Beyond the MDGs – Water,
Sanitation and Access
26 to 27 May 2009
Cape Town
Studies in Poverty and Inequality
Institute
Outline
• Irrefutable Point of Departure: Water is an
essential prerequisite for life
• The Millennium Development Goals
• Progress in Meeting the MDGs on Water
and Sanitation
• The Constitution of South Africa
• The Phiri Water case
• Conclusions
Water is essential
• “Water is a powerful symbol throughout the
world, carrying with it ideas of baptism and new
life, cleansing and healing, and the promise of
growth and prosperity. In contrast, in a region of
growing demands on a limited resource, the
increasing scarcity of water could result in
devastating conflicts and catastrophes”
1997 White Paper on a National Water Policy for
South Africa
Uses
•
•
•
•
•
•
•
Life
Meeting basic needs
Health
Food Production
Manufacturing and Production
Sanitation
Certain forms of energy
The MDGS
• Eight UN “Development Goals” adopted by states in
2000.
• Most of them to be realised by 2015.
• Baseline date for measurement set at 1990.
• In adopting the Millennium Declaration in the year 2000,
the international community pledged to “spare no effort
to free our fellow men, women and children from the
abject and dehumanizing conditions of extreme poverty.
• The MDGs encapsulate the development aspirations of
the world as a whole. But they are not only development
objectives; they encompass universally accepted human
values and rights such as freedom from hunger, the right
to basic education, the right to health and a responsibility
to future generations.”
The Eight MDGs
•
•
•
•
•
•
•
•
Eradicate extreme poverty and hunger
Achieve universal primary education
Promote gender equity and empower women
Reduce child mortality
Improve maternal health
Combat HIV/AIDS, malaria and other diseases
Ensure environmental sustainability
Develop a global partnership for development
• Each Goal had distinct targets and indicators of progress
towards meeting the targets
Goal 7 – Targets 10 and 11
• Target 10: Halve, by 2015, the proportion
of people without sustainable access to
safe drinking water
• Target 11: Have achieved, by 2020, a
significant improvement in the lives of at
least 100 million slum dwellers
– Indicator: Proportion of the population with
access to improved sanitation
The attainment of MDGs in
Southern Africa
• Economic Commission for Africa – SA
2007 assessment:
• “The outcome of this study shows that the
levels of poverty are not declining, as
expected, and that the target of halving the
number of people living on less than $US1
per day seems unachievable by 2015 for
the region as a whole. In some countries,
poverty levels have actually increased….”
Cont
• “..Southern Africa is likely to achieve the
universal primary education goal.
However, poverty, food insecurity, child
malnutrition, gender inequality in
secondary and tertiary levels of education,
in the economy and the political sphere,
high child and maternal mortality,
deforestation, rural water and sanitation
remain major challenges
SA and MDG Targets
• SA committed to meet the MDG targets in
respect of development by 2014 – a year
before the MDG target
• MDG baseline year is 1990, in SA
baseline year generally based on year
2000 due to lack of data from former
homelands and an incomparability of data
between the 1995 and the 2000 Stats SA
Income and Expenditure Surveys.
Progress in Meeting the MDGs on water and
sanitation- Summary of Indicators of Progress
• Proportion of total population with access to an improved water
source (%)
• 1994: 60,1. 2004: 78,7. 2015 Target: 80,1. Progress: Good
• Proportion of rural population with access to an improved water
source (%)
• 1994:44,4. 2004: 63,6. 2015 Target: 72,2. Progress: Good
• Proportion of urban population with access to an improved water
source (%)
• 1994: 70,3. 2004: 87,7. 2015 Target:: 85,2. Progress: Achieved
• Proportion of total population with access to basic sanitation (%)
• 1994: 48,7. 2004: 63,7. 2015 Target: 74,4. Progress: Good
• Proportion of rural population with access to basic sanitation (%)
• 1994:32,5. 2004: 44,5. 2015 Target: 66,3. Progress: Slow
• Proportion of urban population with access to basic sanitation (%)
• 1994: 58,8. 2004: 76,9. 2015 Target: 79,4. Progress: Good
Standard of Access
• The MDG goal for access to drinking water
for South Africa was to provide 10.4 million
households with 20 litres of water per
person per day, accessible within 1000m
of a household.
