THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 489/08

THE CITY OF JOHANNESBURG
First Appellant
JOHANNESBURG WATER (PTY) LTD
Second Appellant
THE MINISTER OF WATER AFFAIRS & FORESTRY
Third Appellant

and

LINDIWE MAZIBUKO
First Respondent
GRACE MUNYAI
Second Respondent
JENNIFER MAKOATSANE
Third Respondent
SOPHIA MALEKUTU
Fourth Respondent
VUSIMUZI PAKI
Fifth Respondent
THE CENTRE ON HOUSING RIGHTS AND EVICTIONS
Amicus Curiae

Neutral citation:
City of Johannesburg v L Mazibuko (489/08) [2009] ZASCA 20
(25 March 2009)

Coram:
STREICHER, MTHIYANE, JAFTA, MAYA JJA & HURT AJA

Heard:
23, 24 & 25 FEBRUARY 2009

Delivered:
25 MARCH 2009

Summary:
Section 27 of Constitution – sufficient water is the quantity of
water required for dignified human existence – the Water Services
Act 108 of 1997 does not deprive anyone of the right of access to
sufficient water in terms of s 27(1) – a person who cannot afford to
pay for water has no access to water being charged for – local
authority obliged to supply free water to residents who cannot
afford to pay for the water if reasonable to expect it to do so –
prepayment water meters used by appellants not authorised by
bylaws and unlawful.

_____________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: Johannesburg High Court (Tsoka J sitting as court of
first instance)

The appeal is upheld and the order by the court below is replaced with the
following order:
‘1
The decision of the first respondent and/or the second respondent to
limit the free basic water supply to the residents of Phiri to 25 litres per
person per day or 6 kl per household per month is reviewed and set aside.
It is declared:
(a) That 42 litres water per Phiri resident per day would constitute
sufficient water in terms of s 27(1) of the Constitution.
(b) That the first respondent is, to the extent that it is in terms of s 27(1)
of the Constitution reasonable to do so, having regard to its available
resources and other relevant considerations, obliged to provide 42 litres
free water to each Phiri resident who cannot afford to pay for such water.
The first and second respondents are ordered to reconsider and
reformulate their free water policy in the light of the preceding
paragraphs of this order.
Pending the reformulation of their free water policy the first and
second respondents are ordered to provide each account holder in Phiri
who is registered with the first respondent as an indigent with 42 litres of
free water per day per member of his or her household.
It is declared that the prepayment water meters used in Phiri
Township in respect of water service level 3 consumers are unlawful.

The order in paragraph 5 is suspended for a period of two years in
order to enable the first respondent to legalise the use of prepayment
meters in so far as it may be possible to do so.’

_____________________________________________________________________

JUDGMENT
_____________________________________________________________________

STREICHER JA (MTHIYANE, JAFTA, MAYA JJA and HURT AJA
concurring)

[1] Do the City of Johannesburg (‘the City’), the first appellant, and
Johannesburg Water (Pty) Limited (‘Johannesburg Water’), the second
appellant, 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, Johannesburg), who cannot afford to pay for such
water? This question is one of two main issues to be decided in this case.
The other one is whether the City and Johannesburg Water (unless the
context indicates otherwise, henceforth jointly referred to as the City)
could restrict access to water by the Phiri residents by way of prepayment
water meters.

[2] Upon application by the five respondents, all of whom are resident
in Phiri, the Johannesburg High Court (per Tsoka J) made an order in
terms of which it:
(a)
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.

(b)
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.
(c)
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.
With the leave of the court a quo the City and Johannesburg Water
together with the third appellant, the Minister of Water Affairs and
Forestry, now appeal to this court.

[3] 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)). Like the other objects of local government a municipality
must strive, within its financial and administrative capacity, to achieve
that object (s 152(2)). 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
(s 156(2)).

[4] The residents of Phiri are very poor, but, for years, until 2004, they,
like residents in the rest of Soweto, Alexandra and other townships within
the area of jurisdiction of the City, 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. 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.
That quantity of water, so they contended, had to be provided free to each
resident in Phiri who could not afford to pay for such water.

[5] 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.’

[6] Giving effect to its obligation in terms of s 27(2) the state enacted
the Water Services Act 108 of 1997. Section 4 of the Act provides that
water services must be provided in terms of conditions set by the water
services provider which must accord with conditions for the provision of
water services contained in bylaws made by the water services authority
having jurisdiction in the area in question. The City is a water services
authority and Johannesburg Water is a water services provider as defined
in the Act.

[7] In the preamble to the Act ‘the rights of access to basic water
supply and basic sanitation necessary to ensure sufficient water and an

environment not harmful to health or well-being’ are recognised. 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.’

[8] ‘“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.’

[9] 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.’

[10] 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. The
appellants submitted that as a result of this legislation the respondents
could no longer base their claim on a right of access to sufficient water in
terms of s 27 of the Constitution but had to base their claim on the
provisions of the Act. They submitted that where national legislation had
been enacted to give effect to a constitutional right, it was impermissible
for a litigant to rely directly on the constitutional right concerned. In this
regard they relied on MEC for Education, KwaZulu-Natal, and Others v
Pillay 2008 (1) SA 474 (CC) at para 40 where Langa CJ said:
‘This court has held in the context of both administrative and labour law that a litigant
cannot circumvent legislation enacted to give effect to a constitutional right by
attempting to rely directly on the constitutional right. To do so would be to “fail to
recognise the important task conferred upon the legislature by the Constitution to
respect, protect, promote and fulfil the rights in the Bill of Rights”. The same
principle applies to the Equality Act. Absent a direct challenge to the Act, courts must
assume that the Equality Act is consistent with the Constitution and claims must be
decided within its margins.’

