South Africa’s Department of Water Affairs brags that it has already met the Millenium Development Goal of halving the proportion of people without access to water. Our constitution and policies recognise and promote the right to (access to) water. Yet, in addition to serious data problems that inflate provision statistics, the way that the government thinks about the right to water is hugely problematic—it has focused almost exclusively on meeting targets to provide infrastructure. In other words, putting in a pipe “counts” as achieving access to water.
What is commonly overlooked is that, even if they have infrastructure, people’s access is often limited (or non-existent) due to other factors. In many municipalities these include:
- tariffs that make water unaffordable and problems accessing free basic water;
- a lack of attention to maintenance means that much of the infrastructure that was rolled out post-1994 no longer works; and
- a failure to protect water resources from abuse by mining and industry means that water quality can be poor and/ or the amount of available water can be insufficient.
For example, it is commonly estimated that only a quarter of poor people in Johannesburg access free basic water due to complex bureaucratic processes and poor public awareness of how to apply. And in Pietermaritzberg (uMsunduzi), poor people receive the first six kilolitres of water free. But once they use the 7th kilolitre, they pay not for 1 kilolitre, but for all seven.
Local municipalities are water authorities, responsible for ensuring water provision according to policies. Officials, councillors and ward committees are the routes for citizen engagement. The national Department of Water Affairs is the regulator. The South African Human Rights Commission is in place to accept and investigate reports of injustices related to the implementation of socio-economic rights.
The problem is that this water architecture is not working, and community members are left with no one to turn to. There is a palpable sense of despondency, which has ignited service delivery protests around the country. It is not clear to date that the government is responding to the conditions behind specific protests, other than arranging statements and visits by high ranking leaders. Protests can erupt into actions against specific councillors and many analyses point to the link between service delivery frustrations and xenophobia.
What kind of recourse do people without water access have? What channels are left? Suggestions of litigation is an option met by many on the left with derision. After all we lost the Mazibuko case– around the inadequate volume of free water and the illegality of prepayment meters in Soweto– at the Constitutional Court. They argue that it is a liberal democratic fallacy to believe that we should focus on rights; instead fighting for the commons is the way to go. Fortunately some have a more subtle approach that encourages fighting for the right to water and the commons.
Most recently, the High Court in North Gauteng considered the water situation in Carolina. Put in layperson’s terms, people in Carolina lacked access to clean water, due to pollution by the mines in the area. As regulator, the Department of Water Affairs drew the unacceptable state of the drinking water to the attention of the municipality, which still failed to take adequate action. The Department sent water tankers to the area as an emergency measure, but the amount of water was inadequate. Two NGOs supported the people to sue both the local and the national levels of government to get them to comply with their responsibilities. The High Court indicated that its ruling did not apply to the national Department, as it had tried its best to get water to people and were unable to do so because of local municipal dynamics. Its ruling was that the local municipality must get water to people within 72 hours.
Isn’t this the very problem? Such dysfunctional municipalities, and there are many of them, cannot deliver due to problems with staff capacity, financial mismanagement, and internal politics. Now we have two rulings—Mazibuko and Carolina—which both instruct the municipality to deliver: “ Try harder and make sure sufficient water is provided!” Who monitors whether remedial action is taken? And, even if it is, how do people make sure that it is not simply for the immediate future but is lasting?
And, as a final ironic note, senior politicians are complaining (loudly) that the courts are interfering in matters of the executive.
Whose “matter” is the human right to water? We know that water access matters to the people, but the “matter of water access” is a right that no government body in South Africa appears able or willing to actively and effectively ensure.
