Water meters, a Porsche and transformative Constitutionalism

Some readers took a dim view of my citicism of Judge President John Hlophe’s judgment in the case of Thubelisa Homes and Others v Various Occupants and Others in which I pointed out that while the JP was driving a Porsche, he heartlessly ordered the eviction of Joe Slovo residence and their removal to far off and godforsaken Delft.

But it is instructive to compare the tenor of the aforesaid judgment with that handed down by judge Tsoka in the Witwatersrand Local Division of the High Court in the case of Mazibuko v City of Johannesburg.

While the former judgment seemed to disregard the experiences and feelings of the poor and destitute in favour of the State, the latter seems sensitive to how real people, poor people, actually live and how they experienced the installation of water meters that cut off their water after they had uised up the 6 kiloliters of free water allocated to them.

Professor Sandy Liebenberg form Stellenbosch has a good analysis of this case in today’s edition of Legal Briefs. Money quote:

A remarkable feature of the judgment is the court’s willingness to compare the administrative standards and procedures afforded to the residents of Phiri to those applicable in wealthy, historically white areas who obtain their water on credit from the City. In contrast to the complete absence of fair procedures afforded to the Phiri residents, residents of wealthier suburbs are entitled to notice before any cut-off of water supply and have the opportunity to make arrangements to settle arrears, including an opportunity to make representations to the City. According to the court, this constitutes unfair discrimination both on the basis of geographical area of residence as well as indirect discrimination on the grounds of race. The Court also noted that ‘South Africa is a patriarchal society’ in which most domestic chores are performed by women. Many households in poor black communities are in fact headed by women. Within this social context, prepayment meters discriminated unfairly against women.

The Court rejected the City’s argument that prepayment systems had been widely accepted by residents. The Court examined the process by which these systems had been introduced, and concluded that it had been procedurally unfair, lacking consultation, adequate notice, advice on legal rights, and information provided to the users on available remedies. The Court also rejected the City’s argument that prepayment meters were beneficial for users in Phiri who could not afford water on credit. The Court termed such an attitude as deeply patronising, and discriminatory, noting that bad payers cannot be described in terms of colour or geographical areas, as the City’s policy implied.

The Court accordingly ordered that the prepayment water system used in Phiri township was unconstitutional and unlawful and ordered the City to provide the residents of the Phiri township with the option of a metered supply installed at the cost of the City of Johannesburg.

The Mazibuko judgment – while not academically perfect – displays real heart and guts and shows how potent social and economic rights provisions in the Constitution can be when they are used alongside the equality guarantee in section 9 of the Constitution.

Courts are careful to order the state to actually spend money or to change their policies because of separation of powers concerns. But where the policies can be shown to treat poor people differently from the rich, the right kind of judge would be able to intervene on behalf of the poor. This is what happened in this case.

Hopefully Judge President Hlophe will read the judgment and learn.

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