• The standard measure used by South
Africa is based on the RDP level of 25
litres per person per day, located within
200m of a household
Already Achieved – Access to
Water Target 10
• By 2007, 87.2% of households– 11.2 million households
- had such access, while 10.8 million households
throughout the country had access to free basic water.
• The total number of households increased from 10.1
million in 1994 to 12.8 million in 2007.
• BUT, the level of access to free basic water differed
quite significantly between different provinces. In 2006,
99% of households in Gauteng had access to free basic
water, compared with just 50.4% of households in the
Eastern Cape, and 43.6% of households in Limpopo.
Access is severely hampered by lack of infrastructure in
rural areas.
Already Achieved - the Sanitation
Indicator
• In 1994, only 50% of all households in South Africa had access to
basic sanitation facilities
• This increased to 73% of households by 2007 - 9.6 million
households (out of a total of 12.8 million).
• The basic acceptable indicator of suitable sanitation is a ventilated
improved pit latrine.
• Despite the improvement in sanitation levels, in 2007, 113 085
households still relied on the bucket system -- this is an
improvement on the 609 675 households that used the bucket
system in 1994
• But, government admits that one of the obstacles to better sanitation
is that the extensive roll out of housing during this same period was
not accompanied by bulk water and sewerage infrastructure
upgrading, which supports anecdotal evidence regarding the
surprising state of new RDP houses without access to running water
or facilities for water borne sewerage.
The Constitution of South Africa
• The Constitution, which expresses the
desires of the people of South Africa who
created it, is now the highest law of the
land, and all law, including water law, must
follow the spirit and letter of the
Constitution and should give force to the
moral, social and political values that the
Constitution promotes.
White Paper, 2007
Applicable Constitutional Rights
•
•
•
•
Section 9 – Right to Equality
Section 10 – Right to Dignity
Section 11 – Right to Life
Section 24 - Right a to non-harmful
environment
• Section 26 – Right to adequate housing
• Section 27 – Rights to health care
services, sufficient food and water, and
social security
Phiri Water Case
•
•
•
•
The City of Johannesburg, Johannesburg Water
(Pty) Ltd and The Minister of Water Affairs and
Forestry
V
Lindiwe Mazibuko, Grace Munyai, Jennifer
Makoatsane, Sophia Malkutu, Vusimuzi Paki and the
Centre on Housing Rights and Evictions
Supreme Court of Appeal, Case 489/08
Heard: 23-25 February 2009
Judgement handed down: 25 March 2009
Appeal from judgement of Tsoka J in Johannesburg High
Court
Main Legal Issues
• Do the City of Johannesburg and
Johannesburg Water (a company in which
the City is the sole shareholder) have a
constitutional duty to provide free water to
the residents of Phiri (a township in
Soweto)?
• Can the City and Joburg Water restrict
access to water by Phiri residents by
means of prepaid metres?
Judgment of the Court A Quo
• The Court reviewed and set aside the decision of the
City, alternatively Johannesburg Water, to limit free basic
water supply to 25 litres per person per day or 6 kilolitres
per household per month.
• The Court declared the prepayment water system used
in Phiri Township, the ‘forced installation’ of the system
and the choice given by the City alternatively
Johannesburg Water to the respondents and other
residents of Phiri of either a prepayment water supply or
a water supply through standpipes, unconstitutional and
unlawful.
• The Court ordered the City alternatively Johannesburg
Water to provide each applicant ‘and other similarly
placed residents of Phiri Township’ with a free basic
water supply of 50 liters per person per day and the
option of a metered supply installed at the cost of the
City.
