8.3.2 Arbitrary water or sanitation disconnections Condensed: The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. Disconnections from water and sanitation facilities, defined as the interruption of the delivery of water services, may be necessitated by a user’s inability to pay for the service or result from pollution of water resources or emergencies. Disconnections are not necessarily prohibited but certain guarantees should be in place taking account of a user’s ability to pay. When disconnections take place special caution must be exercised and due process guaranteed. Procedures to safeguard the rights of users during disconnections should include: (a) timely and full disclosure of information on the proposed measures; (b) reasonable notice of the proposed action; (c) legal recourse and remedies for those affected; (d) legal assistance for obtaining legal remedies. Comprehensive: The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies.[1] States have the obligation to refrain from arbitrarily disconnecting water and sanitation services and where water services are provided by the private sector, similarly to ensure the prevention of interference with the enjoyment of water supply unless such interference is permitted by law and includes appropriate procedural protection.[2] Disconnections from water and sanitation facilities, defined as the interruption of the delivery of water services, may be necessitated by a user’s inability to pay for the service or result from pollution of water resources or emergencies.[3]In the Mazibuko case the Constitutional Court of South Africa distinguished between temporary suspensions of water supply such as those occasioned by the exhaustion of credit in a pre-paid water meter, and discontinuation where the water supply ceases to exist.[4] Affordable access to water and sanitation facilities does not necessarily mean that the services should be provided free of charge.[5]Disconnections are not necessarily prohibited but certain guarantees should be in place taking account of a user’s ability to pay. When disconnections take place ‘Special caution must be exercised and due process guaranteed’.[6] Procedures to safeguard the rights of users during disconnections should include: (a) timely and full disclosure of information on the proposed measures; (b) reasonable notice of the proposed action; (c) legal recourse and remedies for those affected; (d) legal assistance for obtaining legal remedies.[7] Disconnections for non-payment where the user proves inability to pay for water services should not result in users being denied a minimum amount of safe drinking water.[8] Thus, disconnections in situations where users have no access to a minimum amount of safe drinking water may be prohibited.[9] In Residents of Bon Vista Mansions v Southern Metropolitan Local Council, the High Court in South Africa found that the disconnection of an existing water supply constituted a prima facie violation of the right of access to water.[10] The Court also upheld the requirement of due process during disconnections which included procedures that are fair and equitable, reasonable notice of intention to discontinue service provision and the opportunity for users to make representations. The Constitutional Court in Mazibuko found that the procedure to be followed prior to the discontinuation or limitation of water supply was not applicable to a temporary suspension that may be undone by the purchase of pre-payment vouchers or the resumption of basic water supply at the beginning of the month. To require the service provider to follow this procedure each time a prepaid allowance is about to expire would be administratively unsustainable and often serve no useful purpose.[11]
[1] CESCR, General Comment 15, para 10. [2] Sub-Commission on the Promotion and Protection of Human Rights Guidelines on the Realisation of the right to drinking water and sanitation E/CN.4/Sub.2/2005/25 (2005) para 2.3(d). [3] OHCHR, UN HABITAT, WHO ‘The right to water’ Fact Sheet 35 (2010) 34. [4] Mazibuko & Others v City of Johannesburg & Others 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC). [5] Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/15/31/Add.1 (2010) para 34. [6] Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation para 35. [7]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, A/HRC/6/3 (2007) Para 57. [8]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments para 57. [9]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments para 59. [10] 2002(6) BCLR 625 (W). [11] Mazibuko & Others v City of Johannesburg & Others para 122.
Condensed:
The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. Disconnections from water and sanitation facilities, defined as the interruption of the delivery of water services, may be necessitated by a user’s inability to pay for the service or result from pollution of water resources or emergencies. Disconnections are not necessarily prohibited but certain guarantees should be in place taking account of a user’s ability to pay. When disconnections take place special caution must be exercised and due process guaranteed. Procedures to safeguard the rights of users during disconnections should include: (a) timely and full disclosure of information on the proposed measures; (b) reasonable notice of the proposed action; (c) legal recourse and remedies for those affected; (d) legal assistance for obtaining legal remedies.
Comprehensive:
The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies.[1] States have the obligation to refrain from arbitrarily disconnecting water and sanitation services and where water services are provided by the private sector, similarly to ensure the prevention of interference with the enjoyment of water supply unless such interference is permitted by law and includes appropriate procedural protection.[2]
Disconnections from water and sanitation facilities, defined as the interruption of the delivery of water services, may be necessitated by a user’s inability to pay for the service or result from pollution of water resources or emergencies.[3] In the Mazibuko case the Constitutional Court of South Africa distinguished between temporary suspensions of water supply such as those occasioned by the exhaustion of credit in a pre-paid water meter, and discontinuation where the water supply ceases to exist.[4]
Affordable access to water and sanitation facilities does not necessarily mean that the services should be provided free of charge.[5] Disconnections are not necessarily prohibited but certain guarantees should be in place taking account of a user’s ability to pay. When disconnections take place ‘Special caution must be exercised and due process guaranteed’.[6] Procedures to safeguard the rights of users during disconnections should include:
(a) timely and full disclosure of information on the proposed measures;
(b) reasonable notice of the proposed action;
(c) legal recourse and remedies for those affected;
(d) legal assistance for obtaining legal remedies.[7]
Disconnections for non-payment where the user proves inability to pay for water services should not result in users being denied a minimum amount of safe drinking water.[8] Thus, disconnections in situations where users have no access to a minimum amount of safe drinking water may be prohibited.[9]
In Residents of Bon Vista Mansions v Southern Metropolitan Local Council, the High Court in South Africa found that the disconnection of an existing water supply constituted a prima facie violation of the right of access to water.[10] The Court also upheld the requirement of due process during disconnections which included procedures that are fair and equitable, reasonable notice of intention to discontinue service provision and the opportunity for users to make representations. The Constitutional Court in Mazibuko found that the procedure to be followed prior to the discontinuation or limitation of water supply was not applicable to a temporary suspension that may be undone by the purchase of pre-payment vouchers or the resumption of basic water supply at the beginning of the month. To require the service provider to follow this procedure each time a prepaid allowance is about to expire would be administratively unsustainable and often serve no useful purpose. [11]
[1] CESCR, General Comment 15, para 10.
[2] Sub-Commission on the Promotion and Protection of Human Rights Guidelines on the Realisation of the right to drinking water and sanitation E/CN.4/Sub.2/2005/25 (2005) para 2.3(d).
[3] OHCHR, UN HABITAT, WHO ‘The right to water’ Fact Sheet 35 (2010) 34.
[4] Mazibuko & Others v City of Johannesburg & Others 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC).
[5] Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, A/HRC/15/31/Add.1 (2010) para 34.
[6] Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation para 35.
[7]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, A/HRC/6/3 (2007) Para 57.
[8]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments para 57.
[9]Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments para 59.
[10] 2002(6) BCLR 625 (W).
[11] Mazibuko & Others v City of Johannesburg & Others para 122.