The death of at least three people protesting against the lack of access to water in Mothutlung in the Madibeng municipality, all allegedly due to action by members of the South African Police Service (SAPS), brings into sharp focus the failure of some municipalities to fulfil their constitutional obligations. It also raises the spectre of an out-of-control police force using excessive violence to punish protestors for challenging the authority of the government or the police.
“Water is life,” wrote Justice Kate O’Reagan in the Constitutional Court judgment of Mazibuko and Others v City of Johannesburg and Others. “Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising, then, that our Constitution entrenches the right of access to water.”
It may well be that “water is life”, as the Constitutional Court claimed, but the killings in Mothutlung also demonstrate that the struggle for access to water in rural South Africa can itself be deadly.
For the residents of Mothutlung, the Constitutional promise of access to water, contained in section 27 of the Bill of Rights, must ring hollow. In December the inhabitants of Mothutlung were without access to water for almost two weeks. Water again stopped flowing in Mothotlung last Friday with no indication of when the problems would be solved, sparking the most recent protests.
As Merle Dipua Seema, a local resident (who also helpfully provided the correct spelling for Mothotlung) explained to me on Facebook, even when water is available in the area, its quality is of a dubious standard, with devastating consequences for the poor:
“The water, when available, may be scientifically potable ,but not according to the greasy rim it leaves in my bath nor toilet. Running a water bottled water bizniz has become a lucrative opportunity. The need to boil tap water for those that can’t afford further strains the household budget.”
It goes without saying that this is not the state of affairs promised by the Constitution. Section 27 of the Constitution requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to water.
To give meaningful content to this constitutional obligation, Parliament has enacted the Water Services Act, which regulates the right of access to water and sets out the exact obligations placed on the state regarding the provision of access to clean water. Section 3 of the Act confirms that every municipality has a duty to take reasonable measures to realise the right to a “basic water supply”.
“Basic water supply” is defined in the Act as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.”
In terms of section 9 of the Act the Minister can prescribe a compulsory national minimum standard of water supply that must be provided to residents by all municipalities. The regulations issued by the Minister determine that every municipality is legally required to provide a “minimum quantity of potable water of 25 litres per person per day or six kilolitres per household per month at a minimum flow rate of not less than 10 litres per minute; within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.”
It is clear that the Madibeng municipality has consistently failed to meet its basic constitutional and legislative obligations as set out above. The municipality is therefore flouting the Constitution and the law and seems either incapable or unwilling to comply with it.
As the Daily Maverick reported earlier this week, it is perhaps not surprising that the Madibeng municipality is unable to provide some of its citizens with regular adequate quality supply of running water.
“In March 2010, the Madibeng municipality was placed under administration after an audit exposed financial mismanagement to the tune of R100 million. In June 2011, newspapers exposed the fact that the new executive mayor was renting a BMW at the cost of R2,025 per day. In April last year, it was reported that R1 billion of assets, supposedly owned by the municipality, were missing.”
The case highlights the limits of the law in situations where the political process has broken down. People living in Mothutlung do not have the funds to finance court action to have the abuse of their rights halted. (This is unlike the – mostly middle class – Gauteng residents who opposed paying e-tolls, who funded several failed court bids to stop the implementation of e-tolls.)
What are the residents of Mothutlung to do to force the municipality to comply with its legal obligations? Yes, they could try to vote out the Madibeng councillors at the next local government election, but given the organisational muscle and financial resources available to the governing party it is not clear that they would actually succeed in doing so. In any case, that election is still several years away.
They could theoretically also place pressure on ward councillors to take up their case. But the ward councillors are beholden to the governing party – not the voters – as they were nominated as ward councillors by the leadership of the governing party and depend on the patronage of the party leadership to remain in office.
And – this is just a hunch – but I suspect that a mayor of a relatively small municipality who splurged more than R2,000 of taxpayers’ money a day on renting a BMW is probably not going to respond promptly to a petition handed to him at a genteel and peaceful picket.
The theory of participatory democracy breaks down when elected officials – beholden to financial benefactors or party bosses instead of their voters – do not feel pressured to act in an open and transparent manner or to account to those whom they were elected to serve. When the elected officials are too corrupt, too heartless or too incompetent to provide residents with the most basic life-saving resources and when they utterly fail to respond to complaints by those who voted for them, it is unclear what democratic avenues are open to residents to secure access to life-saving water.
Predictably the residents of Mothutlung resorted to protest action in the wake of yet another water shutdown and, just as predictably, the protest action turned violent. The ensuing violence and the resultant police brutality finally grabbed the attention of the media and therefore also the politicians from the national government anxious about an upcoming election.
It was during these protests that the police shot and killed two protestors with live ammunition and a third protestor mysteriously fell out of a police vehicle (providing uncomfortable echoes of the Apartheid years, when detainees often “slipped on soap” or “jumped” to their deaths out of the 18th story of John Vorster Square).
Remarkably, on Twitter and other social media platforms, some commentators suggested that because the protest was not entirely peaceful, the police was perfectly justified in killing the protestors. This view is not only barbaric; it also flies in the face of the Constitution and the law.
Of course, the SAPS is legally required to protect property and to maintain or restore calm in a community. However, police officers are constitutionally and legally required to do so by using the minimum amount of force. Police officers are very seldom justified in killing anyone and are not allowed to use live ammunition on protestors unless their lives are under imminent threat.
This is so, not only because the right of everyone to life and bodily integrity is protected in the Constitution, but also because police officers are not magistrates or judges and hence do not have the power to determine the criminal guilt of protestors or to punish protestors for allegedly taking part in illegal activities. When police officers use maximum force against unarmed protestors where large scale damage to property is not threatened and subsequently maim or kill some of the protestors, they are no more than vigilantes who have unlawfully arrogated to themselves the right to judge and punish fellow citizens.
When police officers use maximum force to kill protestors who do not threaten their lives, they are doing no less than meting out the death penalty to citizens who have not been found guilty of any crime. It seems that some members of the police force, and some of their supporters who cheer on their brutality, yearn to bring back the death penalty which was found to be unconstitutional in 1995.
It’s a shocking turn of events. Parliament should, of course, call the Police Commissioner, the minister of police and ultimately the president who heads the government under whose watch these extra-judicial killings are occurring, to account. But because the majority of members in Parliament are beholden for their jobs to the leadership of the governing party (including the president and the police minister), this is not going to happen. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"The world doesn't make sense so why should I paint pictures that do?" ~ Pablo Picasso