[11] The respondents conceded that this rule, (‘the direct reliance rule’),
is well established. But, they submitted that the rule does not operate
whenever legislation gives effect to a constitutional right. It operates only
if and when, on a proper interpretation of the legislation read with the
constitutional right to which it gives effect, the legislation is intended to
be exhaustive of the right, that is, if parliament intended to cover the
field. In support of this submission they relied on Chaskalson CJ’s
reasoning in Minister of Health and Another v New Clicks South Africa
(Pty) Ltd 2006 (2) SA 311 (CC) in which he held that a review of
administrative action can no longer be brought directly under s 33 (1) of

the Constitution and has to be brought under the Promotion of
Administrative Justice Act 3 of 2000. Chaskalson CJ said:
‘PAJA is the national legislation that was passed to give effect to the rights contained
in s 33. It was clearly intended to be, and in substance is, a codification of these rights.
It was required to cover the field and purports to do so.
A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely
on s 33(1) of the Constitution or the common law. That would defeat the purpose of
the Constitution in requiring the rights contained in s 33 to be given effect to by
means of national legislation.’1

[12] However, there is a substantial difference between, on the one
hand, the constitutional provisions and legislation that gave rise to the
application of the direct reliance rule and, on the other hand, s 27 of the
Constitution and the Water Services Act.
(i)
Section 9(4) of the Constitution provides that no person may
unfairly discriminate against anyone on one or more of the grounds
mentioned and then adds that national legislation must be enacted to
prevent or prohibit unfair discrimination. The Equality Act was thereupon
enacted to give effect to s 9. That is the background to the Constitutional
Court’s decision in Pillay referred to above.
(ii)
Section 33(1) of the Constitution provides that everyone has the
right to administrative action that is lawful, reasonable and procedurally
fair and subsection (3) requires national legislation to be enacted to give
effect to that right. PAJA was thereupon enacted to give effect to that
right. It is on that basis that Chaskalson CJ applied the direct reliance rule
in New Clicks.
(iii)
Section 23(5) of the Constitution provides that every trade union,
employers’ organisation and employer has the right to engage in
collective bargaining and that national legislation may be enacted to

1 At paras 95-96.

regulate collective bargaining. Regulations in terms of the Defence Act
44 of 1957, which in terms of the Constitution qualify as national
legislation, were promulgated to regulate collective bargaining. This led
O’Regan J in giving the judgment of the Constitutional Court in South
African National Defence Union v Minister of Defence and Others 2007
(5) SA 400 (CC) to say in para 52 that ‘a litigant who seeks to assert his
or her right to engage in collective bargaining under s 23(5) should in the
first place base his or her case on any legislation enacted to regulate the
right, not on s 23(5).

[13] In all these cases the direct reliance rule was applied in
circumstances where the Constitution provided that legislation could be
or had to be enacted to give effect to the right in terms of the Constitution
and where that had been done. In the present case the Constitution does
not provide that legislation could or had to be enacted to give effect to the
right of access to sufficient water. It provides that legislative and other
measures must be taken to achieve the progressive realisation of each of
the rights mentioned in s 27(1). It was in my view realised that there were
people who had access to sufficient water and others who did not have
such access and could not immediately be given such access. It is for the
latter category of people that the Constitution requires the state to take
reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of the right of access to sufficient
water. Section 27(2) was therefore not intended to cover the field and to
deprive anyone of its right to rely on the provisions of s 27(1). On the
contrary it simply recognises that it may, in certain circumstances, not be
possible for the state to give immediate effect to the provisions of s 27(1)
and requires the state to take reasonable legislative and other measures to

encourage the progressive realisation of the right of access to sufficient
water.

[14] 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)). 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.

[15] 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 three questions, namely: (i) What would

constitute sufficient water in terms of s 27(1); (ii) Does the City have to
provide residents of Phiri with access to that quantity of water; and (iii)
Does the City have to provide such access or access to a lesser quantity of
water free. I shall deal with each of these questions in turn.

What would constitute sufficient water in terms of s 27(1)?
[16] In interpreting the right to sufficient water a purposive approach
should be followed. In determining the purpose of the right one should
have regard to the history and background to the adoption of the
Constitution and the other provisions of the Constitution, in particular the
other rights with which it is associated in the Bill of Rights.2 On this
approach the following passage in Soobramoney is apposite:3
‘There is a high level of unemployment, inadequate social security, and many do not
have access to clean water or to adequate health services. These conditions already
existed when the Constitution was adopted and a commitment to address them, and to
transform our society into one in which there will be human dignity, freedom and
equality, lies at the heart of our new constitutional order. For as long as these
conditions continue to exist that aspiration will have a hollow ring.’

[17] 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, lying at the heart of our Constitution, it follows 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

2 S v Zuma and Others 1995 (2) SA 642 (CC) para 15; and S v Makwanyane and Another 1995 (3) SA
391 (CC) para 9 and 10.
3 Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC) at para 8.

Rights, in which it is stated: ‘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.’4 And ‘The right to water clearly falls within the
category of guarantees essential for securing an adequate standard of
living, particularly since it is one of the most fundamental conditions for
survival. . . . The right should also be seen in conjunction with other
rights enshrined in the International Bill of Human Rights, foremost
amongst them the right to life and human dignity.’5 For this reason ‘the
elements of the right to water must be adequate for human dignity, life
and health’.6

[18] The quantity of water that is required for dignified human existence
would depend on the circumstances of the individual concerned. As stated
above the Water Services Act, read with the regulations promulgated in
terms thereof, prescribes a basic minimum supply of water of 6kl per
household per month or 25 litres per person per day. Being a basic
minimum supply of water and bearing in mind that many people who are
in desperate need of adequate access to water, do not have waterborne
sanitation; the basic minimum supply of water in terms of the Act must
have been determined by reference to the needs of households or
individuals who can manage without waterborne sanitation. That is so
because according to the evidence a flush toilet dispenses approximately
10 litres of water per flush and nobody has suggested, or could on the
evidence suggest, that 6kl per household per month or 25 litres per person
per day constituted sufficient water for leading a life in human dignity
where use had to be made of flush toilets, as is the case in Phiri.

