Persistent Water Crisis in South African Municipalities as Legal Remedies Falter

South Africa is facing a significant water crisis, as nearly two-thirds of its municipalities have been identified as failing to provide residents with clean drinking water. The bleak scenario was highlighted in the latest Blue Drop Report, which revealed that out of 144 water-supplying municipalities, 94 were deficient in meeting the required standards for clean water provision in 2022. Furthermore, in 61 of these, the water treatment and supply were noted as being in a "critical state."

This alarming situation is not only a health hazard but also a governance challenge, particularly given the constraints on the Department of Water and Sanitation (DWS) when it comes to intervention. As it stands, the DWS cannot directly intercede to rectify these failures. Instead, the department's recourse is to request a province to intervene according to section 139 of the Constitution, following consultations with the Minister for Provincial Affairs and Constitutional Development.

However, the implementation of section 139—where a provincial government may place a municipality under administration—is a protracted process and heavily reliant on the political willingness to act. Associate professor Germarie Viljoen from North-West University expresses skepticism about this approach, highlighting the urgency that water service issues often command and the political complexities which make it an uncertain solution.

The proposed Water Services Amendment Bill could offer some assistance by empowering the department to issue directives to underperforming municipalities regarding water provision. Should these directives not be adhered to, the bill allows for the water minister to enable a takeover of the municipality’s water-related responsibilities by any qualified water services institution.

Notwithstanding the legislative intentions, DWS has faced non-compliance to directives in the past. According to Mavasa Wisane, DWS spokesperson, out of 88 environmental notices and directives issued in the 2022 financial year, a staggering 71 remained unaddressed. Although follow-ups are being conducted, questions arise regarding the department's capacity to enforce compliance effectively.

The situation is compounded by the department's track record of opening criminal cases against municipalities for water pollution, with no cases resolved in the last two financial years. Adelaide Chagopa from the Center for Environmental Rights doubts the immediate impact of the proposed directives. Chagopa calls for more stringent punitive measures to hold municipalities accountable, echoing a sentiment for the necessity of robust legal ramifications for failure to meet water provision obligations.

Public consultations for the Water Services Amendment Bill and the National Water Amendment Bill are slated for February. Nonetheless, the legislative journey for these bills may encounter delays due to the impending election year, which may affect the priority given to them.

The overall picture is grim: residents remain deprived of their essential need for clean water while legislation and interventions lag behind in effectiveness. The water crisis is not only a public health emergency but also a stark illustration of governmental impasses that must be overcome through decisive action and political will.