After five years of struggle, activists from Phiri, Soweto, lost their legal case, Mazibuko and Others v. City of Johannesburg, at the Constitutional Court in October 2009. They had made the case that prepaid meters were unconstitutional and that the six kilolitres of free basic water must be increased and allocations made per person rather than per household. It was a matter of challenging the implementation of South Africa’s constitution, which enshrines the right to access to water, and its free basic water policy. After winning in both the High Court and the Supreme Court, these activists and their supporters were dealt a severe blow when the Constitutional Court issued what many consider a weak judgment that was highly deferential to the state:
“The Constitutional Court judgment demonstrates a limited (and quite conservative) understanding of its role in enforcing social and economic rights and shows an over eagerness on the part of the Court to endorse the essentially “neo-liberalism-with-a-human-face” pay-as-you-go water provision policies of the Municipality.” (http://constitutionallyspeaking.co.za/water-is-life-but-life-is-cheap/)
We were left with a critical question: What were the implications of this loss for water issues in Johannesburg and for future organising and struggles? The Anti-Privatisation Forum (APF) and the Coalition Against Water Privatisation (the Coalition) recently folded and it has been very quiet on the Johannesburg front. Progressive academics and other onlookers have concluded that following the rights based, legal route was a strategic mistake that distracted local activists from the struggle, which cannot be won through the institutions of South Africa’s liberal democracy. They wonder whether losing the court case disempowered activists and was responsible for the demise of the APF and the Coalition.
Dale McKinley, who has been deeply involved with these struggles since the 1990s, just concluded a two year project called “Transition’s Child”, during which he conducted interviews and compiled information on the APF to be placed in the South African History Archives. He argues against such an over simplification and ahistorical, static assessment and urges analysts to pay attention to “where people are at” in pursuit of their rights and their feeling part of the constitutional order.
Imposing theory on water struggles can be disempowering if it is not clear what we are arguing for and if this is not located within the realities of the water struggles from before the case to the present. What is typically overlooked is the enormous physical/material and emotional impact that the Phiri Water Wars (prior to the case) had on residents. Those in the heat of those struggles experienced the personal and organisational costs of physically confronting the state and engaging in constant mass action. When analysts privilege macro organisational, strategic or intellectual context, what is often ignored is the actual feelings and perspectives of residents themselves in relation to how they understand and thus practically struggle for their ‘human and constitutional rights’. Having experienced the deployment of massive forces of state coercion, Phiri residents considered and then adopted both institutional and legal rights-based strategies around water struggles.
While the loss of the case was a blow for Phiri activists, there were positive developments that emerged from the broader water struggle around the case. First, the court case successfully shifted how officials consider water issues and the calculus of their decisions, how they think about the right to water and delivery mechanisms. There is a buzz about the installation of prepayment meters resuming after a two and a half year suspension, as if the process will pick up where it left off. However the financial and social costs of implementation are making PPM more of an exception than the rule. Financially, to implement Operation Gcin’amanzi, which introduced prepayment meters, the City of Johannesburg borrowed R800 mil to R1 billion from the French Development Agency (FIDA) in two loans. This has been an expensive exercise, especially now the Johannesburg Water is also experiencing the deep financial problems of the City.
The social calculus of officials has also changed. Not only has there been an overall decline in cut offs and a recognition of cut offs as illegal, according to McKinley, but, as a result of the publicity around prepayment meters, a number of municipalities outside Johannesburg, such as Emfuleni, have also declared that they will not implement PPMs. The court case raised issues that clearly had a political “kick on” effect in other municipalities. So rather than focus on the installation of more prepayment meters, one can point to the very few areas where meters have been installed.
Implementing policy is still the main challenge. The City of Johannesburg has introduced a “social package” which allows the poorest to access free services. However individuals must apply, and their needs for services are measured alongside measures of their “indigency” (a word reminiscent of Dickens that is used for identifying the poorest of the poor to receive free services); presently, the City acknowledges that only a third of households in need are accessing the social package.
Second, the APF did not just wait for the outcome of the court case but was actively engaged in solidarity and outreach work. As news of the court case spread, it sparked the interest of communities across the country, from Mafeking and Queenstown to the northern Free State, who contacted the APF about pursuing their own struggles. Although we lack data on its extent, it seems that one result was that bypassing meters has become even more widespread. And McKinley has no doubt that the service delivery protests that have swept the country over the past few years were partially a result of APF planting seeds through its organising. This is evident in the question “why are people in the street” eliciting the same sort of reply, “we tried institutional spaces, but no one listened so we need to make noise so they listen”.
So perhaps there is no great failure, but poor judgment—we don’t need to abandon the rights based approach and activists are not disempowered by the case. Instead the APF and the Coalition were a product of their time and role in the transition. Although previously unemployed activists finding jobs did affect the APF and Coalition practically, their demise is best explained by the new political terrain of struggle in response to today’s ANC and the rise of Zuma.
The good news is that the community groups that comprised the core of the APF and the Coalition are still alive and well. Now it is time for new forms of organisation and solidarities to arise.