4 Para 1.
5 Para 3.
6 Para 11.

[19] Confirmation of the aforegoing is to be found in the White Paper
issued by the Department of Water Affairs and Forestry in November
1994 entitled ‘Water Supply and Sanitation Policy’. In respect of water
supply it is said: ‘Basic water supply is defined as 25 litres per person per
day. This is considered to be the minimum required for direct
consumption, for the preparation of food and for personal hygiene. It is
not considered to be adequate for a full, healthy and productive life which
is why it is considered as a minimum.’

[20] In September 2003 the Department issued a Strategic Framework
for Water Services entitled ‘Water is Life, Sanitation is Dignity’.
According to the Framework, basic levels of service would be ‘reviewed
in future to consider increasing the basic level from 25 to 50 litres per
person’.

[21] As to what quantity of water would constitute sufficient water for
the residents of Phiri the respondents relied on and the court below
accepted the evidence of P H Gleick the author of an article entitled
‘Basic water requirements for human activities: Meeting basic needs’
published in Water International, 21 (1996) 83-92. According to the
article the water requirements of a resident of Phiri per day are a
minimum of (i) three litres by way of fluid replacement under average
temperate climate conditions and 5 litres in tropical and subtropical
conditions; (ii) 5 to 15 litres for adequate bathing; (iii) 10 litres for food
preparation, including dishwashing; and (iv) 20 litres for waterborne
sanitation. On this basis he recommended in the article that a minimum of
50 litres per person per day be provided taking the upper limit for
drinking water and bathing. No reason for taking the upper limit in
respect of bathing is advanced. In an affidavit filed in support of the

respondents’ claim Gleick stated that 50 litres per person, made up in the
same way, should be viewed as a minimum basic need. The 15 litres per
day for bathing he justified on the basis that Phiri residents cannot rely on
rivers for bathing. However, the statement in the article that 5 to 15 litres
would be adequate for bathing is not qualified in this manner. In the
result, reducing the 50 litres minimum by 2 litres in respect of drinking
water Gleick’s evidence, at best for the respondents, is to the effect that a
Phiri resident, who is not  living in tropical or subtropical conditions,
requires a minimum of 48 litres per day.

[22] The appellants relied on an affidavit by I H Palmer in respect of the
water requirements of the residents of Phiri. Palmer is a civil engineer and
managing director of Palmer Development Group (Pty) Ltd a consultancy
company offering consultancy services in respect of, among others, water
supply and sanitation. According to him 3 litres drinking water per person
per day is considered reasonable for a Highveld climate, 7 litres per
person per day is consistently used in the literature as a minimum for
personal washing but 14 litres per day is consistent with research carried
out for a low income water use category, 9.2 litres per person is required
by a household of four in respect of cooking, washing of dishes, washing
of clothes and cleaning of the premises and 15 litres (1.5 toilet flushes) in
respect of toilet flushing ie, taking the upper limit in respect of personal
washing which is almost the same as the figure suggested by Gleick, a
total of 41.2 litres per person per day is required.

[23] The appellants objected to the court a quo’s reliance on the
evidence of Gleick on the basis, amongst others, that in terms of the
Plascon Evans rule, the matter having been brought on application, it
should be decided on the appellants’ (respondents in the court below)

evidence in so far as it differs from that of Gleick. The respondents on the
other hand submitted that Palmer’s evidence could not be accepted
because he applied the wrong standard. According to the submission
Palmer’s standard was the quantity of water required for the public
benefit and not the quantity of water required for dignified human
existence. I do not think that this criticism of Palmer’s evidence is
justified. It is clear from his evidence that he realised that what he had to
determine was the quantity of water required for dignified human
existence and that that was what he attempted to do. His quantification is
specifically done under the heading ‘Quantifying the amount of water
needed for health (and human dignity).

[24] The only real difference between the evidence of Gleick and
Palmer is that Palmer is of the opinion that 15 litres of water would
suffice for waterborne sanitation whereas Gleick is of the opinion that 20
litres are required. There is no basis upon which the evidence of Gleick
can on the papers be preferred to that of Palmer. The same applies to the
minor differences in respect of personal washing and cooking and house
cleaning. For these reasons I am of the view, on the evidence presented,
that 42 litres water per person per day would constitute sufficient water in
terms of s 27(1) of the Constitution.

Does the City have to provide Phiri residents with 42 litres of water
per person per day?
[25] In terms of s 11 of the Water Services Act every water services
authority has a duty to all consumers in its area of jurisdiction to
progressively ensure efficient, affordable, economical and sustainable
access to water services (s 11(1)). This duty is subject to, amongst others,
the availability of resources; the need for an equitable allocation of

resources to all consumers; the need to regulate access to water services
in an equitable way; the duty of consumers to pay reasonable charges;
and the right to limit or discontinue the provision of water services if
there is a failure to comply with reasonable conditions set for the
provision of such services (s 11(2)). In ensuring access to water services,
a water services authority must take into account factors such as the need
for regional efficiency; the need to achieve benefit of scale; and the
requirements of equity (s 11(3)). It may not unreasonably refuse or fail to
give access to water services to a consumer or potential consumer in its
area of jurisdiction (s 11(4)).

