It’s hard enough to compete on the international rugby stage these days. So much more when there is a biased referee, often sarcastically referred to as the opposing team’s best player. Famous Springbok “water boy” Rassie Erasmus was barely back from his year-long ban after highlighting refereeing inconsistencies in a leaked video, when he again got sidelined for similar infringements.

Ironically, it’s been a year that has also highlighted the inconsistencies of South Africa’s water referee, the Department of Water and Sanitation (DWS). As custodian of South Africa’s water resources, the DWS is mandated by the National Water Act (36) of 1998 to ensure that our water resources are “protected, used, developed, conserved, managed and controlled” in a sustainable and equitable manner. This law among others provides the rules of the game for water users as the players and DWS as the referee.

In South Africa’s water games there are two main teams entered, the private sector and the state. The private sector includes players like agriculture, mining and industries while municipal bulk water and wastewater treatment plants mostly belong to the state. Regardless of who plays, the rules are the same and all players must comply with the requirements for admission (i.e. be authorised or licensed) and play according to the rules (licence conditions). It is the job of DWS as referee to ensure compliance and fair play.

After the Jagersfontein tailings dam collapse in September, DWS spokesperson Sputnik Ratau revealed that the Jagersfontein compliance audit in 2019 highlighted irregularities which needed to be addressed, including the storage of excessive tailings volumes which resulted in a directive being issued in December 2020. Following further investigation, it was reported that Deputy Minister of DWS, David Mahlobo, intended to lay criminal charges against the owners, Jagersfontein Developments, and rightly so.

Ironically, just a week later News24 revealed that 15 of the country’s 20 largest dams are not compliant with safety standards either. This time the custodian is the state, specifically DWS themselves. Imagine a potentially catastrophic dam failure in the wake of the heavy rains in parts of the country of the past month. Who will then be prosecuted since the referee is now also a player on the field?

Similarly, a lot of news coverage was afforded to the toxic spill from United Phosphorous Limited’s (UPL) Cornubia plant in Durban following the torching of their factory during the July 2021 unrest. The first thing to happen was to scrutinise the status of their water use and environmental authorisations and compliance. This is a necessary step in the accountability process because of the “polluter pays” principle. UPL released millions for the clean-up operations and continuous monitoring, despite the spill resulting from factors beyond their direct control.

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Mop-up operations were still underway when heavy rains wreaked havoc in the same area in April this year. Several hundred lives were lost, property destroyed, and stormwater and sewerage infrastructure damaged. This resulted in several beaches being closed because of high E. coli counts from the leaking raw sewage.

Several months later, not much has changed. In fact, a Carte Blanche investigation revealed that although the storms did significantly contribute to the sewage pollution, E. coli counts were above recreational standards long before the floods. Their investigation uncovered pump stations rendered dysfunctional because of vandalism, which resulted in sewage bubbling from manholes — nothing to do with storm damage.

Further inland, after decades of complaints, the Human Rights Commission’s report on chronic sewage pollution of the upper Vaal River was finally released in February 2021. The obvious finger points to the Emfuleni Local Municipality (among others), who shifted blame to their ailing sewerage infrastructure in a pathetic attempt to abscond responsibility. But rather than an excuse, it’s a candid admission of guilt, like a taxi boss who tries to blame the unroadworthy state of his rolled taxi in which several passengers were killed. Whose job is it to look after infrastructure maintenance?

The report also found that both the Departments of Water and Sanitation and Environmental Affairs (DEA) failed to hold the municipality to account, despite the ability and mandate to do so. Why do private sector players get issued with red and yellow cards, while local municipal officials get away with warnings time after time?

The answer lies in Section 139 of the Constitution. When a municipality like eThekwini or Emfuleni fails in its duty as water service provider, Section 139 of the Constitution ensures that the buck gets passed to provincial and then national level.

Provincial intervention did nothing for the Vaal. National Treasury gave more money to fix infrastructure, while the army was deployed to protect and even help fix infrastructure. The HRC report makes many good recommendations, most directed to DWS. Effectively this passes the ball from the transgressing player to the referee with the whistle, who is now involved in play, with no one left to officiate.

Directorship of a private company like Jagersfontein Developments comes with big responsibility, even criminal liability. How much more should it not apply to municipal positions? DM