The Water Wheel January/February 2009
Water as a human right
so that they can defend themselves incourt if challenged, trade their right or usethem as collateral for raising finance. The contract between the seller and buyerof water is another legal right. Water serv-ices are generally supplied in exchange forpayment, and are necessary for financingwater facilities. The World Panel on Financ-ing Water Infrastructure Report of 2003discusses the ways and means of financingwater facilities and the focus is on creat-ing an enabling environment which willmake water affordable to all. In the SouthAfrican context, the National Water Act of 1998 promotes equitable access to waterand ensures that water institutions haveappropriate community, racial and genderrepresentation.
The human right to water emanates fromArticles 1 and 2 of the International Cov-enant on Economic and Social Rights (ICE-SCR) which refer to the right to an adequatestandard of living and highest attainablestandard of health for all people. Consistentto this, the General Comment No 15 (GC15) infers that water of acceptable qualityfor personal and domestic use be assuredto individuals as a basic human right. ThisGeneral Comment calls for a progressiverealisation of the human right to water in theworld while acknowledging constraints of available resources. The South African Consti-tution has created a justiciable human rightto water and is one of only eight countries(as of 2004) who have made constitutionalprovisions to protect access to water.
engendering economicdevelopment through therights-based approach
The privatisation of water has been the hall-mark of the new water policy regime. Thenew paradigm of water demand manage-ment which came into being in the 1990shas called for the management of waterthrough efficient pricing. The direct transla-tion of this has been the rapid privatisationinitiative of water across the world.
The World Bank and International Mone-tary Fund (IMF) have driven the initiative of privatising water utilities around the world,especially in Africa. For example, a reviewof IMF loan documents to 40 countries in2000 revealed that some 12 countries inAfrica were granted loans on conditionsthat they privatise their water utilities.Generally, these loan conditions stipulatethat water consumers pay for the full costof water delivery; that is, the cost of operat-ing, maintaining and expanding the waterutility and perhaps a reasonable rate of return on investment. The major winnersfrom the privatisation exercise are the busi-nesses, and this has resulted in high pricesand disconnections at times. The bruntof privatisation is thus borne by the poorsegment of society.
This has engendered conflicts betweenwater users regarding human rights andother non-human rights (contractual andproperty rights) related aspects as discussedabove. In the South African context, prepaidwater meters have been used as a tool tocollect payment from residents. Thus, whenresidents cannot pay, their water suppliesare shut down. This causes people to look for alternative sources of water, which canbe hazardous to human health.
The South African constitution, however,ensures the legal priority to the humanright to water above other water uses.Some legal cases exemplify the currentlegality of water rights in South Africa. Thecase of Bon Vista Mansions vs. SouthernMetropolitan Local Council is a notableone in this regard. The residents of the BonVista Mansions block of flats experiencedthe disconnection of their water suppliesby the local council due to the non-pay-ment of water charges. The court ruled infavour of the residents and the water sup-ply was thus restored. This is a clear casewhere the human right to water use heldthe legal priority to overpower the claimsof contractual right to water use.
n another case of Manqele vs. Durban Transitional Metropolitan Council, thecourt ruled that it had no clear guidelinesregarding the prescribed minimum stand-ard of water supply services necessary forthe reliable supply of a sufficient quantityand quality of water to households, includ-ing informal households, to support lifeand personal hygiene, as per the SouthAfrican Water Services Act. Since Manqelewas already being given six kilolitres permonth as free basic water and she wasconsuming more than the basic minimum,the court ruled that her right to water wasincomplete and therefore not enforceable. This led to the debate on the free basicwater limit – a controversial issue on itsown.
In July 2006, five residents of Phiri inSoweto challenged the 6 000 ℓ per house-hold limit imposed by Johannesburg Waterin the Johannesburg High Court. Water Pro-gramme Director at the US Pacific Institute,Dr Peter Gleick, who acted as an expert wit-ness, was of the opinion that the amount of free basic water should be raised to50 ℓ/day/person. According to the Coali-tion Against Water Privatisation, the size of the average household in Phiri is 16, mostof whom were unemployed. The currentfree basic water provided at the rate of 20 ℓ/day lasted no more than 12 days in amonth wherafter residents were required topurchase water coupons which they couldnot afford. The court declared the prepaidmeters unconstitutional. The case hadreverberating effects – in Cape Town thelimit of free basic water was subsequentlyincreased to 10 kℓ/household/month.
south africa’s free basicWater policy
The free basic water policy of South Africahas been criticised as being economicallyinefficient. However, one has to see theemergence of this policy in the broadersocial context. In 1994, when the country’sfirst democratically-elected governmentcame into power, some ten million peopleout of 36 million were without access tosafe water. The responsibility to provideaccess rests squarely on the shoulders of local and provincial authorities, with theDepartment of Water Affairs & Forestry act-ing as policymaker and regulator. Three basic reasons are cited for institutinga free basic water policy:
Water is a merit good with positiveexternality leading to enhanced welfare;
Water accessibility leads to improvedpublic health, which has multiplierimpacts on the economy; and
It enables the local municipalities tomeet their constitutionally prescribeddevelopment obligations.
Under the Reconstruction and Develop-ment Plan it was postulated that theNational Water and Sanitation Programmebe launched to provide a safe and cleanwater supply of 20 ℓ/day to 30 ℓ/day
to all households within 200 m.In the medium term, it is to be revised to50 ℓ/day to 60 ℓ/day. This was latermaterialised into a legal requirement interms of the Water Services Act. The Act