[26] Although s 27(1) provides that everyone has the right to sufficient
water everyone does not have a claim for the immediate fulfilment of that
right. As was said by Chaskalson CJ in Soobramoney v Minister of
Health (KwaZulu-Natal) 1998 (1) SA 765 (CC) para 11:
‘What is apparent from these provisions is that the obligations imposed on the state by
sections 26 and 27 in regard to access to housing, health care, food, water and social
security are dependent upon the resources available for such purposes, and that the
corresponding rights themselves are limited by reason of the lack of resources.  Given
this lack of resources and the significant demands on them that have already been
referred to, an unqualified obligation to meet these needs would not presently be
capable of being fulfilled.’

[27] A local authority such as the City is required only to act reasonably
and to progressively fulfil its obligation to ensure that everyone has
access to sufficient water.7 It is, however, not the City’s case that it is
unable to provide the residents of Phiri with sufficient water and that it is
not obliged to provide them with access to sufficient water, be it 42 litres

7 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721
(CC) para 35.

or a greater quantity. The City’s case is that it does not have to provide
free water. Subject to the residents paying for such water they are not
restricted to a certain quantity of water.

Does the City have to provide such access or access to a lesser
quantity of water free of charge?
[28] In terms of s 27(1) everyone has the right to have access to
sufficient water ie every Phiri resident has the right to have access to 42
litres per day. But many of the Phiri residents are poor and at least some
of them cannot afford to pay for the water they need. Not being able to
pay for the water, they have no access to that water. Compare in this
regard 2002 General Comment 15 of the United Nations Committee on
Economic, Social and Cultural Rights on the International Covenant on
Economic, Social and Cultural Rights8 in which it is said, under the
heading ‘Accessibility’, that water, and water facilities and services, must
be affordable for all and must be accessible to all including the most
vulnerable or marginalized sections of the population, in law and in fact.

[29] The City did not contend that a person who cannot afford to pay for
water has access to that water. It contended, as stated above, that the
respondents could not rely on the Constitution but had to rely on the
Water Services Act. In terms thereof, so it submitted, the City was
obliged to take reasonable measures to secure access to basic water
services as prescribed in the Water Regulations and not to provide such
basic services free. I have already rejected the submission that the
respondents could not base their claim on s 27(1) of the Constitution and
I do not agree that, in terms of the Act, no water is to be provided free.
Section 4(3)(c) of the Act expressly provides that ‘procedures for the

8 At para 12(c).

limitation or discontinuation of water services must not result in a person
being denied access to basic water services for non-payment, where that
person proves, to the satisfaction of the relevant water services authority,
that he or she is unable to pay for basic services’. It is also not the policy
of the Department of Water Affairs and Forestry or of the City not to
provide free water in any circumstances.

[30] A contention that the state and the City are not obliged to provide
water free to people who cannot afford to pay for that water in
circumstances where it would be reasonable to expect the state or the City
to do so is in my view untenable. Whether it would be reasonable will of
course depend on its available resources and other relevant
considerations. The state and the City realised that to be so. That much is
clear from the free water policy adopted by the state and the City to
which I now turn.

[31] In February 2001 the Minister of Water Affairs and Forestry
announced that government had resolved to ensure that poor households
were given a basic supply of water free of charge. He went on to state that
Cabinet had approved a policy to provide 6kl of safe water per household
per month. In May 2001 the Chief Directorate: Water Services of the
Department of Water Affairs and Forestry issued Version 1 of its ‘Free
Basic Water’ Implementation Strategy Document in which it is said:
‘Again it needs to be recognised that local authorities should still have some
discretion over this amount. In some areas they may choose to provide a greater
amount, while in other areas only a smaller amount may be possible. For example, in
some remote areas with scattered settlements, high water costs and water stressed
areas it is often not feasible to provide 6000 litres of water. . . . In some areas where
poor households have waterborne sanitation the total amount of water seen as a “basic

supply” may need to be adjusted upwards (if financially feasible) to take into account
water used for flushing.’

[32]  Shortly after the promulgation of the water regulations on 28 June
2001 the City approved Johannesburg Water’s business plan in terms of
which it was recommended that each household be provided with 6kl free
water per month. The provision of 6kl free water per month may have
been brought about by the regulations read with s 4(3)(c) of the Water
Services Act which provide, as stated above, that procedures for the
limitation or discontinuation of water services must not result in a person
being denied access to basic water services for non-payment, where that
person proves, to the satisfaction of the relevant water services authority,
that he or she is unable to pay for basic water services. Initially the
decision to provide 6kl free water per month was only implemented in
areas other than deemed consumption areas such as Soweto. Later, when
prepayment water meters had been installed in Phiri the first 6kl per
month per stand was also provided free but for all water required in
excess of 6kl prepayment had to be made.

[33] The City from time to time revised its free water policy. In mid-
2005 it appointed consultants to undertake, amongst others, the
development of a clear set of policy recommendations for how to
restructure the City’s social package designed to assist the poor, the
assessment of past experience of the City in implementing successive
versions of the social package and the evaluation of a variety of options
for targeting the social package so that it optimally benefits poor
households. The work culminated in two documents one of which is titled
‘A Social Package Policy Base Document’ dated 8 June 2006 (‘the Base
Document’). The Base Document recommends that 10kl free water per

month per consumer unit be provided to properties valued at less than a
certain amount and that no free water be provided to other properties. It
adds:
‘6kl of water per month is the standard for free basic water per month. The amount of
6kl is based on the RDP standard of 25l per day, and a household size of 8 people.
This amount is adequate for households with no reticulation . . ..

Evidence suggests that the average consumer unit size in the poorer areas of
Johannesburg is 7 to 8 people . . .. A consumer unit of 7 people using 50l of water per
day will use 10.5kl of water per month.

It is recommended that the free basic water allocation to poor households be increased
to 10kl a month. This will go a long way to ensuring that larger households in
Johannesburg have access to adequate water.’

