Tap dancing: Executive mayor Herman Mashaba’s new policy of withdrawing the provision for free basic water will exclude the poorest households. Picture: VELI NHLAPO
Tap dancing: Executive mayor Herman Mashaba’s new policy of withdrawing the provision for free basic water will exclude the poorest households. Picture: VELI NHLAPO

On March 30 2017, mayor Herman Mashaba announced the discontinuation of a lifeline supply of free basic water to everyone in the City of Joburg.

By withdrawing free basic water services from those not registered as indigents, the city announced it would recover more than R320m, which it would use to improve service delivery to the poor.

"The new administration is unapologetically pro-poor and this is an essential step to ensure that we protect the poorest residents in our city while ensuring that we increase revenue to speed up service delivery and improve infrastructure," Mashaba said.

There was no call for public consultation and muted public response to the announcement, and on July 1 2017 the new policy came into effect.

The right to sufficient water is a constitutional right. The state needs to take reasonable steps to progressively realise this right within its resources.

Legislation and policy give effect to this right and define sufficient water supply as a basic minimum of 25l per person per day or 6kl per household per month. The ultimate aim of municipalities providing at least 6kl of water for free to poor households is to reduce poverty; to "substantially eradicate those elements of poverty over which local government has control".

Municipal indigent policies can target the poor using a range of approaches. Universal access means everyone below a certain consumption threshold or receiving a particular level of service can access free water.

Indigent registration with means testing and income targeting is the narrowest method possible. Deciding which targeting method to adopt requires careful consider-ation, and while the national free basic services framework requires municipalities to develop indigent policies that specify their methods, in no way does it recommend the use of indigent registers to target the allocation of free basic services.

The city’s decision has significant implications for the poor and their right to water. The application process is burdensome and excludes many poor and vulnerable people. Extensive documen-tation is required, including a South African identity document, proof of residence, proof of income and a city billing statement.

Proving eligibility in instances where residents in the city are employed in the informal economy is arguably impossible.

The city’s registration criteria exclude the undocumented poor, which is problematic because the Constitution states that everyone living in the country has the right to free basic services. Rather than "protecting the poorest residents in our city", indigent registration excludes them.

In Mazibuko v City of Johannesburg, a number of poor households in Phiri, Soweto challenged the lawfulness of the city’s 2009 decision to install prepaid water meters as part of Operation Gcin’amanzi.

Charging users who can afford to pay for services will generate additional revenue, as the mayor claims, but, as highlighted by Seedat in the Mazibuko case, the costs associated with indigent registration at six-month intervals will be significant

In this case, the city argued that the provision of 6kl to all households was reasonable because its rising block tariff structure meant that wealthier consumers, who were likely to use more water, were charged more for their heavier water use, cross subsidising the minimum free allocation for all.

The city’s justification for the universal approach, set out in the supporting affidavit of Rashid Seedat (then director of the Central Strategy Unit in the Office of the Mayor), is that the "so-called universalist approach" is easier and cheaper to administer but has the disadvantage of benefiting wealthier households.

This is contrasted with the "so-called means testing approach", which has the advantage of benefiting poor households, but, as the affidavit points out, has many disad-vantages, including the need for poor households to present themselves to the city, which is "regarded as undignified, and it results in a situation where many potential beneficiaries prefer not to come forward".

The affidavit further notes that means testing is "extremely onerous administratively", "expensive to run", "time consuming", "open to fraud" and requires that the city "has the ability to check whether the applicants’ statements of income are correct or not, and keep this information continuously updated".

The city’s arguments in Mazibuko, which were accepted by the Constitutional Court and formed the basis of the court finding the city’s free basic water policies to be reasonable and constitutional, raise serious questions about the rationale for its decision in 2017 to withdraw the universal provision of free basic water.

The city acknowledged that its tariff structure had been developed to ensure that universal free basic water provision did not create a financial loss for the city or for Johannesburg Water. These statements stand in stark contrast with the city’s claim in 2017 that narrow targeting would be more cost effective.

Charging users who can afford to pay for services will generate additional revenue, as the mayor claims, but, as highlighted by Seedat in the Mazibuko case, the costs associated with indigent registration at six-month intervals will be significant.

The financial costs of universal access to free basic water are covered by the tariff structure and by an equitable share transfer from Treasury. It is not clear how narrowing access and creating adminis-trative hurdles will help to generate revenue, but it is clear it will exclude more poor people than it includes.

Non-regression is a key principle of the state’s human rights obligations. The decision to withdraw universal provision and restrict provision to residents whose names appear on an indigent register is regressive as it has reduced access to water for hundreds of thousands of households who are poor but not registered.

The city’s application of an indigent register is ineffective as it is neither reaching the poor nor fulfilling the poverty reduction intentions of a municipal indigent policy. It is also inequitable as it excludes genuinely poor residents from access to free basic water.

That the policy has always restricted free basic water to a specific amount per person or household means it also won’t reduce the amount of water households consume.

The Socio-Economic Rights Institute of SA is launching Turning off the Tap: Discontinuing Universal Access to Free Basic Water in the City of Johannesburg. The paper analyses the city’s indigent management policy, Siyasizana Expanded Social Package, in light of the administration’s decision to withdraw the universal provision of 6kl of free basic water.

The research, which includes a review of water policy and legislation in SA and a summary of international lessons about narrow versus universal provision of social benefits, concludes that the city should reconsider its decision as it constitutes a regressive step in the realisation of the right to sufficient water.

• Potter is director of research and advocacy and Khunou is a researcher at the Socio-Economic Rights Institute of SA.

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