`Amanzi Ngawethu' (water is ours); Health and environmental victories for South African activists
On September 2 and 3, 2009, the Constitutional Court of South Africa will hear the final appeal in a case brought by five Soweto residents challenging Johannesburg's discriminatory prepaid water meter system. Their six-year legal battle would reaffirm the constitutional right to water for all South Africans.
Low-income communities in Johannesburg's townships do not have sufficient water resources and do not receive the same water services as residents in wealthier, often white, suburbs. Yet, the Bill of Rights of South Africa guarantees everyone's right to have access to sufficient water.
Diverse forces have come together in this powerful people's movement -- from community mobilisation to self-organised water services to legal action. Together, they have already won a historic High Court victory and empowered people to remove prepaid water meters and reconnect to free water, despite threats of criminalisation.
In this spirit the film above, Amanzi Ngawethu (Water Is Ours), brings together protest songs, photos and video from people and organisations who are working in solidarity to reclaim human dignity and human rights. It was made by Christina Hotz of Friction Films.
When the hearing starts, local residents, along with their legal team, supporters, and millions of people in South Africa and across the world, will be watching. Whatever the outcome of this legal case, the struggle to ensure accessible, adequate and affordable water for all will continue.
Download Amanzi Ngawethu (Water Is Ours):
10 min edit:
2 min edits (2.5MB, 5MB & 14MB)
5 min edit:
Health and environmental victories for South African activists
By Patrick Bond
August 29, 2009 -- Durban -- In South Africa, major advances in health and the environment during the 2000s were only won by social activists by removing the profit motive; the challenge will be to combine their forces, to link some of the world’s most impressive social movements by ``connecting the dots'' between their sectorally discrete problems, ranging in scale from the status of women and children in the household to climate change mitigation.
Because the activists only began the work described below roughly a decade ago, the period since the end of apartheid (though starting in the 1980s) has witnessed the degeneration of the society's health, as reflected in the dramatic decline in life expectancy, from 65 years at the time of liberation to 52 years a decade later, largely because of AIDS (Statistics South Africa, 2004). In addition, ecological problems have become far worse, according to the government's own commissioned research in the 2006 Environmental Outlook report, which according to the leading state official (Yako, 2007), “outlined a general decline in the state of the environment”.
The most hopeful antidote to these problems is the power of social activism. The most important victory to date was access to free AIDS medicines, requiring the defeat of a formidable capitalist/state bloc comprising the US Clinton/Gore and South African Mbeki regimes, and the ``Big Pharma'' group of pharmaceutical firms which holds intellectual property rights over anti-retroviral drugs. After a brief review of the Treatment Action Campaign’s work, we turn to the subsequent cases where red-green campaigning by environmental justice movements has made a difference to constituents’ health status in terms of water and electricity access, less pollution and action on climate (though the latter is only in the very early stages). Interconnections between health and environment that these activists address include respiratory illnesses and water-borne diseases which have worsened especially in areas characterised by poverty, the resulting disconnection of water and electricity, and ongoing industrial pollution.
The South African government's 1997 Medicines Act -- which made provision for compulsory licensing of patented drugs -- helped to catalyse the formation in 1998 of the Treatment Action Campaign (TAC) to lobby for access to AIDS drugs, which in the late 1990s were prohibitively expensive for nearly all South Africa's HIV-positive people (who number roughly 10% of the 50 million current population). That campaign was immediately confronted by the US State Department's “full court press” against the Medicines Act (the formal description to the US Congress), in large part to protect intellectual property rights generally, and specifically to prevent the emergence of a parallel inexpensive supply of AIDS medicines that would undermine lucrative Western markets (Bond 1999, Nattrass 2004).
The campaign included US vice-president Al Gore's direct intervention with South African government leaders in 1998-99, to revoke the law. In July 1999, Gore launched his 2000 presidential election bid, a campaign generously funded by big pharmaceutical corporations (which in a prior election cycle provided US$2.3 million to the Democratic Party). As an explicit counterweight, TAC's allies in the AIDS Coalition to Unleash Power (ACTUP) began to protest at Gore's campaign events. The protests ultimately threatened to cost Gore far more in adverse publicity than he was raising in Big Pharma contributions, so he changed sides and withdrew his opposition to the Medicines Act, as did Bill Clinton a few weeks later at the World Trade Organization's Seattle Summit.
Big Pharma did not give up, and filed a 1999 lawsuit against the constitutionality of the Medicines Act, counterproductively entitled “Pharmaceutical Manufacturers Association v. Nelson Mandela” (which even Wall Street Journal editorialists found offensive). The case came to court in early 2001. By April, additional TAC solidarity protests against pharmaceutical corporations in several cities by Medicins sans Frontiers, Oxfam and other TAC solidarity groups compelled the association to withdraw the suit. By late 2001, the Doha Agenda of the World Trade Organization adopted explicit language permitting violation of Trade Related Intellectual Property Rights for medical emergencies. The South African government remained reluctant to provide medicines, however, for a variety of dubious reasons, in part related to “denialism” that HIV causes AIDS. As a result, TAC was compelled to file a constitutional court case which succeeded mid-2001 in at least gaining access to Nevirapine for pregnant, HIV+ women in public hospitals.
