Finance Minister Mboweni, in his medium-term budget policy speech in October 2018, resorted to drastic means by tasking the South African National Defence Force (SANDF) to resolve the situation in an operation that is expected to take one year. On Friday, 23 November 2018, 200 troops were deployed, with 300 troops to strengthen their numbers soon, according to Colonel Mahapa, Commander of 1 Construction Regiment. This approach was met with mixed reactions, with most commentators welcoming government’s decision and expecting the SANDF to be effective in its goal. However, one should not focus only on the political message, but rather on the substance of the plan. To do so, the two central questions to be answered are: first, what is the constitutional mandate of SANDF in this case? Secondly, what is the natureofthis sewage crisis? 

The first question is answered by sections 200 to 204 of the Constitution and the Defence Act of 2002 (the Defence Act). The Constitution determines the military force’s primary purpose to be the defence and protection of the Republic, its territorial integrity and its people. To taskthe engineerformation of SANDF to solve the crisis in Emfuleni appears to be covered by the broader purpose of protecting South Africans.

Further specifications are given in chapter three of the Defence Act, which deals with the “employment and use of defence force”. It provides substantiated objectives on which the President or the Minister of Defence are authorised to resort to the armed forces. These are, amongst others, to preserve life, health or property in emergencyor humanitarian relief, to ensure the provision of essential services and support any department of State, including support for purposes of socio-economic upliftment. Thus, the Constitution and the Defence Act explicitly allow the Executive to resort to the SANDF to solve the Emfuleni crisis.

It is remarkable that the Constitution distinguishes strictly between the military deployment for purposes mentionedabove and any deployment in co-operation with the South African Police Service (SAPS). While the former could be authorised by the Minister of Defence himself, the latter can only be done by the President. This must be borne in mind when thinking about the second question, looking at the nature of the crisis SANDF is supposed to tackle.

The primary causes behind the crisis lie in the fact that the wastewaterinfrastructure is in a dysfunctionalstate and the sewage water does not reach the wastewatertreatment plants. According to a Businesslive report, only 15 of the municipality’s 46 pump stations are working, suffering fromcable theft, vandalism and irreparable electric motors. The situation is compoundedby the fact that large parts of the pipe system are in a dysfunctional state too. This can largely be attributed to a total lack of maintenance in the last decade.

While these primary causes directly led to the sewage being spiltinto the Vaal, there are secondary causes that allowed them to occur. These are maladministration and corruption in the municipality. Although more than R3 billion has been spent by the national Department of Water and Sanitation on wastewater treatment schemes in Emfuleni since 2011, no effective steps were taken to prevent the current situation. Maybe reasons could have been found by the Auditor-General (AG) when scrutinising the municipality in October. Sadly, the audit was suppressed by an unknown assailant shooting an AGofficial in her leg while she was sleeping. On top of these negative factors hindering the output of the municipality, Emfuleni faces problems on its input-side, such as an average revenue collection rate of 68% and widespread water and electricity theft.

Obviously, the sewage crisis in Emfuleni is not a natural disaster but the result of mismanagement. Therefore, this military deployment should not be confused with those responding to heavy floods or snowfalls.

The constitutional mandate of SANDF and the problems of the situation in Emfuleni point out two aspects of Mboweni’s plan that need to be considered.

Firstly, the distinction between SANDF deployments in cooperation with the police service and those for humanitarian relief must be maintained. Major-General TT Xundu and Col Mahapa explained that the relevant area will be declared a military zoneso the military can operate freely. They explicitly emphasised that besides the SANDF Construction Regiment, troops are deployed to protect the construction from theft and vandalism (“We just pray we don’t have to shoot anyone”). However, once the construction is done, SAPS will be responsible for protecting the facility. Therefore, it is key to get SAPS involved in the operation as a key stakeholder. Besides that, the conditions of deployment blur the lines between a purely humanitarian relief mission and one in cooperation with SAPS, which the Constitution constructs and must be respected. This is an aspect worth keeping an eye on.

Secondly, it is evident that military deployment can only address the primary causes of the crisis, leaving the secondary untouched. In much the same way that debt relief does not change an unprofitableeconomic undertaking, the physical restoration of the wastewater infrastructure does not address those circumstances that led to the ongoing water crisis. Therefore, SANDF may hopefully succeed in fixing the primary problems, and thus bring relief to those suffering from constitutional rights violations. However, the issue as a whole cannot be considered solved until a sustainable and effective administration is in place. This task lies at the door of the government, as mandated by section 195 of the Constitution.

By Jonas Pauly: Intern, Centre for Constitutional Rights
17 December 2018