FXI welcomes release of some documents requested from Johannesburg Water,
but continues with legal action to obtain others

1 March 2004

The Freedom of Expression Institute (FXI) welcomes a decision by
Johannesburg Water (JW) to grant access to three 'confidential' documents,
after having refused to do so since April 2003. However, the FXI is deeply
concerned that JW continues to refuse to release other documents relating to
its activities. The Institute will continue with legal action which it has
instituted, with researcher Ebrahim Harvey, against Johannesburg Water to
secure the release of the remaining documents.

JW agreed to release the documents on 23 February 2004 after the FXI and Mr
Harvey instituted legal action in January 2004. JW has agreed to give the
FXI and Mr Harvey access to three out of a total of sixteen sets of
documents requested on 11 March 2003. The documents were requested by the
FXI on behalf of Mr Harvey in terms of South Africa's Promotion of Access to
Information Act.

The FXI filed the information request on Harvey's behalf in March last year
after his attempts to obtain the documents from JW failed. Harvey sought the
documents to enable him to complete a Master's Degree at the University of
the Witwatersrand on the impact of Johannesburg's Igoli 2002 plan on the
delivery of water (which led to the formation of JW as a corporate entity).
The plan has been controversial as it fuelled the commercialisation of
services such as water and electricity, leading to the disconnection of many
poor residents when they could not afford the rising costs of these
services.

Harvey and FXI then initiated legal action in the High Court against the
following institutions for the refused documents:

a.. Johannesburg Water,
b.. The City of Johannesburg,
c.. Johannesburg Water Management (or Jowam), who are contracted to
provide water and waste water management services to JW, and who are owned
by French water multinational Suez,
d.. Dynacon Technologies (who monitors the management contract)
The Minister of Justice has also been cited as a respondent in the
application. The intentions of the application are to secure the release of
the outstanding documents and to challenge the constitutionality of the
Promotion of Access to Information Act on the basis that it limits the
constitutional right of access to information. The first four respondents
have filed a notice of intention to oppose the application, while the
Minister has stated that he will abide the court's decision in the matter.

The about-turn on the part of JW in relation to the 3 documents shows that
they were capable of disclosure all along.

In spite of having agreed to the release of the 3 documents, JW still
continues to deny responsibility for some documents on the basis that the
request should be directed to the City of Johannesburg. Harvey and the FXI
have argued in the founding affidavit that JW has an obligation to secure
the documents from the City for requesters.

Harvey and the FXI have pointed out that JW's response to the initial
request was inadequate in terms of the Act. The company did not cite
specific reasons for refusing particular pieces of information, as it is
required to do. Rather they chose to respond in a globular fashion, citing
numerous grounds for mandatory refusal of records in the Act relating to the
confidentiality of its own documents and those of third parties.

Documents that JW still refuses to release on the basis that they contain
'confidential methodology of a third party', namely JOWAM, include all the
reports JOWAM is required to develop and produce for JW and JW's evaluation
of these reports.

JW has also refused to disclose - on the basis of confidentiality - its
Water and Wastewater Master Plans, all 'internal reports' on the Orange Farm
pilot project in Stretford Ext. 4, and the minutes of JW Board meetings.

Harvey and the FXI have argued that JOWAM is not a third party under the
Act. According to the Act, private companies that perform public functions
are not regarded as third parties in relation to those functions. Given the
fact that JOWAM performs a public function, it must be regarded as a public
body for the purposes of the Act. The FXI and Mr Harvey have therefore
asserted that JW's basis for refusing many of the relevant records is
improper.

The FXI drew all these irregularities to the attention of JW in September
2003. The Institute also pointed out that aspects of JW's response were
simply contradictory. For instance, JW claimed that a request for the Orange
Farm 'internal reports' was vague and unclear and it was not certain what
records were being sought, and simultaneously stated that the 'reports
contain information confidential to JW'.

The FXI asked JW for a revised response, but to no avail.

Harvey and the FXI have further argued in the founding affidavit that if the
court finds that any of the documents cannot be disclosed on any of the
grounds referred to in the Act, then the Act's public interest override
clause should be invoked. This clause requires the body concerned to
disclose documents if two public interest requirements are met. The first
requirement is that that the disclosure of the document(s) would reveal
evidence of either a substantial contravention of, or failure to comply
with, the law or an imminent and serious public safety or environmental
risk. The second requirement is that the public interest in the disclosure
of the record clearly outweighs the harm resulting from the disclosure.