At the same time, however, Anglo American Corporation -- one of South Africa's strongest promoters of corporate social responsibility -- released a study showing that only 12% of its employees met a cost-benefit test by which supply of drugs was cheaper to the company than allowing HIV+ workers to die early (replacing them from the pool of South Africa's 40% unemployed). Threats not only from TAC but also the main mining workers' trade union forced Anglo American to reverse its decision to deny most workers medicines, in 2002 (Bond 2005).
Big Pharma's reluctance to surrender property rights so as to meet needs in the large but far less lucrative African market coincided with the rise of philanthropic and aid initiatives to provide branded medicines. The Bill and Melinda Gates Foundation's parallel health services in sites like Botswana undermined state health services; it was no coincidence that Gates stands most to lose of anyone on the planet in the event intellectual property is threatened.
Given such prevailing power relationships, the South African government did not invoke any compulsory licensing of medicines even after the Pharmaceutical Manufacturers’ Association withdrew from its 2001 lawsuit. Local manufacturers Aspen and Adcock Ingram did, however, lower costs substantially through voluntary licensing of the major AIDS drugs. It is in this sense that not only decommodification, but also deglobalisation of capital was considered vital to expanding access. Similar local licensing arrangements were soon arranged for firms in Kampala, Harare and other places.
As of 2008, roughly 700,000 South Africans received AIDS medicines, somewhat below the trajectory needed to reach the target of 1.3 million patients with access by 2011 (IRIN, 2008). But the replacement of Thabo Mbeki and his health minister in September 2008 heralded a major advance in state roll-out, due nearly entirely to the ongoing pressure of social activists.
Public versus private water
Water is another site where environmental health victories can be declared by civil society campaigners, in part through international solidarity activism. But the adverse influence of transnational capital (not to mention the World Bank) on South Africa's most populous metropole, Johannesburg, during the early 2000s, will be felt on water consumers for many years, through dangerous water-saving technologies and water pricing systems.
The Paris firm Suez, the world’s second-largest water company, came to South Africa just before the end of apartheid, picking up three small water concessions in Eastern Cape towns during the early to mid 1990s. By 2001, the firm had won the bid for a five-year trial contract to manage Johannesburg's water, in part by taking the city's councillors on a junket to Argentina the year before, where the “success story” of Buenos Aires was unveiled. (That contract would fail when in 2002 the Argentine government could no longer afford to allow Suez's substantial hard-currency profit repatriation in the midst of its economic crisis.)
At that very point in time, Suez subsidiary Dumez was alleged by Lesotho government prosecutors to have bribed the manager of the Lesotho Highlands Water Authority (which supplies Johannesburg with water), Masupha Sole. Sole allegedly received $20,000 at a Paris meeting in 1991 to engineer a contract renegotiation providing Dumez with additional profits in excess of $1 million, at the expense of Johannesburg water consumers. On those grounds, Johannesburg officials were asked by the South African Municipal Workers Union to bar Suez from tendering for the water management contract, but they refused (Bond 2002).
Suez inherited a dysfunctional retail water system, especially in Johannesburg's vast shack settlements which are home to nearly a third of the city's 3.2 million residents. There, according to city surveys, 65% use communal standpipes and 20% receive small amounts from water tankers (the other 15% have outdoor yard taps). For sanitation, 52% have dug pit latrines themselves, 45% rely on chemical toilets, 2% have communal flush toilets and 1% use ablution blocks. Needless to say, these conditions are both particularly hostile to women and children, and breed opportunistic infections at a time when Johannesburg's HIV rate has soared above 25%, and during a decade in which cholera and diarrhoea epidemics have killed many tens of thousands of people, especially children.
Instead of expanding supply to these unserved areas, Suez's response to poverty was to take part in massive water disconnections. At the peak in early 2002, just before community resistance became an effective countervailing force, Johannesburg officials were disconnecting more than 20,000 households per month from power and water, making a mockery of the boast on the Department of Water Affairs and Forestry's website that Johannesburg offers 100% of its residents free basic water. For municipal bureaucrats and Suez, the point of disconnecting low-income people and maintaining low water/sanitation standards was a strategy, quite simply, to save money.
