Five warnings, one crisis — the betrayal of public trust in SA’s water law

Over the past few weeks, an unusual convergence has appeared in South Africa’s public discourse on water. Within a short span of time, a series of articles, political statements and institutional warnings have drawn attention to the deteriorating condition of the country’s water systems.

Taken individually, these pieces highlight different symptoms of the same problem.

The Democratic Alliance has raised concern over the pollution of Rietvlei Dam and the role of overloaded wastewater treatment systems in degrading a strategic water resource for the City of Tshwane.

ActionSA has drawn attention to the continued discharge of large volumes of untreated sewage into Cape Town’s coastal waters, including into a marine protected area.

Build One South Africa has warned of a widening national water crisis and is preparing legal action to compel government intervention.

Recent reporting on the latest Green Drop, Blue Drop and No Drop reports has exposed the scale of failing wastewater treatment works, leaking infrastructure and collapsing operational capacity across the country.

At the same time, the South African Human Rights Commission has warned that deteriorating water and sanitation systems now pose a direct risk to public health and may warrant classification as a national disaster.

Viewed together, these expressions of concern are striking. They originate from different parts of the political and institutional landscape, yet they converge on a single conclusion: South Africa’s water governance system is failing.

The scale and duration of the deterioration raise the more difficult question of whether recovery remains achievable within existing institutional arrangements. As I pointed out years ago, the scale of the water problems will eclipse, by an order of magnitude, that of the electricity crisis.

Much of the present discussion focuses on the visible condition of the system — polluted rivers, failing treatment works, leaking pipes and rising health risks. These are the optics of the crisis.

Cumulative outcome

The more fundamental question receives far less attention: how did we arrive here?

The trajectory now reflected in national audit reports did not emerge suddenly. It is the cumulative outcome of many years of declining institutional capacity, neglected infrastructure maintenance and the progressive failure to regulate pollutant discharges within the ecological limits of receiving water systems.

Since the mid-1980s, the simple metric of population growth has been ignored. The pressures now manifesting in degraded rivers, eutrophic dams and collapsing wastewater infrastructure have been recognised in scientific and technical circles for decades.

The risks of not heeding the need for comprehensive water pollution control became crystal clear to this author when he was a student in 1975.

The revision of the South African water law anticipated precisely these risks. Section 3 of the National Water Act establishes that the nation’s water resources are vested in the state as public trustee. This is not symbolic language. It creates a binding fiduciary obligation requiring the state to ensure that water resources are protected, conserved and managed sustainably for the benefit of present and future generations.

Equally important is the nature of that trusteeship. The Act vests the trust not in a department but in the state itself. When the National Water Bill was introduced, the late Professor Kader Asmal made this point explicitly. Developing the state’s role as trustee, he observed, “is not an overnight achievement, nor can it ever be said to be a finished accomplishment. Rather, government must wake every day determined to ensure that the public trust is maintained.”

The significance of this formulation is often overlooked. The trustee identified in the Act is the government as a whole. The responsibility for protecting the nation’s water resources, therefore, cannot be confined to the Department of Water and Sanitation or treated as a narrow sectoral function.

For too long, this agency has demonstrated that it is so far behind the problem that it has effectively lost sight of it. Every organ of state whose decisions influence water resources — whether through infrastructure management, wastewater treatment, land-use planning, environmental regulation or municipal service delivery — is exercising delegated authority within a single trusteeship framework.

At the apex of that structure is the national executive. In practical terms, the President therefore acts as the de facto custodian of the public trust obligation. Accordingly, responsibility for the mess that our water resources are now faced with dictates that the responsibility for water should reside with the Presidency. The office of a public commissioner for water matters would be an important step forward, especially in view of the need to maintain continuity over what will be a very long recovery period.

Anticipating risks

The public trust is also inherently forward-looking. Its purpose is not simply to address environmental harm after it has occurred. It requires governments to anticipate risks to water resources, to regulate activities within the assimilative capacity of rivers, dams and coastal systems, and to prevent the progressive accumulation of harm before ecological thresholds are crossed. It provides a standard against which every decision affecting water resources can be tested.

It is important to recognise that the environmental pressures now evident in South Africa’s water resources were well understood long before the public trust was formally incorporated into the National Water Act. Concerns about eutrophication, wastewater overloading, declining river health and cumulative pollution impacts have been documented in the scientific literature for decades. Even before the doctrine was formally expressed in legislation, the underlying principles — preventing foreseeable harm and restoring degraded systems — were widely understood within the scientific and water management communities.

The appearance of the public trust in the Act did not diminish the duty to address those problems. On the contrary, it strengthened and formalised that responsibility. What the doctrine does is armour that duty in law. It provides a coherent governance framework requiring both the avoidance of foreseeable harm and the restitution of damage where degradation has already occurred.

Seen in this light, the problems now being documented across the country assume a different character.

Failure of leadership

The pollution of Rietvlei Dam is not simply a municipal management issue. The continued discharge of untreated sewage into marine environments is not merely a licensing dispute. The collapse of wastewater treatment systems and the loss of nearly half of treated water through leakage are not isolated infrastructure failures.

They are symptoms of a systemic failure to discharge the obligations embedded in the public trust. As such, it reflects, ultimately, a failure of leadership.

Importantly, the present crisis cannot be attributed to a lack of knowledge or regulatory tools. The scientific understanding of aquatic ecosystems — including the concept of assimilative capacity and the limits within which rivers, dams and coastal systems can absorb pollutants — has been well established for decades. Likewise, the legal authority to regulate discharges, enforce compliance and require rehabilitation is already embedded in the National Water Act and related legislation.

In other words, the instruments needed to prevent the current situation have long been available. What has been missing is the institutional coherence and governance discipline required to apply them consistently.

A distinction must therefore be drawn between expertise grounded in long practical engagement with complex water systems and commentary that primarily reflects commercial interests seeking to position particular solutions in the marketplace.

Because readers reasonably assume that material appearing in the press has been subjected to appropriate editorial scrutiny and fact-checking, such claims can quickly acquire an authority that may not always reflect the standing or experience of those advancing them. This dynamic has contributed to what might be described as a form of technological “solutionism” in the water sector, where complex, long-developing governance and ecological problems are framed as issues that can be resolved through discrete technical interventions.

In reality, the deterioration of South Africa’s water resources reflects systemic failures of governance and management that cannot be remedied by isolated technological fixes.

The recent convergence of warnings from journalists, political parties and constitutional bodies is therefore significant. It reflects a growing recognition that the deterioration of South Africa’s water systems has reached a critical point.

But the deeper significance of this moment lies elsewhere.

The legal framework governing the country’s water resources is already clear. The science identifying the risks has been available for decades. The regulatory tools needed to prevent further deterioration are visible and ready.

The question that remains is whether government, in the full sense intended by the National Water Act, will wake each day determined to maintain the public trust placed in it. DM