Legal Context of Challenge
• The City is a municipality in the Province of
Gauteng. In terms of the Constitution one of the
objects of local government is to ensure the
provision of services to communities in a
sustainable manner (s 152(1)(b)) within its
financial and administrative capacity.
• It has executive authority in respect of, and has
the right to administer, among others, water and
sanitation services (s 156(1)) and may make
bylaws for the effective administration of these
services.
Historical Context
• The residents of Phiri are very poor, but,
for years, until 2004, they, like residents in
the rest of Soweto, Alexandra et al, had
access to an unlimited supply of water
which was not metered and for which they
were charged on the basis of a deemed
consumption of 20kl per month.
• In 2004 the deemed consumption was
discontinued by the City and prepayment
meters were installed dispensing 6kl water
per stand per month free. Additional water
had to be pre-paid for.
Respondents’ Claims
• The respondents contended that 6kl water
per stand per month was insufficient water
for the residents of Phiri and that in terms
of s 27 of the Constitution, they had a right
of access to sufficient water, which they
contended would be 50 litres water per
person per day, and this quantity of water,
should be provided free to each resident in
Phiri who could not afford to pay for such
water.
Section 27 of the Constitution of
South Africa
• Section 27 of the Constitution provides that everyone
has the right to have access to sufficient water. The
section reads 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.’
Water Services Act 108 of 1997
• Giving effect to its obligation in terms of s 27(2) the state
enacted the Water Services Act 108 of 1997.
• Section 3 provides as follows:
(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.’
Water Services Act (cont)
• ‘“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’ (s 1).
• It follows that in terms of s 3(1) everyone has a
right of access to ‘the prescribed minimum
standard of water supply services necessary
for the reliable supply of a sufficient quantity
of water to households . . . to support life and
personal hygiene.’
Legal Entitlement
• As envisaged in s 3 read with the definition of ‘basic water supply’
water services regulations providing for the minimum standard of
water supply services were promulgated. Regulation 3 provides:
• ‘3 The minimum standard for basic water supply services is –
(a) . . .
(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.’
• Section 3 of the Act read with regulation 3(b) therefore provides
that everyone has a right of access to a minimum quantity of
water of 25 litres per person per day or 6 kilolitres per
household per month.
Much higher standard than the
MDG standard…
• The MDG standard for drinking water for
South Africa was to provide 10.4 million
households with 20 litres of water per
person per day, accessible within 1000m
of a household.
Question before the SCA:
Revisiting “Sufficiency”
• The Water Services Act together with the regulations
promulgated in terms thereof, provide that 6kl water per
household per month or 25 litres per person per day, is
the minimum quantity of water that would constitute a
sufficient quantity of water for households to support life
and personal hygiene.
• In terms of s 3 and subject to the limitations contained in
the Act (s 3(4)) everyone has a right of access to that
quantity of water (s 3(1)), every water services institution
must take reasonable measures to realise these rights (s
3(2)) and every water services authority must, in its
water services development plan, provide for measures
to realise these rights (s 3(3)).
This is just a minimum..
• These provisions were not intended to detract from the right of
everyone of access to sufficient water in terms of s 27(1) of the
Constitution. They were intended, as required by s 27(2), to achieve
a progressive realisation of those rights.
• As a result of these provisions it cannot be contended by a water
services institution that a lesser quantity of water would constitute
sufficient water to support life and personal hygiene.
• The quantity stipulated is the minimum that may constitute sufficient
water. However, circumstances differ, some people, like the
residents of Phiri, may have waterborne sanitation while others have
pit latrines which makes a dramatic difference to the water required.
• By stipulating the minimum that would constitute sufficient water the
legislature has not stipulated that that quantity would in all
circumstances constitute sufficient water.
Court posed these questions
• It follows that the Water Services Act does not
deprive anyone of the right of access to
sufficient water in terms of s 27(1).