In order to cut consumption by low-income people, Suez began its reign as Johannesburg water manager by installing 6500 pit latrines, a pilot “shallow sanitation” system and thousands more pre-paid water meters in poor areas, including Soweto. Pit latrines require no water. The new shallow sewage system is also attractive to the company, because maintenance costs are transferred to so-called “condominium” residential users, where a very small water flush and slight gravity mean that the pipes must be manually unclogged every three months (or more frequently) by the residents (typically women) themselves. Unlike conventional meters in rich suburbs which provide due warning of future disconnection (and an opportunity to make representation) in the form of notification in red writing at the bottom of the monthly bill, pre-paid meter disconnection occurs automatically and without warning following the exhaustion of the free basic water supply. If the disconnection occurs during the night or over a weekend when water credit vendors are closed, the household has to go without water until the shops are open again, and if the household does not have money for additional water, it must borrow either money or water from neighbours in order to survive. This represents not only a threat to dignity and health, but also direct risk to life in the event of a fire. Two children’s deaths in a Soweto shack fire resulting from pre-paid meters catalysed a lawsuit against Johannesburg Water.
Johannesburg Water managers were also reluctant to offer a genuine free lifeline supply and rising block tariff so as to redistribute water from rich to poor, a system which if designed properly would also penalise luxury consumption and promote conservation. They were, after all, in the business of selling more water to people, not less, notwithstanding that the water is piped hundreds of kilometres across the Lesotho mountains in Africa's largest cross-catchment water transfer. During the late 1990s, Johannesburg water customers became liable for vast Lesotho dam loan repayments, resulting in a spectacular 69% increase from 1996-99 in the nominal cost of water. By the time the city's commercialisation strategy was established in 1999, Johannesburg’s water prices became more regressive than even during apartheid.
However, in the wake of a December 2000 election campaign promise by the ruling African National Congress (ANC), a free basic water (FBW) lifeline was implemented in 2001, amounting to 6000 litres of water each month for each household. The main debates are over whether the FBW block provides adequate water for larger low-income families (especially those with HIV+ members), and whether the tariff curve then rises in an excessively convex (versus sufficiently concave) manner. The mandate from national government -- i.e. the FBW promise made in the wake of rising social protest and alienation, as well as the onset of the cholera epidemic -- was worded as follows: “The ANC-led local government will provide all residents with a free basic amount of water, electricity and other municipal services so as to help the poor. Those who use more than the basic amounts, will pay for the extra they use.”
Johannesburg officials reinterpreted this otherwise progressive mandate utterly regressively, however, by adopting a relatively steep-rising convex tariff curve, in contrast to a concave curve starting with a larger lifeline block, which would have better served the interests of lower-income residents. The dramatic increase in their per-unit charges in the second block meant that there was no meaningful difference to their average monthly bills even after the first free 6000 litres. Moreover, the marginal tariff for industrial/commercial users of water, while higher than residential, actually declines after large-volume consumption is reached. Low-income residents could simply not afford to pay for water at the price Suez demanded.
Resistance soon emerged, consistent with urban social movement traditions dating at least to the mid-1980s, when Johannesburg hosted what was possibly the world's most impressive urban social movement, the township “civics” (Mayekiso 1996).
But the South African National Civic Organisation (SANCO) suffered systematic demobilisation of its ranks by the ruling ANC during the mid-1990s, hence an independent network of community groups arose in several Johannesburg townships beginning with the formation of the Soweto Electricity Crisis Committee in early 2000. The group took what was already a popular township survival tactic -- illicitly reconnecting power once it was disconnected by state officials due to nonpayment (in 2001, 13% of Gauteng's connections were illegal) -- and added a socialist, self-empowered ideological orientation. Within a few months, the Anti-Privatisation Forum (APF) was formed to unite nearly two dozen community groups across Gauteng, sponsoring periodic mass marches of workers and residents. The APF also networked with water activists across the world, for example to the major water war zone of Cochabamba in Bolivia, to Argentina, to Accra and to Detroit.
So that their critique could be legalised and generalised, Soweto anti-privatisation activists from the Phiri neighbourhood launched a constitutional court case in 2004, facilitated by the Freedom of Expression Institute and the University of the Witwatersrand Centre for Applied Legal Studies, and ultimately argued by one of the country's top lawyers, Wim Trengove. The case -- Mazibuko & Others v City of Johannesburg & Others -- was finally heard in the Johannesburg High Court in December 2007. Several issues came under scrutiny: the implications of pre-paid water meters and shallow sanitation for access and administrative justice, especially in cases of water emergency and chronic poverty; and the origins and sufficiency of free basic water, as well as the non-affordability of water beyond the FBW allocation -- which was raised by Johannesburg Water in April 2008 to 10 kl/hh/m, but only for “indigent” households as determined by a means test.
But that action did not appease high court judge Moroa Tsoka, who on April 30, 2008, ruled that imposing credit control via prepayment meters “in the historically poor black areas and not the historically rich white areas” was racist, as installation apparently occurred “in terms of colour or geographical area”. Moreover, Johannesburg Water's community consultation process was “a publicity stunt” characterised by a “big brother approach”. He ordered removal and prohibition of the prepayment meters and the provision of 50 litres per person per day, effectively doubling the FBW target.
