Litigation alone is not the answer to South Africa's water and sanitation crisis

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

It was widely reported last month that among the 850 wastewater treatment works (WWTWs) tested for 2022 Green Drop Report334 (39%) were in “critical” condition. Of these, only 168 had CAPs submitted to the Department of Water and Sanitation (DWS).

There are said to be plans to prosecute several of these water service providers (all municipalities), following the recent successful conviction of the municipality of Lequa for rampant failure to treat water in contravention of water legislation.

I was Quoted as critical It is an option to pursue criminal prosecution of non-conforming municipalities because it does not necessarily solve the fundamental problem of wastewater discharge into water supplies.

Ultimately, the problem, which is more widespread than the 334 workers in the world, mentioned above (these are just the “critical” problems), is not scientific or technical but about governance and political will, exacerbated by age-old issues and an acute shortage of funding and other resources. Like technical skills.

Needless to say, the pollution of South Africa’s water resources is a huge problem, and perhaps it would be more appropriate to refer to it as a crisis. Polluted water kills animals and other organisms, poses a health threat to humans (as it did during the recent Hammanskraal cholera outbreak) and undermines water’s function as a critical economic resource.

This last aspect has been highlighted time and again before Professor Anthony Turton. All of this is taking place in a water-scarce country, where water availability will be reduced by the effects of climate change and a growing population.

Litigation obstacles

Several colleagues have asked me if it would be possible (or if it would be beneficial) to use litigation to force relevant government agencies to comply with the law (properly treat wastewater). This treatment is called compulsory prohibition.

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

The first hurdle relates to the fact that sanitation services are the jurisdiction of the local government in terms of the constitution. This means that other areas of government (DWS, for example) usurping this function or interfering with the local government’s exercise of this function is unconstitutional.

Read more at The Daily Maverick: The department brings criminal charges against municipalities that fail to fulfill their mandate to provide sanitation services

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

The fact that many of the local government entities are the ones violating the law is also of a complication, for other reasons. Firstly, there are a lot of them. If it targets a failing local government entity, there will be many potential respondents in the lawsuit.

The addition of more circularity is that, in many cases, it will be difficult to think of an appropriate remedy (i.e., what the municipal court will order the municipality to do), since many of the worst-failed municipalities do not have sufficient financial resources (and would not have sufficient financial resources under the models current funding) to solve problems.

Perhaps many municipalities do not know exactly what the problems are due to the hemorrhage of experience in the public water sector, especially local government, over the past two decades or more.

Then there is the potential problem of municipalities ordering repairs and spending huge sums on contractors who don’t fix the problem, as clearly happened in Hammanskraal.

In my opinion, the key to successful litigation is in Section 3 of the National Water Code. It provides this: “As the general custodian of the country’s water resources, the national government, acting through the minister [of Water and Sanitation]It shall ensure that water is protected, used, developed, maintained, 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 guardianship means in this context (there are many academic views), but it does at least mean that the national government must ensure the things mentioned in this section, including that waters are protected. It seems clear that the national government falls dramatically short of this mandate if one considers the condition of our rivers.

Responsibility stops here…

Does this mean that one should prosecute the Minister of Water and Sanitation? The problem with this is that the department will not have sufficient financial resources to properly handle the problem, even assuming that it can overcome the problem of interfering with the jurisdiction of the municipality.

Ultimately, responsibility as per Section 3 rests with the National Government, which operates through the Minister of Water. If the minister does not have sufficient resources to address the problem, the national government must ensure that sufficient resources are provided to do so.

Litigation can target the president (as head of the national government) to develop a plan to deal with the problem (working through the minister), and then implement the plan.

This plan is based on an idea help Rather than interfering with their mandates (which is constitutionally acceptable), municipalities will have to provide adequate funding and provide other necessary resources. These resources should be sufficient to address the problem now and to provide the necessary maintenance and related funding to keep the system functioning properly in the future.

Deficient municipal procurement practices and lack of technical expertise at this level can be addressed by providing the plan to centralized procurement practices (to provide economies of scale) and establishing a team of engineers and other experts employed by DWS to assess what is necessary to address the problems at the local level and to ensure continued performance.

This would save the costs of many expert consultants who would have to be contracted by local government agencies to assess their needs and fix problems.

The current water crisis has a potential negative impact on Article 27 of the Constitution, which provides for the right to access water (at least for basic human needs) as well as Article 24, the right to an environment that is not harmful to health or well-being. .

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

The Constitutional Court said in big tree issue In the year 2000, as the right is being progressively realized (in this case it was the right to housing), not only is the government required to have a plan in place to provide this realization, but the government must continually ensure that the plan is implemented. This is required in the case of water.

It is also worthwhile to keep in mind that the water crisis is occurring at the same time that South Africa is experiencing worrying electricity shortages, and when many aspects of the government’s provision of housing, education, health, transport infrastructure, and other services are in shambles. .

It is probably unrealistic to expect the government to be able to handle water issues on its own, even if ordered to do so by a court. Just as many of the other problems mentioned here will benefit from government working with the private sector, so will the water crisis, and this should be a central component of any plan put in place to address the flow of sewage into our sewers.

While the obvious culprit responsible for South Africa’s biggest water pollution problems is collectively the local government, targeting them through the courts to solve the problem would be a band-aid hashish solution.

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

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