Harvey and the FXI have argued that this clause is unconstitutional. Rather
the clause should ensure that only one of the requirements has to be met for
documents to be disclosed in the public interest. The Act, by stating that
both requirements must be met, does not strike an appropriate balance
between disclosure and non-disclosure, as the grounds for mandatory refusal
are broad and the override is too narrow. If this challenge is accepted by
the High Court, it will have to be confirmed by the Constitutional Court; if
not, then Harvey and the FXI will be in a position to appeal against the
High Court judgment in the Constitutional Court.

Most of the documents requested explain the operational duties and evaluate
the performance of Jowam and JW. They will throw light on policies relating
to disconnections, pricing, service priorities and plans to remove
inequalities in service provision. Others will contain information regarding
current inequalities in service consumption and the provision of
infrastructure. Access to the documents will also allow an investigation of
whether the transfer of responsibilities for water provision to contractors
such as JOWAM may negatively impact on access to water, including through
increases in prices for water, failures to remove inequities in service
provision or through unjustified disconnections. Finally, access to the
documents is necessary to investigate whether JW is fulfilling its
constitutional obligation of providing access to water. In short, the
transparency that will flow from disclosure of these documents is essential
to ensure public accountability.

Harvey and the FXI have also noted that there is a particularly compelling
public interest reason for disclosing documents relating to the activities
of JOWAM, a joint venture of subsidiaries of the international water company
Suez, in view of Suez' increasingly dubious track record internationally.
Suez and at least some of its international subsidiaries have recently been
accused of corruption, dishonesty and a lack of accountability, and these
accusations are sufficiently cogent to warrant careful scrutiny of the way
in which water and waste water services are being managed in Johannesburg.
The affidavit also points out that in Grenoble, France, the City Council
terminated its relationship with Suez after a former mayor and government
Minister, and certain senior executives of Suez received prison sentences
for accepting and giving bribes. In France, Suez has also been the subject
of a recent investigation into a scandal around 'an agreed system of
misappropriation of public funds'.

In South Africa, the Eastern Cape High Court recently nullified a ten year
contract between a Suez South African subsidiary and the Nkonkobe
Municipality after, amongst other things, high levels of dissatisfaction
with the service were expressed by the community.

In addition, Harvey and the FXI point out that since JOWAM was awarded the
management contract, above inflation increases to the price of water have
led to communities in and around Johannesburg being increasingly unable to
either access or afford water. In Alexandra, thousands of poor families were
affected by a cholera epidemic resulting from inadequate access to water.

In spite of this growing crisis, JW has seen fit to introduce pre-paid water
meters, firstly as part of an experimental project in the sprawling
settlement of Orange Farm. This experiment was undertaken in an attempt to
'test' the response of poor communities to the introduction of this
'self-disconnection' water technology (under the guise of self-ownership and
management of water consumption). Most recently, pre-paid meters have been
introduced into Phiri, Soweto, as part of JW's 'Operation Gcin'amanzi'
(Operation Conserve Water) project. The pre-payment system is being rolled
out in spite of the fact that in Britain, pre-paid water meters were
declared illegal after public health problems and an outcry from poor
communities during the late 1990's. It is particularly disturbing, then,
that JW still refuses to disclose its own reports evaluating the successes
or failures of the Orange Farm pilot project.

Harvey and the FXI pointed out that JW policies have been controversial in
view of the above mentioned developments. However, the residents of
Johannesburg cannot democratically remove those who are responsible if they
are dissatisfied with the level of service, as JOWAM will continue to
perform these vital public functions for as long as the agreement between JW
and JOWAM continues. Therefore, other means must be found to ensure that JW
is accountable to the residents of Johannesburg. This can be achieved by
ensuring that there is transparency. For instance, accountability would be
promoted by the disclosure of the minutes of JW's Board meetings. Harvey and
the FXI have also pointed out that the statutory recognition of the
importance of community participation in policy formulation on municipal
services is meaningless unless adequate information is provided.

Ends