Because Suez's reign in Johannesburg was rife with social conflict and also generated strife within the council, the company's contract was not renewed in 2006, in spite of the desired 25-year extension option available in the original water commercialisation business plan. That plan anticipated that (after-tax) profits from Johannesburg's water supply would soar from R3.5 million (roughly US$300 000) in 2000-2001 to R419 million ($50 million) in 2008-2009. Instead of allowing the outflow of huge profits to Paris, local activists partially succeeded in their strategies both to decommodify water (by raising FBW from 25 to 50 litres per person per day) and to deglobalise capital -- sending Suez packing -- in favour of local public services provision.
But the provision of FBW was still unsatisfactory, in part because Johannesburg officials still influenced by Suez’s 2000s pricing regime, also intended to cancel universal FBW in favour of means testing. No matter that Johannesburg City Council resumed water management, its commercialisation continued, and indeed ANC Mayor Amos Masondo appealed Tsoka's judgement later in 2008, supported by the national Department of Water Affairs and Forestry. In April 2009, the victory of 50 litres per person per day was reduced to 42, and Tsoka’s banning of prepayment meters -– on grounds of administrative injustice -- was modified. Hence activists and their legal supporters appealed the Supreme Court of Appeals judgement in April 2009, in search of a more decisive victory in the Constitutional Court.
There are countless incidents in which transnational firms operating in South Africa (some with local headquarters) violate laws by illegally dumping waste or emitting effluents into the water and air (see http://www.groundwork.org.za). What is important is that in the wake of systemic regulatory failure and post-apartheid environmental conditions that are far worse than during apartheid (in part because of the downgrading of environmental impact assessments), local activists have found ways to put formidable pressure on the state and on capital. Some of these involve long-term campaigns, such as against Thor Chemicals' mercury poisoning, for which partial damages were eventually paid. Others entail precedent-setting lawsuits, such as the Cape PLC asbestos case, which drove the firm to bankruptcy. Others require direct action and creative protest.
As just one illustration of resistance tactics backed by strong analysis, the Pietermaritzburg-based NGO groundWork established the humourous “Corpse Awards” (with the US NGO Corpwatch in 2002, and subsequently with the University of KwaZulu-Natal Centre for Civil Society from 2005) in order to “recognise worst corporate practice in producing environmental injustice” (citations below are from http://www.groundwork.org.za). Nominations come mainly from voluntary community-based organisations, especially people living next door to the plants and mines.
In 2005, corporations receiving Corpse nominations included the country's most aggressive polluters: oil refiners Sasol, Sapref and Engen, steel giant Mittal (formerly Iscor), pulp and paper giants Sappi and Mondi, US agribusiness Monsanto and South Africa's power utility, Eskom. The 2006 nominees were AngloPlatinum (for destruction of the Mapela community as noted below), Bayer Cropscience (for financing genetically modified sugar), the South African cement industry (for using hazardous waste in its products), two more oil refiners (FFS in Pietermaritzburg and Chevron at Table View, Cape Town), whose air samplings were far higher than legally acceptable levels, Engen (again), Samancor Manganese (for poisoning workers in the Vaal Triangle), Australia’s Paladin Resources (for its uranium mining in Malawi) and AngloGold Ashanti for its deaths of 16 workers at Carletonville’s Tautona mine near Johannesburg in 2006, its apparent violation of the UN arms embargo in eastern Democratic Republic of Congo (then CEO Bobby Godsell reacted to allegations of collaboration with warlords in mid-2005 with the remark, “mistakes will be made”), its role in the death of artisanal workers in Obuasi, Ghana, and its subsidiary Kedahda's role in one of the world's most repressive sites: ``‘the Colombian Army is engaged in uprooting peasants and small-scale miners by attacking their leaders such as Alejandro Uribe, so that the transnational mining corporation Kedahda can enter the region and undertake mining operations on peasants’ and miners’ lands.''
According to 2005 award guest Naomi Klein, “We know corporates are not just satisfied with leeching your communities and poisoning your bodies. They want to be loved, which is why governments invented `corporate social responsibility'. For them there is no problem that is so big that it can't be solved with fantastic public relations.” Bobby Peek, director of groundWork and recipient of a Goldman Prize for environmental activism, explains the antipathy to self-regulation: “All [2005 nominees] boast their commitment to [corporate social responsibility] and the environment. Their advertisements and publications proclaim best practice and continuous improvement as well as their commitment to health and safety. Some have even won awards for environmental and social reporting. None of them have convinced their neighbours who live with the burden of ill health -- cancers, asthma and other breathing difficulties, eczemas and allergies, and a variety of conditions affecting the blood, nerve and immune systems.”
Critics of pollution will continue to use a variety of tactics, including Corpse Award ridicule (favourably covered in the South African business press).