[34] The recommendations contained in the Base Document have not
been adopted by the City. At the time when the answering affidavits were
deposed to, namely January 2007, it was envisaged that a new social
package policy would be implemented effective July 2008 but that has
not happened. The Mayoral Committee of the City however decided, as
an interim measure:
(i)
That the free basic water allocation to targeted poor households be
increased from 6kl to 10kl so as to ensure that up to 13 people on a stand
would receive at least 25 litres of water per day.
(ii)
That the City’s existing Register of Indigents be used as a basis for
targeting poor households ie that 10kl of free water be provided to
accountholders on the Register of Indigents. (Section 23 of the Credit
Control and Debt Collection By-Laws of the City makes provision for
registration upon application of a person as an indigent person. As at

January 2007 there were 118 549 accountholders registered on the
register.)
(iii)
That an additional 4kl free water per annum be allowed to every
accountholder with a prepayment meter to cover any emergency requiring
additional water.
(iv)
That representations be considered for additional water in the case
of people whose circumstances warrant an additional allocation of water.

[35] At the time it was envisaged that the interim measures would be
introduced as from March 2007. That did not happen but according to the
appellants they were fully introduced by the time that the application for
leave to appeal was heard. The respondents dispute that a representation
mechanism has been established but in the light of the conclusion to
which I have arrived there is no need to deal with this dispute.

[36] The City maintains that it has no constitutional obligation to
provide more than 25 litres free water per person per day and concedes
that what it is trying to achieve by way of the interim measures is to get
25 litres per day to everyone who cannot afford to pay for water. That is
with the exception of special cases such as where a person is suffering
from AIDS, where a greater quantity of water may be provided. The City
concedes that the method adopted to target those that cannot afford to pay
for water is not perfect but contends that it is a practical approach and that
the cost of a more targeted solution would be prohibitive.

[37]  Apart from submitting that the respondents had no right of access
to more water than the basic water supply in terms of the Water Services
Act read with the water regulations ie 6 kl per household or 25 litres per
person, the City, quite correctly, submitted that its obligation extended

only to its capacity within its available resources and that all that could be
expected of it was to take reasonable steps within its available resources,
aimed at a progressive fulfilment of everyone’s right to have access to
sufficient water. It submitted that it did not have the resources to provide
sufficient free water to those who cannot afford to pay for water. In this
regard the City relied on the fact that the City as well as Johannesburg
Water had emerged from periods of acute financial crises, the fact that the
City operates under budgetary constraints and that it is not allowed to
spend more than is brought in on its operating budget and the fact that
there are many other demands on its resources. The other demands on the
City’s resources include primary health care services, emergency
services, public transportation, delivery of other essential services such as
waste collection and electricity, development and maintenance of roads,
storm water and other infrastructure, safety, security and housing. The
City is required to balance different delivery and development
expenditure priorities and in doing so budgeted to spend R17,8 billion of
its projected operating revenue of R17,9 billion in the 2006/2007
financial year. The largest portion of the City’s capital budget, namely
R726m (or 34% of the budget), is directed to Johannesburg Water
infrastructure projects. In addition the City directs R570m to fund its
Social Package which includes free water. The City contends that it is
unreasonable in these circumstances to require the provision of more free
water to those who cannot afford to pay for such water, more so in the
light of the fact that there are some 105 000 households in informal
settlements within the City who do not have access to even basic water
services and also the fact that, under the City’s so-called ‘stepped’ or
‘rising block’ tariff, water usage by lower income and lower volume users
is heavily subsidised by higher income and high volume users.

[38] However, the free water policy of the City was adopted on the
basis that it was in terms of the Water Services Act obliged to provide the
residents within its area of jurisdiction access to 6kl water per household
per month or 25 litres per person per day, that this obligation did not
entail that the provision had to be free to those who could not afford to
pay and that the obligation superseded the constitutional duty that it may
have had before the Act was enacted. For the reasons stated the policy
was materially influenced by an error of law and falls to be set aside on
that basis.

[39] The court below held that the City’s provision of 25 litres of free
water per person per day was unreasonable and ordered the City
alternatively Johannesburg Water to provide each of the respondents and
other similarly placed residents of Phiri with a free basic water supply of
50 litres per person per day. However, the circumstances of the
respondents are so dissimilar that it would be impossible to give effect to
the order. For example, the fourth respondent lives in a house with two
others. They are getting 6kl water per month free ie approximately 60
litres per person per day. Her complaint is against a prepayment meter
that had not functioned properly. The fifth respondent lives in a house
jointly owned by him and his brother together with nine tenants. No case
is made out that they cannot afford to pay for water. His complaint is that
the water ran out when one of the shacks on his property caught fire.

[40] 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.
According to them, 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.

[41] The City may of course be able to divert funds budgeted for other
expenses and so make funds available to provide sufficient water free to
every citizen in Phiri. But it contends that it would be unreasonable to
expect it to do so. 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.

[42] Having concluded that the City’s free water policy falls to be
reviewed and set aside a revised free water policy which is reasonable has
to be adopted. In formulating that policy regard should be had to the
available resources and many competing interests. A reasonable balance
will have to be struck between those interests. In addition regard should
be had to logistical problems that will have to be overcome in order to
target those in need of free water in a practical and cost effective way.
Without even knowing what the costs implications to the City would be if
the City were to provide 42 litres free water to all of its residents who
cannot afford to pay for such water and without the expertise to deal with
the logistical problems, it would be irresponsible of a court to usurp the
function of the City and to itself revise the City’s free water policy. The
court is in no position to do so whereas the City should have the
knowledge and expertise required to do the exercise. As was said in Bato

Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
2004 (4) SA 490 (CC) at para 45:
‘The Court should take care not to usurp the functions of administrative agencies. Its
task is to ensure that the decisions taken by administrative agencies fall within the
bounds of reasonableness as required by the Constitution.’

