Municipal and national governments appear more concerned with placing blame than drafting solutions. In June, the Western Cape government stated that they received only 2.5% of the Department of Water and Sanitation’s R16 billion budget. On 1 August, the Western Cape government announced plans to bill the national Department of Water and Sanitation R3.5 million for water infrastructure maintenance. In both cases, national government accused Western Cape officials of political point scoring.
Lack of proper water and sanitation services violates South Africans’ section 27(1.1) right to sufficient water. A 2014 South African Human Rights Commission (SAHRC) report found that 9% of municipalities were in a crisis state of water services with an acute risk of disease outbreak, with a further 38% at high risk. The same report found poor, rural communities of KwaZulu-Natal, North West, and the Eastern Cape especially vulnerable, and noted, “those areas which lack water and sanitation mirror apartheid spatial geography.”
Not only is there not enough, nor equitably distributed, available water, but the water crisis is compounded by sewage. The 2013 Green Drop report classified one third of sewage treatment plants as in a critical state and a further 20% in a poor state. Only 134 of the 824 plants were in excellent or good condition. A 2017 report by the Mail & Guardian estimated that the number of sewage plants in excellent or good condition could be as low as 60. The report estimated 50 000 litres of sewage flow into South Africa’s rivers every second through broken pipes and treatment plants. Sometimes only 1%, rather than the recommended 15%, of plant value is spent on maintenance yearly. Other times, hundreds of millions of rand are spent and nothing is fixed.
South Africa’s sewage problem clearly infringes South Africans’ section 24 constitutional right to an environment not harmful to their health or wellbeing, environmental protection, and prevention of pollution and ecological degradation. Sewage treatment plants in poor or critical condition also violate section 19 of the National Water Act (NWA), which declares that anyone who owns, controls, occupies, or uses land for any use that could cause pollution of a water resource must take “all reasonable measures” to prevent said pollution. Further, section 28 of the National Environmental Management Amendment Act (NEMA) holds every person who may cause pollution or environmental degradation responsible for minimising said pollution.
Existing environmental legislation is ineffective at preventing pollution. The broad scope of the NEMA provides sufficient justification for government departments to issue compliance notices, but compliance notices only constitute criminal offences when the Ministers or MECs of the issuing departments report the matter to the Director of Public Prosecutions. Even when an action is considered a criminal offence, as are actions that fail to comply with section 19 of the NWA, the penalties for pollution are usually not harsh enough to serve as deterrents. This could also be due to a lack of powerful enforcement bodies. For example, the NWA gives Catchment Management Agencies (CMAs) authority to take action to remedy incidents of pollution, but only two – the Inkomati-Usuthu in Mpumalanga and the Breede-Gouritz in the Western Cape – of nine proposed CMAs are currently operational, and the National Treasury has not budgeted for any more through the 2019/2020 fiscal year.
Until sanctions for failure to maintain dilapidated infrastructure systems are more costly than ignoring them, South Africa can expect these abuses to continue. If national and municipal governments cannot properly direct funds to maintain infrastructure, environmental degradation will worsen, and South Africa will always be at risk of not having sufficient clean water. As any Cape Town resident will tell you, it is not enough simply to pray for rain.
By Antonia Drummond: Intern, Centre for Constitutional Rights