The next attack on transnational capital appears to be coming from victims of minerals extraction, such as communities in Limpopo, Northwest and Eastern Cape provinces, who have criticised AngloPlats, LonPlats and Australian Minerals Resources, respectively, for their looting of resources. For example, the Mapela and Maandagshoek communities accused AngloPlats of removing communities from their ancestral land, stealing peoples' resources and gagging voices of resistance. AngloPlatinum imposed “SLAPP” orders (Strategic Litigation Against Public Participation) against the mining communities' legal representative Richard Spoor so as to prevent him from “defaming” the firm using the words “racist, thug and bully”.
The most serious and ultimately life-threatening forms of pollution are greenhouse gases, especially carbon dioxide (CO2) responsible for climate change. These gases are now open for emissions trading, reflecting the emergence of a vast potential market developed from scratch, with potential activity in the trillion-dollar annual range within the next few years. Although aimed at mitigating climate change, the new carbon market may do more harm than good, South African climate campaigners argue. They joined international activists in 2004 to form the Durban Group for Climate Justice, in opposition to corporations guilty of species-threatening climate emissions, which attempt to trade their way out of emissions-reduction obligations. By 2008 these companies included buyers of emissions credits from Northern countries such as Shell, BHP Billiton, EDF, RWE, Endesa, Rhodia Energy, Mitsubishi, Cargill, Nippon Steel, ABN Amro, Chevron and Chugoku Electric Power. Corporate sellers of emissions-reduction credits -- especially from Brazil, South Africa, India and China -- included Tata Chemicals, ITC, Plantar, Votorantim, Petrobras, Shri Bajrang, Birla, Oil & Gas Nat. Corp., Sasol, Mondi, Hu-Chems Fine Chemical, Chugoku Electric Power and Chhatisgarh Electricity.
South Africa is one of the most important sites where grasroots activists and their allies question both the internal logic and the practical implications of carbon trading, because -- as a result of apartheid's historic reliance upon cheap electricity from coal-fired generators -- CO2 energy-related emissions, measured as a percentage of per capita GDP, are 20 times higher than even those of the United States. Carbon trading arrived in South Africa as a concept in 2002, via the World Summit on Sustainable Development, as a means of relatively painlessly mitigating greenhouse gases in Africa's largest rubbish dump. The Bisasar Road landfull, located by the apartheid regime in 1980 within a black residential community -- Clare Estate in Durban -- offered the South African government, the World Bank and numerous corporations an opportunity to earn profits from emissions reductions, by turning methane emissions into electricity using a $15 million World Bank subsidy which it intended selling off to international corporate investors.
Until her death in July 2007 environmental activist Sajida Khan attempted to close the Bisasar Road dump, located across the street from her family's decades-old residence, and in the process derail South Africa's largest pilot emissions trade project. She died of her second dose of cancer which she attributed to toxins blowing from the dump. Under Khan's ideal scenario, the closure of Bisasar Road dump, methane from the dump would be captured, piped out, cleaned and safely turned into energy. Instead, Durban officials aimed to burn the methane on site (increasing dangerous incinerated carcinogens) and in the process, keep the dump open at least another seven years, and possibly 20 years, so as to increase the flow of carbon reduction credits via the World Bank’s Prototype Carbon Fund.
However, in July 2006, Durban Solid Waste conceded the power of Khan's 90-page environmental impact assessment critique, which a year earlier was widely credited as having also intimidated the World Bank away from the Bisasar site. The municipal rubbish company only applied (and won) World Bank funding for methane-electricity burning from two much smaller landfills, which were not located in the immediate vicinity of residential areas.
In addition to Bisasar, there are several other examples of ways carbon trading is abused in South Africa, justifying its rejection as a strategy to combat climate change (Bond, Dada and Erion, 2008).
What do activists suggest instead of carbon offsets and emission trading? The favoured grassroots approach -- drawing inspiration from activists in the energy sector from the Niger Delta in Nigeria, Ecuador's Indigenous and environmental communities, California and Alaskan conservation battles, Australian opponents of uranium mining, Norway and the Alberta tar sands of Canada -- is to “leave the oil in the soil, leave the coal in the hole”. South African activists' critiques of the petroleum sector unite processing/consumption with production, via OilWatch, an international network. The most impressive development in the campaign is Quito-based Accion Ecologia's lobbying of Ecuador's president Rafael Correa to keep $12 billion worth of oil below ground within the Yasuni National Park, for which he seeks $5 billion in compensation.
Besides mitigating climate change, another reason to leave resources in the ground is the “resource curse” that has adversely affected mostly Third World countries. Non-renewable resource extraction generates net negative savings in many countries, according to even the World Bank's internal 2006 report Where is the Wealth of Nations? That report estimates that net national savings in South Africa was a net negative $2 per person in 2000, a year that per capita gross national income was $2837. (The negative impact of capital devaluation, pollution and especially extraction of non-renewable resources is offset, in World Bank calculations, by increased human capital investment via education budgets -- but still remains dramatically negative for most African countries.) In other words, even Africa's most industrialised economy cannot generate and retain enough wealth locally to counteract the negative wealth effects of non-renewable ressource depletion, the World Bank (2006, p. 56) finds.
