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Evolving Rights: South Africa’s Free Basic Water policy

South Africa’s constitution is praised for its recognition of the right to water: “Everyone has the right to have access to sufficient food and water.” (Sec 27.1.b). However the right to “access” to water is often compromised by the way in which cost recovery policies are implemented. Do poor people who cannot afford to pay for water actually have “access”? This has remained a burning question in South Africa’ s post transition period.

The water utility in Durban metro (eThekwini Water and Sanitation) was innovative in its response to this question. Concerned about the poor alongside civil society pressure around cut offs and disconnections due to unaffordability, Durban set the trend of providing Free Basic Water (FBW) of six kilolitres per household per month in 1998. This basic amount (of 25 litres per person per day x 8 people= 6 kl per household per month) was identified as the break-even point for the cost of administering bills.

Based on Durban’s evidence that it can work, Free Basic Water was introduced as a national policy 18 months later, based on the “realisation that many South Africans cannot afford to pay for services to which our constitution guarantees right of access.” (The Minister also noted that people using more than the FBW amount must pay their bills.) There was increased impetus for the introduction of Free Basic Water in August 2000 when a cholera outbreak infected over 117 000 people and resulted in 265 fatalities.

Rather than prescribing how to implement the FBW policy, it is left to municipalities to decide on their approach. This allows for variation depending on municipality’s economic bases: in areas with a large economic base, most users are metered, and FBW is provided to all (with cost for further use cross-subsidising the free block). In areas with a smaller economic base, the poor can be identified and their FBW offset against their bills (referred to as the Dickens-like “indigent policy”). If the service level is a public standpipe, FBW naturally applies.

So Durban’s public water utility appears to be on top of issues, with the arguable exception of provision to informal settlements that plagues all metros. Durban even increased its FBW allocation from 6 kilolitres to 9 kilolitres, again because of people’s needs and a changing break-even point. And additional steps were added to the tariff structure to improve its progressivity. These were important steps, particularly in the wider context of related issues reaching the Constitutional Court: its ruling on the Mazibuko court case was that decisions about the amount of FBW and the means in which it is delivered are the responsibility of the local municipality.

Now Durban has introduced another change to how FBW is structured, as part of its wider tariff review process. Durban Water’s Neil Macleod summarises the change:

“For families living in houses worth R190 000 or less, there is no fixed charge at present, no matter what level of service – even full pressure. Because the properties in the city have now been re-valued after five years as required by law, we need to increase this threshold value to R250 000 to keep all those who benefitted before, in the net—nearly 300 000 families! So after 1 July, any person living in a house with a rateable value of

Any family living in a higher value house can apply for the first 9kl to be supplied free, subject to the conditions of Council policy – so no poor family will lose their right of access to free basic water if they can satisfy the indigency requirements.

The reason we are changing the structure for people living in higher value homes (some valued at many millions of rand) is that we have found most of those receiving free water people are not poor by any definition; 70 000 are benefitting because there are one or two people living in the house – thereby they are being subsidised by the other payers, which is not equitable. They will now have to pay up to R100 per month for using up to 9kl.”

Civil society activists have struggled to work out the implications of these changes for the poor. Clearly those who are “indigent” but live in properties worth more than R250 000 must now apply for FBW. Otherwise it seems that the system is being fine-tuned to be more fair; Usage from 10-14 kl will decrease in cost, from 14-20 kl will increase by less than 5%, and 20 kl and over will increase by more than 10%.

Macleod is clear that his priority is for Durban Water to be financially viable and meet its service delivery targets. He is upfront that this is the foundation that allows for other aims of introducing and then improving FBW provision—or changes that mediate climate change impacts—to be met.

There is no question that civil society must remain a vigilant watchdog, using a range of strategies and tactics to engage with the metro. At the same time it is important to recognise the successes of the public sector that we are so keen to promote. As far as running an effective public utility is concerned—a utility that can meet the needs of citizens—pursuing innovation within the limits of the current global system is the best that citizens can hope for.