[43] For these reasons the matter should be referred back to the City to
formulate a revised water policy in the light of the finding that it is
constitutionally obliged to grant each Phiri resident who cannot afford to
pay for water access to 42 litres of water per day free in so far as it can
reasonably be done having regard to its available resources and other
relevant considerations.

[44] The respondents submitted that the constitutional rights of the
residents of Phiri have been violated and that, as a result, those that
cannot afford to pay for water have been forced to live in squalor for
years. Referring to s 38 of the Constitution which provides that a court
may grant appropriate relief in respect of an infringement of a right in the
Bill of Rights they submitted that only effective relief would constitute
appropriate relief. In Fose v Minister of Safety and Security 1997 (3) SA
786 (CC) at para 69 Ackermann J said:
‘[A]n appropriate remedy must mean an effective remedy, for without effective
remedies for breach, the values underlying and the right entrenched in the
Constitution cannot properly be upheld or enhanced.  Particularly in a country where
so few have the means to enforce their rights through the courts, it is essential that on
those occasions when the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively vindicated.  The courts have a
particular responsibility in this regard and are obliged to “forge new tools” and shape
innovative remedies, if needs be, to achieve this goal.’

[45] Having regard to the fact that the recommendations contained in
the Social Package Base Document dated 8 June 2006 are apparently still
under consideration while there is a dispute about the extent to which the
interim measures adopted by the City in the light of those
recommendations have been implemented, the respondents submitted that
it would take a long time for the City to adopt a revised policy in the light
of the findings of this court. In the meantime the constitutional rights of
the residents of Phiri will be violated and they will have to continue
living in squalor. To refer the matter back to the City would in these
circumstances not constitute effective relief. When asked to formulate an
order having regard to the logistical problems that will be encountered in
giving effect to an order that a certain quantity of water had to be
provided to all Phiri residents who cannot afford to pay for water, the
respondents could do no better than suggest that the City should be
allowed to identify the people who qualify for free water by any
reasonable means. That is to say, at least in respect of the identification of
people entitled to free water, they conceded that the matter had to be
referred back to the City for them to adopt an appropriate policy.
However, they suggested that an interim order should be made that
sufficient water must be provided free to all inhabitants of Phiri so as to
serve as an incentive to the City to adopt a revised free water policy as
soon as possible.

[46] An interim order will indeed be an effective order pending the
implementation of a revised water policy. There is however no reason
why, in the interim, free water should be provided to inhabitants of Phiri
who can afford to pay for the water. The question then is how to identify
those than cannot do so. At least as an interim measure there would not
seem to be any other practical way than to do what the City has done and

that is to use the City’s Register of Indigents as a basis for targeting poor
households. There are 118 549 accountholders registered as indigents and
provision is made in section 23(1) of the City’s Credit Control and Debt
Collection By-laws for applications to be registered as an indigent. An
order that 42 litres of free water per person per day be provided to those
households should not cause undue hardship to the City because in terms
of the interim measures adopted by the City, 10kl of free water per month
is already provided to these households. As a result households registered
on the register of indigents and consisting of 8 or less people are being
provided with 42 litres free water per person per day. Such an order
would nevertheless ensure that those in dire need of water would not have
to go without sufficient water pending the adoption and implementation
of a revised free water policy by the City. It would put some pressure on
the City to adopt and implement a revised policy as soon as possible.

Prepayment meters
[47] As stated above the City provided an unlimited unmetered quantity
of water to the residents of Soweto including Phiri and charged them on
the basis of a deemed consumption of 20kl per month. However, the
infrastructure was in a lamentable condition. The piping system was
chaotic and there were fundamental technical problems in that it was
incompatible with pressure systems resulting in fractures and
innumerable leaks in primary and secondary water reticulation. As a
result of the deemed consumption system coupled with the chaotic water
reticulation infrastructure the actual ‘consumption’, including wastage
and leaks of water in Soweto, was in the order of 67kl per household per
month. That was not the only problem faced by Johannesburg Water. The
payment rate of municipal bills was less than 10%. Non-paying account
holders amassed substantial arrears on their accounts. The City ascribes

the non-payment for water services to a culture of non-payment which
took root in the 1980’s under the apartheid system. In the result, as is
stated by Karen Brits in the answering affidavit filed by the City, those
consumers were in effect receiving unlimited free water. This situation
was considered by the City to be unsustainable. However, the City does
recognise that many of the residents are not able to pay for the water
provided to them.

[48] The problems with the deemed consumption system and the water
reticulation infrastructure led to the appointment in mid-late June 2001 of
a project team within Johannesburg Water to devise a strategy to reduce
unaccounted for water in the deemed consumption areas. The project was
called Operation Gcin’manzi (‘OGA’). A report was prepared by the
OGA task team in terms of which they recommended that prepayment
water meters be installed. The report added: ‘As prepayment represents a
major paradigm shift from conventional metering and enforces payment
for services electronically, prepayment should not be enforced on
customers until such time as majority acceptance (critical mass) has been
obtained, i.e. installation of a prepayment meter on any property should
be by choice of the customer per predefined area.’ The report was
adopted and it was decided that a pilot project should first be undertaken
in a prototype area. Phiri was selected for the pilot project. Construction
of the ‘bulk infrastructure’ phase of the project started on 11 August 2003
and the installation of prepayment meters in Phiri was completed in
February 2005.

[49] The court below, referring to s 21 of the Water Services Act (which
provides that every water services authority such as the City must make
bylaws which contain conditions for the provision of water services) and

to the bylaws made by the City, held that the bylaws did not authorise the
installation of prepayment meters in respect of the water services
rendered to the respondents.