Hence, leaving resources in the ground is not only good for the environment, but for the local economy, in view of this degree of natural asset expropriation by transnational corporate capital. Most South African mining houses, especially Anglo American, DeBeers and BHP Billiton, moved their primary stockmarket listings offshore during the early 2000s, so the profits do not even remain within South Africa, generating, in the process, a vast current account deficit that reached -9% in early 2008.
Whether South African activsts and their allies can foil the carbon market in its early stages, and compel the mainstream environmental movement to adopt a more critical perspective on market “solutions” to market problems, remains to be seen. But the alternative approach of leaving oil in the soil and coal in the hole, i.e. taking the supply side seriously, has far more long-term potential for addressing global warming. That is because -- alongside the ecological debt argument -- the activist strategy reincentivises transnational corporate behaviour in which, at present, local ecological damage is done without recourse to either market or social discipline. As we conclude, the same strategy of reincentivising anti-social transnational corporate activity also informed another major internationalist effort associated with the Jubilee debt movement: the campaign for reparations for profits owed to corporations' black victims during apartheid.
The areas of social resistance to corporate and state power reviewed above -- AIDS medicines access, water privatisation and pollution (especially greenhouse gas emissions) -- show that an uncompromising, profound critique of malfeasance can make for genuine social change with benefits to both public health and the environment.
What is required most in the period ahead is fusion within and between these movements. Already the spirit of the movements is similar, entailing a militant, anti-capitalist approach that forthrightly tackles even an allied ruling party (in the case of TAC) and the largest multinational corporations in the world. The underlying strategic approach of the activists is also similar, based as it is upon programs for decommodification (e.g. of medicines and water) and the “deglobalisation” of capital (as Walden Bello, 2005, terms it, or “delinking”, to quote Samir Amin, 1990) through the globalisation of solidarity.
Should that solidarity be directed to multilateral fora? Aside from a handful of cases –- the Basel Convention against trade in toxics in 1989, chlorofluorocarbon emissions banned in Montreal in 1996, and persistent organic pollutants phased out thanks to the 2001 Stockholm Convention -- global public policy has been unsatisfactory on matters such as access to medicines, intellectual property rights, public service provision of water and other essentials, pollution, climate change, and ecological debt reparations for historic oppression. Hence, it will be up to activists to tackle corporate power from the bottom up, as part of a quest to eradicate that power entirely.
This is much more likely to be done at national level than globally, given the prevailing balance of forces that shifts back from neoconservative (petro-military-industrial complex) power to neoliberal corporate (especially banking and commercial) interests, albeit dressed up in the crony-capitalist ``Keynesianism'' characterised by the bank bailouts of Barack Obama and Gordon Brown.
In South Africa, activists are entering a period with a new president somewhat more disposed to addressing the labour movement's and health activists' concerns. Notwithstanding apparent corruption associated with arms dealings and extreme traditions of patriarchy, the leadership of the South African state by Jacob Zuma may prove to open yet more doors. But that remains to be seen, and only struggle will get the activists through the door, to the decision-making table, and forward to implementation of policies and programs that are supportive of both the environment and public health.
[Patrick Bond directs the University of KwaZulu-Natal Centre for Civil Society. This article first appeared in Spanish in Ecología Política's special issue on health and the environment, 2009.]
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COALITION AGAINST WATER PRIVATISATION PUBLIC STATEMENT
Thursday 8th October 2009
PHIRI WATER CASE
CONSTITUTIONAL COURT FAILS THE POOR AND THE CONSTITUTION
JUDGMENT SHOWS A LAZY LEGALISM AND WHOLLY BIASED AND CONTRADICTORY REASONING IN RULING THAT FREE BASIC WATER POLICY IS ‘REASONABLE’ AND PRE-PAID WATER METERS ARE ‘LAWFUL’
This morning, the Constitutional Court of South Africa handed down judgment in the five year long Phiri water rights case. The judgment was given in respect of an appeal by the Phiri applicants, of the previous judgment in this case handed down on 25th March 2009, by the Supreme Court of Appeal (SCA) in Bloemfontein. In turn, the SCA judgment was the result of an appeal by the City of Johannesburg/ Johannesburg Water (the ‘City’) and the Department of Water Affairs and Forestry (DWAF) of the previous ruling of the (then) Johannesburg High Court in April 2008.
The summary judgment of the Constitutional Court is as follows: “The City’s Free Basic Water policy falls within the bounds of reasonableness and therefore is not in conflict with either section 27 of the Constitution or with the national legislation regulating water services. The installation of pre-paid meters in Phiri is found to be lawful. Accordingly, the orders made by the Supreme Court of Appeal and the High Court are set aside.”.
The applicants, the Coalition, Phiri residents and no doubt millions of poor people across South Africa are extremely disappointed by what is a shocking judgment. The court’s ruling, written by Justice Kate O’Regan (now retired from the Court) and supported by all other 8 judges sitting in the case, is a classic example of a lazy legalism as well as wholly biased and contradictory reasoning.
