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Litigation alone is not the answer to South Africa’s water and sewage crisis

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Michael Kidd is a professor of law at the University of KwaZulu-Natal in Pietermaritzburg and a member of the Wildlife and Environment Society of SA’s Environmental Governance Committee. He specialises in environmental law, administrative law and water law, and has been working in these fields for more than 30 years.

It is probably unrealistic to expect the government to be able to remedy our water issues acting by itself, even if ordered to do so by a court. The government needs to work with the private sector to address the crisis.

It was widely reported last month that of the 850 wastewater treatment works (WWTWs) tested for the 2022 Green Drop Report, 334 (39%) were in a “critical” state. Of these, corrective action plans for only 168 were submitted to the Department of Water and Sanitation (DWS).

There are reportedly plans to prosecute several of these water services providers (all municipalities), following the successful conviction recently of Lekwa Municipality for pervasive water treatment failures in contravention of water legislation.

I was quoted as being critical of the option of pursuing the criminal prosecution of non-conforming municipalities because it does not necessarily solve the underlying problem of sewage running into water resources.

Ultimately, the problem, which is more pervasive than the 334 WWTWs mentioned above (those are only the “critical” ones), is not scientific or technical but one of governance and political will, exacerbated by legacy issues and a critical lack of finance and other resources, such as technical skills.

It need hardly be said that the pollution of South Africa’s water resources is a huge problem, probably more appropriately referred to as a crisis. Polluted water kills animals and other organisms, poses a health threat to humans (as during the recent Hammanskraal cholera outbreak) and undermines the function of water as a critical economic resource.

This latter aspect has been repeatedly highlighted by Professor Anthony Turton. All of this is occurring in a water-scarce country, where water availability will be reduced through the effects of climate change and a growing population.

Obstacles to litigation

Several colleagues have asked me if it is possible (or if it would be worthwhile) to use litigation to force the relevant government entities to comply with the law (treat the sewage properly). This remedy is called a mandatory interdict.

In my view, there are several potential obstacles to this being an appropriate intervention, but these can be circumvented if one chooses the correct government entity to target and thinks creatively about a potential remedy.

The first obstacle relates to sanitation services being a local government competence in terms of the Constitution. This means that other spheres of government (the DWS, for example) usurping this function or interfering in local government’s exercise of this function is unconstitutional.

Read more on Daily Maverick: Department lays criminal charges against municipalities not meeting sanitation service delivery mandate

There are statutory and constitutional options for intervention in circumstances where local government is not performing, which is clearly the case in many instances. These have been selectively used, if at all, with limited success.

The fact that it is many local government entities that are breaking the law is also a complication, for other reasons. First, there are so many of them. If one targeted failing local government entities, there would be numerous potential respondents to the litigation.

Adding a further spin is that, in many cases, it would be difficult to think of an appropriate remedy (that is, what the court will order the municipality to do), since many of the worst-failing municipalities do not have adequate finances (and will never have adequate finances under current funding models) to solve the problems.

Many municipalities probably do not know exactly what the problems are because of the bleeding of expertise in the public water sector, especially local government, over the past two or more decades.

And then there’s the potential problem of municipalities being ordered to conduct repairs and spending enormous amounts of money on contractors who do not fix the problem, as evidently happened in Hammanskraal.

In my view, the key to litigation that could work is in section 3 of the National Water Act. This provides: “As the public trustee of the nation’s water resources the National Government, acting through the Minister [of Water and Sanitation], must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate.”

This is not the place to examine exactly what public trusteeship means in this context (there are several academic viewpoints), but at the least it means that the national government must ensure the things that are mentioned in that section, including that water is protected. It seems clear that the national government is falling significantly short of meeting this mandate if one looks at the state of our rivers.

The buck stops here…

So does this mean that one needs to take the minister of water and sanitation to court? The problem with this is that the department would not have sufficient finances to address the problem properly, even assuming it can get around the problem of interfering in municipal competence.

Ultimately, the buck stops in terms of section 3 with the “national government”, which acts through the minister of water. If the minister has insufficient resources to address the problem, then the national government must ensure that adequate resources are made available to do so.

Litigation could conceivably target the President (as the head of the national government) to establish a plan to deal with the problem (acting through the minister), and then to implement the plan.

This plan, based on the idea of assisting municipalities instead of interfering in their mandates (which would be constitutionally acceptable), would have to provide for adequate finance and the provision of other necessary resources. These resources must be sufficient to address the problem now and to provide for the necessary maintenance and related funding to keep the system running healthily into the future.

