(FXI/IFEX) – The following is an FXI statement: FXI welcomes release of some documents requested from Johannesburg Water, but continues with legal action to obtain others The Freedom of Expression Institute (FXI) welcomes a decision by Johannesburg Water (JW) to grant access to three ‘confidential’ documents. The corporation has refused to do so since April […]
(FXI/IFEX) – The following is an FXI statement:
FXI welcomes release of some documents requested from Johannesburg Water, but continues with legal action to obtain others
The Freedom of Expression Institute (FXI) welcomes a decision by Johannesburg Water (JW) to grant access to three ‘confidential’ documents. The corporation has 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 initiated, with researcher Ebrahim Harvey, against JW to secure the release of the remaining documents.
JW agreed to release the documents on 23 February 2004, after the FXI and Harvey initiated legal action in January 2004. JW has agreed to give the FXI and 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 Harvey, under South Africa’s Promotion of Access to Information Act.
The FXI filed the information request on Harvey’s behalf in March 2003, 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 for water delivery (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 initiated legal action in the High Court against JW, the City of Johannesburg, Johannesburg Water Management (JOWAM), who have been contracted to provide water and waste water management services to JW, and who are owned by French water multinational Suez, and Dynacon Technologies (which 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 by the court’s decision in the matter.
The about-turn on the part of JW in relation to the three documents shows that they were capable of disclosure all along.
In spite of having agreed to the release of the three 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 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. 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. Harvey and the FXI are contesting this point on the basis that JOWAM is not a third party under the Act. JW has also refused to disclose – on the grounds 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, which is being contested for public interest reasons. The FXI brought all these irregularities to JW’s attention in September 2003, and asked 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. However, this clause is too narrow. As a result its constitutionality is being disputed, which may well lead to the case going to South Africa’s 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’s 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 court judgements have been made against the company. 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. Information in relation to the success or failure of this project is also being denied.
Harvey and the FXI are awaiting the responding affidavit, which should be available early in April 2004.
