Water, law and the constitution


It is quite remarkable that SA’s mother city, surrounded as it is by a vast ocean, pristine before the direct disposal of semi-treated sewage in it, yet blessed with vast untapped aquifers, should be water-stressed.

Every day copious amounts of grey water and effluent are discharged into the sea either down the drains or via the waste-water treatment plants dotted around the landscape. Why should Cape Town be staring down the barrel of “day zero water” with threats of a dubious “water levy” being bandied about by hapless authorities, whose maladministration of the situation is the stuff of
many urban legends?

The sailor on the becalmed ship in Samuel Taylor Coleridge’s “Rime of the Ancient Mariner” who
exclaimed: “Water, water everywhere, nor any drop to drink” was making his oft-quoted observation before desalination of the sea was even contemplated, let alone a vibrant international industry.

As climate change becomes more manifest, the pressure on the water resources of SA increases. SA has always been a water scarce country; the position is now exacerbated by unpredicted, and apparently unpredictable, droughts, the pressure of population and creeping desertification of swathes of the countryside and the entire Western Cape including the City of Cape Town.

The Constitution is very specific about water. Rightly so, it is essential to all life, including human life. The electrolytes in water render it an essential part of daily nutrition. In section 27 of the Bill of Rights it is stated that: “Everyone has the right to have access to sufficient food and water…
The state must take reasonable legislative and other measures, within its available resources, to  achieve the progressive realisation of these rights.”

Under section 28:
Every child has the right … to basic nutrition [and] a child’s best interests are of paramount importance in every matter concerning the child [child means a person under the age of 18 years].

If “nutrition” is read to include “water”, as it surely must be, then these two sections are at the core of the law concerning access to water. The provisions of section 7(2) of the constitution apply:
“The state must respect, protect, promote and fulfil the rights in the Bill of Rights.”

This section is the provision that makes the Bill of Rights justiciable. Access to water may be litigated, just as it may be the cause of World War Three. It should be noted that the child’s right to nutrition is not hedged about with qualifications of the kind that apply to adults’ access to adequate water.

A Jutastat word search, which is the lawyer’s weapon of choice in the electronic age, reveals that the word “water” is referred to 8127 times in the statutes of South Africa, including our supreme law, the Constitution. The topic is accordingly vast. It is even a crime, under the Animals Protection Act, by any person who conveys, carries, confines, secures, restrains or tethers any animal without making adequate provision for suitable food, potable water and rest for such animal in circumstances where it is necessary.

The long title and preamble to the National Water Act of 1998 make instructive reading:
“To provide for fundamental reform of the law relating to water resources; to repeal certain laws; and to provide for matters connected therewith.

RECOGNISING that water is a scarce and unevenly distributed national resource which occurs in many different forms which are all part of a unitary, inter-dependent cycle; RECOGNISING that while water is a natural resource that belongs to all people, the discriminatory laws and practices of the past have prevented equal access to water, and use of water resources; ACKNOWLEDGING the National Government’s overall responsibility for and authority over the nation’s water
resources and their use, including the equitable allocation of water for beneficial use, the redistribution of water, and international water matters; RECOGNISING that the ultimate aim of water resource management is to achieve the sustainable use of water for the benefit of all users; RECOGNISING that the protection of the quality of water resources is necessary to ensure sustainability of the nation’s water resources in the interests of all water users; and

RECOGNISING the need for the integrated management of all aspects of water resources and, where appropriate, the delegation of management functions to a regional or catchment level so as to enable everyone to participate;”

The Act has Seventeen Chapters and Seven Schedules: it aims to deal with the matters identified in the preamble quoted above as comprehensively as possible.

Any law, not only one that regulates the use of water countrywide, is only as good as the manner in which it is implemented.

It would appear that in Cape Town, in the past, there has been an over-dependence on surface water that is stored (and evaporates) in dams – and that recycling water, accessing groundwater and desalinating sea water have been somewhat neglected in the decision-making processes that are aimed at ensuring constitutionally compliant access to water for all.

According to press reports, the City of Cape Town will play host to one of the world’s largest water loss conferences in 2018. This was announced by the Western Cape’s investment agency in July 2017.

This welcome announcement came as the city is experiencing its worst drought in 100 years, with Level 4b water restrictions introduced in July which limit use to 87 litres per person, per day, now escalated to level six.

In a statement, Wesgro CEO Tim Harris said more than 500 participants, from more than 50 countries, were expected to attend the International Water Association Water Loss Conference. The conference is scheduled to take place from May 7-9, 2018, at the Century City Conference Centre and Hotel.

“We are certain this conference will provide attendees an unparalleled opportunity to share  insights and potentially collaborate to find sustainable, long-term solutions to one of the biggest challenges facing, not just the Cape, but regions across the globe,” Harris reportedly said.

Mayor (for now anyway) Patricia de Lille believes the conference will help the City achieve its goal of becoming water resilient, so as to ensure that residents and the economy could adapt to drought conditions.

“We are positioning Cape Town as the ideas capital in Africa, where it is precisely these kinds of events we want to attract, so that this becomes the point where great ideas are discussed and taken all over the world to be implemented,” she said, according to press reports.

The “Water Resiliance Plan” announced by the Mayor on the 17th of August 2017 envisages the use of desalination plants at three locations around the Cape Peninsula: Granger Bay, Hout Bay and Dido Bay in Simonstown. Over and above the starting of the tender process for desalination, there will also be tenders relating to extraction of ground water and the re-use of water already in circulation in the city.

It may become necessary to rethink the use of potable water for sanitation purposes, cleaning and irrigation.

These more drastic measures will depend on the success or otherwise of the Water Resilience Plan. Perhaps there will be fresh and novel ideas that emerge from the planned conference next May.

The days of over-reliance on inaccurate long-term weather forecasts are numbered. Greater rigour is required in dealing with the shortage of water and the use of potable water for purposes that do not require that the water in use be potable.

Ordinary householders in Cape Town are resorting to showering – not necessarily alone, but certainly with a bucket, using its grey water contents to flush their toilets or to water their plants; they are installing Jojo tanks to harvest rainwater from their roofs, investing in boreholes and wells, pool covers and water-wise plants for their gardens. Unwashed cars are not yet a status symbol, but
ways of keeping cars clean without water are being devised.

The need to adapt lifestyles in the quest for access to adequate water has already prompted a great deal of innovative thinking. There will no doubt be more to come.

The proposed water levy which the City wishes to implement is problematic. If the drought is regarded as a natural disaster, as it should be, is it not the duty of national government, as acknowledged in the legislation referred to above, to involve itself in the alleviation of the disaster?

This proposition can be tested at no cost by complaining to the Public Protector that there is serious
maladministration going on, due to the hands-off approach of the national government, and the picking of the pockets of ratepayers, which is the City’s strategy for dealing with the crisis. A comprehensive and constitutionally-compliant plan to deal with the crisis of a waterless mother city is surely not beyond the wit of those with their hands on the levers of power in SA, as it appertains to water.

It is also conceivable to litigate the service delivery failure in respect of the human rights mentioned above. The state guarantees an environment that is not harmful to health and well-being in section 24 of the Bill of Rights. Declaratory, mandatory and supervisory relief is claimable due to the current response of the authorities apparently failing to pass constitutional and legislative muster.

Paul Hoffman SC is a director of Accountability Now

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