[50] In terms of bylaw 3 of the City’s Water Services By-Laws the City
may provide three levels of service. Service level 1 must consist of a
water supply from communal water points and a ventilated improved pit
latrine located on each site. Service level 2 must consist of an unmetered
water connection to each stand with an individual yard standpipe; a water
borne connection connected to either a municipal sewer or a shallow
communal sewer system; and a pour flush toilet which must not be
directly connected to the water installation. Service level 3 must consist
of a metered full pressure water connection to each stand and a
conventional water borne drainage installation connected to the City’s
sewer. The level of service to be provided to a community may be
established in accordance with the policy of the City and subject to the
conditions determined by the City. The provision of service level 2 is
subject to certain conditions and in terms of bylaw 3(3) the City, in the
event of a consumer receiving service level 2 contravening certain of
those conditions, may install a prepayment meter in the service pipe on
the premises.

[51] The City submitted that, in the case of Phiri, service level 3 is
provided to consumers and that the use of prepayment meters is
authorised because level 3 requires a ‘metered full pressure water
connection’ without specifying the nature of the meter to be used.

[52] In my view ‘metered’ in the specifications of a level 3 service was
not intended to include ‘metered’ by way of a prepayment meter. If that

was the intention one would have expected that to have been mentioned
expressly in the light of the specific authorization to install prepayment
meters in respect of the level 2 service by way of a penalty for having
breached the conditions upon which that service is being provided. One
would also have expected mention being made of the circumstances
under which prepayment meters instead of a credit meters may be used.
More so in the light of the statement in the OGA report that prepayment
in respect of water represents ‘a major paradigm shift from conventional
metering’.

[53] There are several other indications that ‘metered’ was not intended
to include metered by way of a prepayment meter. Section 7(1) requires
every consumer on application for the provision of water services and
before such water services are provided to deposit with the City a sum of
money equal to the estimated fees for two average months’ water services
as determined by the City. If ‘metered’ was intended to include
prepayment it is unlikely that the same deposit would have been required
from those applying for the provision of prepaid water services as from
those applying for the provision of water services on credit. Not
surprisingly we were informed at the hearing that no deposit is required in
respect of prepaid water services.

[54] In terms of s 4 of the Water Services Act water services must be
provided in terms of conditions set by the water services provider and
these conditions must provide for the circumstances under which water
services may be limited or discontinued and for procedures for limiting or
discontinuing water services. Furthermore, procedures for the limitation
or discontinuation of water services must be fair and equitable, provide
for reasonable notice of intention to limit or discontinue the services and

for an opportunity to make representations. They may not result in a
person being denied access to basic water services for non-payment,
where that person proves to the satisfaction of the relevant water services
authority that he or she is unable to pay for basic services.

[55] The City submitted that the cut-off of the water supply by a
prepayment meter does not amount to a discontinuation of water services
because the water services are still available against payment. On that
basis one can argue that water services are not discontinued to a
consumer to whom water is provided on credit when the water supply is
cut-off due to non-payment. The only difference being that in the case of
prepayment meters the customer can himself restore the supply whereas
in the case of credit meters the co-operation of the supplier is required. In
my view a cut-off of water services by a prepayment meter when the
credit runs out clearly amounts to a discontinuation of the services (see R
v Director general of Water Services [1999] Env. L.R. 114 (QB)).

[56] As stated above, in terms of s 4 of the Water Services Act water
services must be provided in terms of conditions set by the water services
provider which must accord with conditions for the provision of water
services contained in bylaws. The City’s Water Services By-Laws
provide for the circumstances under which water services may be
discontinued and for procedures for doing so (s 9.C). Subsection 6 for
example provides for the sending of a discontinuation notice in the event
of non-payment which notice must contain information advising the
consumer of steps which can be taken to have the service reconnected.
Subsection 7 requires a final demand notice in the event of
representations having been unsuccessful. Subsection 8 states under what
circumstances water services to a consumer may be discontinued. These

provisions provide for cut-offs for non-payment but do not authorise the
cut-off by a prepayment meter. The City submitted that the prepayment
meters are designed to give a warning signal before the credit is
exhausted and that, since the hearing of the case in the court below,
representations can be made to the City not to discontinue the service
when the credit runs out. The respondents dispute that a special cases
representation procedure has been implemented and contend that the
prepayment meters in Phiri, in any event, give no warning that would
allow sufficient time for representations or for purchasing further water
credits so as to avoid the cut-off. However that may be, if ‘metered’ in
bylaw 3 was intended to apply also to metered by way of prepayment
meters, the bylaws would have stipulated, as in the case of credit meters,
as to what warning had to be given before the water services could be
discontinued and would have contained, as in the case of credit meters,
comprehensive provisions as to the making of representations.

[57] The City contends that bylaws 31, 8A and 31A(2) make it clear
that prepayment meters may be used. These bylaws do refer to
prepayment meters but the provisions which refer to prepayment meters
are necessitated by the fact that, as stated above, the bylaws do authorise
the installation of prepayment meters as a penalty for a breach of
conditions imposed in respect of level 2 services. The City also submitted
that the use of prepayment meters is envisaged in the Local Government:
Municipal Systems Act 32 of 2000. In terms of s 95(i) thereof a
municipality must within its financial and administrative capacity provide
accessible pay points and other mechanisms for settling accounts or for
making pre-payments. That the section envisages prepayments is clear
but that is a far cry from authorising prepayment water meters. In addition
the City referred to s 156(5) of the Constitution which provides that a

municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its
functions. It submitted that the introduction of prepayment meters in the
circumstances prevailing in Phiri, falls within the powers reasonably
necessary for, and incidental to, those powers expressly articulated in the
Constitution and national legislation. That may be so but the argument
loses sight of the fact that the Council of the City in terms of the bylaws
decided what water services would be provided to consumers. The
question therefore remains whether the bylaws authorise the use of
prepayment meters in the case of level 3 water services.

