The poorest people of Johannesburg, South Africa saw some measure of hope with a judicial reaffirmation of the country’s constitutional right to water in April 2008. However, their fight is not over because the powers arrayed against them have appealed the decision.

High Court Judge Moroa Tsoka ruled that the city water utility’s policy of forced installation of prepaid water meters without providing an alternative water supply was unlawful and unconstitutional. What’s more, the meters were placed only in poor, black areas to require people there to pay for water before they used it. In essence, the meters were a method of controlling water on credit. They were not offered the choice of a full credit, metered water supply.

“This was done despite the acknowledgment by the city that the worst debtors were business and government institutions,” said Jackie Dugard, Ph.D., senior researcher and acting director of the Centre for Applied Legal Studies at the University of the Witwatersrand. She also serves on the legal team representing the Phiri residents who sued the city and the water utility over the meters. “In other words, the targeting of one, previously disadvantaged group, for such punitive credit-control amounted to unfair discrimination, which is prohibited by section 9 of the Constitution.”

According to the decision: “The Constitution guarantees equality. It is therefore inexplicable why some residents of the City are entitled to water on credit…yet the people of Phiri…are denied water on credit. In spite of the fact they are poor, they are expected to pay [for] water before usage. Their counterparts, who are affluent and mainly in rich and white areas, irrespective of how much water they use, are entitled to water on credit. The differentiation…contravenes the right to equality.”

“To argue…that the applicants will not be able to afford water on credit and therefore it is ‘good’ for applicants to go on prepayment meters is patronizing. That patronization sustained apartheid: its foundational basis was discrimination based on colour and decisions taken on behalf of the majority of the people of the country as ‘big brother felt it was good for them’. This is subtle discrimination solely on the basis of colour. Discrimination based on colour is impermissible in the terms of the Constitution. It is outlawed. It is unlawful.”

However, positive as the ruling is, the residents of Johannesburg and all of South Africa can’t rest just yet. The City of Johannesburg, Johannesburg Water (Pty) Ltd. and the national Department of Water Affairs and Forestry have appealed the ruling.