Deficient municipal procurement practices and a shortage of technical expertise at that level could be addressed by the plan’s provision for centralised procurement practices (to provide for economies of scale) and the establishment of a team of engineering and other experts employed by the DWS to assess what is necessary to remediate problems at a local level and to ensure continued performance.

This would save on the costs of numerous expert consultants having to be contracted by local government entities to assess their needs and repair the problems.

The current water crisis has a potentially negative effect on section 27 of the Constitution, which provides for the right of access to water (for basic human needs, at least) and also section 24, the right to an environment not harmful to health or wellbeing.

A plan to address the water crisis, properly implemented, would serve to fulfil these constitutional rights. South African law has recognised that sometimes these rights cannot be fulfilled immediately, and clearly it is unrealistic to believe that the water issues can be addressed in a short period.

The Constitutional Court said in the Grootboom case in 2000 that, where a right is being progressively realised (in that case it was the right to housing), not only is it required of the government to have a plan to provide for that realisation, but that the government must continuously ensure the plan is being implemented. This is what is necessary in the case of water.

It is also worthwhile to consider that the water crisis is occurring at the same time as South Africa is experiencing alarming electricity shortages, and when many aspects of the government’s provision of housing, education, health, decent transport infrastructure and other services are in a mess.

It is probably unrealistic to expect the government to be able to remedy the water issues acting by itself, even if ordered to do so by a court. Just as many of the other problems mentioned here would benefit from the government working with the private sector, so too would the water crisis, and this should be a central element of any plan developed to address the sewage flowing in our streams.

While the obvious culprit responsible for the biggest water pollution problems in South Africa is local government collectively, targeting them through the courts to sort out the problem would be a piecemeal Band-Aid solution.

The root cause can only be addressed by the national government taking seriously its responsibility as the public trustee of our water resources, which it is manifestly failing to do at present. DM

Gallery

Comments - Please in order to comment.

  • Mark Graham says:

    A well thought and sensible response to this looming water crisis in our country. Agreed, this intervention has to be addressed at a more systemmic and strategic level.
    Thanks Mike!

  • Miles Japhet says:

    First class analysis. Throw ideology out the window and let the interests of all South Africans take precedence. The private sector has the expertise and the capacity to remedy our many ills. Let’s hope that our government is pragmatic.

  • . . says:

    I disagree, the problems at a local municipal level are not due to plucky small municipalities trying their level best and failing due to resources and technical skill, it is due to neglect, corruption and incompetence, often willful and with no consequences. There needs to be criminal and personal liability to the councilors and civil servants first, before any other interventions can be successful.

    The best solution would of course be via the ballot box and rightly courts have been reluctant to save citizens from themselves, but I think the courts so have a duty to protect the citizens.

    • Dennis Bailey says:

      Protect citizens by doing what? Compelling citizens not to vote for incompetence? Viva, ANC, Viva!

      • . . says:

        Protect citizens by making judgements that find elected officials personally liable where it can be shown they have acted negligently. Citizens will not hold them to account, so we need the law to step in. If there is personal jeopardy there will be less appetite from the corrupt to enter politcs

  • Geoff Krige says:

    Quite right. Litigation is not the answer. It is not possible to produce competent, service-oriented municipalities by means of litigation. What is needed is three things:
    1. An end to cadre deployment, to be replaced by appointment of municipal management and technical staff on the basis of competence only.
    2. Quick prosecution of corruption, avoiding the stalingrad practices that current litigation makes possible, to ensure that senior municipal positions are sought by service-minded people, not get-rich-quick chancers.
    3. Appropriate remuneration levels. It seems to me that where legal professionals earn double what technical professionals earn there will always be problems with these technical issues (and South Africa is not alone is this) because too many bright school-leavers opt for the higher paying professions.

  • Prof Bill Richards - retired Richards says:

    This problem of poor water management was pursued in the UK following the recommendations of the Ogden report. I n 1974 the UK water industry was radically reorganised from a plethora of hundreds of river authorities, water boards, wastewater treatment plants and local government organizations to form 10 new self governing water authorities within defined river basin boundaries, managing water from source to sea – total water management. I as a young water scientist was fortunate enough to join one of them – Wessex Water – and the experience I gained result resulted in a successful lifetime career in 3 continents.

  • Bennie Morani says:

    There are 3 fundamental problems in municipalities that need to be overcome: 1) Corrupt and incompetent governance; 2) Corrupt and incompetent senior management; 3) Lack of technical skills. Any solution that doesn’t address these problems will not work.
    What is needed is one or more independent agencies (parastatals with competent governance) which take over failing municipal operations. Taking on municipal staff and training them, but relying on skills that are absent in municipalities. Section 78 of the Municipal Systems Act is the framework that could do this.

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