[58] For the reasons mentioned I am of the view that the City’s Water
Services By-Laws do not authorise the installation of prepayment water
meters in respect of its level 3 water services and that such installation
was unlawful. Once again the question arises as to what the appropriate
remedy would be. The court below made the following order:
‘183.2
The forced installation of prepayment water meter system in Phiri
Township by the City of Johannesburg alternatively Johannesburg Water (Pty) Ltd
without the choice of all available water supply options, is declared unconstitutional
and unlawful.
183.3
The choice given by the City of Johannesburg  alternatively Johannesburg
Water (Pty) Ltd to the applicants and other similarly placed residents of Phiri of either
a prepayment water supply or supply through standpipes is declared unconstitutional
and unlawful.
183.4
The prepayment water system used in Phiri Township is declared
unconstitutional and unlawful.
183.5
The City of Johannesburg alternatively Johannesburg Water (Pty) Ltd is
ordered to provide each applicant and other similarly placed residents of Phiri
Township with –
183.5.1
. . .

183.5.2
the option of a metered supply installed at the cost of the City of
Johannesburg.’
If the prepayment water system used in Phiri in respect of the level 3
service is unlawful as I have found it to be, it follows that the installation
thereof and the choice given to the residents of Phiri (that was a choice
between a level 3 and a level 2 water service) was unlawful. There was
therefore no need for the orders in paragraphs 183.2 and 183.3.

[59] Having been declared unlawful, the City was obliged to remove the
prepayment meters. I do not think that was the appropriate remedy in the
circumstances. According to the City the residents of Phiri are better off
with prepayment meters and many of them prefer to have them; no other
mechanism allows a guaranteed monthly delivery of free water; the
introduction of prepayment meters involved massive capital expenditure
(as of September 2007 a total of 82 591 had been installed); and the
implementation of OGA has been effective, resulting in a dramatic
reduction in the level of unaccounted for water, enabling the City to plan
for the extension of basic water infrastructure to the estimated 105 000
households that do not have access to basic water.

[60] In the circumstances an order having the effect that the prepayment
meters that have already been installed should be removed is
inappropriate. The City, by amending its bylaws, to at least some extent
may alleviate the problems caused by the unauthorized installation of the
prepayment meters. By doing so it may be able to retain the prepayment
meters at least in respect of consumers who prefer to have them and
possibly also in respect of those who cannot pay a deposit or who do not
pay their accounts. For these reasons the appropriate order would in my
view be to suspend the order of unlawfulness for a period of two years to

enable the City to take such steps as it may be advised to take to legalise
the use of prepayment water meters.

[61] The appellants do not ask for a costs order against the respondents
and have achieved a sufficient measure of success in this appeal not to be
ordered to pay any of the respondents’ costs.

[62] For these reasons the following order is made:
The appeal is upheld and the order by the court below is replaced with the
following order:
‘1
The decision of the first respondent and/or the second respondent to
limit the free basic water supply to the residents of Phiri to 25 litres per
person per day or 6 kl per household per month is reviewed and set aside.
It is declared:
(a) That 42 litres water per Phiri resident per day would constitute
sufficient water in terms of s 27(1) of the Constitution.
(b) That the first respondent is, to the extent that it is in terms of s 27(1)
of the Constitution reasonable to do so, having regard to its available
resources and other relevant considerations, obliged to provide 42 litres
free water to each Phiri resident who cannot afford to pay for such water.
The first and second respondents are ordered to reconsider and
reformulate their free water policy in the light of the preceding
paragraphs of this order.
Pending the reformulation of their free water policy the first and
second respondents are ordered to provide each accountholder in Phiri
who is registered with the first respondent as an indigent with 42 litres of
free water per day per member of his or her household.
It is declared that the prepayment water meters used in Phiri
Township in respect of water service level 3 consumers are unlawful.

The order in paragraph 5 is suspended for a period of two years in
order to enable the first respondent to legalise the use of prepayment
meters in so far as it may be possible to do so.

The respondents are jointly and severally ordered to pay the costs
of the application, which costs are to include the costs of three counsel.’

___________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For 1st appellant:
G Marcus SC

A Stein
For 2nd appellant:
K D Moroka SC

K Pillay

Instructed by:

Bowman Gilfillan Inc, Sandton, Johannesburg
(1st & 2nd)

McIntyre & Van der Post, Bloemfontein

The Minister of Water Affairs & Forestry, C/o
The State Attorney, Johannesburg (3rd)

State Attorney, Bloemfontein

For respondent:
W Trengove SC

N Fourie

Instructed by:

Cals Litigation Unit, Braamfontein,
Johannesburg

Webbers, Bloemfontein

Amicus curiae:
R Moultrie

M S Baloyi

Amicus Curiae:
Legal Resources Centre, Johannesburg

Webbers, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
25 March 2009
Status:
Immediate

THE CITY OF JOHANNESBURG & OTHERS v L MAZIBUKO & OTHERS
Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
The Supreme Court of Appeal (SCA) today declared that the pre-payment water
meters used in Phiri (a township in Soweto) in respect of water level 3 consumers is
unlawful, because such use is not authorised by the by-laws, but suspended its order
for a period of two years so as to enable the City of Johannesburg to legalise that use
if it was able to do so.

The SCA also declared that the City of Johannesburg is constitutionally obliged to
provide 42 litres free water to each Phiri resident who cannot afford to pay for such
water, to the extent that it is reasonable to do so, having regard to its available
resources.  It ordered the City and Johannesburg Water (Pty) Ltd to reconsider and
reformulate their free water policy accordingly.  Until such time as that policy is
reformulated the City and Johannesburg Water were ordered to provide

accountholders in Phiri who are registered as indigent with 42 litres free water per day
per member of his or her household.

The appeal that was brought by the City, Johannesburg Water and the Minister of
Water Affairs and Forestry against declarations and orders made against them by the
Johannesburg High Court was partially successful, to the extent that those
declarations and orders were amended.