Water is the lifeblood of human existence. Justice Kate O’ Regan, penning for the Constitutional Court in Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) emphatically stated that without water, we will all die. This is indeed a truism because, without water, nothing organic grows. The very existence of human life and life itself, hinges on water.
Human beings require water for various reasons, such as drinking, cooking, washing and growing food. Water is indispensable for leading a life in human dignity. It is also a prerequisite for the realisation of other fundamental human rights. It is thus not surprising that our Constitution entrenches the right of access to water as a justiciable socio-economic right.
Whilst acknowledging that the democratic government has made significant strides in the provision of water and sanitation, it is however, equally important not to lose sight of the fact that deep inequalities still persist in our society along race, class, gender and location. Approximately, over 3 million people in South Africa still do not have access to a basic water supply service.
Most-often and sadly, women and girl-children are the “bearers of water”, as they have to spend countless number of hours engaged in laborious activities of collecting water from far flung places, such as streams, pools and distant taps, to ensure that their families have a daily supply of water. This is not only an arduous task for women and girl-children, but it often comes at a huge cost to life. In January this year, young Mosa Mbele tragically lost her life when she drowned in a river in QwaQwa, in the Free State Province, while trying to fetch water.
It is a sad irony that in a country such as ours, which is described as a middle income country, and somewhat advanced, a child has to lose her precious life whilst fetching water. Yet on the other hand, billions of rand are wasted by the state, particularly by the local sphere of government. These huge amounts of money lost could have gone a long way in the upliftment of our communities and ensuring that no child has to risk their precious life, let alone die, in an attempt to get something as basic as water.
The Commission has also observed that disruptions to water supply and issues with water quality are now becoming a perennial problem for a significant number of communities in South Africa, particularly in poorer areas. These disruptions are alarmingly increasing and spreading throughout South Africa. From Ladysmith within the Emnambithi Local Municipality in the KwaZulu Natal, to Hammanskraal in the Tshwane Metropolitan Municipality in Gauteng, to Makhanda in the Eastern Cape, to mention just a few.
In instances where emergency or interim measures are set up to supply water (i.e. through water tankers), such water is hardly ever supplied on time as promised and when it is delivered, it comes at irregular intervals and of a very poor quality. The Commission has observed this in the Madibeng Local Municipality, where despite a court order to the effect that the Municipality provides the households in Klipgart C with water through truck deliveries and water tankers, on a regular basis, the Municipality has failed to comply with the court order.
Another pertinent challenge, has been the ageing infrastructure which has resulted in most waste water treatment plants being in dire straits or being on the verge of collapse, requiring urgent repairing and or full upgrading and refurbishments. According to statistics at hand, whilst 56% of waste water treatment works and 44% of water treatment plants are in a poor or critical condition, about 11% are completely dysfunctional. This poses a significant danger to the right to a healthy environment and to the health and wellbeing of communities.
The Commission in 2019 issued an investigative report which found that the municipalities in Mpumalanga, namely Nkomazi Local Municipality, Lekwa Local Municipality and Govan Mbeki Local Municipality, had all failed in their constitutional and legislative obligations to ensure to its residents an environment that is not harmful to their health and well-being. These municipalities had failed to effectively address the challenges of sewage spillages, such that untreated effluent was flowing into primary strategic water resources.
Since the Commission, is constitutionally mandated to make recommendations to all spheres of government and all organs of state where it considers such actions advisable for the adoption of progressive measures, for the promotion of human rights within the framework of the Bill of Rights in the Constitution, it has recently engaged with the technical Inter-Ministerial Committee (IMC on Service Delivery) chaired by the Director General in the Office of the Deputy President.
In that engagement, the Commission highlighted its concerns around the unacceptable state of water and sanitation in the country and made some recommendations. These include amongst others: an urgent re-assessment of all water and waste water treatment works and plants in the country; immediately effecting repairs to those that are dysfunctional; and invoking with immediate effect the polluter-pays principle for both state and private actors alike, to ensure that harsh consequences are meted out to those who pollute our scarce water resources. The Commission will soon be engaging at a political level with the IMC on Service Delivery to ensure that the district development model addresses some of the challenges identified by the Commission.
It is encouraging to note that the Department of Water and Sanitation is taking serious steps to invoke the polluter-pays principle. Recently, criminal charges were laid against the Victor Khanye Local Municipality in the Mpumalanga Province for discharging untreated effluent into water resources. It is hoped that criminal sanctions meted out against those who pollute water resources will serve as a deterrent to potential water polluters.
As South Africa joins other nations in commemorating World Water Day, on 22 March 2020, it should be reminded of its commitments pledged in the National Development Plan (NDP) and the Sustainable Development Goals (SDGs). The South African government has committed itself to ensuring that by 2030, all South Africans will have affordable and reliable access to safe and clean potable water and decent sanitation. Needless to say, that under ten years remain to deliver on these noble ideals. Failure, to do so will mean that the quest for access to clean potable water will remains a pipe-dream for the majority of the people in South Africa.
The Constitution identifies the achievement of equality as one of the founding values of our Constitution. However, as long as access to clean water remains marred with substantive inequalities, the achievement of equality will remain an elusive dream for many. The State, cognisant of the fact that the right of access to water is a justiciable and constitutionally enshrined right, and mindful of the fact that South Africa is categorised as a water scarce country, has to adopt a multi-faceted approach as a matter of priority and with a sense of urgency, to ensure that the constitutional guarantee of access to sufficient water for everyone is progressively and fully realised, whilst simultaneously, ensuring that this scarce resource, is carefully managed for future generations.
Advocate Mohamed Shafie Ameermia is a Commissioner at the South African Human Rights Commission.