Panel Theme:
Paper Title:
A Right to Water
Making the Right to Water Effective: Pre-Paid Meters in South
Africa
Author: Claire McCann
The recognition of a human right to water in international law is still a source of some conflict.
While there is general recognition of the need to ensure an economically viable mechanism for water supply, there has been a less enthusiastic approach taken towards the acknowledgement of a right to water and what this might entail at an international level. In an effort to resolve this friction between access to sufficient water for basic human needs as an ‘economic good’ and as a ‘right’ in 2002 the Committee on Economic, Social and Cultural Rights (CESCR) issued a General Comment asserting that water is a ‘public good fundamental for life and health’.
1
The CESCR affirmed that the right to water as implicit in the right to an adequate standard of living set out in article 11 of the International Covenant on Economic Social and Cultural Rights
(ICESCR) and the right to the highest attainable standard of health in article 12 of the ICESCR.
General Comment 15 delineates the relationship between the right to water and the realisation of the other rights set out in the International Bill of Rights. It sets out in some detail the normative content of the right and the obligations on states in relation to their duty to respect, protect and fulfil the rights in the ICESCR. The right to water consists of four main factors.
The first of these relates to availability as water supply should be ‘sufficient and continuous for personal and domestic uses’.
WHO Guidelines.
3
2 The second factor relates to water quality and endorses the
The third factor relates to physical and economic accessibility. It is important to note that the CESCR does not dictate that water supply should be free of charge, rather it asserts that it must be ‘affordable for all’.
4 Finally, water supply should be ensured without discrimination, and there is a ‘special obligation’ on states to provide for sufficient water for those persons ‘who do not have sufficient means’.
While South Africa has signed but not yet ratified the ICESCR, it was accepted by the
Constitutional Court in Makwanyane 6
5
that international law of a binding and non-binding nature can be used as an interpretative tool in the delineation of the normative content of the rights affirmed in the Constitution.
7 To this end it is important to place the South African mechanisms for ensuring adequate protection of the right to water within the international context on the development of certain aspects of this right by the ICESCR.
The South African Bill of Rights sets out a wide range of justiciable economic and social rights, including the right to adequate housing, healthcare, food and social security.
8 Section 27(b) affirms that ‘Everyone has the right to have access to … sufficient … water’. The content of this right was defined in legislation in 1997 9 and through subsequent secondary legislation.
10
These regulations set out the need for ‘appropriate education in respect of effective water use’ and set a minimum quantity for free basic water supply of 6 kilolitres of potable water per
1 CESCR, ‘General Comment 15’ (2002) in ‘Note by the Secretariat, Compilation of General Comments and General
Recommendations adopted by Human Rights Treaty Bodies’ (2004) UN Doc HRI/GEN/1/Rev.7, para 1
2
3
General Comment 15, para 12(a)
The latest version of the WHO Guidelines is as follows; WHO, Guidelines for Drinking Water Quality, 3 rd Edition
(Geneva: WHO, 2006)
4
5
General Comment 15, para 12(c)(ii) (my emphasis)
6
7
General Comment 15, para 15
S v Makwanyane and Another [1995] (3) SA 391 (CC)
Section 39(1) of the Constitution states ‘When interpreting the Bill of Rights, a court, tribunal or forum … (b) must consider international law’.
8 The Bill of Rights is set out in Chapter 2 of the Constitution of the Republic of South Africa, 1996. The Constitution took effect on 4 February 1997 after having been approved by the Constitutional Court (Ex Parte Chairperson of the
Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa, 1996 [1996] (4) SA 744)
9 Water Services Act 108 of 1997
10 Regulations Relating to Compulsory National Standards and Measures to Conserve Water under Section 9 of the
Water Services Act 108 of 1997 (2001)
Author:
University:
Programme:
Claire McCann
Queen’s University Belfast
Law PhD

household per month. This is based on an average household size of 8 people and translates to a total of 25 litres per person per day.
This is the legal and regulatory background to the installation of pre-paid water meters in
South African townships. There is a historical context for non-payment for basic services in townships. This practice finds its origins in the resistance within the townships to the old structures of Apartheid and is reinforced by delays in the improvement of these services since
1994 by local authorities.
11 In an effort to ensure sufficient cost-recovery for water supply services, a policy of installation of pre-paid water meters in certain townships was implemented by Johannesburg Water (Pty) Ltd. The pre-paid meters supply the first 6 kilolitres of water without requiring payment and thereafter the service is disconnected unless additional water is purchased.
One township which has been affected by this policy of pre-paid water meters is Phiri, Soweto.
The extreme poverty and high levels of unemployment faced by many of the residents of this community mean that many households, often much larger than the 8 person average, are unable to purchase any additional water once their free basic water supply is exhausted.
Litigation has been instigated by a number of residents in the township, supported by NGOs working in the area, which is questioning the constitutionality of the local authority’s policy of installing pre-paid meters to the exclusion of credit-metering. Furthermore the litigants are seeking information on how the current free basic water amount of 6 kilolitres was calculated and an increase in this amount to 50 litres per person per day and for the supply to be calculated on an individual, rather than household level.
This is an interesting case to highlight the benefits and limitations of litigation as a means of ensuring the human right to water and examining the tension between water as an economic good and water as a right. This paper will use this litigation as a means of understanding what the right to water consists of and whether courts are a useful tool in the effective realisation of this right.
11 The struggle by Local Authorities attempting to ensure payment for basic services in townships has been ongoing since 1994 and is recognised by the Constitutional Court in the case City Council of Pretoria v. Walker [1998] (2) SA
363
Author:
University:
Programme:
Claire McCann
Queen’s University Belfast
Law PhD