It is impossible to deal with all the arguments/positions taken by the Constitutional Court in its 90 page judgment but a few, brief responses are absolutely necessary.
- In relation to testimony and evidence on almost every substantive matter raised in the case, the Constitutional Court takes the City of Johannesburg (CoJ) /Johannesburg Water (JW) at their word and defers to the twisted logic (read: propaganda) of their arguments. It is as if the thousands of pages of evidence and testimony provided by the Phiri applicants in countering the same from CoJ/JW is simply ignored and/or considered irrelevant. One example will have to suffice: Despite mountains of credible evidence to show that there was no serious ‘consultation’ with community residents by CoJ/JW in implementing Operation Gcin’amanzi (a matter the High Court judgment referred to as a ‘public relations exercise’) and that the pre-paid meters were forced onto residents the judgment parrots, almost verbatim, the CoJ/JW propaganda: “Twenty community facilitators were appointed by Johannesburg Water to conduct house visits. The task was to explain the project and its implications carefully to each household. By the end of the implementation process in Phiri in February 2005, all but eight of the 1 771 households in the area had opted for either Service Level 2 or a pre-paid meter. Indeed the vast majority selected the latter.” Clearly, the Constitutional Court has no respect for the honest and unfiltered views and experiences of poor residents.
- The reasoning of the judgment in relation to the constitutional obligations of the state (in this case, CoJ/JW) to provide “access to sufficient water” is completely contradictory. On the one hand the judgment says that the state does have the constitutional obligation to “progressively realise the right of access” but on the other it says that the determination of the content of that right (in the case of water, the state’s unilateral decision in 2001 to implement a universal free basic water - FBW -policy of 6 kilolitres per month, per household) cannot be seen as a “minimum core” and that the said right “cannot be achieved immediately”. What the judgment thus effectively says, but does not recognise itself, is that there is no foundational or time/spatial basis upon which to adjudge what constitutes ‘progressive realisation’. This is why, eight years after the implementation of the state’s FBW policy and with no change in that policy throughout those eight years, the court can find that this constitutes “progressive realisation” and that those who now seek to redefine what this means are guilty of seeking “immediate” remedy. In logical terms, it is a circular absurdity. One is left to seriously ponder then if the constitutional phrase – “progressive realisation” – has any practical meaning at all when it comes to the most basic of all socio-economic rights, other than to allow the state to do whatever it pleases, whenever it pleases and at whatever pace pleases it. Indeed, this seems to be exactly what the judgment is endorsing - even if, as it appears, it has no idea it is doing so - when it states that, “the City is not under a constitutional obligation to provide any particular amount of free water to citizens per month.”
- As if to compound the cyclical contradictions, the judgment further states that, what the “right of access to sufficient water … requires, will vary over time and context. Fixing a quantified content might, in a rigid and counter-productive manner, prevent an analysis of context. The concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government programme is indeed reasonable”. This is wholly ignored in the reasoning behind the judgment’s section on ‘progressive realisation’ of water rights. If the state can ‘fix a quantified content’ in relation to free basic water provision in 2001 and not change it for eight years (read: no progression), then why is this not seen as being “rigid and counterproductive” and ‘preventing an analysis of context’? If context is indeed at the “centre of the enquiry” of what constitutes “reasonableness” then surely it must be equally assessed/applied ‘over time’. Besides the fact that one part of a paragraph in the judgment wholly ignored the other, it is unfortunately for the poor (and for rational logic as well as historians), that the Constitutional Court clearly thinks context is frozen in time - and thus also, the concept of ‘reasonableness’.
- In a further case of biased illogic, the judgment rejects the applicants request for free basic water provision to be changed to a per-person allocation instead of the present per-household allocation (as this clearly discriminates against poor households in townships which are much larger than richer suburban households) because the City of Johannesburg presents “cogent evidence that it is difficult to establish how many people are living on one stand at any given time” (here it is worth noting that the judgment relies on statistical evidence on households from the eight-year old 2001 Census). But then the judgment goes on to say that the CoJ’s indigent, means-testing policy (which does not even cover one fifth of indigents in the City and is, by all accounts, an administrative nightmare) has an “indisputably laudable purpose … it seeks to ensure that those most in need benefit from government services”. So, according to the Constitutional Court, the City can’t implement a per-person allocation due to ‘fact’ that it will be too administratively burdensome (and because the City says so) but it endorses a means-testing approach instead which, of course, is not nearly as administratively burdensome (again, because the City says so) and has a ‘good purpose’ to boot.
