide services. "We don't get it for free [from our supplier]," he pointed out.

Nevertheless, a way should be found to subsidise the "poorest of the poor, but the money will still have to come from somewhere - now, even those that don't need it, that can afford it, are getting water for free," he said.

But the court said there was no need for the water utility to recoup investments, and insisted that Johannesburg City had both the financial means and access to sufficient water to provide 50 litres per person per day.

Not over yet

Patra Sindane, spokesman for the Coalition Against Water Privatisation, told IRIN that residents of Phiri "were already removing [the prepaid meters] and bypassing them."

"The case was won legally, but is the result of a long struggle - they will not wait for the city to remove the meters. The challenge now is to make sure that Joburg water respects the judge's order," Sindane commented. "The struggle will not end anytime soon."

The City of Johannesburg's James pointed out that the judge had not said residents could go ahead and remove the meters. "This will lead to more huge water loss and high repair costs. This is not going to end now," he warned.

"A ruling has been made and City of Johannesburg has to respect the ruling. We are now analysing the ruling in depth in order to be able to make an informed decision as to whether we want to appeal or not."

James urged calm, saying: "Installation of new meters has stopped - our people are at work in Soweto, but this is just maintenance of the system."

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