• This interpretation gives rise to certain
questions, i.a.:
• (i) What would constitute sufficient water in
terms of s 27(1);
• (ii) Does the City have to provide such access or
access to a lesser quantity of water free.
What is ‘sufficient’?
• A commitment to address a lack of access to clean water and to
transform our society into one in which there will be human dignity
and equality, means that a right of access to sufficient water cannot
be anything less than a right of access to that quantity of water that
is required for dignified human existence.
• Support for this conclusion is to be found in the 2002 General
Comment 15 of the United Nations Committee on Economic, Social
and Cultural Rights on the International Covenant on Economic,
Social and Cultural Rights:
‘The human right to water is indispensable for leading a life in
human dignity. It is a prerequisite for the realization of other human
rights.’
• 25 litres is a minimum standard that was set with people living
without water borne sewerage in mind. Each flush of a toilet takes
about 10 litres of water, so 25 litres per person per day clearly is not
sufficient to provide for a life of dignity for the people of Phiri.
• The court found on the evidence placed before it that 42 litres
per person per day constituted sufficient water in terms of
section 27 (1) of the Constitution
Does the City have to provide this amount of
water, or less, free of charge?
• In terms of the Constitution, every Phiri resident
has the right to access 42 l of water per day
• Many Phiri residents are poor, and many cannot
afford to pay for the water that they need
• “Not being able to pay for the water, they
have no access to that water”.
• It would be untenable if the City and the state,
having available resources, were not obliged to
provide water free of charge to those who
needed it.
Argument
•
The respondents submitted that it would be appropriate in these
circumstances to replace the order of the court below with an order that the
City provide the quantity of water that is found to constitute sufficient water
in terms of s 27(1) free of charge to every resident in Phiri.
•
Their case is that the City’s case on the papers is not that it cannot afford to
do so and having failed to take action against non-payers the City had in
fact, for many years provided an unlimited quantity of water free to the
deemed consumption areas such as Phiri. They submitted further that to
now, except in special cases, provide only 25 litres per person per day
free is a retrogressive step.
•
The City contended that it would be unreasonable to provide 42 l free water
to every resident of Phiri, because some can pay, but more so because an
order that the City should provide 42 litres of free water to the residents of
Phiri who cannot afford to pay for such water will in effect oblige the City to
provide that quantity of water free to other residents in the City whose
circumstances are similar to those of the Phiri residents.
Order
• The court found that the City and the State did have a
constitutional obligation to provide 42l of free water per
day to people in Phiri who could not afford it, subject to
their available resources, and that their policies should
be revised to reflect that (which the court would not do
as this would be an usurpation of the functions of the
executive)
• However, the court also ordered that until this had been
done, and as an incentive to the City to actually revise
their policies, the City was obliged to provide 42 l free of
charge to those who cold not afford it, and these would
be determined by who was registered on the City’s
Register of Indigents.
Legality of Prepayment meters
• Interestingly, these metres were only found to be
unlawful because the bye-laws did not specify
them, hence they were declared unlawful, but
this was suspended for two years to specifically
allow the City to change its bye-laws.
• The Court A Quo’s order that the prepayment
meters already installed had to removed was
rejected by the SCA as being an “(inappropriate)
remedy in the circumstances” given the other
benefits that delivery by such method allegedly
provided for the recipients.
Conclusions
• This judgment clearly sets the bar far higher than the
MDG standard, specifically for people with reticulation
services
• A good example of SA being true to its own principles
and respecting the Constitution, improving on an
international standard that has been proven cannot
afford dignity to people – low benchmarks for the poor in
developing countries might be a valid critique of the
MDGs
• What was never addressed however was the question of
the availability of water as an “available resource” –
available resources clearly cannot only be seen as being
money if we have a shortage of natural resources
Isobel Frye
Studies in Poverty and Inequality
Institute
isobel@spii.org.za