- And lastly … the judgment dismisses the applicants argument that the automatic cutting off of water after the free basic amount is dispensed from pre-paid water meters, does not constitute “discontinuation” (and thus an illegal/unconstitutional act). It makes this finding using the following reasoning: “the ordinary meaning of “discontinuation” is that something is made to cease to exist. The water supply does not cease to exist when a pre-paid meter temporarily stops the supply of water. It is suspended until either the customer purchases further credit or the new month commences with a new monthly basic water supply whereupon the water supply recommences. It is better understood as a temporary suspension in supply, not a discontinuation.” Here then, we have the highest court in the land saying that those poor people with pre paid water meters must not think that their water supply has discontinued when their taps run dry because the meter has cut the supply … they must imagine that it is ‘temporarily suspended’ until such time as they can find the money to buy more water credit or until the next month arrives. Such ‘logic’, and even worse that it is wrapped up in legal dressing and has such crucial practical consequences, is nothing less than mind boggling and an insult both to the poor and to the constitutional imperatives of justice and equality.
The Constitutional Court notes at the beginning of its judgment that, “this is the first time” that the constitutional provision on the right of access to water “has been considered by this Court.” This makes the judgment doubly tragic. The Court had a historic opportunity to give meaningful, lived content to the right to water, to strike a constitutional blow for the poor in their struggle to fully enjoy the most basic of all human needs. It is to their, and our country’s, discredit that they have miserably failed.
Our disappointment should not be mistaken for resignation. As we have said from the very beginning of this case, irregardless of what transpires on the legal terrain, the struggle for accessible, affordable and adequate water will not stop. How can it, when there continues to be such glaring socio-economic inequality and injustice.
(The Coalition would like to extend a huge thank you to our legal team at the Centre for Applied Legal Studies – particularly Jackie Dugard – as well as our lawyers throughout the case, Wim Trengove and Nadine Fourie and to all who assisted with, and worked on, this case over the years. To the individual applicants, residents of Phiri and many other poor communities (both here and abroad) … the struggle continues!)
For further comment please contact:
Dale McKinley @ 072 429-4086
(The reactionary Conjudges have stood up for the masses, yay [not]: they
say now that even if your landlord doesn't pay the municipal bill -
although you have paid your landlord on time - then the municipality can
chop your electricity off, but they should give you two weeks' notice.
As if that will change power relations, hah. Meanwhile the meanest city
bureaucracy I know - outside Durban - pops the champaign corks and
prepares to disconnect the water.)
Constitutional Court rules in favour of tenants
Oct 9, 2009 11:08 AM | By Sapa
The Constitutional Court has ruled that Johannesburg City Power's
disconnection of electricity in a block of flats without prior notice
Power was cut off at Ennerdale Mansions in Johannesburg Central on July
8 2008 without notifying the tenants beforehand.
The court ruled that City Power had an obligation to notify not only its
customers but also anyone else who would be affected by the
disconnection. The tenants should have at least been given 14 days' notice.
The High Court in Johannesburg had ruled that City Power had no
obligation to notify the tenants, and the electricity provider had no
contract with them.
On Friday, the Constitutional Court ruled that City Power should pay the
tenants' costs of the High Court and the Constitutional Court.
It also ruled that electricity should be reconnected in the building.
Water meters: Concourt decision hailed
October 08 2009 at 05:07PM
The City of Johannesburg on Thursday welcomed the Constitutional Court's
finding that prepaid water meters are not illegal.
"The city has maintained throughout that it is acting within its rights
and according to legislation when offering residents a choice of having
water meters installed at their premises," said Christine Walters, the
member of mayoral committee for infrastructure.
Lindiwe Mazibuko and a group of residents of Phiri, in Soweto, had
challenged the installation of the meters, claiming they were not
covered by the city's bylaws.
They also wanted the monthly free water allocation increased from six
kilolitres to 50 kilolitres.
They won their case in the High Court in Johannesburg, which found the
installation of the water meters unfair and unlawful and that the city
should provide 50 kilolitres of free water.
When the matter was taken on appeal, the Supreme Court of Appeal found
that the meters were unlawful because they were not covered by bylaws.
It held that 42 litres a person a day would be enough.
The Constitutional Court noted that all involved believed the old system
of supplying water was unsustainable and had to be changed.
While the applicants were unhappy with the changes to the system, at
least 80 percent of residents had accepted the meters and were happy
The court noted too that it would take time before everyone had access
to sufficient water. It ruled that it was for the government and not the
courts to decide how much water people should get.
The judgment provided "final certainty" to the city and residents on the
issue, the city said in a statement on Thursday.
It said the Operation Gcin'amanzi programme was introduced in Phiri to
enable residents to access their allocation of free water.
It also allowed them to manage their water consumption and reduce their
monthly expenditure on water.
"At the same time, Johannesburg Water took measures to reduce the vast
volume of water that is 'lost' in the area daily through leakages," it said.
"A new reticulation network was installed and Joburg Water went from
home to home to fix basic plumbing problems such as leaking cisterns and
taps free of charge. In the beginning of the year, it was calculated
that Gcin'amanzi has, thus far, led to a saving of 110 million litres of
Walters said the judgment would now be studied and "decisions on the
future of the programme be taken following a process of community
participation". - Sapa